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Themis V Xiezhi, JI in PRC and Under IHRL Themis v. Xiezhi: Assessing Judicial Independence in the People's Republic of China under International Human Rights Law Grimheden, Jonas 2004 Link to publication Citation for published version (APA): Grimheden, J. (2004). Themis v. Xiezhi: Assessing Judicial Independence in the People's Republic of China under International Human Rights Law. Jonas Grimheden, [email protected]. 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LUND UNIVERSITY PO Box 117 221 00 Lund +46 46-222 00 00 THEMIS V. XIEZHI: ASSESSING JUDICIAL INDEPENDENCE IN THE PEOPLE’S REPUBLIC OF CHINA UNDER INTERNATIONAL HUMAN RIGHTS LAW BY JONAS GRIMHEDEN ii © Jonas Grimheden Printed on Munken from Arctic Paper Printed by Intellecta DocuSys Lund 2004 ISBN: 91-974734-2-1 iii Overview of Table of Contents OVERVIEW OF TABLE OF CONTENTS iii TABLE OF CONTENTS iv TABLE OF CHARTS vii ABSTRACT viii ABSTRACT IN CHINESE ix PREFACE xi ACRONYMS AND GLOSSARY xv INTRODUCTION 3 JUDICIAL INDEPENDENCE..........................................................................20 I. INTERNATIONAL INSTRUMENTS 25 II. INTERPRETATION AND APPLICATION 55 COMPARING COMPARISONS ......................................................................96 III. COMPARATIVE LAW: COMPARING CHINA 100 IV. FIAT LEX: LEGAL HISTORY IN CHINA 117 ASSESSING CHINA’S JUDICIARY..............................................................152 V. FIAT FLUX: MODERN HISTORY 154 VI. THE CONTEMPORARY JUDICIARY 185 GENERAL CONCLUSIONS 256 LITERATURE 262 iv Table of Contents OVERVIEW OF TABLE OF CONTENTS iii TABLE OF CONTENTS iv TABLE OF CHARTS vii ABSTRACT viii ABSTRACT IN CHINESE ix PREFACE xi Acknowledgments xiii ACRONYMS AND GLOSSARY xv INTRODUCTION 3 Independence: Control or Legitimacy 6 Structure and Methodology 10 Sources 12 Concepts and Terms 13 JUDICIAL INDEPENDENCE .........................................................................20 I. INTERNATIONAL INSTRUMENTS 25 A. The United Nations and other International Organizations 25 1. Detailed UN Instruments 28 2. Other Instruments 30 3. International Courts 31 B. Regional Organizations 33 1. The Organisation of American States 33 2. The African Union 35 3. The Council of Europe 36 4. The Organization for Security and Cooperation in Europe 39 5. Asian and Other Regional Initiatives 40 C. Professional and Human Rights NGOs 41 Conclusions 45 II. INTERPRETATION AND APPLICATION 55 A. United Nations Monitoring Mechanisms 55 1. The United Nations Human Rights Committee 55 2. Other Human Rights Treaty Bodies 68 v 3 UN Special Procedures 71 B. International Courts 74 1. International Criminal Courts 74 2. Special National Courts 77 C. The European Court of Human Rights 79 1. Independence 81 2. Impartiality and Public Confidence 83 D. Other Regional Organizations 87 1. The Inter-American Court and Commission 87 2. The African Commission on Human and People’s Rights 90 Conclusions 91 COMPARING COMPARISONS......................................................................96 III. COMPARATIVE LAW: COMPARING CHINA 100 A. Comparative Research 100 B. Legal Orientalism 104 1. Constructing ‘the East’ 105 2. Reciprocal Constructions 111 Conclusions 114 IV. FIAT LEX: LEGAL HISTORY IN CHINA 117 A. The Origin of Law 118 1. 1600 B.C.E.−220 C.E. 119 2. 221 B.C.E.−1898 C.E. 122 B. Dispelling Confusion: Confucianism v. Legalism 124 Legitimized Inequalities? 128 C. Law and Litigation 130 1. Litigiousness 130 2. Rule of Law 132 3. Civil Law 135 D. Judicial Independence 136 1. Restraining Powers and Independence 136 2. The Magistrate Judge 140 3. Impartiality 144 4. Appeals and other Legal Procedures 146 Conclusions 148 vi ASSESSING CHINA’S JUDICIARY .............................................................152 V. FIAT FLUX: MODERN HISTORY 154 A. The Imperial Era Concluded 154 The Shanghai Mixed Court 159 B. Formation of the People’s Republic 161 1. The People’s Republic of China: Post 1949 164 2. The First Constitution, 1954 168 3. The Second Constitution, 1975 173 4. China and International Law 173 C. Reconstructing the Legal System 175 1. The Third Constitution, 1978 175 2. The Fourth Constitution, 1982 176 3. Further Constitutional Reforms 178 4. China and International Human Rights Law 180 Conclusions 183 VI. THE CONTEMPORARY JUDICIARY 185 A. Court Hierarchy and Legal Framework 188 1. The Supreme People’s Court 190 2. Local People’s Courts 193 3. Specialized Courts 196 4. Legal Framework on Judicial Independence 198 B. Constraints on the Independence 202 1. The Chinese Communist Party 202 2. The People’s Congresses 208 3. Central and Local Governments 215 4. Restrained Jurisdiction 218 5. Transparency 220 6. Supervision within the Judiciary 222 7. Public Confidence 229 C. On-Going Reforms and Further Proposals 235 1. Proposals and Reform Plans 238 2. Reforming a Heterogeneous Country 241 Conclusions 248 GENERAL CONCLUSIONS 256 LITERATURE 262 vii Table of Charts I. Overview of Coverage; Selected Documents on Judicial Independence 48 II. Chronology of Chinese Eras 118 III. State Structure 189 IV. The People’s Courts 197 V. The Communist Party and the Judiciary 204 VI. Overview of Coverage; Comparing International and Regional Instruments on Judicial Independence with PRC Law 249 VII. Overview of Formal Guarantees in the PRC Compared with International Human Rights Standards 253 viii Abstract China’s international human rights obligations are gradually expanding to the independence of the judiciary. Thus, this study seeks to assess the Chinese judiciary’s compliance with the requirements of judicial independence under international human rights law. The first of three parts in this study elaborates on international human rights law and drawing on the most essential international instruments and jurisprudence, the criteria constituting judicial independence are distilled as a framework for assessment. The point of departure is that judicial independence is a necessary guarantee for the enjoyment of human rights rather than a privilege of judges. The criteria necessary for this independence are presented in a chart format, which groups the criteria into three strands: independence, impartiality, and public confidence. Independence is concerned with insulating the judiciary from pressures, while impartiality deals in particular with judges’ unbiased consideration of cases. Public confidence includes aspects such as transparency and representativity that are designed to strengthen public trust in the judiciary and its independence. These charts and strands are the basis for the subsequent assessment of judicial independence in China. The second part commences with a discussion on comparative law. Firstly, a method of analogy as a tool for a profound understanding of foreign legal institutions and functions is elaborated upon. Secondly, based on modern research findings, previous misunderstandings of the legal history in China are discarded. In particular the existence and development as well as the application of law and legal procedures are explored. Fundamentally, and contrary to common perceptions, even judicial independence was part of the Chinese history although, of course, not as defined in international human rights law. The third part considers the judiciary in China and assesses its independence. First the modern history is described with its many foreign influences and state of flux. Second, the contemporary structure and legal framework pertaining to the independence of the judiciary are laid out. Challenges to independence are analyzed with particular reference to the reform process under way. Based on the three strands developed in the first part, formal guarantees for judicial independence in various Chinese legal texts show the lack of guarantees for the independence and public confidence strands in particular, but also to a lesser extent the impartiality strand. However, the guarantees are developing in line with international requirements; this is also the case for the actual practice. The recent constitutional pledge to human rights may help bridge the lack of commitment to international human rights law and contribute toward building a truly independent judiciary. ix Abstract in Chinese 中国所承担的国际人权义务已逐渐扩展至司法独立领域。因此，本论文试 图评估中国司法机构遵守国际人权法有关司法独立方面的要求的情况。 论文分三个部分。第一部分阐述了相关的国际人权法。在该领域内最重 要的一些国际文书和判例法的基础上，归纳和总结出了构成本论文评估框 架的一系列标准。这些标准的出发点就是：司法独立是享有人权的必要保 障，而不是法官的一种特权。本部分以图表的形式将有关司法独立的标准 归纳为三类：独立、无偏倚和公共信任。独立是指使司法机构不受外部压 力的干扰，无偏倚特指法官在审理案件的过程中不受任何偏见的影响，而 公共信任是指透明度和代表性等旨在加强公众对司法机构及其独立性的信 任的一些标准。这些图表和分类构成了本论文下一部分评估中国司法独立 的基础。 第二部分讨论了有关的比较法问题。该部分首先阐述了用以深入理解外 国法律制度和功能的一种推理方法。其次，在最新研究成果的基础上，否 定了一些有关中国法制史的错误理解。该部分特别探讨了法律和法律程序 在中国的存在、发展和适用。从根本上说，与人们一般所认为的相反，在
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