Australia-China Chamber of Commerce and Industry
of New South Wales







Convergence and the Judicial Role:
Recent Developments in China


The Honourable J J Spigelman AC
Chief Justice of New South Wales

Address to the China Education Centre
University of Sydney, 11 July 2002

Posted to Web Site:  16 July 2002



The Code of Judicial Ethics for Judges of the People's Republic of China

Judges Law of the People’s Republic of China

About the author:










Companion of the Order of Australia, for services to law and to the community

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 Minister Whitlam












President, Museum Applied Arts and Sciences

Governor, Ascham School

Member, Council of the National Gallery of Australia

Member, Board Brett Whiteley Foundation

Member, Board Australian Film Finance Corporation (Chairman 1990-1992)

Member Board, Art Gallery of NSW (Deputy Chairman 1983-1988)

Member, Australian Law Reform Commission

Councillor, Australian Film and Television School


The XVIth Congress of the International Academy of Comparative Law will be held in Brisbane commencing this weekend.  The general theme of the Congress is “Convergence of Legal Systems in the 21st Century”. 

Professor Gabriel Moens, Professor of Law at the University of Queensland and chair of the Congress, referred to the theme in the context of recent comparative law literature in the following terms:

“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 China can now be said to adopt such a “common intellectual framework” is a matter of great significance.

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 commenced, China had just emerged from the calamitous years of the Cultural Revolution, during which nothing that could be described as a legal system had been permitted to survive.  Although there were some personnel from the previous system that could be drawn on, the era of the Four Modernisations required the reconstruction of legal institutions, virtually from scratch.

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 China has converged with the West.

A rival philosophical tradition in China, known as the Legalists, emphasised severe law and harsh punishments, on the basis of what, in the West, would be regarded as a Hobbesian view of the world.  This authoritarian tradition is not a forerunner of a rule of law philosophy.  It is rule by law, rather than the rule of law.3

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 Taiwan.  In the People’s Republic of China, the period of Party rule prior to the Cultural Revolution, did lead to the emergence of a separate institution in the form of a hierarchical court structure, based in large measure on Soviet experience.  This tradition has proven to be of longer-term significance as a partial model for reconstruction after the end of the Cultural Revolution.

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 USSR, Article 78 did not reflect actual practice. 

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 Stimulus of Economic Reform:

The transformation of the Chinese economy over the last two decades has been extraordinary.  The transformation of its legal system has been equally extraordinary.  There is no doubt that legal reform has been driven by economic reform.5

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. 

In the Town Hall of Siena, there are two wonderful frescos by Lorenzetti: Allegories of Good and of Bad Government.  Even a cursory glance at the latter, with its depiction of decay and chaos, will convince anyone that without law, there can be no market system.6

An important motive for reform has been the, now completed accession of China to the World Trade Organisation.  The ability of other nations to obtain the benefits of trade agreements depends on domestic compliance with the obligations imposed by such agreements. 

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 China’s accession to the WTO.  The final Protocol for the Accession of the People’s Republic of China to the WTO included obligations for the publication and enforcement of “all laws, regulations and other measures pertaining to or affecting trading goods, services, TRIPS or the control of foreign exchange”.8

The specific obligation with respect to judicial review is in the following terms:

China shall establish, or designate, and maintain tribunals, contact points and procedures for the prompt review of all administrative actions relating to the implementation of laws, regulations, judicial decisions and administrative rulings of general application referred to in Article X:1 of the GATT 1994, Article 1 VI of the GATS and the relevant provisions of the TRIPS Agreement.  Such tribunals shall be impartial and independent of the agency entrusted with administrative enforcement and shall not have any substantial interest in the outcome of a matter.” 9

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 China confirmed that it would revise its relevant rules and regulations so that its relevant domestic rules and regulations would be consistent with the requirements of the WTO Agreement and the Draft Protocol on procedures for judicial review of administrative action.  He further stated that the tribunals responsible for such reviews would be impartial and independent of the agency entrusted with the administrative enforcement and would not have any substantial interest in the outcome of the matter.” 10

A Legislative Explosion:

A critical component of the process of legal reform has been a formidable body of new statute law.  The Criminal Law and the Criminal Procedure Law of 1979 were the first codes promulgated in China since the abrogation of the six Nationalist Codes in 1949. 

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. 

New rules of evidence were introduced.13  Amendments to the Criminal Procedure law in 1996 introduced adversary elements to the fact-finding process in criminal trials.14

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.

The Rule of Law:

The idea of “the rule of law” has played a prominent part in Chinese debate over the last two decades.  Although long established in Western discourse, the concept has a chameleon-like quality.15

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 China was formally amended in March 1999 at the Second Session of the Ninth National People’s Congress by adding the following sentence, in the translation available on the website of the Ministry of Foreign Trade and Economic Cooperation.17

“The People’s Republic of China governs the country according to law and makes it a socialist country ruled by law.”

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 China is a socialist State under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants.

A socialist system is the basic system of the People’s Republic of China.  Disruption of a socialist State by any organisation or individual is prohibited.”

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 China.  The proper scope of judicial authority in the West, for example in debates over the divine rights of kings and Parliamentary supremacy, have waxed and waned in Western nations over many centuries. 

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.

Judicial Independence:

In China, the relationship between the Party and the courts remains a critical issue.  The prior tradition permitted party intervention in the judicial process by the examination and approval of individual cases by party cadres, a system referred to as shuji pian.23 

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 China is the reconciliation of an independent judiciary with the maintenance of an official ideology, which appears inconsistent with any level of independence.

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 England, would be done within two decades in China.

The tradition of judicial independence with which we are familiar in Australia extends beyond independence from external interference to encompass independence from other judges.  This is alien to Chinese practice in which a panel of judges in a particular case is expected to consult within the court.

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, China had no institutionalised judiciary and no judges.

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.

The Judges Law:

In 1995, the Standing Committee of the Eighth National People’s Congress adopted a new Judges’ Law of the People’s Republic of China.  This was subsequently amended at the Ninth National People’s Congress in June 2001.  The objective of the law was stated in Article 1 as follows:

“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 China and also with visiting delegations to Australia, it is accepted that it will be some years before the judiciary of China reflects the aspirations laid down in the Judges’ Law.

Code of Judicial Ethics:

My own interest in, and a substantial proportion of my knowledge of, recent developments in the Chinese judiciary, is based on a visit to China I made last November as one of a team of four Australian judges to lecture at a training course for Chinese judges at the National Judges’ College in Beijing. 

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:

v      Both the fact of and the appearance of impartiality.

v      No extraneous interference or influence.

v      Disqualification if impartiality might reasonably be questioned.

v      Treatment of all parties equally in word and deed.

v      A duty to state reasons for judgment.

v      No commentary on other cases, including appeals.

v      Conduct of cases efficiently and within time limits.

v      Case management to avoid unnecessary delay.

v      A ban on inducements, gifts, conflicts.

v      Observing proper decorum.|

v      Continuing education.

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 decision-making in China. 

The overall picture is one which suggests that China is in the middle of a very serious effort to establish the judiciary as a separate institution of considerable strength.

Towards Institutional Autonomy:

A substantial body of men and women in the Chinese judiciary are actively engaged in this process of institutionalisation.  It is not possible to determine the extent to which the growing appearance of institutional autonomy reflects the reality. 

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 outside China, a revealing perspective in itself.

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 Sydney and also during the training course in which I participated in Beijing.  That course included four lectures from Australian judges and addresses by a number of Chinese judges and legal academics. 

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 United States, Canada, Italy and the American Bar Association Model Code.

It also included the resolution adopted in Milan in September 1985 by the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders entitled “The Basic Principles on the Independence of the Judiciary”. 

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.  The National Judicial College was established in Beijing.  It conducts residential training of senior judges.  There is also a well-funded programme encouraging contact with legal systems throughout the world. 

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 National Judicial College.  These have been welcomed at a very high level in China.

Late last year a delegation to a seminar of the Supreme People’s Court in Beijing, included a judge of the New South Wales Court of Appeal, a judge of the Bundesgerichtshof, the President of the Tribunal Grande Instance Quimper and the Dean of the Law School at Montreal University in Canada.

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


China has an extraordinarily long tradition of beguiling Westerners and deceiving them about how things are working in practice.  My own first visit to China was in 1974 as part of the entourage of E.G. Whitlam, then Prime Minister. 

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 Beijing Airport was led by Zhou Enlai.  As the Australian jet was approaching, Zhou sought out and warmly greeted a slight figure in the line up. 

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 China, particularly vis a vis the party, government departments, the military (and their various commercial offshoots) and also vis a vis other parts of the justice system, such as the Procurate, remains problematic.  Nevertheless, there do appear to have been significant changes.

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 National Judicial College in Beijing and in the delegations that visit Sydney.  The Chinese judges engage in vigorous dialogue and questioning. 

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 China.  Nor am I aware that it is in contemplation.  Furthermore, the traditional style of adjudication and the relationship of judges amongst themselves have a bureaucratic quality which does not reflect a sense of professional independence.33

The progress already made is impressive.  Convergence, however, remains partial.

A Chinese Model:

The ideas of the rule of law and of judicial independence are drawn from the West.  I am not sufficiently familiar with the Chinese legal literature to know what, if any, reliance is being placed on Chinese tradition.  There is at least one role model for judges in that tradition.

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 and impartiality.34


1. Thomas Carothers “The Rule of Law Revival” Foreign Affairs, March/April 1998.

2. Simon Leys (Trans) The Analects of Confucius, W.W. Norton, 1997 at fn 176.

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 China” (1992) 8 Australian Journal of Law and Society 60.

5. See Stanley Lubman Birds in a Cage: Legal Reform in China After Mao, Stanford University Press, 1999 esp Chapter 5.

6. Quentin Skinner “Legal Symbolism in Earlier Renaissance Art: Ambrogio Lorenzetti’s Frescos in Siena” 1994, The Cambrian Law Review 9.

7. General Agreement on Tariffs and Trade, 1947 Article X, sub-articles 1, 3(a) and (b).

8. Protocol on the Accession of the People’s Republic of China, Part 1.2C Transparency.

9. Protocol on the Accession of the People’s Republic of China, Part 1.2D Judicial Review.

10. Report of the Working Party on the Accession of China, World Trade Organisation, 1 October 2001.

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.

12. Dicks supra at 560.  See also Perry Keller “Sources of Order in Chinese Law” (1994) 42 Amer J. of Comparative L. 711 at 717-719.

13. Xian Chu Zhang “China Law” (1999) The International Lawyer 677 at 689.

14. Wang supra at p11.

15. See Keith Mason “The Rule of Law” in P.D. Finn (ed) Essays on Law and Government: Volume 1 Principles and Values, Law Book Company Sydney 1995 at 114.

16. See Chen, supra passim; Orts supra esp at 74-77, 106-110; Wang, “The Developing Rule of Law in ChinaHarvard Asia Quarterly, Autumn 2000 (accessible at; Lubman supra esp at 123-131.


18. See Orts supra at 45 fn 5, Chen supra at 128.

19. Lubman supra at 128-130.

20. Orts supra at 48.

21. Chen supra reviews the literature.

22. Lubman supra at 123.

23. Smeets supra at 70.

24. Smeets supra at 75.

25. See Lubman supra 260-262.

26. See for example the observations of the Chief Justice of China in China Daily 3 March 2001.

27. Jonathan D. Spence The Search for Modern China Hutchinson, London 1990 p708.

28. I have reviewed this visit in my Address to the Law and Justice Foundation “Law and Justice Address” 2002, 11 Journal of Judicial Administration 123.

29. See China Daily 8 July 2002; People’s Daily 8 July 2002; Sydney Morning Herald 9 July 2002.

30. China Daily 9 March 2000.

31. China Daily 23 March 2002.

32. Zhang supra at 692.

33. Lubman supra at 292-297.

34. On Bao Gong see:,

Other Publications by the Author:

Co-author, The Nuclear Barons (published in the United States), 1981.

Secrecy-Political Censorship in Australia, 1972.


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