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By Root 381 0

The government maintains tight restrictions on lawyers in their representation of their clients. The Lawyers’ Law (1996) provides for inadequate protection of lawyers’ rights, leaving lawyers vulnerable to harassment and persecution by, local officials.81 According to the president of the Chinese Lawyers Association, the number of incidents in which lawyers were mistreated was large. Law enforcement officers frequently assaulted, detained, and verbally abused lawyers. Many lawyers were wrongfully convicted and sentenced to jail. Lawyers’ rights to defend their clients in court were restricted. Some lawyers were ejected from courts without justification. But local governments, in most cases, refused to cooperate with lawyers’ associations in investigating such cases of abuse.82

Despite a massive effort to raise the qualifications of judges, the overall level of professionalism of the judiciary is very low. For example, 60 percent of the judges in 2003 had not received a college or college-equivalent education.83 A large number of sitting judges, many of whom are former officers in the People’s Liberation Army (PLA), have dubious legal Qualifications. For example, in one midsized city in 1998, of the 1,354 judges in the city’s courts, 500 (37 percent) were former PLA officers, and 733 (more than half) were transferred from other government agencies and presumably had received little formal legal education. Only 87 had college degrees and 96 had associate degrees, and 364 judges had a high school education or less.84

Perhaps the most revealing evidence that the rule of law is fundamentally incompatible with a one-party regime is the CCP’s steadfast refusal to undertake the necessary reforms to correct the two following well-known institutional and structural flaws in the Chinese legal system—even though they have long been identified and numerous remedies have been proposed. For example, in a study commissioned by the Supreme People’s Court to amend the “People’s Court Organic Law,” He Weifang and Zhang Ziming, two leading academics, detailed a long list of the symptoms that manifested these flaws. What is remarkable about the proposal by He and Zhang is that similar proposals had been floated before but were never acted upon by the CCP.85 To the extent that reforms are adopted to address the critical weaknesses in the legal system, the measures implemented by the government tend to be piecemeal and technical. They try to remedy the less controversial procedural flaws while avoiding the most sensitive political issues.86

Politicization of the Courts and Lack of Judicial Independence

As a judicial institution, Chinese courts are heavily politicized and deprived of the independence crucial to their role as guardians of justice and adjudicators of disputes.87 The politicization of the courts is reflected in the control exercised by the CCP over the various aspects of the courts’ operations. For example, each level of the CCP organization, down to the county level, has a special political and legal committee (zhengfa weiyuanhui)headed by a senior party official. The committee directly makes decisions on important policies and issues related to the courts and law enforcement. In many cases, this committee even determines the outcomes of major court cases.

In terms of judicial appointments, the CCP’s organization department would nominate candidates for the presidents and vice presidents of courts, often regardless of their judicial training or the lack thereof. A former vice president of the Supreme People’s Court (SPC), Wang Huai’an, admitted that the CCP’s nomenclatural system (dang guan ganbu) controls the appointment of key personnel in the court system. In the case of the SPC, the members of the SPC party committee, who are the most senior judge-officials of the court, are appointed and supervised by the CCP Central Committee, and members of the party committee of provincial high courts are jointly supervised by the SPC party committee and the provincial party committees. The members of the party committees of intermediate