Thursday, March 12, 2009

Extraordinary Time is No Excuse for Extra Judicial Partiality

Two camps of lawmakers are debating what role Chinese courts should play in China during this extraordinarily trying time.

One camp believe that the courts should remain neutral, irrespective of how the financial and economic crisis is impacting businesses, and that the courts should be the instruments of justice in China's market economy.

For example, lawmaker Peng Xuefeng, director of the All China Lawyers Association, believes that:

"Prudent handling of company owners suspected of breaking the law is not a good option to solve current disputes resulted from financial woes."

[Market economy was fundamentally] "an economy ruled by law" and the economic development in the long run especially needed an integral legal guarantee, ..., adding there was no place for sentiment in judicial organs.

Peng represents the group of lawmakers who are of the view that the courts should not be taking sides, should not in any way favor businesses and companies in violation of the law, despite the macro economic circumstances.  They essentially believe that the courts are there to enforce the law.  Period.  There is no need to venture beyond the bounds of the law and the facts as they relate to the law.  In a certain sense, these are the pure jurists.

On the other hand, the second camp, which includes the current President of the Supreme People's Court of China, believes that the courts should play a more constructive and active role in assisting defendant businesses  weather the economic storm so as to contribute to social stability in China.  Specifically, they believe that 

...courts at all levels should "prudently use such compulsory measures as sealing up, impounding or freezing assets of companies," and should "promptly offer judiciary advisories to help enterprises in operational difficulty tide over economic woes." 

In helping enterprises deal with the economic hard times, courts, as the second camp believe, should uphold the law, while at the same time soften the way the law is to be enforced.  For example, when it comes to freezing the assets or impounding equipments of businesses, the courts should take into consideration how many jobs will be lost, and what collateral social consequences of such enforcement actions would result.  

This debate is nothing new, and it represents the tough situation Chinese courts are in.  They are painfully dependent upon other administrative organs in the Chinese government; therefore, they must bend in the direction that the prevailing political wind is blowing.  If the country is in tough financial times, courts are expected to be soft on enterprises in violation of the law; if the country needs to strike down on piracy or IP infringements, courts should act accordingly.  Courts are always caught up in politics.

The debate also reveals the reality of the rule of law in China.  The rule of law serves a political purpose.  It should serve purpose whereby the courts dispenses justice ONLY, free of political tides.  

I believe the second camp of people are short-sighted.  They see only the short-term benefit of lenient law enforcement on the part of the courts, but they fail to see the long-term ill of a judicial system that obeys both the law and political leaders.  They see only the upside of courts taking a temporary pro-business stance, but they fail to see the consequence of the same courts taking a pro-labor/pro-consumer/pro-whatever stance under different circumstances.  What they need to see is the value of a judicial system with courts and judges that are neutral and bound by the law only.



Anonymous said...

The answer is very simple. The law, courts and other enforcement and administration of the law must serve the revolution. Whatever they do, they must benefit the revolution (i.e. CCP). Whatever it takes to keep CCP in power, if not enhancing its power, must be done.

Brad Luo said...

I don't know about "the revolution," but I agree with you in general that the courts serve as an instrument to maintain power and control of the CCP in China. In that sense, whatever the judiciary can do is severely limited to the end which is predetermined by the party.

Anonymous said...

Brad, its true that I think the first is preferable, but let me play devil's advocate for a second. In this "global meltdown", it seems to me that China is best positioned to weather it out, and much of that is due to the heavy governmental control. Judicial activism and intervention is just one part of that puzzle called Rule of the Party. So while I also disagree with the position, it does have benefits from a stability perspective. And it seems to me that China highly values stability.

Brad Luo said...

I don't dispute the potential and actual benefit of judicial intervention on behalf of offending businesses.

But, I think we can look at judicial activism from two perspectives. These two perspectives are basically "balls" that the Chinese government can look at.

First, meaningful rule of law. If China wants to pursue and establish real rule of law (in the sense that we all know), judicial activism by sacrificing neutrality, does not help that end/goal, and China is taking its eye off the ball by traveling on a shortcut in the name of economic recovery and stability.

Second, absolute social stability. if that is the mother of all goals for the Chinese government, then any means calculated toward achieving that goal is justifiable. The courts, the rule of law, judicial activism, whatsoever, are all means with which to maintain stability, and ultimately political control.

I think it is obvious that China has its eye on the latter, and it is not a surprise that courts are called upon to delay enforcing judgments, shutting factories, and impounding equipments despite the legal basis in favor of such actions.