Critical thoughts about the Chinese Judicial Reform

Kitaw Yayehyirad KITAW (Yayeh KITAW) – 11 February 2017

The recent article on Judicial Reforms in China describes the reforms undertaken by the regime to restructure the judiciary branch. It argues that the reforms have strengthened the Chinese Communist party and solidified ‘rule by law’ rather than ‘rule of law ‘and reaffirms the regime’s rejection of the principle of judiciary independence.

The principle of judicial independence is respected in all liberal democracies.(Heywood, 2003, p. 35). Only in the last few decades, developing nations have been in a position to independently criticize such principles and closely related concepts such as the free market, secular liberal democracy and the nation-state framework in international relations (Fuller, 1995, p. 5)

Indeed, over the past decades, the Chinese leadership for instance, has been strongly underlining its distance from the principles of separation of powers. They tend to wrongly attribute these principles as being a ‘Western value’ (presumably inferred from their original proprietorship) when they are, in essence, applicable and inherently acceptable to all societies.

As Fuller asserts, all people ultimately desire a voice in the decisions that determine their fates and lives (Fuller, 1995, p. 4) and such a desire a fortiori  includes the quest for fair and independent justice.

The question is whether Fuller’s assertion is truly universal and if so, why have the Chinese authorities (and others) been unwilling to unconditionally adhere to its universality beyond labeling it as Western thinking as reflected by the Chinese Chief of Justice blatant declaration that ‘Chinese should not fail into the trap of the Western erroneous thinking and the independence of justice’.

As the article points out, there is an announced intent by the Chinese authorities to improve accountability and transparency by undertaking the Judiciary reforms. They remain, however, limited mainly to procedural reforms that do not question the overall absolute power of the ruling party over the judiciary and other branches.

All in all, my personal believe is that the principles of separation of powers (including the independence of the judiciary) are inherently universal principles (not exclusive Western values albeit their origins attributed to Aristotle, Montesquieu etcetera). They are applicable to and acceptable in all societies as human will ultimately seek a voice, impartiality and independence in decisions that affect their fate. Yet, the pace and forms of institutionalizing such principles is inevitably prone to variations and subject to many cultural and historical conditions. What remains critically important is that the reforms trend towards the independence of the judiciary as such principles will ultimately build societies benefiting from an impartial, fair and equitable justice for its inhabitants.

Y. Kitaw
PhD Fellow in Governance and Policy Analysis at UNU-MERIT Maastricht University
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