Category Archives: China

5th Amendment Rights in China? (China)

Yes, I realize that China is not located within Southeast Asia. It is not and never will be a member of ASEAN. Nonetheless, the Chinese Supreme People’s Court’s recent actions might be of interest to students of judicial politics in Southeast Asia.

According to Reuters, he SPC has ruled that the use of torture to extract confessions is illegal. Interestingly, the SPC expanded the definition of torture to “the use of cold, hunger, drying, scorching, fatigue and other illegal methods” (Bush administration lawyers deemed that several of these methods did not to constitute torture).

On the one hand, the announcement is potentially revolutionary. Chinese police and courts have accepted confessions extracted through torture for millennia (the famous Judge Dee stories from the Tang Dynasty include several graphic torture scenes). On the other hand, as Reuters notes, there is likely to be resistance to the SPC’s announcement, especially from the state security system.

The announcement also raises questions about the SPC’s role in China’s legal system. The Court seemed to have a brief Marbury v. Madison moment in 2001 when it seemed to find a constitutional right to education (presumably making China’s 1982 Constitution enforceable). However, that decision also proved to be the last time the SPC interpreted the constitution. In 2010, the SPC officially withdrew the decision, presumably meaning it is no longer legally valid.

While I cannot claim to be an expert in Chinese law or politics, from what I understand the SPC’s current decision regarding torture is not an attempt to return to the activism of its 2001 decision, but rather represents a deliberate choice to focus reforming the system under its control. While the SPC might face resistance, judges do have the final word on accepting illegally obtained evidence, and hence share the blame for convictions obtained through illegal confessions. I suspect at the very least we will see more defendants claiming that their confessions were obtained through torture in the hopes that the judiciary will now act on their claims.

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More Chinese linkages with Myanmar’s courts

Every once in a while I see articles in The New Light of Myanmar about Myanmar judges meeting with Chinese judges. The visits are obviously public and official, as they are reported in the news. It’d be interested to see whether these visits are part of a a broader engagement. China has undertaken several judicial reform projects, but interestingly still managed to keep the judiciary both formally and informally under the Communist Party. On the one hand, given the pace of political reforms in Myanmar today, it’s hard to believe the government views China’s judiciary as a model. On the other hand, China’s successes in professionalizing judges might hold powerful lessons for Myanmar.

The most recent of these articles is below:

Chief Justice of Yangon Region High Court receives Vice-President of Yunnan Provincial Supreme People’s Court

YANGON, 21 May- At the invitation of U Win Swe, Chief Justice of Yangon Region High Court, a delegation led by Mr Wang Shuliang, Vice-President of the Yunnan Provincial Supreme People’s Court currently in Myanmar paid a call on the Chief Justice of Yangon Region High Court and justices at region chief justice hall this morning.

They discussed judicial affairs and also studied criminal cases.-MNA

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I pledge an allegiance, to the party…

I don’t often post about China, but the Justice Ministry’s latest move to require lawyers to take an oath to the Communist Party seems worth mentioning for those interested in law under authoritarian regimes. According to the BBC, the move was prompted as a response to public interest litigation by the likes of Gao Zhisheng (pictured courtesy of BBC) and Chen Gaungcheng. Still, it seems a very clumsy move for a country with many domestic and expat lawyers. Especially so coming on the even of a key political transition. My guess is somebody in the Justice Ministry had to prove his/her hardline credentials.

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A visit from big brother

While The New Light of Myanmar often reports on foreign delegations, it’s not often that the exchange focuses on judicial affairs. Yesterday, a delegation from China arrived led by Bai Jingfu, Deputy Director of the Internal and Judicial Affairs Committee of the National People’s Congress. He was in Naypyitaw met by Chairman of the Pyithu Hluttaw Judiciary and Legal Affairs Committee Thura U Aung Ko.

I’d only heard rumors before that Burma was looking to China as a model for governance, but this latest report might suggest an actual exchange. While still authoritarian, China’s government has improved the capacity and efficiency of its judicial system, so Mr. Bai might have insights to share. On the other hand, China’s Communist law system is (or should be) very different from Burma’s common law heritage. I’d love to see what they end up discussing. Sadly, I doubt we’ll see leaks from their meetings reported in NLM anytime soon.
I’ve reprinted the brief news clipping below:

Chinese Dy Director of Internal & Judicial Affairs Committee of NPC arrives

NAY PYI TAW, 13 Nov – A Chinese delegation led by Mr. Bai Jingfu, Deputy Director of the Internal and Judicial Affairs Committee of the National People’s Congress of the People’s Republic of China, visited Maha Myatmuni Buddha Image and U Pein Bridge in Mandalay this morning.

They left Mandalay this evening by air for Nay Pyi Taw. They were seen off at Mandalay International Airport by Deputy Speaker of Mandalay Region Hluttaw U Aung Htay Kyaw and members.

The Chinese delegation was welcomed at Nay Pyi Taw Airport by Chairman of Pyithu Hluttaw Judiciary and Legal Affairs Committee Thura U Aung Ko, Chairman of International Relations Committee U Hla Myint Oo and officials.-MNA

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Book Review: China’s courts as a model?

Here’s a new book review. It’s not Southeast Asia per se, but I think it might be interesting for anybody interested in courts in Asia. Also, China’s legal system is very similar to that of Vietnam, Laos, and Burma’s 1974 Constitution, so China could potentially serve as a model for the authoritarian countries in the region:
Judicial Independence in China: Lessons for Global Rule of Law Promotion is a great addition to any library on the rule of law. The book challenges the conventional wisdom about the importance of judicial independence. In particular, it shows how China’s government has increased judicial capacity and professionalism while still limiting independence. This is a very important finding considering that the rule of law industry spends billions of dollars promoting judicial independence in developing countries. 

The book is a collection of articles written by some of the top China-law scholars in the field, both Western and Chinese. Each chapter focuses on a unique aspect of judicial independence in China, from commercial litigation to geographic case studies. Overall, the articles fit surprisingly well together with very little repetition. The book progresses from wider notions of judicial independence to more specific Chinese cases.

Here are some comments on the individual chapters:

1) “Halfway Home and a Long Way to Go” – Keith Henderson
Henderson’s article introduces the conventional wisdom of the rule of law industry. It is a decent summary of this perspective. Nonetheless, the rest of the book challenges his recommendations.

2) “A New Approach for Promoting Judicial Independence” – Antoine Garapon
Judge Garapon directly provides a counterview to Henderson’s article. In particular, he discusses how concepts of judicial independence differ event among Western common and civil law countries, much less a global norm applicable to all countries. This is a powerful critique of the standard rule of law perspective (which he calls “global gibberish”)/

3) “The Party and the Courts” – Zhu Suli
As with his other work, Zhu provides a useful insider’s view of the Chinese Communist Party and the courts, arguing that the party has done much to strengthen the courts. However, at points he takes his argument too far. For example, it is certainly not difficult to imagine that the KMT would eventually have modernized the courts, much as they had done on Taiwan.

4) “Judicial Independence in China” – Randall Peerenboom
As always, Peerenboom makes good use of statistics on China’s judicial institutions. If you’re not familiar with his research, this is a good overview. However, otherwise there’s nothing new.

5) “A New Analytical Framework for Understanding and Promoting Judicial Independence in China” – Fu Yulin and Randall Peerenboom
Unfortunately, I didn’t find this article quite as helpful. Too much discussion of policy proposals and reforms rather than original research. It was also a bit unfocused.

6) “Judicial Independence and the Company Law in the Shanghai Courts” – Nicholas Howson
Howson’s study has some interesting data on the role of courts in commercial cases. In particular, he explores the extent to which Chinese courts are independent in the commercial as opposed to explicitly political context. However, it might be difficult to follow for a reader not steeped in commercial litigation concepts.

7) “Local Courts in Western China” – Stephanie Balme
Balme’s article is a unique view inside rural Chinese courts. She describes the daily lives of judges, the difficulties they face, and even their diary entries. Easily the best article in the volume.

8) “The Judiciary Pushes Back” – Xin He
Xin He analyzes China’s judicial politics through cases of `married out women.’ In an interesting twist, judges have been reluctant to accept these cases, fearing the lack the capacity and political basis upon which to decide them. Xin shows the courts as a political actor aware of their own limitations.

9) “Corruption in China’s Courts” – Ling Li
Ling’s article tries to measure patterns of corruption in China’s court. Not surprisingly, he concludes that crass physical intimidation are only found in the lower courts, while more subtle forms of corruption predominate among the high court judges. However, the methodology of relying on newspaper articles has many limits, particularly the fact that they don’t cover all cases – a fact Ling acknowledges.

10) “Survey of Commercial Litigation in Shanghai Courts” – Minxin Pei, Zhang Guoyan, Pei Fei, and Chen Lixin
This study focuses more on litigants as strategic actors in courts. Particularly interesting is the assessment of corruption. The authors claim that many corporate clients claim to have tried to influence judges, while a significant number of private parties tried but could not figure out how to influence judges. The methodology has some problems however, particularly the potential for bias among the respondents.

11) “Judicial Independence in Authoritarian Regimes” – Carlo Guarnieri
This article had potential, but is a bit too basic. It starts off with a basic comparison of common and civil law judges – something already covered by Garapon earlier. Some of Guarnieri’s examples were interesting, particularly Fascist Italy, but in the end he never goes into much detail about the court structure in his case studies.

12) “Judicial Independence in East Asia” – Tom Ginsburg
Ginsburg’s discussion of judicial independence more broadly is excellent. However, I’m not convinced by the linkage to China. Japan, South Korea, and Taiwan were under the influence of the U.S. and have relatively small, homogenous populations. By contrast, China is huge and the Communist Party still insecure about its power. Eventually, Northeast Asia might provide a model, but right now I don’t think it’s the best referent.

While overall this is a great volume for both rule of law practitioners, readers not familiar with China’s legal system already might find themselves lost during the first few chapters. Perhaps the book should have included a basic introduction to the structure of the people’s courts and constitutional provisions governing them. I’d refer readers to The Legal System of the People’s Republic of China in a Nutshell (West Nutshell) for a basic overview if they need an introduction.

A more serious concern about Judicial Independence in China: Lessons for Global Rule of Law Promotion is the lack of comparative law. Southern Europe and Northeast Asia might not be the best comparators for China’s current state of development. Rather, the book would have benefitted from a discussion of judicial independence in other developing countries and the challenges therein. For example, many observers believe Indonesia’s post-Suharto reforms gave courts too much independence too quickly without accountability, leading to the current problems with corruption. This contrast helps to explain China’s current approach.

Judicial Independence in China: Lessons for Global Rule of Law Promotion is definitely worth a read, whether or not your interests are centered around China, if only to get a different perspective on courts.

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