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Wednesday, October 22, 2008

Jerome Cohen on the "Three Supremes"

With the author's permission, I'm reposting here a recent op-ed by Jerry Cohen on the "Three Supremes" [what he means | what he doesn't mean].

Body blow for the judiciary 

Jerome Cohen
Updated on Oct 18, 2008

During the first term of the administration of Hu Jintao and Wen Jiabao , many legal specialists inside and outside China were disappointed by its tepid support for proposed reforms that would make the country's courts more professional and independent.
Noting China's ever greater need for a fair and competent judiciary, optimistic observers turned their hopes to the Hu-Wen second term. They reasoned that the more powerful and confident leadership would feel secure enough to establish overdue judicial reforms.

However, those hopes appear to be dashed. It is clear that a new, more authoritarian party line on the courts has been promulgated. The "Three Supremes", as it is known, was first espoused by Mr Hu last December.

During the National Conference on Political-Legal Work, convened by the party's central Political-Legal Committee that presides over the legal system, Mr Hu told the assembled judges, procurators and officials: "In their work, the grand judges and grand procurators shall always regard as supreme the party's cause, the people's interest and the constitution and laws." Like many previous communist doctrines, this "theory" is proving to be profoundly important.

In March, just after the National People's Congress confirmed the appointments of the heads of the Supreme People's Court (SPC) and the Supreme People's Procuracy for the next five years, the Political-Legal Committee, now led by the former minister of public security, issued a major notice. It required all legal personnel to seriously study and discuss Mr Hu's December speech and related documents. Since then, the new SPC president, Wang Shengjun, has launched a campaign within the court system to promote the "Three Supremes". His speeches leave no doubt that there has been a significant change in the tone and content of judicial leadership.

Gone is the emphasis that his predecessor, Xiao Yang , placed on bolstering professional competence, and individual and collective judicial autonomy. In a series of mind-numbing ideological cliches, Mr Wang emphasises upholding party leadership and focusing the courts on economic development and social stability. For Mr Wang, who has had no formal legal training, concerns for judicial fairness and justice must be interpreted in light of minyi, or "public opinion".

Understandably, many judges are reportedly confused and unhappy about this apparent return to the past, to the use of law as an instrument of "proletarian dictatorship" implemented through the "mass line" in the guise of "democratisation". How to reconcile the newly propagated "mass line" with legal norms and procedures must be a particular challenge for SPC vice-presidents and provincial high court chiefs. Now, under intense political pressure, they must put flesh on the doctrine's bare bones by formulating specific policies for the increasingly broad range of challenging cases.

Already their speeches suggest some diversity of views and nuances. Many administrators, legislative aides and especially lawyers are undoubtedly troubled by the new line, which downgrades the importance of their work. Some scholars and academic activists continue to advocate Xiao-Yang-type reforms, which paid lip service to party controls but gradually sought to introduce greater judicial independence and professionalism, reforms now condemned as "westernisation". A few prominent law professors, such as He Weifang of Peking University, dare to openly criticise the Hu doctrine, while others try to interpret it to minimise new obstacles. Some, however, praise it as "democratic".

China's continuing struggle over the death penalty makes clear that much is immediately at stake in the ideological realm. Although Beijing is too ashamed to reveal its appalling statistics on capital punishment, there are reliable reports that, thanks to substantial improvements in procedures at the high court and SPC levels, the number of executions may have dropped by as much as one-third.

Senior appellate judges intimate that, despite the new line, they continue to carefully scrutinise all death sentences. Yet there are indications that some trial courts, and even some reviewing judges, may now be more willing to approve capital punishment.

After all, the first public signal of Mr Wang's leadership was his announcement last April that, in handling death cases, the courts had to consider not only the law and social conditions but also "the feelings of the masses". Although the relationship among the courts, the media and the people is complex, no one was left in doubt that the party would serve as the authoritative voice of the masses.

Jerome A. Cohen is co-director of NYU's US-Asia Law Institute and Adjunct Senior Fellow at the Council on Foreign Relations in New York

http://lawprofessors.typepad.com/china_law_prof_blog/2008/10/jerome-cohen--1.html

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