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Convergence
and the Judicial Role: by The
Honourable J J Spigelman
AC Address
to the Posted to Web Site: 16 July 2002 |
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The Code of Judicial Ethics for
Judges of the People's Republic of China |
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1998 1997 1986 1980 1975 1972 |
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 |
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1995-98 1995-98 1995-98 1988-92 1980-88 1976-79 1975-78 |
Governor, Member, Council of the National Gallery of Member, Board Brett Whiteley
Foundation Member, Board Australian Film Finance Corporation
(Chairman 1990-1992) Member Board, Member, Australian Law Reform Commission Councillor, Australian Film and |
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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
commenced, 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
in 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 |
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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 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 |
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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. |
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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. |
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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. |
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“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 |
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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 The overall picture is one which
suggests that |
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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 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
adopted in 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 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 |
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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,
remains partial. |
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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 |
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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 5. See 6. Quentin
Skinner “Legal Symbolism in Earlier Renaissance Art: Ambrogio
Lorenzetti’s Frescos in 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 9. Protocol on the Accession of the People’s Republic of 10. Report of the Working Party on the Accession 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. 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 “ 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 17. http://www.moftec.gov.cn/moftec_en 18. See Orts supra
at 45 fn 5, Chen supra at 128. 21. Chen
supra reviews the literature. 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, 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. 31. 34. On Bao Gong see: |
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Secrecy-Political Censorship in |
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