During his ‘South China Tour Speech’ in 1992, former Chinese leader Deng Xiaoping famously stated that China needs to learn from Singapore and that it shall ‘do better’.Footnote 1 Following Deng's visit to Singapore in 1978, Singapore – a tiny city-state governed by a dominant party since independence in 1965 and known for its economic success and good governance – has attracted a disproportionate amount of interest as a role model for China in its development,Footnote 2 with both countries exchanging lessons in governance and strengthening legal and judicial cooperation as ‘old friends’.Footnote 3 The Chinese Communist Party (‘CCP’, ‘party’, or ‘party-state’) found in Singapore an appealing model that successfully combines dominant party leadership and a clean and incorruptible governance with a state-driven capitalist economy, underpinned by Confucianist ‘Asian values’ to legitimize its leadership in the march towards realizing the newly-proclaimed ‘China dream’.Footnote 4 More recently, Chinese President Xi Jinping emphasized the need to continue learning from Singapore,Footnote 5 along with visits by close to fifty thousand officials to Singapore to study the ‘Singapore model’ since Deng's visit in 1978.Footnote 6 China has drawn important lessons from Singapore's approach to governance,Footnote 7 as well as its model of state-driven capitalism.Footnote 8 However, what is often overlooked by China about Singapore's model of governance, despite – or perhaps because of – its contrast with a Western liberal democracy, is its use of democratic institutions and the rule of law through the safeguarding of judicial independence to ensure good governance and political accountability.Footnote 9
Ever since Deng declared his ambitious platform to modernize China's legal system in the 1970s, China's progress towards the rule of law has been debated and evaluated by jurists and reformers alike.Footnote 10 Whilst the CCP has acknowledged that the legal system is still a work in progress,Footnote 11 critics have argued that the willingness and ability of the Chinese judiciary to adjudicate independently in respect of important socio-political matters is circumscribed in varying degrees by, amongst others, the party's influence through political-legal committees, supervision by the legislative body (the National People's Congress (NPC)), the procuracy and adjudicative committees, interference by local governments, and corruption and other forms of social pressure from litigants and the wider public.Footnote 12 For example, Chief Justice Zhou Qiang's speech to legal officials in 2017 is often cited to reiterate the CCP's stance on this matter: ‘We should resolutely resist erroneous influence from the West: “constitutional democracy,” “separation of powers” and “independence of the judiciary”.’Footnote 13 In so doing, they have often failed to acknowledge the incremental improvements made to increase the independence of the judiciary since the start of legal reforms in the reform era,Footnote 14 as seen by the recent white paper issued by the Supreme People's Court (SPC).Footnote 15 In this regard, despite resistance to political reforms, the party-state has focused its attention on economic and legal reforms, with political liberalization remaining mostly an anathema to the party with the important exception of enhancing the independence of the judiciary.Footnote 16
Instead of revisiting the discussion of the state of judicial independence in China, which has been discussed extensively elsewhere,Footnote 17 the authors adopt an institutional approach and examine the issue from the perspective of the role the Chinese judiciary plays and should play vis-à-vis the state within a non-Western liberalFootnote 18 constitutional framework on a comparative basis. In this light, this article explores Singapore's experience with respect to judicial independence, with a view towards drawing broad insights for China's own reforms. A city-state with a geographical size less than that of Hong Kong, Singapore provides a useful vantage point because of the broad similarities in its developmental path with China in tailoring reforms to suit its circumstances in respect of its priorities in securing political and social stability to facilitate its remarkable economic development, and ensure a strong and effective government anchored by neo-Confucianist cultural norms, which has led to the state's evolution along a different path from the standard Western liberal democratic model.Footnote 19 While it is acknowledged that the Singapore model has been criticized by legal scholars from a liberal standpoint,Footnote 20 the authors argue that it is particularly instructive in examining how the rule of law and judicial independence can be sustained in a non-Western liberal dominant party state, which challenges common notions that suggest otherwise.Footnote 21 In this regard, theories about judicial independence are often discussed in an abstract decontextualized manner based on a priori assumptions, especially in the case of China.Footnote 22 It is apposite, however, to examine the underlying historical factors and institutional context in which the judiciary is situated, which may be self-reinforcing over time because of switching costs and institutional dependencies.Footnote 23 Judicial independence varies significantly between China and Singapore, which may be accounted for by the differences in their starting conditions. Singapore had a basic rule of law framework around the time it became independent in 1965, while legal reforms in China only began years after the economic transition took off in 1979, thirty years after the state was founded.Footnote 24
At a time of an Asian renaissance and the apparent retreat from Western liberalismFootnote 25 when China is seeking to put forward its model of development as an alternative to Western liberalism,Footnote 26 an examination of the Singapore model is particularly apposite and has arguably more to teach China than Western models, several of which are suffering from constitutional crises of their own.Footnote 27 In doing so, the authors hope to contribute to the increasing interest in Asian models of constitutionalism and governance, including the Singapore modelFootnote 28 not least from the Chinese party-state itself. At the outset, notwithstanding certain broad similarities between both states, there exist vast political, historical, socio-economic, and geographical differences between Singapore and China. Therefore, this article does not purport to make a normative argument that the Singapore model should serve as a model for China, nor is it intended to prescribe specific judicial reforms for China, not least because each model is so closely intertwined with its history and unique political circumstances. Nevertheless, insofar as the Singapore model is studied by China and is one it seeks to draw lessons from, it is necessary to understand what the key elements of the Singapore model are and their implications for China. On this basis, this article explores the extent to which broad lessons may be drawn from Singapore for China to construct its own paradigm of state-judiciary relations in the context of its own particular circumstances as part of its ongoing judicial reforms as it continues its trajectory as part of the international community.
The rest of this article is structured as follows: Part I sets out the theoretical framework of judicial independence and its prospects in the Chinese context, followed by a discussion of judicial independence in Singapore; Part II provides a broad summary of the role of the judiciary in China; Part III gives an overview of the rule of law and the exercise of judicial power under the Singapore model, followed by Part IV, which examines the broad lessons that China may draw from Singapore; and Part V concludes.
I. JUDICIAL INDEPENDENCE, CHINA, AND THE SINGAPORE MODEL
The concept of judicial independence is complex, and reasonable people may disagree about what it means and if a given judiciary has sufficient independence.Footnote 29 An independent judiciary is recognized to be an indispensable component of the rule of law, even on a formal conception,Footnote 30 because of the legal limits it can place on the arbitrary exercise of power and its contribution toward public accountability and good governance by facilitating coordination and cooperation between different constitutional actors.Footnote 31
A. The Touchstone of Judicial Independence
Judicial independence – which may be classified into personal, substantive, and collective independenceFootnote 32 – is necessary because it ensures that the court may exercise its judicial power impartially. This article does not purport to attempt a survey of the vast literature on the subject of judicial independence and the means by which it can be secured, as discussed extensively in other works,Footnote 33 except for the following observations which inform and underlie the conceptual framework of this article.
1. Judicial Independence and Fidelity to Law
While contemporary constitutional systems amongst diverse states accept judicial independence as a norm, as reflected in many international normative documents,Footnote 34 there is no consensus on what it means in practice, the institutional means of safeguarding it, the kinds of considerations that judges may or ought to take into account, or when particular influences become inappropriate.Footnote 35 That being said, what we might term a core definition of judicial independence is fidelity to law – that is, the willingness and ability of courts to adjudicate in accordance with law as applied to the facts of the case without undue regard to the views of governmental or private actors.Footnote 36 So long as the court exercises independent judgment which is not unduly fettered and does not abdicate its responsibility of adjudicating in respect of the legal issues at hand, judicial independence does not necessarily preclude cognizance of the legitimate policies of other branches of government.Footnote 37
2. Judicial Power and the Principle of Legality
The corollary principle of judicial power is equally polysemic. While broadly defined as ‘the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property’,Footnote 38 different constitutional models allow for different degrees of checks and balances between the branches of government.Footnote 39 In a constitutional government, the starting point should be that the judiciary should be an apolitical institution and must be seen to be above politics; at the same time, the rule of law requires the courts to subject power to legal limits (ie the principle of legality). The need to observe the institutional boundaries of the separation of powers (to the extent that such a framework exists in the relevant polity), therefore, must be balanced with the courts’ overriding need to subject the political branches to the rule of law. The expansion of judicial power in its engagement in political or policy-related matters (ie the judicialization of politics)Footnote 40 is inevitably shaped by locally and historically-specific social and political conditions. It is this conceptual distinction between judicial independence, on the one hand, and the extent to which an independent judiciary wishes to exercise its judicial power, on the other, which renders efforts to measure de facto judicial independence based on the frequency the court overturns government actions somewhat misconceived.Footnote 41 Rather, it is precisely the courts’ independence that empowers them to determine when an issue of policy is within the competence of the other branches of government.Footnote 42
3. Judicial Accountability
Judicial independence and power are thus not absolute values and need to be counterbalanced with judicial accountability. On the basis of the foregoing, judicial accountability is underlined by the twin requirements of (i) fidelity to law; and (ii) the principle of legality. As Vanberg observed, the institutional framework, such as the appointment and impeachment process, or the possibility of legislative review of judicial decisions, may have the effect of circumscribing judicial independence in a strict sense, but they play an important role in ensuring judicial accountability.Footnote 43 As Justice Sandra Day O'Connor rightly noted:
[T]he Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the nation's law means and to declare what it demands.Footnote 44
In this sense, the judiciary does not operate in a vacuum but derives its own legitimacy when it is seen to do justice as an impartial and accountable arbiter of disputes, and thus needs the acceptance or acquiescence of the state and the people in order to function effectively.Footnote 45 Whether judicial independence can exist is ultimately a matter of political will and depends on whether political actors perceive that the costs of undermining it outweigh the net costs it may impose in the long term.Footnote 46 It is the costs that the government may bear in terms of constraints on its power that explains why judiciaries are generally granted less autonomy in non-democratic constitutions than in democratic constitutions.Footnote 47
B. Prospects of Judicial Independence in China – A Matter of Political Will
The prospects of implementing reforms toward realizing judicial independence would need to contend with the parameters of China's existing constitutional framework, which sets out a more limited concept of ‘judicial independence’ than what is conventionally accepted. The Constitution of the People's Republic of China (PRC Constitution) defines the courts as the state's ‘judicial’ organs and mandates that they ‘exercise judicial power independently, in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individual’.Footnote 48 The provision is silent on whether interference by the people's congresses and the procuracy are permitted.Footnote 49 Crucially, the requirement for the courts to ‘only answer to the law’ was deleted in the 1982 PRC Constitution.Footnote 50
1. CCP Leadership and Party Sovereignty
The PRC Constitution provides that the SPC is accountable to the NPCFootnote 51 and is ultimately subordinate to the leadership of the CCPFootnote 52 whose power is supreme.Footnote 53 In this regard, the codification of the party's supremacy over the state in the 2018 amendment to the PRC ConstitutionFootnote 54 – which may be interpreted to form the ‘basic structure’ of the PRC Constitution – has exposed an inherent contradiction in Xi Jinping's central political platform of ‘governing the nation in accordance with the law’ (yifa zhiguo).Footnote 55 Under this premise, the rule of law and party-rule-through-law are essentially identical.Footnote 56 The implications of privileging the party's supreme authority over judicial power are significant – party activities are effectively non-justiciable and are instead subject to self-regulation.Footnote 57 As the Chinese mantra goes, ‘use law to govern the country, use internal regulations to govern the Party’ (yifa zhiguo yigui zhidang).Footnote 58 Effectively, the rule of law is formally subordinated to the party's leadership. In the words of Schmitt, the party-state is the de facto sovereign ‘who decides on the exception’.Footnote 59
2. Recent Judicial Reforms
Nevertheless, despite China's ‘turn against law’ in the last decade,Footnote 60 the CCP's leadership under Xi since the Fourth Plenum of the CCP Central Committee in 2014 (Fourth Plenum) has unveiled wide-ranging judicial reforms ostensibly aimed towards promoting greater accountability, independence, and professionalization of the judiciary, albeit without compromising the party's leadership.Footnote 61 Zhang and Ginsburg argue that the CCP is moving toward ‘legality’ in which the written law is enforced more rigorously. The reforms, they contend, aim to achieve greater institutional autonomy of the courts through greater empowerment against other state and party entities (apart from the party leadership); enhanced statutory interpretation authority; stronger enforcement powers; and higher levels of legal professionalism and proficiency amongst judges, even if they have concentrated the party's power and control in an unprecedented manner.Footnote 62 According to the recent SPC white paper on judicial reforms, it is the state's objective to ‘improve the public credibility of the judiciary, promote judicial impartiality, and build a fair, efficient and authoritative socialist judicial system’.Footnote 63
The reforms have also sought to ensure that only ‘quota judges’ (ru'e faguan), namely those appointed as judges through examinations and interviews, as opposed to court administrators, clerks, or paralegals, will be authorized to decide cases and held accountable for the ‘quality’ of their adjudication.Footnote 64 To curtail local protectionism, the reforms aim to centralize the appointment of judges and court funding below the provincial level through a judge selection committee, which will select and recommend judges to the respective legislative bodies for formal appointment.Footnote 65 Further, in response to the longstanding problem of judgments being determined in closed-door discussions, often with the interference of the party or other internal and external sources, the reforms aim to ensure that the trial, or the formal court hearing, forms a key part of the criminal and civil justice process.Footnote 66
While it is presently unclear whether such reforms would continue or be implemented successfully, one may argue that such reforms, if pursued progressively, may pave the way for the Chinese judiciary toward greater autonomy albeit within the parameters imposed by the party. Minzner argues, however, that these reforms are less about building up China's judicial institutions than about centralizing control of China's bureaucracies.Footnote 67 Such reforms are likely to remain uneven and incremental depending on whether the party sees it in its interests to grant the courts greater autonomy with respect to the nature of the cases involved. The direction and extent of reforms are also likely to be path dependent given the lack of a tradition of the rule of law and power-sharing by the party-state.Footnote 68 Ultimately, whether greater judicial independence can be achieved is a matter of political will, which depends on whether the party-state sees that the benefits to its legitimacy outweigh the costs in doing so.
C. The Case for Judicial Independence in China: A Question of Legitimacy
Notwithstanding the theoretical arguments for judicial independence, something further is required in the case of China – not least because any reforms in this regard are more likely to succeed if it is in the interests of the party-state. North captures something close to the case to be made for greater judicial independence in China:
Institutions are not necessarily or even usually created to be socially efficient; rather they, or at least the formal rules, are created to serve the interests of those with the bargaining power to devise new rules.Footnote 69
Here, it is argued that the subject of judicial independence should be reoriented from a political issue tied to democratization to one concerning good governance, which itself is ultimately tied to the CCP's central concern – its legitimacy.
Legitimacy, which broadly refers to the common acceptance of a regime's authority,Footnote 70 is widely acknowledged as the objective of the construction of law and legal institutions by authoritarian regimes. Moustafa and Ginsburg have identified several important functions performed by judicial institutions in authoritarian states, namely, political legitimation, social control, bureaucratic monitoring and control, credible commitment to investors, and delegation of controversial policy decisions to the courts.Footnote 71 There is broad agreement among Chinese scholars regarding the Chinese state's goal of legitimation in promoting the ‘rule of law’.Footnote 72 On this basis, the arguments in favour of improving judicial independence in China may centre on the following aspects of legitimacy which are particularly apt in the Chinese context.
1. Institutional Legitimacy
Continued public perceptions of a lack of independence of the Chinese courts risks undermining the institutional legitimacy of the judiciary, which itself risks political decay,Footnote 73 social instability, and even its sovereignty in the long term, as seen in the recent demonstrations in Hong Kong over the proposed extradition bill with China.Footnote 74 Studies have shown that there is an increased social demand for legality during this period of rapid change in the Chinese socio-economic environment, which has brought about increased wealth, social disintegration, and rights consciousness amongst the population, and an increase in civil and administrative litigation in recent years.Footnote 75 The recent judicial reforms, therefore, may be viewed as the state's response to the preceding period of rising public distrust of the judiciary, popularly termed as a crisis of losing judicial credibility (sifa gongxinli),Footnote 76 attributed in part to the public's perception of the party's control of the courts. The lack of public confidence in the administration of justice had potentially undermined the legitimacy of the party-state and posed broader challenges to the governance of Chinese society.Footnote 77 As described by a Chinese judge, the judiciary's lack of ‘public credibility’ was reflected in: (i) petitions to re-open cases which had been decided; (ii) petitions to higher-level governments concerning ongoing or decided cases; (iii) low execution rate of judgments; and (iv) resistance to the enforcement of court decisions by the losing parties.Footnote 78
The success of the judicial reforms in China toward greater ‘legality’ in governance highlighted above would depend, in turn, on the perceived legitimacy of the law and legal institutions and public confidence in the fair and impartial administration of justice. If the Chinese party-state is indeed seeking to inculcate greater respect for legality in governance, such respect for and compliance with law can only be sustainable if a neutral institution exists to ensure that the law is enforced impartially, which is contingent on the judiciary functioning as an independent institution.Footnote 79 Such reforms, therefore, would remain ineffective unless the judiciary can function effectively as an integral mechanism of governance and is given sufficient autonomy to fulfil the legitimizing power of the law and create a culture of legality and compliance through the impersonal and impartial application of the law.Footnote 80
2. Economic Legitimacy
It is widely acknowledged that judicial independence in the enforcement of property and contractual rights facilitates economic development as it signals ‘credible commitments’Footnote 81 by the state to investors by raising the cost of political interference with economic activity.Footnote 82 While the Chinese economy has thrived despite the lack of enforcement of formal property and contractual rights through independent courts, which have instead been replaced by informal norms and institutions,Footnote 83 this is unlikely to be sustainable as China's economy slows and transitions into its next phase of growth.Footnote 84 As a recent World Bank report pointed out, as the Chinese economy exhausts its low-cost labour and grows in complexity in its transition from state-investment and export-led growth to an innovative consumption-oriented model, the institutional quality of the courts would need to evolve to meet the demands of the changing commercial environment to avoid the ‘middle-income trap’.Footnote 85 The recent judicial reforms are, thus, reflective of the party's increasing recognition of the need to reform the courts along with its ongoing economic restructuring,Footnote 86 especially in view of the fact that the CCP derives economic legitimacy from its power base, which determines how much financial and other resources it can control and dispense.Footnote 87
The perception of China's rule of law, or lack thereof, also greatly influences China's international legitimacy and its integration with the world economy, another plank of CCP's mandate. A stronger rule of law in China may go some way toward mitigating the ideological differences and the lack of trust between China and the West, which have manifested in the deteriorating trade relations that is inhibiting China's continued development.Footnote 88
3. Political Legitimacy
Economic development is dependent in part on the institutional quality of the state's public administration and the quality of its governance. Governance, as defined by the World Bank, is ‘the process through which state and nonstate actors interact to design and implement policies within a given set of formal and informal rules that shape and are shaped by power’.Footnote 89 Rather than an end in itself, an independent judiciary – by applying the rules consistently, predictably, and transparently – is ultimately a requirement for the CCP's central plank of ‘governing the nation in accordance with law’.Footnote 90 Judicial independence enhances the state's legitimacy by promoting sound public administration in ensuring that public powers are exercised within legal limits – a role most evident in the court's application of anti-corruption standards and exercise of judicial review.Footnote 91 Enabling the courts to play a third-party ‘monitoring’ role is particularly opportune at a time when the CCP initiated its anti-corruption drive in 2013 within the administrative apparatus and has sought to enhance party discipline.Footnote 92 Given the difficulty of regulating local governments across the country, the courts can also play an instrumental role in resolving the principal-agent problems associated with the increase in the bureaucratic and regulatory complexity of the state.Footnote 93
The conferment of constitutional status on the anti-corruption body called the National Supervision Commission and the enactment of the Supervision Law,Footnote 94 however, have been described by some as an effort to circumvent the due process requirements of the courts, including the courts’ power to exercise oversight over such matters.Footnote 95 Such an arrangement may serve the interests of the CCP elite in the short term, but the potential for such powers to be exercised arbitrarily may lead to a loss of credibility and accountability to their peers within the party and constituents over the long term.Footnote 96 As Mancur Olson argued, given the inherent uncertainty of succession in dictatorships, an independent judiciary makes commitments by self-interested rational autocrats to their supporters with respect to constraints on their power credible, thus serving their long-term interests and legitimacy.Footnote 97 According to the logic of collective action, it makes sense for self-interested political actors to cooperate and strike a bargain for the enforcement of legal limits on their powers through an independent judiciary.Footnote 98 This serves as ‘political insurance’Footnote 99 for the CCP's elites, particularly in an authoritarian environment where intra-regime factional struggles are prevalent.
Such ‘elite bargaining’Footnote 100 was most evident during China's post-Mao reforms which were initially motivated by the need for self-protection by the second-generation leaders after Mao Zedong. During the Cultural Revolution, many senior party leaders were purged by Mao in ‘a degraded state system in which those who were politically sainted one day could, the next, be overthrown and dragged through the mud, with often horrendous consequences for their families and major supporters’.Footnote 101 When Deng took power, he vowed to establish a legal system to steer the country toward a different direction in which at least the political elites were protected by predictable rules. As Deng put it,Footnote 102
To ensure people's democracy, we must strengthen our legal system. Democracy has to be institutionalized and written into law, so as to make sure that institutions and laws do not change whenever the leadership changes, or whenever the leaders change their views or shift the focus of their attention.
This was evident in the high-profile case of Bo Xilai in 2013, who until his conviction for bribe-taking, embezzlement of state funds, and abuse of power, was one of the top leaders of the CCP widely known for his disregard for the rule of law, and for ‘using fear as a tool’ to rule.Footnote 103 He was reported to have manipulated the judiciary, amongst other misfeasance, in his anti-crime (also known as ‘da hei’ or ‘strike black’) campaign in Chongqing.Footnote 104 In a twist of irony, he said the following in his defence at trial:Footnote 105
It is my right to honestly voice my opinions in court. I hope the prosecutors do not take my stating of my own opinions as a vile action or as withdrawing my confession. The law of our country, aiming to prevent wrongful convictions, has established a system of checks and balances for the police, prosecution and judiciary, especially checks and balances between the prosecution and judiciary. The system also embraces the defence attorneys. All these are exactly for the purpose of preventing wrongful convictions. If the court only listens to the prosecutors, wrongful convictions would be inevitable.
There are thus economic and governance incentives for the CCP to invest further in independent judiciaries in view of the rapidly changing socio-economic landscape to the extent that it may buttress its legitimacy and authoritarian legality.Footnote 106 If anything, since reforms began in 1978, the CCP has shown its resilience, pragmatism, and capacity to adapt the legal system to changing circumstances.
D. Judicial Independence in Singapore
Apart from other civil law jurisdictions such as Taiwan and Japan that China may look to for its legal reforms, Singapore, notwithstanding its common law tradition, represents an interesting example of how the rule of law and judicial independence can be achieved within a non-Western liberal constitutional framework. As described by Singapore's current Chief Justice, Sundaresh Menon:
[Singapore is] often caricatured as a study in contrasts: tiny yet prosperous; safe but over-regulated; western in outlook, yet steeped in notions of Confucianism; democratic, yet dominated throughout her existence by a single political party; free but communitarian; and above all, pragmatic, not ideological.Footnote 107
1. Singapore's Legal Context
Singapore, not China, was one of the first countries with the credibility to challenge liberal constitutionalism's orthodoxy about economic growth and constitutional government, and propose its own path of law and development.Footnote 108 Thio argues that Singapore's constitutional culture is anchored by the paramountcy accorded to stability and economic development, constructed within the context of a dominant party state.Footnote 109 China, like Singapore, has a strong and effective state, one based on democratic centralism to ensure a decisive decision-making process.Footnote 110 Both polities are also characterized (albeit not exclusively) by political constitutionalism insofar as political institutions play a role in regulating political power.Footnote 111 Notwithstanding the important role played by the judiciary, former Chief Justice of Singapore Chan Sek Keong has stated extra-judicially that courts are not envisaged as ‘the first line of defence’ against abuses of public power as ‘control can and should come internally from Parliament and the Executive itself in upholding high standards of public administration and policy’.Footnote 112A fortiori, in China, the principal authority to interpret the PRC Constitution rests with the NPC.Footnote 113 In this regard, in light of Xi's renewed emphasis of Confucian values,Footnote 114 it is interesting to recall Singapore's neo-Confucianist governing philosophy articulated in 1991 as an antithesis to Western liberalism:Footnote 115
Many Confucian ideals are relevant to Singapore … The concept of government by honourable men ‘君子’ (junzi), who have a duty to do right for the people, and who have the trust and respect of the population, fits us better than the Western idea that a government should be given as limited powers as possible, and should always be treated with suspicion unless proven otherwise.
Interestingly, in an empirical study of mid-level Chinese cadres who have studied the Singapore model, it was found that they were predominately interested in the practical aspects of Singapore's governance such as ‘clean and efficient government’ and the ‘rule of law’ rather than its political ideology, and believed that the former may be transferable to China, at least to the extent practicable.Footnote 116
Importantly, unlike China, Singapore is a multi-party democracy which ensures formal legitimacy, even if it is distinct from a Western liberal democracy and is predicated on the need for a strong and stable ‘good government’Footnote 117 that should be given a wide mandate to generate economic growth and ensure social stability.Footnote 118 Notwithstanding the divergences between China and Singapore, academic scholars have acknowledged the value in drawing insights from the Singapore model.Footnote 119 Ginsburg argues that while the Singapore model may or may not be readily transferable to China given the vast differences in scale and manageability, Singapore is important to consider because it provides a plausible model of a high quality judiciary that has avoided ‘judicializing’ politics.Footnote 120
If there is anything of value that China can learn from Singapore, it would be how the state may reconceive its ambivalent relationship with law and the judiciary. In this respect, even though some have argued that the Constitution of the Republic of Singapore (Singapore Constitution) is ‘a charter of state power and authority’ which does not fetter the state's ability to govern,Footnote 121 it is notable that its drafters had ensured that judicial power was carved out of the panoply of state power and exercised by an independent branch of government to ensure legal accountability and good governance on the part of the state.Footnote 122 This important role accorded to the Singapore judiciary is seen in the recent passing of the ‘fake news bill’, which provides the executive with broad latitude to issue directions to curb the spread of false statements of fact in the public interest, but at the same time provides for independent judicial oversight by way of appeal.Footnote 123 Thus, the law can be both a critical instrument of state power and a limitation thereof. In the words of former Prime Minister Lee Kuan Yew:
For the acid test of any legal system is not the greatness or the grandeur of its ideal concepts, but whether in fact it is able to produce order and justice in the relationships between man and man and between man and the State.Footnote 124
2. Legal Safeguards for Judicial Independence
The legal foundations for judicial independence found its genesis in Singapore's post-independence constitution,Footnote 125 and has been affirmed on several occasions by the Singapore courts since as a sacrosanct principle.Footnote 126 The judiciary is vested with exclusive judicial power as a separate branch of government distinct from the executive and legislature by the Singapore Constitution, which provides for numerous safeguards for judicial independence.Footnote 127
To ensure a non-politicized appointment process, the President, who is restricted from being a member of any political party,Footnote 128 has a veto right on the appointment of Supreme Court judges,Footnote 129 many of whom are well-respected legal practitioners.Footnote 130 The Singapore Constitution restricts parliamentary discussion of Supreme Court judges except upon fulfilling the requirements of a substantive motion,Footnote 131 and judges are immune from suit for exercises of judicial responsibilities.Footnote 132 It provides for security of tenure for Supreme Court judges until the age of 65, who may be re-appointed thereafter and whose office cannot be abolished while in office.Footnote 133 They also enjoy security of remuneration, which cannot be altered to the judge's disadvantage after appointment,Footnote 134 and are reputed to be amongst the most highly paid in the world.Footnote 135 The Singapore Constitution separately provides for the appointment by the President of judicial commissioners, senior judges, and judges of the International Commercial Court for a specified period to facilitate the disposal of cases.Footnote 136 Judges may not be removed from office except by the President on the recommendation of a tribunal comprising at least five persons who hold or have held office as a Supreme Court judge (or the equivalent in any part of the Commonwealth) ‘on the ground of misbehaviour or of inability, from infirmity of body or mind or any other cause, to properly discharge the functions of his office’.Footnote 137 The executive provides generous funding to the judiciary with S$426.40 million budgeted for the 2018 financial yearFootnote 138 and the judiciary's administration is subject to the oversight of the Chief Justice.Footnote 139
As in most common law countries, the Singapore Constitution does not provide for similar safeguards for the lower judiciary.Footnote 140 District Judges and Magistrates of the State Courts are officers of the legal service and are appointed by the President on the recommendation of the Chief Justice.Footnote 141 They are subject to the oversight of the Legal Service Commission, which is an independent constitutional body headed by the Chief Justice, which may, amongst others, dismiss and exercise disciplinary control over legal service officers.Footnote 142 Legal service officers may be posted to either the judicial or legal branch, the latter of which consists of the Attorney-General's Chambers and the legal service departments of government ministries and statutory boards, during the course of their careers.Footnote 143 While this arrangement has been debated in Parliament, with some arguing for stronger separation between the judicial branch and the legal branch, the existing arrangement was justified on the basis that it is in Singapore's interest for legal service officers to be exposed to different fields of legal work.Footnote 144 Notwithstanding critics who may be skeptical about the apparent success of the government in court,Footnote 145 the Singapore judiciary has been held in high regard in many independent international rankings. The World Justice Project Rule of Law Index 2019 ranked Singapore's rule of law at 13 out of 126 countries worldwide, notably ahead of the United States,Footnote 146 while Singapore's judicial independence is ranked 19 out of 140 countries worldwide in the World Economic Forum Global Competitiveness Report 2018.Footnote 147
II. JUDICIAL POWER IN CHINA: STRUGGLING FOR INDEPENDENCE OR SOMETHING ELSE?
An independent judiciary was not conceived of during China's imperial history except during the Republican period (1912–1949); instead, the law was seen not as an independent discipline, but as part of the function of administration.Footnote 148 After the founding of the People's Republic of China in 1949, all legal apparatus were destroyed during the Cultural Revolution from 1966 to 1976, and the reconstruction of legal institutions only started in the late 1970s during the reform era.Footnote 149
A. The Contemporary Role of the Chinese Judiciary
Criticisms of China's lack of judicial independence often obscure the complexity of the evolving role of Chinese courts in the context of China's incremental legal reforms since the reform era. While Chinese courts have been described as minor actors in the overall functioning of the state,Footnote 150 they are vested with the responsibility under the PRC Constitution to exercise judicial power,Footnote 151 and handled an average of 17.8 million cases annually from 2013 to 2017.Footnote 152 As the highest court, the SPC is responsible for adjudication, formulating judicial interpretations, and supervising and guiding the judicial work of the lower courts,Footnote 153 and has issued at least 112 of such ‘guiding cases’.Footnote 154
The SPC, as with other Chinese courts, has been described as substantially a ‘political entity’ that is subsumed within the party-state's leadership.Footnote 155 Judges are required under the 2010 Code of Conduct to be loyal to the party, the PRC Constitution, and the law.Footnote 156 While the Judges Law provides for safeguards, such as certain restrictions on removal, it also states that judges are appointed on the basis of, inter alia, their ‘political integrity’.Footnote 157 It has been argued that the party assumes a paternalistic role with respect to the courts, which are dependent on the party for resources and compelling compliance with its decisions from litigants of a ‘higher rank’.Footnote 158 The party's leadership also manifests itself through the mechanism of party political-legal committees, which instruct courts on implementing ‘judicial policies’ to ensure that the work of the courts is aligned with the party's political objectives and priorities.Footnote 159
Despite being embedded in the institutional design of the party-state,Footnote 160 the courts exhibit a reasonable degree of operational independence in a majority of routine cases, with China's judicial reforms strengthening the personal and collective independence of the judiciary over time.Footnote 161 Instead of a monolithic unit, the Chinese judiciary has been described as a heterogeneous and fragmented institution, and lower courts are subject to different forms and degrees of vertical and horizontal control depending on where they are situated.Footnote 162 The recent judicial reforms purport to prohibit unlawful interference in judicial decision-makingFootnote 163 and it may be argued that the courts have become more institutionally independent in a horizontal, rather than, vertical sense.Footnote 164 Cohen argues that judicial independence is invoked to insulate ‘judges from local influences including corruption, social connections, local protectionism, and other forces that divert local legal officials from following the central Party authorities’ instructions’.Footnote 165
In the Chinese context, contrary to orthodox understanding, judicial independence is seen to be consistent with party-state leadership. As Zhu explains, the CCP's leadership over the judiciary is an ‘inescapable historical process’ given its legacy as a revolutionary party which preceded the construction of the modern Chinese state, and most of the Party's influences in the judiciary have been, or at least purported to be, in the public's interest as part of the development of the modern Chinese state. Instead of abstract discussions of judicial independence, he argues that more attention should be paid to the actual role of the Party and its influence on the judiciary.Footnote 166 From this perspective, on the basis of the CCP's leadership, the courts have been used as agents by the national and local governments to facilitate economic growth since the opening of China's economy in 1978. According to the SPC, the courts’ role, through the adjudication of disputes, is to ‘vigorously provide judicial safeguard for China's economic and social development’.Footnote 167 Along with the concurrent economic reforms toward an innovative economy, the Fourth Plenum called for more independent adjudication to protect economic-related rights.Footnote 168 A key component of judicial reform under Xi has also been to address the issue of local protectionism, where the courts favour litigants which are important to the local economy.Footnote 169
It is with respect to issues concerning broader social stability where the courts have faced challenges especially in cases involving ‘weiquan’ lawyers and human rights activists.Footnote 170 Due to what Liebman terms as the ‘law-stability paradox’, legal institutions are not trusted to resolve issues concerning social stability, which has led to the prophylactic use of extra-legal measures. Concerns about stability may also influence how judges interpret and apply the law.Footnote 171 Courts may also take into account public opinion where cases carry wider social implications.Footnote 172 Ironically, in China's authoritarian system, the courthouse has become a battleground between the government and its challengers, as litigation is used as a tool by citizens to advance legal reforms and the public interest in the name of the rule of law.Footnote 173 As a classic dual-state,Footnote 174 the courts have demonstrated a schizophrenic approach by adhering to the ‘normative’ law in the majority of ordinary civil and commercial cases, but deferring to the CCP's ‘prerogative’ in politically-sensitive cases where the law is of less relevance or silent.Footnote 175
B. Courts and Judicial Review
As may be seen, the Chinese judiciary is constrained within the paradox of the ‘socialist rule of law’: the party-state, in accordance with the Fourth Plenum decision, has been steadfastly pushing the judiciary towards increased depoliticization, professionalism, integrity, and impartiality to serve in the people's interest,Footnote 176 but only to the extent that the prerogatives of the CCP and the national government are not challenged. Effectively, the judiciary is not the guardian of the law but serves as a conduit through which the CCP exercises its prerogative.Footnote 177 The courts do not have the power to review laws enacted by the NPC for their constitutionality but have limited powers of review under the 1990 Administrative Litigation Law (ALL), under which it may examine the legality of administrative acts, such as fines and licensing,Footnote 178 and more recently after the 2014 amendments, with respect to land use rights, natural resources, and eminent domain.Footnote 179 More importantly, the amendments prohibit political interference in administrative litigation; in this regard, while the courts have been generally effective in regulating administrative actions in the past, they have been cautious not to claim independence in doing so.Footnote 180 Further, the new Article 53 allows citizens to petition the court to review ‘normative documents’ (guifanxing wenjian) enacted by central ministries and local governments which are inconsistent with the law,Footnote 181 and Article 64 authorizes the courts to disregard a ‘normative document’ in cases brought under Article 53 if it is found to be illegal.Footnote 182
Following the 2014 amendments to the ALL, the SPC issued its ‘Judicial Interpretation on the Application of the Administrative Litigation Law’Footnote 183 to empower the courts to initiate a post-adjudication process of communication with the promulgating authority of an illegal normative document, and make ‘judicial proposals’ to the government for an amendment or even repeal of the document.Footnote 184 It is however not entirely clear whether the courts may impose an obligation on the government to respond to such proposals.Footnote 185 Recent developments concerning constitutional review have also made it increasingly possible for the judiciary to eventually acquire the power to review the constitutionality of legal enactments. The Report of the Nineteenth CCP National Congress made ‘law-based governance’ part of Xi Jinping's political agenda in transforming China to a ‘new era’,Footnote 186 of which a priority is to ‘advance constitutionality review’.Footnote 187 More significantly, this change has begun to be interpreted as an implicit authorization for judges to decide on the constitutionality of both legal enactments and the acts of government and state officials,Footnote 188 even though it is not entirely clear whether this is the CCP's official intent. If one may infer from China's recent judicial reforms, it is that the role of the judiciary is in flux, and the party-state faces a conundrum as to the nature of the role the judiciary should play within the evolving constitutional framework. This is where Singapore may offer some important insights.
III. JUDICIAL POWER AND THE RULE OF LAW UNDER THE SINGAPORE MODEL
As a country borne out of a tumultuous period following its separation from the Federation of Malaysia in 1965, Singapore's success may be attributed to the government's pragmatic commitment to the rule of law resting on a strong judiciary to ensure law and order, to attract foreign investment to drive Singapore's economic growth, and to promote good governance and eradicate corruption.Footnote 189 The rule of law in Singapore is applied with ‘hard-nosed practicality’ to suit its own circumstances, which ‘is designed to enable strong and effective government’, where ‘[l]aws can be passed and policies implemented quickly’.Footnote 190 For example, as an exception to due process, judicial review is circumscribed with respect to national security matters, which are considered unsuitable for adjudication.Footnote 191
A. Rule of Law, Economic Development, and Good Governance
In the economic realm, even Singapore's harshest critics would acknowledge its success in its rule of law as instrumental towards its emergence as a modern economic miracle, with Singapore's gross domestic product per capita rising from approximately US$516 during its independence in 1965 to about US$57,000 today.Footnote 192 As Kevin Tan writes, Singapore's judiciary through its history ‘has responded to the demands of the markets and business interests’ and ‘has been made “as efficient as the best businesses” by a government that has long understood the importance of the need for its legal system to provide the Weberian stability required for capitalist expansion and development’.Footnote 193 As one of the world's financial centres, the courts are conscious of the need to signal ‘credible commitments’ in the economic sphere by providing an impartial and efficient venue for dispute resolution.Footnote 194 To this end, the judiciary instituted reforms in the 1990s to clear its backlog of cases and improve the efficiency of case management,Footnote 195 and Singapore's legal framework is today regarded as the most efficient in the world in settling disputes.Footnote 196 Under the framework of business-friendly legislation, the Singapore courts have developed a strong corpus of jurisprudence for investor protection,Footnote 197 which has been arguably pivotal in helping it sustain the high level of foreign direct investment relative to its size till today.Footnote 198
B. The Judiciary as Co-Equal Partner and the Principle of Legality
The Singapore judiciary has been generally conservative in its exercise of judicial review by maintaining a careful balance between according the executive and legislature broad latitude to act decisively in the public interest,Footnote 199 and, at the same time, subjecting their powers to legal limits under the overarching principle of legality.Footnote 200 This prevailing judicial philosophy is best encapsulated by former Singapore Chief Justice Chan who stated that in Singapore, judicial independence means that judges should not adjudicate with parliamentary or executive approval in mind and should not be afraid of invalidating unconstitutional legislation or ultra vires executive acts for fear of a negative reaction, but at the same time respect Parliament's prerogative and interpret legislation in accordance with its purposes as intended by Parliament.Footnote 201 Where the executive has the people's welfare at heart, he argues, judicial review, if exercised properly, is for the executive's benefit as it enables the executive to comply with the law and act in the public's interest; where the executive respects the independence of the judiciary, it will accept its decisions and correct or modify its decisions to conform to the law or it can seek support from Parliament to amend the law.Footnote 202 Judicial review, he explained, deals with ‘bad governance but not bad government. General elections deal with bad government’ and is ‘a function of socio-political attitudes in the particular community’.Footnote 203 Such a judicial philosophy is informed by the belief that the courts should serve as neutral umpires and ‘equal partners in a common venture, which is to advance the best interests of the nation, but with differentiated responsibilities’, and that ‘judicial review is most effective when an environment of trust and respect prevails such that the other branches pay careful heed to the Judiciary's view’.Footnote 204
The cases of Chng Suan Tze v Minister for Home Affairs Footnote 205 and Tan Seet Eng v Attorney-General Footnote 206 are instructive of this constitutional dialogue between the judiciary and the executive and legislature. Chng Suan Tze concerned the validity of preventive detention orders made by the executive under the Internal Security Act Footnote 207 of persons accused of a conspiracy to subvert the country and establish a Marxist state. The Court of Appeal departed from a previous precedent that national security issues are non-justiciable and preventive detention orders based on national security grounds depend simply on the President's ‘subjective’ satisfaction. Instead, it stated that ‘the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.’Footnote 208 The court, thus, introduced an ‘objective’ standard of review, but ultimately invalidated the detention orders on technical grounds on the basis that the government had failed to provide evidence of the President's satisfaction.Footnote 209
The judiciary, thus, kept the executive accountable for its failure to comply with the legal procedural requirements. In compliance with the decision, the detainees were released by the government but were re-arrested and served with new detention orders.Footnote 210 After the decision, Parliament passed constitutional and statutory amendments to limit the scope of judicial review over such detention orders to issues of compliance with the relevant procedural requirements, and to reinstate the ‘subjective’ standard of review.Footnote 211 This was on the basis, inter alia, that the courts should not play an interventionist role in national security matters for which the government is accountable.Footnote 212 When one of the re-arrested detainees subsequently challenged her detention, the Court of Appeal affirmed the amendments and found that the government had the necessary factual basis in issuing the detention order.Footnote 213
In Tan Seet Eng, the appellant challenged his detention under a separate statute, the Criminal Law (Temporary Provisions) Act (CLTPA).Footnote 214 The Court of Appeal held that the CLTPA only permitted detention for activities of a sufficiently serious nature harmful to public order within Singapore. On the basis that the Minister's grounds for the appellant's detention failed to disclose how his activities had caused harm within Singapore, the Court ordered his release.Footnote 215 After the decision, the executive released a statement that it accepted the Court's judgment, and subsequently issued a new detention order with detailed grounds in compliance with the court's decision.Footnote 216 Notably, the Ministry of Home Affairs decided, on its own motion, to release three other detainees and explained that it found that its detention orders did not comply with the Court's decision.Footnote 217 More importantly, Parliament subsequently amended the CLTPA to codify the law as set out in the decision.Footnote 218
The cases above demonstrate that the court serves as an impartial referee by playing ‘a supporting role by articulating clear rules and principles by which the Government may abide by and conform to the rule of law’.Footnote 219 As the current Singapore Chief Justice has stated, its approach is informed by the belief that ‘the court which is respected by the other branches of government can effectively shape the debate and ensure the legality of government actions by setting out its concerns openly and potentially obviating a binary clash between the Judiciary and the Executive’.Footnote 220 On the basis of the principle of legality, therefore, the courts have observed that the Attorney-General's prosecutorial powers,Footnote 221 the President's clemency powers,Footnote 222 and even the Prime Minister's discretion to call a by-electionFootnote 223 are subject to legal limits.
C. Judicial Independence in Singapore and Fidelity to Law
Notwithstanding the absence of an express provision under the Singapore Constitution, the judiciary has claimed for itself the power to adjudicate on the constitutionality of laws and executive action – a claim which the government has respectedFootnote 224 – but the judiciary has exercised such powers sparingly.Footnote 225 Singapore's judicial approach has been characterized as one driven by the values of stability and ‘statist pragmatism’ in its earlier phases, which has evolved toward one driven by ‘principled pragmatism’.Footnote 226 The role of the Singapore judiciary, as affirmed by the Court of Appeal, is ‘to furnish an independent, neutral and objective forum for deciding, on the basis of objective rules and principles (inter alia), what rights parties have in a given situation’.Footnote 227 In view of its institutional limits and the constitutional prerogatives of the other branches of government,Footnote 228 judicial power includes deciding upon the legality of government actions,Footnote 229 but does not entail intruding into policy-related matters, which are to be decided and resolved by the political branches.Footnote 230 The Singapore judiciary has thus been careful not to ‘judicialize’ politics, which distinguishes it from its more outcome-oriented ‘activist’ counterparts elsewhere.Footnote 231
Accordingly, to ensure that it does not exceed its mandate, the judiciary has employed several tools in its exercise of judicial review. It has observed that there is a ‘presumption’ of constitutionality and legality in relation to statutes enacted by Parliament and the exercise of executive powers respectively.Footnote 232 It has employed the doctrine of non-justiciability, under which they will decline to exercise judicial review over issues of a policy nature, unless there is a question of law involved.Footnote 233 It has also generally tended towards a conservative formalist reading of constitutional rights,Footnote 234 while subjecting legislative restrictions on constitutional rights to a relatively moderate form of judicial scrutiny.Footnote 235 In view of the wording in the Singapore Constitution and Singapore's political culture, the Court of Appeal has observed that it is Parliament which has the ‘final say’ on how the constitutional balance should be struck between free speech and reputation.Footnote 236 Legislative restrictions on free speech and assembly which Parliament deems ‘necessary or expedient’ to regulate public order are, thus, constitutionally permissible.Footnote 237 A careful distinction, therefore, is drawn between a question of policy or politics, which is beyond the courts’ remit,Footnote 238 and deciding upon the legal limits of governmental powers, which is a question of law falling within the courts’ judicial power.Footnote 239
IV. SINGAPORE'S LESSONS FOR CHINA
Given the contrasting differences between Singapore and China as discussed earlier, it would not be entirely reasonable to expect judicial independence to manifest in precisely the same manner within these two jurisdictions. China's case presents a conundrum concerning the dichotomy between two kinds of public powers: political and judicial. It raises several questions at the crux of the discussion and central to the concept of the rule of law itself: What is the role of the courts? What is the distinction between law and politics? Are both types of public powers indistinguishable in the Chinese context, or should they be kept separate in the distribution of jurisdiction? Ultimately, do we prefer a political or judicial official to act as the arbiter of legality?
Short of prescribing specific judicial reforms in China, it is argued that Singapore's example presents two broad possibilities for China: first, a rule of law framework can be established in which the state respects the autonomy of the courts and the judiciary strictly enforces the law enacted by the state; second, judicial pragmatism in the exercise of judicial power enables the courts to ensure that governmental power is exercised in accordance with the principle of legality but without subverting the prerogatives of the executive and legislature.
A. Reconfiguring Judicial Independence in China: A Cornerstone of Legitimacy and Good Governance
A key component of the success of the Singapore model, as seen, is that the rule of law enforced by an independent judiciary reinforces the state's legitimacy and facilitates economic development and good governance in a party governed by a strong state. In supporting the independence of the Singapore judiciary, then-Senior Minister Lee Kuan Yew explained to the Singapore Parliament in 1995 that:
when the Government, including me, takes a matter to court or when the Government is taken by private individuals to court, then the court must adjudicate upon the issues strictly on their merits and in accordance with the law. To have it otherwise is to lose us our standing and to lose us our status as an investment and financial centre…The interpretation of documents, of contracts in accordance with the law is crucial. Our reputation for the rule of law has been and is a valuable economic asset, part of our capital, although an intangible one. It has brought to Singapore good returns from the MNCs, the OHQs, the banks, the financial institutions, and the flood of capital to buy up properties in Singapore. A country that has no rule of law, where the government acts capriciously is not a country wealthy men from other countries would sink money in real estate.Footnote 240
This was affirmed by former Singapore Chief Justice Chan, who stated that the role of the judiciary ‘remains unchanged regardless of whether the political system is dominated by one political party, that is, to resolve any justiciable disputes between the state and its citizens according to the law’.Footnote 241
On this premise, the conception of ‘judicial independence’ may be reconfigured from that of a threat to the viability of the Chinese party-state to a cornerstone of its legitimacy and good governance, along with a paradigm shift in its understanding that compliance with its own laws is in the long-term interest of the Chinese party-state as a form of self-restraint and accountability within its constructed framework of legality. Naturally, this engenders the necessity for the party-state to respect the authority of the judiciary to adjudicate independently so long as the courts carry out their mandate of interpreting and applying the laws according to their intent within their institutional limits. This does not necessarily preclude the legislature from amending the laws to overrule the courts, provided that such legislative overruling is applied generally and prospectively.Footnote 242 In turn, by ensuring that it conforms with the law, the Chinese state may reinforce its legitimacy and strengthen its governance framework along with its ongoing reforms.
It may be asked, however, whether an independent judiciary in China can co-exist with the absence of the separation of powersFootnote 243 given the supremacy of the NPC (or the party-state), which represents the will of the people under the socialist PRC Constitution.Footnote 244 In this regard, the issue of judicial independence and its feasibility should be distinguished from the separate but related issue of the extent of judicial power permissible in the Chinese context.Footnote 245 By way of analogy with the UK, de jure (if not de facto) judicial independence may co-exist with legislative supremacy even if judicial power is limited under the Diceyan conception of the rule of law in which Parliament (and by extension the party with the majority therein) is sovereign.Footnote 246
Further, there is no single path toward achieving judicial independence that may be implemented in a broad variety of institutional arrangements. In the absence of the formal separation of powers as such in China, it calls for a more carefully defined institutional design which demarcates the institutional boundaries to mitigate the potential conflict of interests which may arise with the judiciary's proximity to the government bureaucracy, and to ensure a clearer ‘separation of functions’ as contemplated by the PRC Constitution. The institutional practices of civil law systems may serve as a point of reference where judges serve as civil servants as part of a professional judiciary with the judicial function restricted to a mechanical application of the law with a limited interpretive function, along with the establishment of constitutional and administrative courts which are not part of the ordinary judicial system but share proximate historical links with the legislature and executive's public administration, respectively.Footnote 247
In a sense, allowing for a protective wall and ensuring functional independence of the judiciary – albeit subsumed within party-state leadership – may form a facet of the CCP's source of China's party-state constitutionalism,Footnote 248 in which the judiciary is provided with sufficient decisional space and engages in constitutional dialogue with the other branches within the CCP's constitutional structure.Footnote 249 By engaging in constitutional dialogue with the other branches, the courts may serve as a legitimate participant in the institutional process by signalling their views to other constitutional actors. This allows the political branches the opportunity to reconsider the status quo by amending the law or rectifying legal ambiguities. In doing so, the judiciary acknowledges their constitutional prerogatives of law-making, which pre-empts criticism or retaliation from the political branches and enhances its legitimacy as a constitutional actor.Footnote 250 How the Chinese courts can negotiate this challenging process in the context of existing socialist predilections could determine their legitimacy and effectiveness during and beyond the current spate of reforms.Footnote 251
B. Reconceptualizing the Judicial Role in China: Fidelity to Law
In the Chinese context, where the courts have a limited role in checking the powers of the other branches in view of the sovereignty of the NPC (or the party-state), judicial independence can only be meaningful in one context – the courts’ fidelity to law.Footnote 252 Whilst the role of the judge in a Marxist-Leninist state differs from that in a common law or civil law state in its limited interpretive function, the judge can play an instrumental role in applying the law impartially as an administrative agent of law.Footnote 253 Judicial fidelity to law would then be the true reflection of judicial independence in China. On the basis of fidelity to the written law, Chinese judges should thus aim to apply the laws in accordance with their purpose as intended by the legislature and be careful not to ‘judicialize’ politics beyond their institutional limits.
Singapore's case illustrates that by playing a supportive non-confrontational role in applying the law independently and articulating clear rules by which the government should abide, the judiciary can enhance its legitimacy and effectively shape the debate and ensure the legality of government actions without subverting the role of the legislature and executive.Footnote 254 As opposed to a relationship of ‘confrontation and containment informed by mutual distrust and self-preservation’, the judiciary can work in ‘partnership and cooperation’ with the other branches of government in a common endeavour to promote sound administration and good and proper governance within a framework of governance and legality, to which the judiciary contributes by ensuring that they act in accordance with the rule of law.Footnote 255
C. Limitations to Reforms
In light of the complexity of the politico-legal, cultural, and economic dynamics at play, more needs to be done to expand the scope of inquiry to the extent to which China may draw lessons from the Singapore model. As a first step, we have set out certain avenues of inquiry that may inform future discussions. First, one may ask whether judicial independence is appropriate in China given the relatively weak state of the courts and scarce resources, and whether courts are the appropriate forum for resolving certain disputes, given its level of economic development, the courts' status, the relationship of the judiciary to other political organs, and the competence and integrity of judges.Footnote 256 The vast differences in size, complexity, and level of development between China and Singapore mean that the process of legal development is likely to be much more uneven, difficult, and protracted in China. As a developing legal system, judicial reforms in China have to be pursued incrementally alongside complementary institutional reforms in the judiciary and the wider legal system, taking into account its resource constraints and the scale and complexity of China's court system.Footnote 257 Enhancing judicial professionalism and accountability and eradicating judicial corruption may be more important priorities than judicial independence in the short term. Further, China's distinct Confucian norms which downplay adjudication, and its civil law tradition may influence the role which judges may play, but they should not be overstated as impeding judicial independence per se.Footnote 258
A further crucial question is whether judicial independence is possible without democracy. Existing research suggests that the extent of ‘judicialization’ is co-related with the level of democratization,Footnote 259 but a reasonable degree of judicial independence is nonetheless possible in an authoritarian state to the extent that it supports the state’s legitimacy by enhancing economic development and improving governance.Footnote 260 Given the slim possibility of China transitioning into a liberal democracy in the foreseeable future, it would be unrealistic to expect judges to play a more influential role. At the very least, however, China's judiciary should arguably be given sufficient independence to interpret and apply the laws enacted by the state on the basis of its constitutional responsibility and as an integral component of ‘governing the nation in accordance with law’.
V. CONCLUDING OBSERVATIONS
It has been observed that ‘[in] framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself’.Footnote 261 In this respect, it would be reasonable to ask whether there will be any meaningful constraints on the state under China's socialist rule of law. This is far from clear and would require a fundamental shift in the constitutional order to reconfigure the institutional balance of power, as well as a normative commitment by the state to the rule of law as an intrinsic value. In the absence of such developments occurring in the near future, an independent judiciary is an essential component of the most minimal rule-of-law state to which China should aspire.Footnote 262 Judicial independence is not a mere institutional form; it is a necessary but insufficient good, and its success is predicated on a state of mind and a culture of legality, which is perhaps the most important lesson that can be learnt from Singapore's experience. Contrary to claims that such reforms may serve as an apology for power in China, it is hoped that such reforms may lay the foundation for normative constitutionalism in the future.
In deciding the appropriate role that the courts should play, the distinction is one between standards and outcomes. The constitutional role of the courts is not to effect specific outcomes for particular situations – it is the legal standards to which political actors must adhere, as opposed to the outcome, that are the court's concern and responsibility.Footnote 263 This provides a foundation for the relationship between the government and courts which is premised on their common objective of improving the quality of governance.Footnote 264 Arguably, the judiciary should be entrusted with this function as it is essentially reactive, with ‘neither Force nor Will, but merely judgment’.Footnote 265 It is indeed the ‘least dangerous’ branch of government,Footnote 266 especially in a dominant party state.
