Patience for judicial reform
Hu CongChina Daily  Updated: 2004-12-13 08:45

The Supreme People's Court has ruled out the scenario of radical judicial reform in the short term, but hopes for further reforms do not seem to be fading.

A senior Supreme Court source told the official Xinhua News Agency on Tuesday that any reform proposal should be made "with great caution" and "should not overlook reality."

The couched statement is obviously targeted at a scholarly proposal to revise legislation and push for moves that are bolder than perhaps any previous judicial reforms.

Some leading law professors recently drafted an amendment to the Law on the Organization of People's Courts, with reforms proposed for all major aspects of the court system, such as the set-up of local courts, the division of adjudicatory power and the budget system.

The draft stirred wide public attention, not only for the reform initiatives it contains but also because it was said to be commissioned by the Supreme Court and would eventually go to the standing committee of the National People's Congress (NPC) for deliberation.

However, the Supreme Court source interviewed by Xinhua said the draft represents "individual views" instead of opinions of the Supreme Court. Moreover, modifying the law is within the legislature's mandate, whereas others can only provide suggestions, he stressed.

But the irrelevance of the draft amendment is not likely the only thing the Supreme Court wants to declare.

The key message behind the Supreme Court's rhetoric is caution over the content of the draft which is almost a rewrite of the current court system statutes.

The draft forbids adjudicatory councils to rule on cases without open trials, flying in the face of the existing Law on the Organization of People's Courts that entitles adjudicatory councils to "discuss major or knotty cases and other issues related to adjudication."

Formed by most senior judges in a court, the adjudicatory council is designed as the court's top ruling body able to give instructions when a case is too thorny for the judge hearing it to cope with.

But the behind-the-scenes practice is quite "controversial," according to He Weifang, a law professor with Peking University and a drafter of the proposed amendment.

"We think adjudicatory councils can hear cases rather than 'discuss' them, because in basic judicial theories a judge should not rule on a case if he is not involved in the process of hearing," he was quoted by the Beijing News as saying.

"It is also unjust in procedural terms if litigants do not even know who has decided their fate," he added.

Similarly, the draft bans courts from seeking instructions on difficult cases from higher courts, a practice seen as introducing upper-level intervention.

The proposed revision also suggests that the court establish more powerful enforcement divisions, and budgets of the supreme and local courts be made by national and local people's congresses free from intervention of government agencies.

But the boldest proposals are some systematic arrangements mapped out in the draft.

For example, the draft proposes that the current system of one higher court in each province be changed towards a single court covering several provinces. The goal would be to eliminate protectionism and lead to fairer trials, said He Weifang in the Beijing News.

By technical standards, few things in the draft revision are questionable.

The draft calls for greater independence and professionalism among the judiciary, and many of the schemes it proposes conform to the sentiments of the legal profession.

But the real problem is in its practicality, which might be the main reason why the Supreme Court appears conservative about the draft.

Many of the proposals in the draft have obviously gone beyond revising the court system.

For example, changing the layout of higher courts requires changes in the constitution, which have to be endorsed by a minimum two-thirds of NPC deputies.

The opinions of local congresses and governments also need to be taken into account, as major judicial reform measures might change the relationship between different State organizations outlined by the Constitution and public laws.

Even within the judiciary, the Supreme Court could face a daunting job of smoothly pushing forward the intensive reform measures that will change a lot of people's positions.

The Supreme Court's caution is understandable considering the complexity of in-depth judicial reform.

Noticeably, the Supreme Court did not say no to further reform attempts. It has agreed that legislative revision is key to facilitating judicial reform. It has also promised to continue to be open to various proposals and opinions on reform.

In this sense, the great caution it expressed regarding the latest proposals should not be read as a refusal to reform.

Instead, it reflects a serious attitude and is a reminder of the steadiness and patience a successful reform requires.

The signal is positive.

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