and the Judicial Role:
Honourable J J Spigelman
Posted to Web Site: 16 July 2002
Appointed Chief Justice of NSW and Lieutenant-Governor of NSW
Acting Solicitor General of NSW
Appointed Queen’s Counsel
Commenced practice at the NSW Bar
Secretary, Department of Media
Senior Adviser and Principal Private Secretary to Prime
Member, Council of the National Gallery of
Member, Board Brett Whiteley Foundation
Member, Board Australian Film Finance Corporation (Chairman 1990-1992)
Member, Australian Law Reform Commission
Councillor, Australian Film and
Professor Gabriel Moens, Professor of Law at the
“One idea that figures prominently in the relevant comparative law literature concerns an observable tendency of the world’s legal families to embrace a common intellectual framework for the consideration and resolution of current problems.”
The extent, if any, to which
At the level of form and rhetoric, change in the Chinese legal system since 1978 has been nothing short of revolutionary. At the level of practice, change is palpable, but its present significance and prognosis are extremely difficult to assess. There are elements of this development which it is appropriate to analyse in terms of “convergence”.
At the time the reforms
There are many aspects of the multifaceted process often described as “globalisation” which manifest the spread of concepts commonly ascribed to the West. Perhaps, none has been more significant than what has been called “the rule of law revival”.1
The dramatic quality of what is now being contemplated and even attempted in this respect in China, is emphasised by the fact that neither in the previous thirty year history of the People’s Republic of China, nor, even more significantly, in the millennia of prior tradition of China’s long civilisation, was there an institutional model anything like the rule of law administered by an independent judiciary.
The Chinese tradition is well expressed in one of the aphorisms attributed to Confucius:
“I could adjudicate law suits as well as anyone. But I would prefer to make law suits unnecessary.”
Accordingly, an Imperial administrator who had efficiently disposed of a huge caseload would not have received any accolade. Rather, his competence would be questioned for allowing so much contentiousness to exist on his patch.
The great Australian sinologist of Belgian origin, Pierre Rykmans, who writes under the pseudonym of Simon Leys, explained this tradition in annotations to his translation of the Analects of Confucius:
“… When a nation needs to be ruled by a plethora of new laws, by a proliferation of minute regulations, amendments, and amendments of amendments, usually it is because it has lost its basic values and is no longer bound by common traditions and civilised conventions. For a society, compulsive law making and constant judicial intervention are a symptom of moral illness.” 2
In this respect, contemporary
A rival philosophical tradition
The Chinese tradition never developed a concept similar to the rule of law. Nor did any institution emerge which could be considered to be an independent judiciary. Local prefects operated in a context in which the execution and enforcement of the law and dispute resolution were part of an undifferentiated governmental function. There was, in short, nothing analogous to a separation of powers, nor even of separate institutions sharing power.
The attempt to establish a
separate judiciary during the Nationalist era proved of no long-term
significance, other than in
Article 78 of the Constitution
of the People’s Republic adopted in 1954, stated that “people’s courts shall
conduct adjudication independently and shall be subject only to the
law”. Like the famous 1936
Constitution of the
Party control of judicial
decision-making at all levels prevented the emergence of an independent
judiciary. Whatever development may
originally have been intended, party control extending to the disposition of
specific cases, was decisively reasserted during the Anti-Rightist Movement
of 1957 and 1958.4
The linkage recognises the strategic role of the law and of the legal system in sustaining economic progress. The objective is said to be the creation of “a socialist market economy”.
Markets in a face-to-face sense - like an Oriental bazaar or a Mediterranean rialto - have existed under all systems of government and law. However, a market economy is a rare phenomenon. Only certain kinds of society, governmental structure and legal system have been able to sustain a market economy.
A market economy is not a force of nature. It is a human construct. More than anything else, a successful market economy is the product of good government and of the law.
An important motive for reform
has been the, now completed accession of
This is obviously so with respect to the administration of customs matters, but it is also true with respect to a wide range of potential interference with trade in the course of warehousing, distribution, transportation, insurance, transfer payments and various forms of regulation e.g. health.
An obligation to provide an independent judiciary has long existed in Article X of the General Agreement on Tariffs and Trade 1947, now administered by the WTO, albeit expressed in the language of obfuscation, so common a product of the compromises involved in treaty negotiation.
The GATT contains an express obligation to publish all relevant laws, including “judicial decisions”. There is also an express obligation to administer such laws “in a uniform impartial and reasonable manner” and to create or maintain judicial tribunals for “the proper review and correction of administrative action” in a sphere described as “relating to customs matters”, but expressed to extend “inter alia”, whatever that might mean.7
Although the focus of these obligations is on trade-related activity, the institutional implications cannot readily be restricted to such decision-making. The scope of legal issues capable of impinging upon trade cannot be, and is not, narrowly confined.
These issues were of
considerable concern in the process of negotiating
The specific obligation with respect to judicial review is in the following terms:
The Chinese accession to the WTO was based on a Report of a Working Party which commented on issues raised in relation to judicial review as follows:
“The representative of
Thereafter, there was enacted the Economic Contract Law of 1981, with substantial revision in 1993. It was replaced by the Contract Law of 1999. The General Principles of Civil Law of 1986 is a codification of large part of civil law.
A body of administrative law was adopted in the Administrative Litigation Law of 1990. Regulatory procedures were harmonised in the Administrative Punishment Law of 1996. In 1994, the State Indemnity Law established the possibility of suing government agencies.
The Law on Lawyers of 1996 legitimised and regulated a private legal profession. This is only the tip of the iceberg of legislation in what has accurately been described as a “legislative explosion”.11
The primary model was that of the civilian system. A detailed review of these Codes, I am sure, would identify numerous matters to which the label of “convergence” could properly be applied. The General Principles of Civil Law is derived from the German Civil Code. European law, rather than Anglo-American common law, was the model adopted in the six Nationalist Codes about 90 years ago and that has re-emerged. As one author noted in 1989:12
“… virtually the whole technical and conceptual language of Chinese law is translated from European ideas”.
More recently some influences from the common law tradition have emerged. Amendment to the General Principles of Civil Law in 1991 changed the duty of the court to collect evidence and transferred the primary burden to the parties to litigation. Trial procedures were amended to become more adversarial and less inquisitorial.
For a nation in which, not much more than half a century ago, there were foreign enclaves ruled on principles of “extraterritoriality”, imposed by force but justified on the basis of the absence of a legal system in China, this body of statute law enacted in a period of about two decades, represents an extraordinary achievement. The issue, of course, is one of enforcement.
This issue gives rise to two
distinct matters. The first is the
role, and authority of the judiciary, on which I will focus in this
paper. The second, and in many
respects the more difficult matter, is the enforcement of judicial orders and
awards. Difficulty of enforcement of
judicial orders is, on the basis of my contact with Chinese judges, a matter
of great concern to the Chinese judiciary.
It is, however, beyond the scope of this paper.
It is understandable that in Chinese debate, the terminology translated as “the rule of law” is not always used in the same sense as the words would be used in the West.16 The debate over the rule of law culminated in a formal commitment to something like this terminology in 1997 at the XVIth National Congress of the Communist Party of China.
Article 5 of the Constitution of
the People’s Republic of
“The People’s Republic of
Unofficial translations by academic commentators of the term fazhi guojia refer to a “socialist rule-of-law state”.18 That is not necessarily the same as a “socialist country ruled by law”, in an official translation. It is not clear that a Rechtsstaat is what is intended.
The process that culminated in the constitutional amendment to Article 5 began with a public address in February 1996 by Jiang Zemin, in which he used a four-character slogan generally translated as “govern the country according to law”. That formulation is found in the new Article 5.
However, in Jiang’s address, this terminology formed part of a sentence in which his reference to the law was counterbalanced by the phrase “protect the nation’s long-term peace and stability”. The terminology of “stability” is often an indirect reference for the continuation of control by the Party.19
There remains considerable ambiguity as to the sense in which the terminology of the new Article 5 is to be understood. It may be closer to rule by law, rather than rule of law.20
Nevertheless, there is now a substantial Chinese legal literature which propounds the rule of law to be the true intent of the reforms.21
There is a basic tension between the idea of the rule of law and other aspects of the Constitution, which still reflect an alternative principle that the law must serve the party State.
Article 1 of the Constitution continues to state:
“The People’s Republic of
A socialist system is the basic system of the
People’s Republic of
As one author notes:
“These two principles have co-existed uncomfortably since the inception of legal reform.22”
Tension between the rule of law
and other organising principles of governance is not, however, unique to
These debates continue today in
such contexts as judicial review and bills of rights. The issue is one of balance as a matter of
substance, not form.
One of the first clear indications of the reform process was the instruction by the Central Committee of the Party in September 1979 abolishing this system.24
However, the Constitution adopted in 1982 reflects the continued tension.
On the one hand, the Preamble to the Constitution refers more than once to “the leadership of the Communist Party” and Article 3 states:
“All administrative, judicial and procuratorial organs of the State are created by the people’s congresses to which they are responsible and by which they are supervised.”
On the other hand, Article 5 provides:
“All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated.
No organisation or individual is privileged to be beyond the Constitution or of the law.”
At the level of rhetoric, something not dissimilar to a Western conception of judicial independence has emerged over the last two decades. At the very least, direct intervention by the Party in the adjudication process is no longer regarded as legitimate.
The steps that have been taken to strengthen the Chinese judiciary as a separate institution are such as to suggest that real change is intended. The independence of the judiciary from other functions of government is not a matter capable of description with absolute precision. There are questions of degree involved.
The difficulty in the case of
The State is still said to be founded on the Four Cardinal Principles, namely adherence to the socialist road, the people’s democratic dictatorship, Marxism-Leninism and Mao Zedong Thought (with the recent addition of Deng Xiaoping Theory) and the leading role of the Communist Party of China.
Nevertheless, some degree of institutional differentiation has appeared, even if it does not constitute a strict separation of powers. The process will obviously take time. This is not unprecedented.
English legal history is, in large measure, derived from an analogous unified concept of the State, encompassed in the idea of the Crown. In English history, the Crown also played a “leading role”. It took centuries for the Crown to be clearly divided into its three manifestations.
First, as the embodiment of justice in the legal system; secondly, as the executive, and thirdly, as one component part of the legislature. I am not suggesting that the Secretary-General of the Communist Party of China is on the way to becoming some kind of constitutional monarch.
I am simply noting that
substantial institutional differentiation is possible within a unifying
concept. We could not expect that what
took centuries to achieve in
The tradition of judicial
independence with which we are familiar in
Many cases are, in substance, decided by the court leadership rather than the panel.25 Steps have been taken to limit this practice but this appears to be driven more by economy and efficiency than by any principle of independence.26 In our tradition, the personal independence of the individual judge is a recognition of professional autonomy.
A tradition of judicial
independence depends on the background, quality, training and cast of mind of
the judges and on their sense of collegiality. Just over two decades ago,
It now has something of the order of 30,000 superior judges and 180,000 lower court judges. Inevitably, a very substantial proportion of those who have been appointed have not had appropriate training or background. As I understand the position, a majority are retired officers of the People’s Liberation Army.
In 1982, the then recently re-established Ministry of Justice, announced that 57,000 “outstanding army officers” were being assigned to the court system.27
The ingrained mode of
decision-making of such recruits was not instinctively such as we would call
“judicial”. In recent years,
determined efforts have been made to change the quality of the judiciary in
terms of qualifications, competence, cast of mind and collegiality.
“This law is enacted in accordance with the Constitution to enhance the quality of judges, to strengthen the administration of judges, and to ensure that the people’s courts independently exercise judicial authority according to law and that judges perform their functions and duties according to the law, and to safeguard judicial justice.”
The Judges Law identifies the functions and duties of the judiciary, makes provision for what was described as “rights”, including restrictions on interference with judicial functions. It makes express provision for appointment and removal, establishes qualifications, regulates certain conflicts of interests and provides for rewards and discipline.
Of particular significance is the requirement for practical training and education as qualifications for appointment as a judge. Only a small proportion of the judges had such qualifications when appointed.
In the discussions in which I
and other Australian judges have participated, both in
This visit was organised by the Human Rights and Equal Opportunity Commission (HREOC) as part of an intergovernmental programme called the Human Rights Technical Co-operation Programme.28
Our task was to lecture on judicial independence and judicial ethics. As events transpired, only a fortnight before our visit, on 18 October 2001, the Judicial Committee of the Supreme People’s Court of China had promulgated, for the first time, a Code of Judicial Ethics for judges in the People’s Republic.
This provided a focal point for our presentation. We participated in the first training session for Chinese judges with respect to the new Code. Our audience consisted of about one hundred intermediate court level judges, in Australian terms, roughly equivalent to a District Court.
The Code of Ethics is an exemplary document. The new Code asserts a number of fundamental principles of judicial conduct:
Both the fact of and the
appearance of impartiality.
No extraneous interference or
Disqualification if impartiality
might reasonably be questioned.
Treatment of all parties equally
in word and deed.
A duty to state reasons for
No commentary on other cases,
Conduct of cases efficiently and
within time limits.
Case management to avoid
A ban on inducements, gifts,
Observing proper decorum.|
v Restriction on extra-judicial and post retirement activities.
The new Code of Judicial Ethics
represents one part of a systematic effort to improve the quality of judicial
The overall picture is one which
Although future success cannot be stated with any degree of certainty, it is plainly a serious endeavour. Steps are also being taken to address the traditional low status of judges.
I am not aware of the debate that is probably going on internally about the low level of remuneration. Once that becomes a primary focus for concern, Western judges will experience a real sense of convergence.
Only a week ago, the Chief Justice of China announced a new series of measures directed to improving the quality of the judiciary. He indicated that all new judges would have to pass exams and receive special training.
Existing judges without a law degree would be required to obtain one within a fixed time. I assume this applies only to senior judges, but it may go further. The present practice by which clerks could be promoted to become judges after a certain number of years is to change. In making the announcement, the Chief Justice Xiao Yang said:
“Courts have often been taken as branches of the government and judges viewed as civil servants who have to follow orders from superiors, which prevents them from exercising mandated legal duties like other members of the judiciary.”
He meant, I think, the judiciary
The Chief Justice added that professional judges would:
“… form a chosen group of elites who speak the same legal language, think in a unique legal formula, believe in and pursue social justice.”
The Chief Justice predicted:
“Over the years, unique professional traditions and qualities come into being, which will give judges the strength and the power to ward off outside interferences.” 29
The sentiments are, of course, exemplary. The Chief Justice of China was correct to describe this ambition as a “huge system engineering project”. It appears designed to create the reality and appearance of institutional autonomy.
The seriousness of the effort is
clear from the level of interest and intensity of questioning that I have
experienced from visiting Chinese delegations to
The training course was based on a volume of materials made available in both English and Chinese. The primary focus was the Code of Judicial Ethics, then some two weeks old. The training materials included a copy of that new Code and of the Judges’ Law of China.
It also included, in Chinese and
English, the Judiciary Act of Germany, the Judges’ Act of Canada, the Judges’
Status Law of Russia and, the codes of conduct for judges from the
It also included the resolution
It did not, however, include a copy of the Beijing Statement of Principles of the Independence of the Judiciary, issued in Beijing on 19 August 1995 and amended in Manila on 28 August 1997, which has been signed by thirty-two Chief Justices of the Asia and Pacific region, including on behalf of the President of the Supreme People’s Court of the People’s Republic of China.
Nevertheless, that was a document to which the Australian judges made reference in the course of our addresses.
An extensive programme of
training of judges has been instituted.
Delegations of Chinese judges now frequently travel abroad. In the Supreme Court of New South Wales, we now receive up to a dozen delegations a year. This appears to be part of a programme to broaden the perspective of the Chinese judiciary.
A large number of delegations of
foreign judges have attended conferences and seminars of Chinese judges,
including at the
Late last year a delegation to a
seminar of the Supreme People’s Court in
The delegation was welcomed by Li Peng, Chairman of the Standing Committee of the People’s Congress and Xiao Yang, the Chief Justice of China. There is no doubt that the programme of judicial reform has support at the highest level.
Of particular significance for the establishment of a tradition of judicial independence is the sense of collegiality amongst the judiciary. This has been fostered in a number of ways as the recent speech of the Chief Justice I have quoted suggests.
Just over a year ago, a new uniform was adopted by the Chinese judiciary, replacing the former uniform with its epaulette and caps, reflecting the military origins of most of the judiciary. The announcement said that the uniform introduced in 1984 looked military and “did not reflect the unique social role of judges”.30
The new dress is a black robe with four yellow buttons on the red front of the robe, the same colours as the National flag. The four buttons represent the four levels of courts in the Chinese hierarchy.
The judges are subject to sumptuary laws, requiring them to wear business suits to work – black suits, but grey in summer - with a badge in the right lapel.
Of similar symbolic significance
was the appointment earlier this year of forty-one “grand justices”, together
with a similar number of “grand procurators”.
This is a new professional title.
It appears that those appointed will have a role in resolving
complaints about the judiciary.31
The public appearance was of sweetness and harmony. However, the Gang of Four was still in control and unspeakable things were happening behind the scenes.
You will permit a historical
interlude. The welcoming party for the
Australian delegation at
It was Deng Xiaoping. This was the first time that Deng had been seen in public for many years. In retrospect, this public rehabilitation was a moment of monumental significance.
The authority of the courts in
The transparency of the judicial process has also increased, although it is too early to say how far the principle of open justice will be adopted. However, one author observes:
“The main function of a public trial is changing from a method to educate people to abide by law to a means of public supervision of judicial performance”.32
I have been impressed by the
spirit of candour with which the Chinese judges approach their training
tasks, both at the
They openly acknowledge the problem of corruption within the judiciary and also the existence of limits on the freedom of discussion in which they can openly engage, although plainly those limits as set much wider that had hitherto been the case.
An element of defensiveness is apparent amongst some Chinese judges. Some regard the new requirements as an impediment to the efficient conduct of the courts. It is plain that many regard the new obligation contained in the Code of Ethics to provide reasons for decision as detracting from what they regard to be an efficient system.
Many do not see the point of giving reasons, an understandable belief for those originally trained in the People’s Liberation Army. Some judges express doubts about the value of impartiality.
I am not able to separate rhetoric from reality, in order to assess the true extent of judicial independence in prospect. It is plain that there are limits to the Party’s preparedness to surrender power, but the boundary is not clear.
It may be that the most distinctive characteristics of the Chinese authoritarian tradition is that the boundary of permissible behaviour is left deliberately vague. In many cases, vagueness encourages timidity and risk aversion. Clear rules often identify possibilities of evasion and permit risk assessment.
Whatever the future may hold, no lawyer could regard the recent reforms as anything but a positive development. However, our own tradition strongly suggests that true institutional autonomy requires some form of judicial tenure.
That does not exist in
The progress already made is
impressive. Convergence, however,
Bao Zheng, known as Bao Gong, born at the turn of the millennium in 999 was an outstanding government official of the Northern Song Dynasty. He is a popular character in Chinese opera, in which he is portrayed with a black face.
As I understand it, in Chinese opera a black face may indicate either a rough and bold character or an impartial and selfless personality. It is the latter that applies to Bao Gong. He is known for dispensing justice without fear or favour and with such impartiality, that he punished the son-in-law of the Emperor, the uncle of a high ranked imperial concubine, and many government officials.
The Chinese judiciary does not
have to look to the West for a role model of judicial independence, integrity
3. Eric W. Orts “The Rule of Law in China” 2001, 34 Vanderbuilt Journal of Transnational Law, 43 esp. at 52-55; Albert H.Y. Chen “Towards a Legal Enlightenment: Discussions in Contemporary China on the Rule of Law” 2000, 17 UCLA Pacific Basin Law Journal 125 at 129-130; John K. Fairbank and Edwin O. Reischauser, China: Tradition and Transformation, Revised Edition 1989 at 43-54.
4. See Jerome A. Cohen “The Chinese Communist Party
and ‘Judicial Independence’: 1949-1959” (1969) 82 Harvard
Law Review 967; Larry Smeets “Judicial
Independence in the People’s Republic of
11. Lubman supra at 173. Lubman has outlined the new legislation esp. at 160-168 and 175-183; see also Anthony Dicks “The Chinese Legal System: Reforms in the Balance” 1989 China Q 540 at 550-560, 568-569.
16. See Chen,
supra passim; Orts supra esp at 74-77, 106-110;
Wang, “The Developing Rule of Law in
Secrecy-Political Censorship in