chapter  8
26 Pages

The People’s Court in Transition: The Prospects for Chinese Judicial Reform

ByQianfan Zhang

This chapter examines the limits of China’s judicial reform in order to illuminate the constraints of Pan Wei’s proposal for rule of law in China. Observers generally agree on two aspects about the development of rule of law in China. On the one hand, since its first experiment with “reform and opening” in 1978, China has made a “great leap forward” on the road toward rule of law; on the other hand, China still has a long way to go before it becomes a state truly governed by rule of law. In the span of two decades recovering from the trauma of the Cultural Revolution, the National People’s Congress (NPC) and its Standing Committee have made over 160 laws, the State Council has issued some 770 administrative decrees, and the local authorities have made over 5,200 local decrees.1 The judicial system did not remain stagnant. The courts and the procurators’ offices were reorganized in 1979 to better serve the new economic reform. By 1997, the number of persons employed in the various courts and the procurators’ offices exceeded 290,000 and 210,000, respectively. In the meantime, the number of lawyers has grown to 100,000, a public registry has been established all over the country, and legal aid centers had begun to emerge in the cities.2 Both the legislation and legal framework seem to have served their functions to buttress a burgeoning market economy, so far the major driving force of the Chinese reform. In 1999, the constitutional amendments explicitly avow, for the first time in the constitutional history of the People’s Republic, to “govern the state according to law” (yifa zhiguo) and “establish the socialist state of rule of law.” Yet observable marks, including seemingly solid ones like statistical data, can be deceptive and misleading; the quantity of achievements normally fails to relay the quality. In fact, the remarkable Chinese achievements in contributing to the rising expectation for steady progress in rule of law only make the deficiencies all the more conspicuous. Although China can now claim that the laws necessary for sustaining a stable flourishing society are by and large in place, these laws have yet to be obeyed and effectively enforced, hopefully before the common people become so disappointed as to treat them as pure sham. Writing the words on paper is, after all, only the first and comparatively easy step in a hitherto lawless society; making them count in daily life is a much tougher task, but its fulfillment is the very touchstone for rule of law. This task now confronts the Chinese government, particularly its judiciary-the very fo-

cus of this chapter, as it is commonly believed that the court is the last place that makes the laws count.3