In November 2011, Wang Sixin, a law professor in the Communication University of China, opined, “In India, the common law tradition allows judges to begin litigation just based on a news report or a letter from a petitioner, whether [the petitioner is] a lawyer or not. China needs to adopt this practice.” This suggestion of his sounds quite ostensible considering a nation where freedom of speech and expression is highly censored and the judiciary has been used to further this dictatorship of the State. The same was the cruel case in Yiwu city with the Indian diplomat, S Balachandran, who was denied food and medicine despite his repeated requests that he was a diabetes patient; this went on till he actually collapsed and had to be rushed to the hospital. Balachandran was trying to present the case for the release of two Indians who had been kidnapped by Chinese traders because their Yemeni firm had not yet paid some dues. This blatantly ruthless and inhumane attitude displayed by the Chinese judiciary almost in connivance with the Chinese businessmen defines the attitude of the Chinese administration. Till a few years back, if you were a Chinese villager having more than one child, the government tractors would have mowed down your residence – an act that defines the Chinese sense of cruelty, or should I say Chinese torture. Needless to say, the poor villagers never got any support from the judiciary.
The Chinese judiciary has never been independent! In fact, it was in a muddle especially during the Cultural Revolution that curbed its functionality completely between 1966 and 1976. The jurisprudence was revived after 1976 and thence, a new legislation came into being by the end of 1980 under the purview of Organic Law of People’s Courts. Consequently, a new era began, marked by a paradigm shift in the country’s legal system! On the brighter side, the system was made very strong in order to encompass the entire nation under the judiciary system. The number of judges and associate judges, which was at meagre 50,000 in the 1980s was increased to 131,460 in the 1990s, and then again augmented to 258,000 in 2000s – an increase of 416 per cent! This means that the judges-to-population ratio of China is now around 1 to 8,600, which is in close range to the US ratio of 1 to 8,826 – something that we in India are attempting to dream about since the last 64 years!
Despite these impressive figures and massive infrastructure, the Chinese judiciary suffers from numerous problems that affect the very nucleus of the system. It is neither independent, nor are there any standards to determine their independence. The single State party’s influence doesn’t permit the judiciary to be impartial and unbiased, especially since the Communist Party of China keeps perpetually interfering with the court’s proceedings. Clearly, a non-democratic setup never had any space to acknowledge and appreciate the essence of a free and independent judicial system. Further, the funding of the judiciaries is not streamlined uniformly as more developed regions like Beijing, Shanghai or Guangdong have substantially higher disposal of resources than other regions. With better infrastructure, communication and salaries, these regions attract the best judges whereas the remote areas face veritable financial hardships – and lack of quality judges. This has forced many backward regions to augment litigation fees to discourage the parties from filing law suits! As of date, a discriminatory funding ploy by the Chinese government has led to a situation where the jurisprudence of certain areas has been pushed to the limit! In simple words, flow of funds is decided by the State depending upon the freedom the government wants to provide to a particular province. Thus, the remote areas are allocated less funds to ensure a weak judiciary that eventually deters citizens from filing suits and from protesting against atrocities. The residents of such targeted areas are kept entrapped in a situation wherein breaking rules would lead to serious perilous consequences.
Globally, the judiciary system – a true pillar of the economy – is kept independent of political interference and has absolute power with independent staffs that hail from no political party – be it the ruling party or the opposition or any third party. Contrary to this philosophy, China’s judiciary is not separated from its political process. There is no separation of power between the government and the judiciary! The National People’s Congress (NPC) reigns supreme there and has every right to undermine and destabilize the independence of judiciary. The judicial appointments (judges and jury members) are under the ambit of NPC and so is the supervision of it. Thus it is this ruling party that literally decides the person who would chair the court – or shall I say, would decide the fate of the aggrieved party. Putting things into a better perspective, one needs to have a political party affiliation to be a judge in China. As a quid pro quo, it is essential for the judges and the jury to follow the decree of party leadership and perform a variety of functions! The court also acts as a civil law magistrate and has to find evidence for any criminal prosecution that is being handled! A judge’s role is more like an intermediary’s, who explains the policies brought about by the government (or at least the legal side of such policies)! Therefore, performing the role of a judge – as it is being performed in most countries – is only a miniscule part of a judge’s assigned functions and not the prime duty. Alarmingly, a judge in China might not ever have given any verdict but might have performed other roles stated above! He might be merely a little better than a party worker, yet he is called a ‘judge’. In this way China has bloated the figure of its total size of judges – but in reality it is just a farce.
Most interestingly, the Supreme People’s Court (SPC) has to submit a periodic report of its functioning to NPC for approval and review. Thus, today, NPC is seen poking its nose in almost all judicial affairs and individual cases and manipulating the court’s decision. Local governments have the power to literally advice the court on cases related to the government and also forces the courts to bluntly dismiss any appeal that can be harmful during proceedings. Local courts rarely favour the public and most of the times, drag the cases for indefinite time period. The appointment of judges is also influenced by local governments which make it impossible for the courts to be impartial especially in remote areas where the government can’t reach frequently. The lower courts approach the higher courts for directly getting involved in judgments. This snatches away the opportunity of the litigant to appeal before the higher courts, which may have already given an uninformed verdict without giving the claimant a chance to present the case before the higher courts! In essence, these courts have puppets setup by the local government. Read More....
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