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Judicial Independence Essay

3903 words - 16 pages

Introduction
Judicial independence, although often argued to be a fundamental concept to the rule of law, democracy and political stability, alarmingly continues to be contested and vague even in economically developed liberal democratic states recognized for the rule of law. This was particularly indicated by leading US constitutional scholar ‘name’, ‘there is a disagreement about whether or how to criticize judges and their decisions, and about whether or how to discipline judges. And, of course, there is pervasive disagreement about whether our judges exhibit too much or too little independence.’ The problems are exaggerated in cases of developing countries with unstable democracies and ...view middle of the document...

As a communist dominated, socialist state, the separation of powers fails to be a principal theme. The People’s Congress is the primary organization of the state’s political power. As provided by the 1982 Constitution, the National People’s Congress (NPC) is the main body of state power, and is required to be beneath the direction of the communist party. The SPC, although identified as the state’s highest judicial body, is compelled to report to the Congress. Numerous system defects exist. Firstly, the present organizational arrangement of the judicial system makes judicial independence particularly difficult. As previously mentioned, China maintains a unitary four level judicial system, starting with the SPC and ending with the county trial courts. The SPC, though, does not have any control above the lower courts with the exception of work connections. The judges of the lower court are chosen and decided on by the Local People’s Congress. The Congress is greatly influenced by the Local Communist Party chief and government leaders. Additionally, the spending, including the earnings of the judges, is made available by the budget of the local government. Furthermore, Chinese judges do not have a life term, hence it is possible at anytime, for a judge to be replaced or dismissed by the Local People’s Congress. For that reason, it is a fairly common view that judges will abide by the instructions and assessments given by the local government on individual cases, as government and judicial powers are commonly entwined.
Following on, another aspect which has an effect on judicial independence is the need for professional ethics and the existence of judicial corruption. Randall Peerenboom argues that the judiciary in China is ‘plagued’ by corruption. Indeed, the idea that the main purpose of laws is to reinforce state capacity and satisfy political ends is deeply entrenched in the Chinese political theory. This often appears to outweigh the standards of justice and equality. Such observations have further led to the members of the judicial system being referred to as ‘political-legal cadres’.
The mistreatment of cases and unlawful rulings, which triggered the reversal of 85,000 plus cases in 1998, was directly linked to judicial corruption as remarked by Junhai Liu. An additional report which indicated the levels of corruption was also presented to the NPC by Xiao Yang, during his presidency of the SPC. It was further disclosed in 2005, that almost 470 judges were penalized for corruption in the period between 2003 and 2004. This implies that the corruption is deep-rooted in the structure of the judicial system. As suggested by the findings of Kenneth Lieberthal in 2004, officials frequently overlook or disregard laws and policies, fabricate reports and abandon the wellbeing of the public under their constituency. This is further supported by the SPC 2002 Work Report, which states that 995 judges and judicial personnel were found to have...

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