No exceptions to the rule of law

By Jiang Ping
0 Comment(s)Print E-mail China Daily, October 20, 2014
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To ensure that judicial and procuratorial powers are independently and fairly exercised, there is need to set up a judicial jurisdiction mechanism independent of the existing administrative division system. The setting up of a sound judicial system will directly decide whether or not a country’s judiciary is independent and its functions are scientific.

Judicial powers mainly rest with the presiding judge. And judges, as civil servants employed by the courts, should be different from other civil servants who have to obey their superiors’ orders. Judges should decide a case according to the law and on the basis of facts, and lower-level courts should not necessarily pass verdicts with an eye to higher-level courts.

Putting judges in the same position as ordinary civil servants is judicial retrogression. To break the administrative stereotype of the “justice system”, there is need to break the hierarchical judicial establishment, in which “judges are subject to the presiding judge, who in turn is subject to the higher-level judges in the court system”.

To end the administrative stranglehold on judges and ensure that they independently use their powers to pass a verdict, the extant judicial committee has to be changed. Why cannot judges directly handling cases give a ruling and why should the verdict be subject to discussion by the judicial committee, which usually comprises some unprofessional members?

Besides, measures must be taken to ensure that the collegial panel can independently give a ruling in any case it is handling. Such a system will allow the collegial panel to hold closed-door discussions after the end of hearings and immediately give its ruling to avoid possible interventions from court and/or social leaders. Such a system can help reduce judicial interventions and ensure the independence use of judicial powers.

Also, a committee of experts comprising law professionals should be set up to replace the current judicial committee to offer legal advice to the collegial panel whenever needed to pass a verdict in accordance with the law.

The current practice of excessive dependence on the close coordination and cooperation among police, procurators and courts, too, should be changed, because of the obvious lack of effective mutual supervision among the three law enforcement organs. More importantly, the judicial reform should focus on promoting judicial transparency. Building a transparent judiciary is a precondition for judicial fairness, for only an open judicial process can avoid “black-box operations” and prevent wrong verdicts from being passed.

The author is a tenured professor at China University of Political Science and Law.


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