Placing Power in the Cage of Law: Judicial independence in China

• Author: Caitlin E. Schultz
• Position: Capital University Law School, juris doctor candidate 2016. University of Missouri-Kansas City China Summer Law Program at Peking University, student, Summer 2015. Muskingum University, Valedictorian, BA in journalism, 2010. Lanzhou University, Gansu Province, China, visiting student, 2008?09. Thank you to Dr. Thomas McGrath, Associate ...
• Pages: 393-427

PLACING POWER IN THE CAGE OF LAW:

JUDICIAL INDEPENDENCE IN CHINA

CAITLIN E. SCHULTZ *

I. INTRODUCTION

Over the past fourteen years, the United States Congress has allocated

$320 million to aid programs in China specifically targeting human rights,

democracy, rule of law, and related activities.1 Aid went to projects

supporting China’s own judicial independence goals, including government

transparency, criminal justice reform, and access to legal counsel.2 This aid

has decreased over time, especially as China has become more capable of

financing its own development.3 Critics of U.S. monetary support to China

point to marginal results because of “political constraints” and suggest

focusing on “changing China’s approach to the law rather than expanding

existing rule of law programs.”4

China is making great strides in changing its approach to the law without

support from the United States. What China needs more than financial aid

or outside incentive to improve its own judicial processes is for the United

States to fulfill its statements that its leaders so often speak of: promising to

render intangible support, encouragement, and a spirit of cooperation.5

Copyright © 2016, Caitlin E. Schultz.

* Capital University Law School, juris doctor candidate 2016. University of Missouri-

Kansas City China Summer Law Program at Peking University, student, Summer 2015.

Muskingum University, Valedictorian, BA in journalism, 2010. Lanzhou University, Gansu

Province, China, visiting student, 2008–09. Thank you to Dr. Thomas McGrath, Associate

Professor of History at Muskingum University; to the Sinocism newsletter for delivering

timely and interesting China news and co mmentary; and to Jeffrey Snapp, Professor of Legal

Research and Writing at Capital University Law School.

1 THOMAS LUM, CONG. RES. SERV., RS22663, U.S. ASSISTANCE PROGRAMS IN CHINA 1

(2014), http://fas.org/sgp/crs/row/RS22663.pdf.

2 See id.

3 See id. at 2.

4 Id. at 3.

5 See Press Release, The White House, Remarks b y President Obama and Vice President

Xi of the People’s Republic of China Before Bilateral Meeting (Feb. 14, 2012),

https://www.whitehouse.gov/the-press-office/2012/02/14/remarks-president-obama-and-

vice-president-xi-peoples-republic-china-bil. On February 14, 2012, President Obama stated,

394 CAPITAL UNIVERSITY LAW REVIEW [44:393

The United States cannot change China, but China can change China.6

If the United States focuses its support on encouraging China’s judicial

reforms, both nations will benefit and come closer to a spirit of cooperation

and understanding.

On October 23, 2014, the Central Committee of the People’s Republic

of China7 announced a major plan for legal reform.8 This plan is universally

translated as “rule of law” reform, but outsiders attack the reform’s

translated name and substance because of its improbability of achieving the

[It] is absolutely vital that we have a strong relationship with China. And

we have continually tried to move forward on the basis of recognizing

that a cooperative relationship based on mutual interest and mutual

respect is not only in the interests of the United States and China, but is

also in the interest of the region and in the interest of the United States—

in the interest of the world.

Id.

6 See, e.g., Dan Blumenthal, Is China at Present (or Will China Become) a Responsible

Stakeholder in the International Community?, REFRAMING CHINA POLICY: TH E CARNEGI E

DEBATES (June 11, 2007), http://carnegieendowment.org/files/Blumenthal_Responsible

%20Stakeholder%20Final%20Paper.pdf. “Only China can change China. . . . [W]e cannot

convince China to conform to our definition . . . . It will have to do so on its own.” Id.

7 The nation is officially called the People’s Republic of China (PRC), but this Comment

will simply refer to it as “China.” The PRC is not to be confused with the Republic of China

(ROC), more commonly known as Taiwan, over which the PRC claims sovereignty. The

PRC is sometimes referred to as “mainlan d China,” excluding not only Taiwan but also Hong

Kong and Macau, two Special Administrative Regions (SARs). Moreover, the PRC came

into existence in 1949, and this Comment discusses cultural, linguistic, and historical matters

not limited to post-1949. For a discussion of the PRC, the ROC, and SARs, see SUSAN V.

LAWRENCE & MICHAEL F. MARTIN, CONG. RES. SERV., R41007, UNDERSTANDING CHINA’S

POLITICAL SYSTEM 1, 9 (2013), https://www.fas.org/sgp/crs/row/ R41007.pdf.

8 See CCP Central Committee Decision Concerning Some Major Questions in

Comprehensively Moving Governing the Country According to the Law Forward, CHIN A

COPYRIGHT & MEDIA BLOG (Oct. 28, 2014), http://chinacopyrightandmedia.

wordpress.com/2014/10/28/ccp-central-committee-decision-concerning-some-major-

questions-in-comprehensively-moving-governing-the-country-according-to-the-law-

forward [hereinafter Decision Translation].

2016] JUDICIAL INDEPENDENCE IN CHINA 395

Western9 standard of rule of law.10 At the conclusion of the planning

meeting, the committee publicly released the Chinese Communist Party

Central Committee Decision (Decision), 11 which explains the judicial

reforms and describes them from a uniquely Chinese perspective on law and

governance.12 Modern Chinese politics is rooted in China’s historical legal

tradition,13 and understanding this background is essential to improving U.S.

foreign policy toward China.

Xi Jinping 14 repeatedly emphasizes the nation he leads will not

transition to a Western democracy.15 China’s leaders clearly express that

sentiment, and the Communist Party of China is “still the most important

political and developmental force for contemporary China.”16 Although

China could potentially achieve the Western standard of rule of law, the

standard is inapplicable to China’s current system of governance.17 China

is capable of moving toward a strong and independent judiciary that places

9 “Western” refers not to a geographic area of the world, but rather to the modern political

distinction of nations that exhibit liberal democracy. This use is an oversimplification, but

the label highlights the black-and-white approach toward China’s very gray politics and

government.

10 See, e.g., Paul Gewirtz, Opinion, What China Means by ‘Rule of Law’, N.Y. TIMES

(Oct. 19, 2014), http://www.nytimes.com/2014/10/20/opinion/what-china-means-by-rule-of-

law.html.

11 Decision Translation, supra note 8.

12 See infra Part IV (describing “Socialist rule of law with Chinese characteristics”);

Decision Translation, supra note 8, at art. I.

13 See infra Part II.A.

14 Xi Jinping is the President of the People’s Repu blic of China and the General Secretary

of the Communist Party of China. See LAWRENCE & MART IN, supra note 7, at 2. His dual

role as leader of the state and leader of the Party gives hi m great power over China. Id.

15 Angela Meng, Xi Jinping Rules Out Western-Style Political Reform for China, S.

CHINA MORNING POST (Sept. 6, 2014), http://www.scmp.com/news/china/article

/1586307/xi-jinping-rules-out-western-style-political-reform-china. According to political

and legal expert Jacques DeLisle, Xi Jinping believes unifying the leadership will develop

the nation, and one “long-standing Chinese leadership critique of Western-style democracy

is that it is prone to paralysis and gridlock and ultimately governmental weakness.” Id.

16 Zhu Suli, The Party and the Courts, in JUDICIAL INDEPENDENCE IN CHIN A 52, 52–53

(Randall Peerenboom ed., 2010).

17 See infra Part II.A.