|The Perquisite of Anti-corruption is Judicial Independence
On March 4th, 2014, China Democracy Party held a rally in front of Chinese Consulate General in New York. And the theme is “The perquisite of anti-corruption is judicial independence.”
Despite the cold weather, China Democracy Party members held the banners, shouted slogans, and gave speeches to support anti-corruption in China. They also pointed that the perquisite of anti-corruption is judicial independence. Only anti-corruption stays in the legal aspects, can it be effective, and can really save China.
Why China’s corruption problem is getting worse and worse now? Courts do not do anything to stop corruption. Instead, the administration authority launched a campaign to punish corruption? That is because the judiciary is not independent in China.
Corruption is a serious political haze. It cannot be solved in the so-called names like, “high-pressure situation," " firm determination to punish corruption," and” intensify its efforts to investigating cases," and” irregularities and corruption on zero tolerance ".
Bans one after another, trying to correct unhealthy behaviors; procedures one after another, trying to have a better society; typical disciplinary cases one after another, all these really make people wondering… China’s anti-corruption work in China really gets a lot of attention; however, the corruption in China is more intensified.
Some people says, “ You have to be a good example before you try to correct others.” This sounds reasonable, actually it is not really in place. It does not know that understanding system is fundamental. A good system can control bad people, and bad system can ruin good men.
From our point of view: the key of anti-corruption is not to enhance those government workers to raise their inspection level, it is to build a modern system of judicial independence.
Judicial independence means to separate the administrative power and public’s will, and let the special group to handle certain situations.
Judicial independence has two meanings. First, the judicial authority shall not be subject to administrative intervention, which is easy to say and hard to do. Second, judicial authority should not be subject to the constraints of public opinion, which is both hard to know and do.
There is a famous sentence “the people＇s eyes are sharp ". if so, why not just leave the case to the public to judge, or just let people vote online, isn’t the country would be very peaceful? The answer is negative.
People are not always rational. In fact, it is often difficulty to remain rational. Unless the decision maker has to take great responsibility if he or she does wrongly, or he would just chose to do a so-so job, or chose to make happy decisions. This is like splitting a piece of bread, you can just use your hand to tear it; only to split a gold brick, it is worth to use good equipment.
So even people can be critical while doing their own things, they can still irresponsible and impulsive while doing other people’s things. In order to let the law enforcement be justice, the decision makers have to fully accept the consequences of their judicial decisions, otherwise justice will make nonsenses.
According to people’s characteristics, there is a distinction between pre-rule and post- discretionary. In the abstract level, people can support perfect principles. How do people vew the statement of “ everybody is equal in front of law”? probably all the people would say they agree totally. However, while encountering specific cases, those principles can easily be transformed into empty words. Personal prejudices, emotions and dramas, will seriously affect their judgments on events.
In addition, as a professor at China University of Political Science and Law said : Jurisdiction separation promote judicial independence.
In order to build a country with rule of law, China has to deepen judicial reform, accelerate the construction of a fair, efficient and authoritative socialist judicial system and safeguard people’s interests. Ensuring the power of law and deepening the judicial reform are extreme important.
On the issue of justice , rule of law , independence, impartial ”, the core is impartial; Rule of law and independence a necessary condition to achieve justice.
Various contradictions and problems in current Chinese society needs to be solved by judiciary. If the judicial system cannot be justice, it will not be able to solve the problem, instead would create new problems.
The question now is, to be fair, we should do things use facts and the law as the criterion. This is the principle of the law.
The principle of independence is fully discussed in academic area. . In the judicial process, the intervention from power and emotions exists commonly. Under such condition, in order to let the judiciary follow rule of law and be independent, it needs some specific measures to promote. Among those, cutting localization is a necessary element of judicial independence.
Cutting localization refers to the courts and prosecutors’ work has to be carried out according to the law, and not affected by local government. Jurisdiction and prosecution have to be just and fair. With a just judicial system, there will real authority inside the department.
Cutting localization has two meanings: first, the local administration does not interfere with the judicial department. Second, the judicial department can say no to other authorities, which requires a lot of courage. So the critical factors would be its persons and money.
China had such experience before which is called “Taizhou experience”, it takes trial in other place to avoid t intervenes from local government. This is a way to prevent interference with the judicial system , but the shortcomings are obvious : First , it is clear that the approach is the existence of local intervention ; Second , will off-site intervention trial really be able to completely avoid it?
Cutting localization can use the approach of separating jurisdiction and administration, this is well known in academic area. There are examples about this approach. The Central People＇s Bank uses this approach to prevent local branches becomes the money pocket of local government. Some people propose the centralization of the District Court, however we prefer to let it be in charged by a higher level court. Judges have to be elected by the people’s meeting. So does the financial power.
De-administration means all the acts much in in accordance with the laws of justice. Judicial law embodied in the setting of judicial proceedings. For example, the public is the most important factor in the judiciary. So court proceedings have to be open to the media and the public.
In addition, the reform of administrative and judicial system needs to be put together. The most important thing for China is to set the limits for all the departments. And manage everything scientifically.
If China really wants to punish corruption, then it has to adopt the principle of judicial independence thoroughly.
Chinese Democratic Party
March 4, 2014