China’s struggle to replace the rule of man by the rule of law has still not reached the stage of success needed to achieve the latter. In many areas, the philosophy is still to maintain order with or without the law. Respect for the law as the final criterion in all matters has not yet become established despite claims and efforts made since the end of the Cultural Revolution three decades ago. China’s economic success has not yet translated into a transformation of society that is based on the rule of law. As such, there is still fear among the ordinary people to express themselves and to participate in the life of their society in a more vigorous manner. A rule-of-law-based society cannot develop without genuine independence of the judiciary. While the educational level of judges has improved to some extent in many places, this improvement has not been the common feature everywhere.
However, the real problem area is the judicial role. The judiciary is still under political control and does not enjoy equal status with the executive. Much of the disciplinary control of the judges is carried out through party processes. This control of judges through party disciplinary processes is a hindrance to the development of an independent judiciary. The control of judicial discipline must shift to more credible internal processes of accountability from within the judiciary itself.
The role of lawyers, while having improved from their former position, has also not yet become similar to that of countries based on the rule of law. Often lawyers can be punished or harassed for acts that in normal circumstances would be considered the professional duty of a lawyer. An independent legal profession is one of the most basic requirements of the development of a system based on the rule of law.
One of China’s claims in recent times is that it is struggling to eliminate corruption. However, the elimination of corruption and the development of a progressive system of criminal justice cannot be separated. On this score, mainland China has much to learn from its administrative region in Hong Kong. Since the 1960s and 1970s, Hong Kong has achieved a great degree of success in the elimination of corruption through the improvement of its criminal justice system. A component of the system introduced in 1974 “the Independent Commission against Corruption (ICAC)” is not merely a corruption control agency but a very important component of the criminal justice system of Hong Kong.
It is due to the lack of improvement of the criminal justice system that China is not making attempts to eliminate the death sentence. The feeling for the need for the death sentence is itself an indication that the state does still not trust its criminal justice system to deal with serious crimes. The basic dictum that it is not the severity of the punishment but the certainty of punishment through the certainty of detection of the crime that can eliminate criminal activity has not become part of jurisprudence in China.
