Rule by Law: A Judge Tests China's Courts, Making History
Jim Yardley. New York Times. Nov 28, 2005. pg. A.1
Judge Li Huijuan happened to be in the courthouse file room when
clerks, acting on urgent orders, began searching for a ruling on a mundane
case about seed prices. ''I handled that case,'' Judge Li told the clerks,
surprised that anyone would be interested.
But within days, the
In many countries,
''An order by those in
power has forced local leaders, none of whom dared to stand on principle, to
sacrifice me,'' she wrote in rebuttal. ''I'm just an ordinary person, a
female judge who tried to protect the law. Who is going to protect my
Faced with the complex
demands of governing a chaotic, modernizing country,
The 2003 ruling by
Judge Li has become, quite unexpectedly, a landmark case for the evolving
Chinese legal system. Her plight exposed the limits on judicial autonomy in
''For the first time, a
judge announced a local law or regulation was void,'' said Xiao Taifu, a member of the Beijing Lawyers Association, which
petitioned the central government on Judge Li's behalf. ''It was historic.
For the legal process in
There are also signs of
change. One of the busiest courts in
The case of Judge Li
illustrates how such changes continue to meet enormous resistance within the
system. Judge Li, now 32, a Communist Party member, is among the new
generation of younger judges expected to become the future backbone of a
strengthened court system.
That Judge Li and
others granted interviews for this article reflects, to some extent, the
''I think my colleagues
and supervisors think I'm naive,'' she said. ''And they think I'm not wise.''
Youthful Ideals Meet
As a teenager, Li Huijuan first saw a judge as a character in a television
soap opera. She grew up in southern
''I saw these images of
judges and lawyers defending the people,'' she said. ''I thought it was
She was one of three
children, and her father was a government official who oversaw local markets
to ensure that merchants and vendors abided by city rules and regulations. To
curry favor with her father, vendors often visited the family's apartment at
night, banging on the door with offers of gifts or bribes.
''My father never
accepted,'' Judge Li recalled. ''He lectured them and drove them out. I think
I have the same stubbornness in my character. My parents taught me to be a
straightforward, honest person.''
Her two siblings became
teachers, an honored profession in
''The teacher was
telling us how it should be,'' she recalled of her undergraduate studies.
''But they did not teach us how it really worked in
She began learning that
lesson in 1996 after she started working at the
Instead, she learned
that cases were heard by panels of judges, whose rulings were often reviewed
by supervisors or, in major cases, by private trial committees of court
officials. Judges were held responsible for rulings that carried their name,
even if others in the court actually made the decision. But if government
officials or influential citizens complained about a ruling, a judge could be
punished, fined or even fired.
Some judges tried to
reduce the pressure of a potential mistake by taking on fewer cases. ''The
less you do,'' Judge Li said, ''the fewer mistakes you make.''
She began as a court
secretary but quickly qualified as a judge and, later, as a presiding judge.
In January 2003, she was named presiding judge over a three-judge panel
hearing a dispute between two local companies over the price of seeds. The
legal dispute revolved around a conflict between provincial and national law,
but Judge Li never anticipated that that would bring her trouble.
Instead, the political
subtext of the case -- the parochial interests of two local companies
fighting over thousands of dollars -- infused the process. At one point, a
city official forwarded a letter from one company to Judge Li's supervisor.
In the margin, the official had written an instruction for the court:
''Please pay attention.''
''I felt quite
uncomfortable when I received the letter,'' she said. ''I felt they were
making assumptions that I was already taking sides. I didn't do anything
about it. I just put it in the files.''
At another point, the
director of the
''I considered this
very inappropriate,'' Judge Li said. ''But I couldn't say so because of the
director. So I told the man to come to my office.''
When he arrived, Judge
Li said, she pretended to be stuck on a long telephone call. Exasperated, the
man finally left.
A System Grappling With
Legal experts say
political pressure on judges is routine and derives, in part, from the
subservient status of the court system within the Chinese bureaucracy.
Nationally, the chief judge of the People's Supreme Court is not even a
member of the Politburo, the inner decision-making entity of the Communist
Party. By comparison, the head of the Ministry of Public Security is a
Locally, judges are
appointed by their people's congresses, while the courts receive their budget
from local governments. In addition, branches of the Communist Party operate
committees that can apply pressure and exert influence on a court behind the
Earlier this year, a
presiding judge in the northeastern city of
The system also can
make it easy for corrupt court officials to exploit their position. In April
2004, two vice directors of the
Many legal reformers
believe the court system must become more autonomous to eliminate corruption
in the legal system. But in seeking more authority, they also are trying to
rapidly modernize the system and improve judicial training to counter public
perceptions that too many judges are corrupt or unqualified. ''The public may
be skeptical about judicial independence, given the quality of judges and
judgments,'' said He Weifang, a prominent
constitutional scholar. ''But if you want accountability, you can only have
accountability if you have independence. Otherwise, it is never clear who
made a decision.''
On the campus of the
''We train them with a
modern theory of law: that the courts are impartial, on the need for legal
justice and of innocence until proven guilty,'' said Huai
Xiaofeng, president of the college. ''We stress
that during a trial, you cannot favor the government or the National People's
Congress. In the past, they told them to emphasize the political qualities.
''Now, we tell them to
emphasize the law and the facts.''
For Judge Li, the
reaction to the ruling on the seed case proved how political considerations
remained deeply embedded in the legal system. Because the case seemed likely
to provoke controversy, she had submitted a draft ruling to the court
director, who in turn forwarded it to a trial committee. Everyone signed off,
and both parties were informed in June 2003.
But by October, word of
the case had reached the Henan Province People's
Congress, the provincial legislature. In the legal affairs office, the ruling
was interpreted as a naked challenge to the lawmaking authority of the
People's Congress. Provincial officials publicly described the ruling as ''a
serious breach of law.''
''The authority of the
National People's Congress system is not to be challenged,'' said Mao Yinduan, head of the legal office, in an interview. ''The
judge in this case was very young and had little experience. She had every
right to choose which law to use. But courts have no right in a verdict to
say which law is invalid.''
The reaction stunned
Judge Li. To research the verdict, she had studied Chinese law, as well as
the speeches of senior political leaders.
She had not intended to
challenge the political system, nor, apparently, did her director or anyone
on the trial committee. ''He read the verdict and didn't realize the
significance of what it said,'' Judge Li said of the director. ''I, at first,
didn't realize the significance, either.''
But Judge Li, not the
court officials who had approved the decision, faced the possibility of
serious punishment. ''I felt persecuted,'' she recalled. ''Everyone I talked
to told me what I had done was wrong.''
Job Saved but System
Anxious and uncertain
of her future, Li Huijuan telephoned her husband,
Chang Jianyi. High school sweethearts, they married
in 1999 but lived apart because Mr. Chang worked in
''She had to fight back
to restore her reputation and her dignity,'' Mr. Chang said. ''If she did not
fight back, she would have to live with the stain.''
She left for
At the association's
office, a woman told her that she had been treated too harshly and agreed to
contact someone at the People's Supreme Court. Then the case attracted the
attention of the Chinese news media and of scholars and lawyers pushing for
Mr. He, the
constitutional scholar, rose to her defense in an op-ed article. In an
interview, he characterized the seed case as one of the most important in the
legal evolution of
''It may not be Marbury v.
As it turned out, Judge
Li had stumbled upon a fundamental contradiction. In the Chinese system,
based loosely on European models and the old Soviet structure, judges are
supposed to refer conflicts in law for review by the Standing Committee of
the National People's Congress, the country's center of legislative power.
Judges are then expected to follow the decision made by the Standing
Yet, in practical
terms, those referrals rarely happen and when they do, the Standing Committee
has rarely showed interest in the housekeeping role. As a result, judges have
become accustomed to assuming this role, if doing so silently, and then
simply leaving the conflicting law untouched.
To many lawyers, the
system was grossly inefficient and outdated. Mr. Xiao, the
But the system remained
largely intact. In summer 2004, the Standing Committee announced the creation
of a new review panel to mediate conflicts of law. Some lawyers have hailed
the panel as the equivalent of a constitutional court. Others are concerned
about the panel's secrecy and believe the responsibility should belong to the
Judge Li still believes
in the rule of law, but she is no longer the impressionable teenager who
watched soap operas about judges. ''Judges are confused,'' she said. ''It is
not that they do not know how to do cases professionally. It is just all
these relationships to coordinate. And they also have to weigh