While China has made a decisive authoritarian political turn since 2013, it has also witnessed spasmodically sustained episodes of reform of the judiciary and in the criminal justice system. Björn Ahl and his team, composed of authors mostly from China and Germany, have put together an excellent book that documents a new series of reform programmes, together with critical analysis of their full potential as well as the prospective limitations. While touching on overarching issues such as the leadership of the Chinese Communist Party and the constraints this fact per se imposes on legal reform, the authors fruitfully concentrate on concrete procedural and institutional reform projects.
After a thorough and insightful introductory chapter by Ahl, the majority of the chapters zoom in on different aspects of judicial reform. Chapters two (by Xiaohong Yu) and three (by Yulin Fu) carefully take readers through the post-2013 judicial reforms within the larger context of post-1978 legal reforms. Yu uses a political science lens to examine the tension between resilient local accountability and new initiatives to enhance central control, while Fu though a careful and meticulous account of Chinese civil justice reform in the past decades highlights the struggle between embedded bureaucratic control and the clarion call of judges for professionalization. In chapter four, Susan Finder offers a rare behind-the-scenes look into the process of judicial interpretation, illustrating the increasing sophistication and institutionalization of judicial rule-making in China. In chapter nine, Michelle Miao focuses on a significant but often neglected issue of judicial performance evaluation and the impact of internal and technical bureaucratic rules that shape and distort judicial behaviour. This chapter explains the piecemeal and painful transition from relying on internal working rules to formal legal rules, capturing the heightened pressures that judges face in adapting to China's partial judicial reforms.
In chapter ten, Daniel Sprick points out a subtle change since 2013 in the relationship between the media in their supervisory role and the defensive courts, which are keen to keep what is perceived to be an overreaching press at a distance. Legal professionalism in post-2013 China has resulted not only in an internal rationalization of judicial power, but also an alteration of the judiciary's relationship with the media. The courts were able to stand up to the media by seeking political support and at the same re-shaping public opinions through proactive engagement with the public through their own media outlets.
Criminal justice system reform has continued and, in certain areas, intensified what can be seen as a concerted effort to weaken the “iron-triangle,” a term commonly used to describe the close alliance between the police, prosecution and judiciary in the criminal justice process. Three chapters in the book explore various issues on criminal justice. Chapter six, by Alexandra Kaiser, is a thorough survey of the Chinese literature on a new procedure called “necessity examination for pretrial custody,” sometimes dubbed as the Chinese equivalent to (a partial) habeas corpus, which empowers the prosecution to allow bail where the police have denied it. This is a well-researched essay that captures the Chinese debates and offers sound explanations on why the new design has so far failed to reduce the rate of custody during police investigation. In chapter seven, Zhiyuan Guo answers the question of why live witness testimony in criminal trial is difficult to achieve, despite the legislative requirement and the attempt by the Supreme People's Court to make it a central piece of the criminal justice reform. Her chapter explains the structural reasons behind the judicial preference for written testimony and the difficulties of compelling witnesses to appear in court. Finally, chapter eight by Kwai Hang Ng and Xin He discusses criminal–victim reconciliation, often sanctioned and even led by judges, through which defendants and victims (or often between their families) reach an agreement on monetary compensation to be enforced by the court.
Chapter five is exceptional and points out a reverse trend of “judicial (dis)empowerment” (p. 109). Ye Meng studies a unique institution, the National Supervisory Commission, which has been given the exclusive power to investigate corruption and misconduct by state functionaries. While created by legislation and the Constitution, the Supervision Commissions are political organs and therefore are not accountable to regular legal rules. In particular, criminal procedure rules governing detention and access to lawyers do not apply. The institution is indeed not principally designed for criminal punishment. As was mentioned (p. 129), among the 638,000 cases registered for investigation by the Commissions in 2018, only 16,092 were sent for formal prosecution. The vast majority of the cases were likely to have been handled internally through the Party's own political process, as anti-corruption enforcement is too important and politically sensitive for the legal system to handle.
What is the take-away from some of the penetrating studies? The post-2013 legal reforms for the most part aim to empower the courts and judges. The objectives of the reforms are either to reduce the level of dependence of courts on the local government in such matters as judicial appointment and in setting judicial budgets; to give the Supreme People's Court more power to standardize legal rules, reassign jurisdictions and manage the judiciary, or to create a judiciary with elite judges who are young, well-educated, and above all professional. The professional project is of course initiated, guided and supervised by the Party itself. Legal reforms under the leadership of the Party involve the constant need to strike and restrike a balance between the Party and reform projects, a tension which is attested to by many of the chapters. As Finder points out, in the case of judicial interpretation, the ideal result is the creation of “legal rules that are politically acceptable, legally sound and practicable” (p. 108).
While the Party is giving more space for legal and judicial innovation in regular matters, it has at the same time asserted itself more forcefully and directly in politically sensitive matters, such as anti-terrorism, national security and anticorruption. In those and other cases, the Party has been decisive in creating alternative institutions that are beyond the reach of the legal system and the court. While encouraging judicial empowerment or enhancing the autonomy of the courts in some issues, it has also carved out some areas from the legal system in others. That demarcation has become more clarified and solidified than ever before in the post-2013 era.
