In recent weeks, China has slipped into a place of turmoil with respect to its discourse on the concept of “judicial independence,” or sifa duli (司法独立). The recent hostility in official circles toward what has long seemed a point of consensus within the Chinese Communist Party sends a worrying signal for rule of law in the country.

On January 7, more than 100 websites in China re-posted an article from the Party’s official People’s Daily called “Our Rule of Law Cannot Travel the Same Road as the West’s ‘Judicial Independence'” (我们的法治不能走西方“司法独立”的路子). The article, written by politburo member Zhang Chunxian (张春贤), the top leader of China’s Xinjiang Uygur Autonomous Region, kicked up a storm of confusion on China’s internet. Over the past three decades of reform, the slogan “judicial independence” has been consistently upheld as something positive. Why, now, were the tables turning?

In the Maoist Era, the Term Goes “Black”

In China’s pre-reform period, political discourse was a simple matter of black or red. Anything that wasn’t red, meaning accepted as a part of Mao Zedong’s official discourse, was by definition “black” — unwelcome and dangerous.

After 1949, the Chinese Communist Party announced that it would “repeal all laws, acts and judicial systems of the reactionary and repressive Kuomintang government.” From that point on, the notion of “judicial independence” was mercilessly criticized, branded a “black word” (黑色词语).

One of the chief goals during the first few years of Communist rule in China was to redefine the relationship between the country’s new rulers and the administration of justice. When the Provisional Organization Procedures for People’s Courts (人民法院暂行组织条例) were promulgated in September 1951, Communist authorities emphasized that courts at every level must accept the leadership and oversight of corresponding government leaders (People’s Daily, September 5, 1951). The case was made more directly in the October 30 edition of the People’s Daily that same year, which stated that “judicial work must actively serve politics” (司法工作必须积极地为政治服务)

From 1952 to 1953, judicial organs in China engaged in what was described as a struggle “to oppose the old legal concepts” (反对旧法观念). Among the concepts on the chopping block: the belief that it was a violation of the principle of “judicial independence” for Party chiefs at the city and county levels to serve concurrently as presidents of the local court (法院院长); the belief that it intruded on the rights and responsibilities of judges to allow court presidents priority in the issuing of sentences; the belief that allowing military judge advocates to actively repress counter-revolutionaries obstructed the independent exercise of judicial organs (People’s Daily, August 22, 1952); the belief that “criminal law is subject to universality” (刑法具有世界性), that it must stress “the protection of the rights of the individual” and that “all are equal before the law” (People’s Daily, October 17, 1952).

Despite this “struggle,” China’s new constitution, introduced in 1954, maintained some notion of court independence, saying in Article 78 that “the people’s courts shall exercise trials independently, subject only to the law” (人民法院独立进行审判,只服从法律). Furthermore, the constitution made clear in Article 83 that “the people’s prosecutors at various levels shall exercise their powers independently, without interference from local state organs.”

All notions of independence were tossed out the window during the 1957 Anti-Rightist Movement. The idea of judicial independence was roundly condemned in the October 9, 1957, edition of the People’s Daily. The official front-page commentary was called, “Serious Struggles Are Still Ahead on the Front Lines of the Legal System” (在政法战线上还有严重的斗争):

In order to oppose our party’s leadership of politics and law work (政法工作), rightists still raise slogans such as the so-called ‘judicial independence’ and ‘independent trial,’ seeking to set the justice system at odds with the people’s democratic dictatorship.

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In the 1950s in China, the concept of judicial independence was eradicated completely. In both the 1975 Constitution (75宪法) promulgated in the midst of the Cultural Revolution, and in the 1978 Constitution (78宪法) introduced a few years later, the word “independent” was stricken from the language about the power of courts and prosecutors.

The 1975 Constitution even specified that “the powers of prosecutorial organs shall be exercised through public security organs at various levels,” and “the prosecution and trial of cases must implement the mass line.” (The “mass line,” which Xi Jinping has so far made a centrepiece of his administration, is a Mao-era means by which the Party seeks to consolidate power and extend the reach of the state by “cultivating closer ties with the people.”)

“[F]or many counter-revolutionary cases of a criminal nature,” read the 1975 Constitution, “discussion and criticism by the masses must be encouraged.”

It was not until the 1980s that judicial independence finally reemerged, undergoing a complete color transformation. The concept’s time on death row finally ended.

The Blending of Light Red and Light Blue

In the past, I have used the following spectrum to talk about political discourse in China in the post-Mao era.

spectrum

The dark red area on the far left refers to Mao-era discourse, signalling the leftist language of that era. Most of these terms are no longer in regular use — at least within the dominant Party discourse reflected in state media. Recently, however, we have seen some of these terms reemerge.

The “mainstream” Party discourse is the territory of the light red, second from the left on my spectrum. These terms are used regularly — though with widely varying degrees of intensity — by those in power.

Next comes the area of the light blue discourse. These are terminologies that can coexist with the light red, but are favored among intellectuals and in civil society. In the Chinese context, light blue discourse is more progressive and transformative.

At the rightmost end of the spectrum is the dark blue, discourse that remains unspeakable in China because it threatens the position of the Party.

To a large extent, China’s political history since the start of economic reforms can be seen through the shifting relationship and mutual sparring of these four primary discourses.

Each color grade is of course dynamic. For example, the slogan “the Four Basic Principles” (四项基本原则), was an extremely popular term in the light-red band during the Deng Xiaoping era, a term of currency, but in the subsequent eras of Jiang Zemin and Hu Jintao, it slipped into the deep red zone, coming to signify an atavistic clinging on to the Maoist aspirations of the extreme left.

The relationship between the light red and the light blue is a tricky one. When light red discourse becomes more progressive, light blue discourse tends to become more visible and assertive. In some instances, the discourses may blend and interchange. Conversely, when light red terms stiffen (tending toward the deep-red end of the spectrum), light blue discourse fades and goes into retreat. In this latter case, we might even see light blue terms previously tolerated by the light red “mainstream” shifting over into the dark blue.

A shift toward the dark blue seems to be happening right now to the term “judicial independence.”

At the outset of economic reforms in the 1980s, a number of “black words” of the Mao Zedong era were rehabilitated. In the official People’s Daily, both “separation of powers” and “judicial independence” became terms having positive connotations. The two eventually traveled very different paths, however. While separation of powers was quickly discarded on the junk heap of deep-blue taboos, judicial independence found a place of security among the light reds.

On September 15, 1980, the formation of China’s Constitution Revision Commission was announced. The body’s chairman, Ye Jianying (叶剑英), gave a speech in which said that in the new constitution, “principles of democracy and equality, and the principle of judicial independence, should receive fuller actualization” (People’s Daily, September 16).

The 1982 Constitution enshrined the idea of judicial independence. Article 126 states:

Article 126. The Supreme People’s Court is the highest judicial organ. The Supreme People’s Court supervises the administration of justice by the local people’s courts at different levels and by the special people’s courts; people’s courts at higher levels supervise the administration of justice by those at lower levels.

Legal scholars generally acknowledge that a fair number of advances were made in Chinese law in the 1980s. The principle that all are equal before the law was re-introduced. The idea that rule by man (人治) was preferable to rule of law was largely discredited. And, at least in theory, the idea of judicial independence carried the day (People’s Daily, January 27, 1989).

Even in the tumult that followed the crackdown on democracy demonstrators in June 1989, the idea of judicial independence was reaffirmed at the highest levels. On September 26, 1989, General Secretary Jiang Zemin announced during a press conference: “We absolutely cannot have the Party stand in for the government, and we absolutely cannot have the Party stand in for the law” (People’s Daily, September 27, 1989).

During the decade plus that Jiang Zemin was in power, the Chinese Communist Party seemed to affirm — in its discourse at least — the internationally accepted principal of judicial independence. During this same period, China’s signing of the International Covenant on Civil and Political Rights (which it has yet to ratify) and its entry into the World Trade Organization both contributed to the domestic advancement of the notion of judicial independence.

On April 6, 1999, the People’s Daily ran an article by legal expert Li Buyun (李步云) called, “Milestones in Ruling the Nation in Accord With the Law” (依法治国的里程碑). Li outlined 10 standards for “nations under socialist rule of law”:

1. Full legal systems (法制完备)
2. Popular sovereignty (主权在民)
3. Protection of human rights (人权保障)
4. Checks and balances (权利制衡)
5. Equality under the law (法律平等)
6. Supremacy of the law (法律至上)
7. Administration according to the law (依法行政)
8. Judicial independence (司法独立)
9. Due process of law (程序正当)
10. A Party abiding by the law (党要守法)

For the first 10 years of the new century, judicial independence was a feature of China’s light-red discourse, but it was simultaneously a favored light-blue term, used widely in commercial media and on the emerging internet.

“Judicial independence” was widely used up until Hu Jintao’s second term in office, when the prevailing weather on the terrain of political discourse changed.

Light-Blue Terms Under Assault After 2008

In my view, we have seen an across-the-board tightening of the media and public opinion in China since Xi Jinping came to power. But in fact, the cycle of tightening began in the latter half of Hu Jintao’s administration.

In 2008, as the proponents of the “China Model” grew vocal, “universal values” and other light-blue terms went into retreat. At the Fourth Plenum of the 17th Central Committee the following year, there was an ideological mobilisation against the right.

This ideological turn was written clearly in the plenum’s “Decision,” which urged the Party to draw a clear line between Marxism and its opponents, between the existing economic system and privatisation, between democracy under socialism with Chinese characteristics and Western capitalist democracy.

The time had come, it seemed, for choosing sides.

In the months that followed, the People’s Daily published a series of articles to strike the chords in this new ensemble of ideological reshuffling. One of those articles, “The People’s Mastery Is the Core and Basic Nature of Socialism With Chinese Characteristics” (人民当家作主是中国特色社会主义民主的本质和核心), was the first broadside in China’s official Party press against the notion of judicial independence (People’s Daily, April 8, 2010). But the attack was faint-hearted.

It should be noted that voices within the Chinese Communist Party are by no means unanimous. On April 14, 2011, in an address to a newly-appointed crop of State Council advisors at Zhongnanhai, Premier Wen Jiabao outlined what he saw as core concepts in policy research. Among these he included “adhering to governing the nation according to the law, and building a socialist nation ruled by law, in particular [recognizing] the need to ensure the independence and impartiality of the judicial system” (People’s Daily, April 15, 2011).

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On the eve of the 18th National Congress in 2012, the Chinese government issued Chinese Judicial Reform, a white paper that stated:

The basic objective of China’s judicial reform is to ensure that the people’s courts and people’s procuratorates exercise their rights to jurisdiction and prosecution independently and impartially according to the law, building a fair, effective and authoritative socialist judicial system, in order to protect the legal rights of the masses, preserve fairness and justice in society, and provide strong and reliable judicial protection for the long-term stability of the nation.

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Before the 18th National Congress, light-blue terms were being used actively on the internet, particularly on social media. On October 22, 2012, veteran Chinese editor Hu Shuli (胡舒立) wrote on Caixin Media (“Judicial Independence, Political Reform and the 18th Congress“) that she believed judicial reform would become a key agenda of the 18th National Congress on which there might be some breakthroughs. “In the multitude of judicial reform issues,” Hu wrote, “judicial independence is the core content.”

Contrary to the buoyant expectations of many intellectuals in China, public opinion sank after the 18th National Congress. A new round of intensified discourse tightening came. And in the spring and summer of 2013, as the “Seven Don’t Speaks” went into force, judicial independence became a target.

“Judicial Independence” Under Fire

When we observe China’s political discourse against the backdrop of political events, we notice a strange disconnect. Just as the purge of public opinion was in full swing in 2013 — a general tightening in the media, on the internet, in academia, in arts and culture — Xi Jinping’s “reform” took center stage.

The topics addressed at the third and fourth plenums of the 18th Central Committee (November 2013 and October 2014) were the “comprehensive deepening of reform” (全面深化改革) and “ruling the nation in accord with the law” (依法治国). For pro-reform currents inside and outside the Party, both of these are long-standing issues of concerns — but they cause, at the same time, great consternation and unease among vested interests in the Party, including forces on the extreme left for whom the deep-red discourse has currency.

In the wake of each of these key meetings, the reform discourse they briefly encouraged leveled off rapidly, and opposition discourse flooded the void. Following the recent Fourth Plenum on rule of law (or, as some would prefer, rule by law) the crux of official “interpretations” loudly promoted in Party media was the Party’s leadership of so-called rule of law. And as the notion of “constitutionalism” was roundly attacked, so too was “judicial independence.”

Back to the January 7, 2015, piece written by Zhang Chunxian, this politburo member writes:

Our nation’s rule of law is different from the West’s so-called ‘constitutionalism’, and the crux of this is the organic unity of adherence to the leadership of the Party, the principle of the people’s mastery (人民当家作主), and ruling the nation in accord with the law. Our rule of law is not the rule of law of the ‘separation of powers,’ and we cannot take the road of the West’s ‘judicial independence’ or ‘judicial neutrality.’ On this question we cannot be vague. We must be confident and resolute . . . (People’s Daily, January 7, 2015).

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Somewhat anomalously, the People’s Daily reported the day after Zhang’s piece ran that Gansu province had introduced a “ten-point ban” (十条禁令) on government leaders “interfering in judicial independence.” Here, right on the heels of a senior leader’s excoriation of the notion of judicial independence as foreign and unwelcome, was the same idea being used in a positive sense.

So how does the Party now regard this term? As the Party proclaims its interest in “comprehensively promoting rule of the nation in accord with the law,” does it support the idea of judicial independence? Or is it prepared to scrap the idea altogether?

Over thirty plus years of reform and opening, the Chinese Communist Party has relaxed its position on a number of terms originating from the West, adopting them to its own ends. These include “market economy, “human rights, “rule of law” and others. At the same time, the Party has locked a number of sensitive terms away in the vault of unacceptables: “multi-party system” (多党制), “nationalisation of the military” (军队国家化), “separation of powers” (三权分立).”

“Judicial independence” has so far been safe, probably because it differs somewhat from solidly taboo terms in the deep-blue zone. In the 21st century, China’s senior leaders may not publicly speak the words “judicial independence,” but terms of similar import have nonetheless remained a part of the official discourse.

Consider this brief history of the concept of judicial independence in the political reports issued on a five-year basis since the 13th National Congress in 1987 — political reports perhaps being the most important measure of Party consensus that we have:

13th: “[S]afeguard the right of judicial organs to exercise their powers independently”
14th: “[S]afeguard the independent exercise of trial and prosecution by people’s courts and prosecutors”
15th: “[G]uarantee that judicial organs exercise the powers of trial and prosecution independently and fairly in accord with the law.” (“Safeguard” changed to “guarantee” and “fairly” added)
16th: “[G]uarantee that trial organs and procuratorates independently and fairly exercise the powers of trial and prosecution in accord with the law.”
17th: “[G]uarantee that trial organs, procuratorates independently and fairly exercise the powers of trial, prosecution in accord with the law.”
18th: “[E]nsure that trial organs, procuratorates independently and fairly exercise the powers of trial, prosecution in accord with the law.” (“Guarantee” is changed to “ensure”).

From Zhao Ziyang’s political report in 1987 to Hu Jintao’s political report 20 years later in 2007, the principle of judicial independence remained intact (as an idea) at the highest levels. And the principle has clung on since the 18th National Congress in 2012.

During the Third Plenum in 2013, the language was as follows: “[E]nsuring the independent and fair exercise of the powers of trial and prosecution in accord with the law.” The language at the recent Fourth Plenum was: “[I]mproving and ensuring the system for independent and fair exercise of the powers of trial and prosecution in accord with the law. Leading cadres of Party and government organs at all levels must support the independent and fair exercise of the powers of trial and prosecution by courts, procuratorates in accord with the law.” And the language became even more specific: “[We will] build a records, notification and responsibility system for cases in which leading cadres interfere in judicial proceedings, meddling in particular cases.”

Without a doubt, the above-mentioned examples of language on the role of the courts in China perpetuate the principle of judicial independence set down by Ye Jianying in the 1980s. The most recent language, moreover, is the clearest and most concrete.

So what’s happening now?

The very substance of last year’s Fourth Plenum was rule of law, and the specifics of the meeting had to do with judicial reform. And yet, in the wake of the Fourth Plenum, a gnawing fear of constitutionalism, of the checking of power, of any form of institutional change, seems to have gripped China’s elites.

Meng Jianzhu (孟建柱), secretary of the Central Political and Legal Affairs Commission, said recently:

The determination in our country’s Constitution that the people’s courts and people’s procuratorates must independently exercise the powers of trial and prosecution is built on the foundation of the unified exercise of state power by the Party leadership and the National Party Congress. The emphasis is on independent trial of cases in accord with the law, and this is fundamentally different from the judicial independence of Western countries (People’s Daily, November 7, 2014)

China’s political discourse is knee deep in trouble. The more Party leaders try to “draw a clear line” (划清界限), as they like to say, the more things get muddled.

They talk about “governing in accord with the law” (依宪执政), but they can’t talk about “constitutionalism” (宪政); they talk about the “independent exercise of the powers of trial and prosecution” (独立行使审判权、检察权), but they can’t talk about “judicial independence” (司法独立). Guided by such logic, how will they approach rule of law? How will they approach human rights?

Many times before, the Chinese Communist Party has talked about “borrowing from all of the achievements of human civilization” (吸收人类一切文明成果). If lines of quarantine are established in this way around each and every globally shared principle, how does the Party suppose it can pursue real reforms? And how can it talk seriously about what it calls “the modernization of the national governance system and governance capacity”?

Situated outside Party politics, it is impossible for us to determine who exactly has handed down a death sentence to the concept of judicial independence. We can expect, however, that as the gloves come off, as “judicial independence” becomes the target of open hostility, the Party’s declarations about “the independent and fair exercise of the powers of trial and prosecution” can only become naked falsehoods. And all efforts at judicial reform in China can only become wasted energy.