He Weifang: Legal Reform, Resolve, and Lawyers (Part I of III)

Renowned legal scholar and Peking University Professor He Weifang discussing
legal reforms. Photo credit: China Business View

There is perhaps no better example of a public intellectual in China than He Weifang (贺卫方), professor of law at Peking University Law School and avid promoter of legal reform and judicial independence. Since 1998, when Southern Weekly published his article entitled “Ex-Servicemen Enter the Court,” He has been well-known for his insightful combination of legal analysis and criticism of contemporary social and political issues. Unabashedly liberal, his positions on legal reform have been under attack in recent years from those who believe that China should forsake foreign models of legal development and pursue its own path toward rule of law that considers “national circumstances.” In a recent interview with Xi’an newspaper China Business View, He responds by stating that reform is about changing national circumstances. In part one of a three-part translation of this interview, He discusses the importance of pursuing legal reform as a proxy for political reform and urges a return to professionalization within the legal system.

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Reform Itself Changes National Circumstances [Excerpt]
China Business View, May 19, 2012
Interview with He Weifang

Multilateral Consensus on Reform Clearest in 1980s

China Business View (CBV): People conventionally treat 1978 as a turning point in China’s rule of law. How do you evaluate the past 30-plus years of China’s rule-of-law construction?

He Weifang: In the exactly 30 years from 1949 until 1979, this country produced only a constitution and a Marriage Law. After 1979, we began to enact a series of laws. This period of legal-system construction is inextricably linked to the “bitterness of lawlessness” that national leaders like Deng Xiaoping and Peng Zhen experienced during the “Cultural Revolution.” You can say that during the reforms of the 1980s the consensus formed at all levels [of society] was clearest because everyone at the time felt that the “Cultural Revolution” needed to be left behind. So, in 1979 we enacted a Criminal Law and Criminal Procedure Law, in 1987 we had the General Principles of Civil Law, and in 1989 we had the Administrative Litigation Law. These were all terrific milestones. By the early 1990s, we had a few years of initial hesitation, but after Deng Xiaoping’s speeches during his 1992 Southern Tour, it was made clear that [China] would follow the path of socialist market economy. And in order to build a market economy, executive power needed to withdraw from the market, and another kind of power was needed in order to adapt to the current situation and that was judicial power. And so, at that time there was a resounding slogan: “The market economy is a rule-of-law economy.” However, over time, [the system of] norms became more and more complete but enforcement was very disappointing. If you look for the reason, you’ll find that we once believed that enacting a law was enough to guarantee its implementation, but it actually is not the case. This is a situation of concern to the present day.

CBV: What’s the solution? What needs to be done to establish a rule-of-law society?

He: Everyone came to recognize that the problem of building a rule-of-law society cannot be solved without good legal institutions, so we began legal reforms. During that period, I personally threw myself into study of contemporary legal systems and promotion of reforms. Suddenly, 20 years has gone by. When I look back, legal reform was extremely active during the first decade and there was a relatively clear consensus about values: namely, that it was necessary to raise the quality of legal personnel, to raise consciousness of procedure, to reform litigation models in order to have fairer dispute resolutions, and that the law should not be applied within a black box. At that time, the Supreme People’s Court also called for judicial decisions to explain their reasoning. During this process, the academic community commonly believed that legal reform might be a good angle [from which to pursue] reform of the political system.

CBV: Reform must involve top-level design. Why did you think that reform of the legal system would be easier?

He: I once wrote an article arguing that legal reform was potentially a way of achieving benefits at very little cost. For example, by raising the quality of judges, reforming the financial and personnel systems [of the courts], and separating judicial and executive [powers], it would ultimately [serve] to continuously improve judicial authority and continuously increase the level of fairness. In this way, through the resolution of judicial problems, we could ultimately realize reform of the political system. Actually, as I see it, politics is nothing more than a problem of the arrangement of authority and rights. Politics is [a question of] what kind of power we obey and what kind of power can shape stronger social relations. If people increasingly feel that you need to rely on true administration of justice, that other power is not important as long as there are fair courts, and that you go to court when you have a dispute, then that would be following a very good path. But looking at this now, that path is becoming narrower and narrower.

CBV: What's the Problem?

He: Unless we resolve the basic problem of judicial independence, then it will be impossible to improve judicial fairness. On the other hand: the legal system itself wants to solve the problem of fairness, but this internal force cannot overcome external interference. So, at that time ordinary people were seriously “deceived” by legal scholars. Readers welcomed media reports on major cases and analysis of cases, but the overall level of fairness in society has not improved and public trust in the legal system has not increased. So, the public felt a bit tricked, and in legal circles there were those who began to feel the need to go back and resort to the rule of man—like we needed a good leader with abundant kindness and insight and far-reaching power.

Just like that, the status of law began to decline and legal reform continually ran into obstacles. On the one hand, the initiative for reform by institutions of power grew weaker. In some places, one felt that there were indications that [these institutions] wanted to get rid of the system of checks and balances between public security, procuratorates, and courts and use the kind of non-adjudicative model of “establishing special case units”—and all of this was practically being done out in the open. We truly need to reflect on which direction society needs to go. In the course of reflecting on this, we naturally need to consider the direction of rule-of-law construction and legal reform, both of which are components of political reform.

Judges Should Only Express Themselves to Society Through Judgments

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CBV: Everyone knows you’re a firm supporter of judicial professionalization and advocate for judicial meritocracy. How do you think professionalization of the judicial system can be realized?

He: So-called judicial professionalism, or professionalization, should be realized in several respects. For example, we should really treat judicial power as a special kind of power, one different from executive or legislative power. First of all, those who exercise this power should possess good specialized training and excellent abilities in legal thinking and analysis, as well as an ability to use the law to respond to society’s needs. Second, we should make efforts to have judicial power be able to operate independently. This not only means that courts should be independent from external interference, but also that there should be internal regulations to ensure the independence of each judge. That’s the time to look at the way that power operates inside courts and how the power framework ought to be designed.

CBV: How do you think we should understand the role of judges? In the real world, judges have many complaints about their own role, and there is widespread public dissatisfaction with judges.

He: It’s particularly important [to figure out] how to prevent officials from interfering in the exercise of power by ordinary judges within courts. Reform must bring about a better unity between court power and responsibilities. Judges deciding a case cannot be allowed to say: “Actually, it wasn’t I who decided this case. Even though my name’s [on the decision], it really doesn’t have much to do with me.” There are currently too many cases like this, where those who try the case don’t make the decisions and those who make the decisions don’t try the case. Authority must be attributed more clearly. Only if we do this can we pursue judicial responsibility. Next, we need to construct ways to professionalize how court power is exercised. When judges sit in judgment of a case, the result must be based on evidence and theoretical argumentation. That is, a suit must be about the evidence and about [legal] theory. Only through this kind of outcome where the facts naturally become clear can we minimize to the greatest extent the possibility of judicial decisions being criticized. Even parties who lose their cases will accept the decisions because they’ll believe [they lost] because their evidence wasn’t strong enough. Moreover, this kind of professionalism also must be expressed through independent decision-making in the relationship between higher and lower courts. If higher courts participate in specific adjudication work of lower courts, then the appellate system is useless.

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CBV: The public worries that if judges are independent in the current environment they will make even more trouble.

He: Of course we all worry about the problem of judges’ professional ethics. What sort of person or behavior can pass [for a] judge? In a rule-of-law country, one with rigorous judicial professionalism, professional ethics demand that judges cannot interact unilaterally with one party in a case, even if it doesn’t involve economic bribery. These days we have judges who like to go to the media and speak freely about why they decided a case in a certain way. This is extremely out of line with judges’ professional ethics because anything that judges have to say to society should be said through their decisions; aside from this, they should not use the mass media to comment on cases. If this would gradually become the standard, this would also be a direction for judicial professionalism. In some western countries, there are thick books on judges’ professional ethics that tell you very clearly how power should be exercised. If we could truly achieve independent adjudication of cases and the name of the judge on the decision were the same person who made the actual decisions about the case, that would mean that there would be no way for judges of record to evade responsibility when miscarriages of justice were discovered—their names would forever be linked to that miscarriage of justice and the [associated] shame. “The wild goose leaves behind its cry, while a man leaves behind his name.” What judge would want to leave behind such a bad reputation?

CBV: But, in order to prevent miscarriages of justice and wrongly decided cases, some local courts have put forth a system of lifetime responsibility for judges, something that seems to have gotten a favorable response from a segment of the public. What’s your opinion?

He: I am firmly opposed to these so-called “reforms” that masquerade as professionalization. I wrote an article entitled “Legal Reform Must Proceed According to Legal Principle.” It seems that over the past eight or nine years we’ve seen a number of anti-professional “legal reforms,” and the more they tinker, the more varieties there are. When the public hears about this lifetime responsibility system for judges, they think it’s great. But they don’t realize that under the backdrop of the current [system], the more vigorously you pursue [responsibility], the more people form a conspiracy of silence and mistakes don’t get remedied. In the end, the victim is still the public.

Related Links

• He Weifang: Legal Reform, Resolve, and Lawyers Part II of III
• He Weifang: Legal Reform, Resolve, and Lawyers Part III of III