Teaching Comparative

One last gasp at understanding

All the bold face emphasis in the items below was added by me. -KW

The Comments section of the China Law Blog post about Luo Gang's speech included this question from Jeremiah:

"...in the subsequent text, supervision is repeatedly mentioned (14 times) whereas independence is mentioned but once. I'd be interested to know then, given the appropriate context of Luo Gan's remarks, are Mr. Wang and Hui Mao now optimistic that China's courts will soon become sufficiently independent of the party and politics to act as an effective check on abuses of power, to rule as they see fit...?

Hui Mao replied:

"I do see Chinese courts slowly becoming more independent from the executive branch in the future... This has already happened to a certain degree. 15 years ago it was unheard of and unimaginable for Chinese citizens to file lawsuits against their government. Today thousands of these cases take place routinely in Chinese courts every year and the government loses a good portion of these lawsuits. With that said, I think this will be a slow process, and I don't think the Chinese judicial system will ever reach the level of independence you see in western countries without major political changes. None of these opinions, however, is based on anything from Luo Gan's speech. I think Luo's speech is just one of those typical Chinese political speeches: long, obvious, boring, full of politically correct cliches, and nothing groundbreaking. It certainly is not any sort of dire warning or signal any sort of major change of course like the NYTimes claims."

Jeremiah then wrote:

"It appears then that we are in agreement. I didn't take Luo Gan's speech to be any kind of major policy shift either. Quite the opposite, I took his remarks to mean that there would be few, if any, changes in the coming year. After reviewing the original text (thanks for the link), I see that your assessement of "long, obvious, boring, full of politically correct cliches, and nothing groundbreaking" is spot on..."

and finally, Joseph Wang wrote:

"...there is a lot of support for the premise that the way that the Party should control the courts is by having the legislatures write the laws and the courts interpret them impartially rather than have Party officials issue instructions directly to the courts.

"One reason that this is a popular idea is that this would likely strengthen central control that Beijing has over what happens. If you issue instructions through the party bureaucracy they are going to pass through many layers of people with their own agendas, which are often very different from Beijing's. By contrast, having a court system that is independent of local control and which strictly interprets the laws that Beijing issues, means that laws and regulations issued by the center get implemented on the ground more directly...

"Something that is interesting is the nature of the lawsuits and the role of the courts. In a typical lawsuit, no one is challenging the rule of the Communist Party. What is usually being challenged is a local official's implementation of the law, and the argument that is used is basically that the official... is acting in opposition to the Party center.

"There was nothing particularly new or remarkable about the Luo Gan speech. The big problem with the NYT article was that instead of trying to explain some of the assumptions and beliefs that Luo Gan have (which can be challenged), they were describing their own beliefs on the nature of the court system."

Labels: China, rule-of-law

posted by Ken Wedding @ 7:07 PM