October 24, 2008
Podcast interview with Stanley Lubman
The Asiabizblog has a podcast interview with Stanley Lubman here (posted Oct. 24). For readers who don't know Stanley, here's the introductory blurb:
Asiabizblog kicks off a new season of podcasts with an interview of Stanley Lubman, China law scholar and practitioner. Mr. Lubman has, over 40 years, been witness to and participant in China's veritable earthquake of changes.
Whether as student of Chinese law at Columbia University School of Law in the 1960s, as delegate to the earliest Guangzhou trade fairs in the 1970s, as attorney for energy deals in the 70s and 80s, as scholar/practitioner at Harvard, SOAS or Allen & Overy in the 80s and 90s, Stanley Lubman always seems to be one step ahead of the pack.
Such also seems to be the case with his journal article, "Looking for Law in China," available here. While much of the world, including academia, seems to approach China with an "irrational exuberance," a subject upon which I have discoursed a often (see below for links), Stanley Lubman's take on China's development is nuanced, endowed with a subtlety of understanding that comes only with experience. Many thanks to Stanley for his willingness to share his expertise with the Asiabizblog audience.
October 22, 2008
Jerome Cohen on the "Three Supremes"
Body blow for the judiciary
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
Lawyer loses freedom-of-information case; will appeal
According to the report, the court held that the information sought by the plaintiff was not within the scope of the information covered by the State Council's Regulations on Open Government Information, because among other things the information related to an administrative reconsideration proceeding that was still underway. This seems a bit hard on the plaintiff, since he was complaining among other things about the indefinite suspension of the reconsideration proceeding, and claiming in effect that the reasons offered for the suspension were spurious.