Correctly Understanding the Relationship Between Justice and Politics

From: English Edition of Qiushi Journal Updated: 2011-09-20 11:16
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 Recent years have seen controversies arise concerning the relationship between justice and politics among personnel involved in China’s judicial system. Some people have proposed from a theoretical perspective that justice should be de-politicized and independent of politics. Some personnel in the judicial system and functionaries in Party and state organs do not know how to correctly view the relationship between justice and politics in dealing with practical problems. We therefore need to consider the relationship between justice and politics.

 I. The relationship between justice and politics is an objective reality independent of man’s will.

 It is my opinion that the relationship between justice and politics is mainly manifested in the following aspects:

 First, judicial power is a component of political power. The state’s political power is mainly composed of legislative, executive and judicial powers. The theory and practice of judicial independence with respect to politics are contrary to the principles and theory of the allocation and composition of government authority.

 Second, justice is a product of politics. In the final analysis, judicial organs are organs of state power.

 Third, the structure and distribution of the judicial system are designed to meet political needs. Regardless of whether government authority is set up as system of three separate branches, or is decentralized or centralized, or features checks and balances among the branches, it is established to achieve specific political aims and meet special political needs. As a branch of the system of government authority, the authority of the judicial system cannot defy political needs.

 Fourth, justice is a link in the political process. Modern government authority is exercised through the three main links of legislative, executive and judicial powers. In addition, there is a close interaction and mutual influence between justice on the one hand and politics, economy, culture and other systems on the other. 

 Fifth, political forces determine the composition of judicial organs. To control and influence judicial power, the ruling party sends important personnel to judicial organs, with chief justices in some countries directly nominated and appointed by presidents or prime ministers.

 Sixth, justice performs important political functions. The political will of the ruling class is expressed through the exercise of judicial power. Courts in all countries of the world are no longer simply organs for handling affairs or settling disputes. By giving verdicts on disputes, they form public policies that affect the pace of social development. By filling in legal loopholes or performing the function of making law, they impact social activities. By judging whether a political act is constitutional or not, they even function to safeguard the constitutional system. Therefore they play an important role in political activities and perform a political function by standardizing the exercise of political power and protecting the constitutional system.

 Seventh, mainstream political ideology actually affects judicial operations. Judges cannot stay clear of its influence and must accept it.

 Eighth, judicial power cannot exist without the support and guarantee of political forces. In fact, justice cannot exist without politics. Only by fully performing its political function can justice truly play its role.

 As a part of politics, justice exerts a tremendous influence on politics. For example, by strictly implementing the law, the judicial system carries out the political will of the people and the ruling party. Through its actions to interpret the law, the judicial system extends the coverage of this political will. Through the exercise of its discretionary authority, the judicial system carries out public policies. Through the handling and hearing of political cases (changing political issues into legal ones), the judicial system settles political disputes. Obviously, the judicial system can produce a profound reaction to the political system, government authority or certain political forces.

 In short, there is no way for the judicial system to be totally independent of politics. Therefore, the various political forces of a country, particularly those in a Western country, always try overt or covert means to influence the actions of the judicial system. For example, they use formal means such as legislation to set rules and proceedings for the exercise of judicial power or appointment and dismissal of personnel with specific political points of view to ensure the implementation of their particular political objectives. The ruling party may also provide guidance for judicial activities at a certain stage through the formulation of judicial policies. In addition to formal means, there are also many informal methods. For instance, judges can be influenced through manipulation of public opinion (public opinion can become an important factor influencing judicial actions if the composition of courts is fairly stable). Judges can also be influenced through a variety of improper means.

  March 11, 2010, Gong Pixiang (second from right), deputy to the Third Session of the Eleventh National People’s Congress and President of the Jiangsu Higher People’s Court, Chen Yanping (far right), deputy to the NPC and Vice-Director of the Jiangyinyuan District People’s Court, Jingjiang Municipal People’s Court of Jiangsu Province, and Zhang Jun (second from left), Vice-President of the Supreme People’s Court, discuss with people online how the justice system helps safeguard the lives of the people in light of the work report of the Supreme People’s Court. / Photo by Xinhua reporter Jin Liangkuai

 II. Basic principles for dealing with the relationship between justice and politics

 A correct understanding of the relationship between justice and politics results in a healthy interaction between justice and politics.

 We must avoid both the neglect of political concerns and the tendency to politicize everything. Politics in a socialist country is diametrically different from politics in a capitalist country. The ultimate aim of politics in a socialist country is to work for the fundamental interests of the overwhelming majority of the people. At a time when we are developing a socialist political civilization and a harmonious socialist society, the groups whose interests are represented by Chinese socialist politics have tremendously expanded and the constructive role of politics is increasingly clear. Judicial organs and personnel should not divorce themselves from or evade political concerns, but instead should take a rational approach to politics. This does not mean that the all aspects of the judicial system should be politicized or be divorced from the function of judicial adjudication or defy legal norms.

 We must maintain both a correct attitude toward politics and take legal concerns into consideration. Personnel in the judicial system live in a political society and are subjected to the influence of all political factors, including political viewpoints and ideology. Only by forming correct political viewpoints, understanding and stands can they adhere to a correct political orientation. At the same time, they must have sound legal understanding and cultivate a legal approach. They should be loyal to the Constitution and laws and safeguard them. They should fully understand the Constitution and legal norms and fully and correctly understand and foster the socialist concept of the rule of law without adhering to blind and ossified legalism and isolated legal centralism. They should correctly exercise their judicial discretionary authority, be efficient at assessing values and weighing interests, fully analyzing social conditions and popular sentiment and considering advantages and disadvantages as well as upsides and downsides, and avoid abuse of their power of judicial adjudication. They should give full play to the regulatory role of the law and avoid the tendency to use legal means to resolve every issue by making use of other functions to resolve issues where appropriate.

 We must make appropriate use of judicial initiative and avoid reckless or rash judicial actions. Strengthening judicial initiative is an important development trend in modern justice. In the face of complex social issues and new requirements and expectations, judicial organs must take a positive attitude toward the people’s demands, take a progressive approach in the performance of their functions and rectify legal inadequacies and defects through an appropriate amount of judicial initiative. While we must actively exercise judicial initiative, we must also practice judicial restraint when necessary. We must guard against reckless or rash judicial actions. In other words, judicial initiative cannot be divorced from the function of judicial adjudication, it cannot infringe on the functions and powers of legislative and administrative organs, it cannot go beyond the jurisdiction of judicial organs, and it cannot violate the rules and principles of the Constitution and laws.

 We should avoid weakening of the political function of the judicial system as well as avoid overemphasizing the political function of the judicial system. If the political function of the judicial system is weakened, it could cause courts to lose the initiative and subject them to the manipulation and domination of other political and social forces and become dependent on stronger forces. On the other hand, overemphasis on the political function of the judicial system would be incompatible with the nature of judicial authority and might cause the courts to lose judicial credibility. We need to take three measures to prevent overemphasizing the political function of the judicial system. First, we must tighten control over the exercise of judicial power to ensure it remains within the limits of the Constitution and laws so that it does not overstep its authority to intervene in political activities. Second, we must ensure that the political function of the judicial system be exercised through judicial adjudication. Third, we must ensure that the expression of the political function of the judicial system does not contravene legal and effective norms stipulated by law.

 We must pay close attention to both legal and political ramifications. In China, we must keep political concerns in mind when exercising judicial adjudication, carefully consider its political effects, balance legal and political consequences and attach equal importance to legal and political justice. On the other hand, we cannot consider political issues beyond legal and valid norms stipulated by law. We must be proficient at achieving political intentions and performing the political functions of the judicial system within the framework of the law. In other words, we should fulfill the political functions of the judicial system by correctly understanding the spirit of the law, interpreting the intent of laws, taking rational measures to resolve legal loopholes, exercising the discretionary authority of the judicial system, assessing values and weighing interests. Maintaining stability in the law and people’s faith in the law and ensuring the strict observance of the law by state organs are of great political value. It is not a good idea to handle any case at the expense of the stability of the law. Only under extraordinary circumstances can we be flexible in applying legal norms and even in such cases we must follow legal procedures and conditions.

 We must deal with all types of political influences in a reasonable manner while taking into consideration the need to safeguard judicial credibility. Judicial organs must actively address and respond to all types of political influences. In other words, they make good use of the positive impact of political influences and reduce the negative impact. To this end, we must strictly adhere to standards, define proper legal procedures and mechanisms for eliminating this negative impact and avoid any possible defects. Rationally dealing with political influences may help strengthen the political functions of the judicial system but may also weaken judicial credibility. Experience shows that the more independent the image of courts is among the general public, the more effectively they can perform their political function. On the other hand, if they show political bias beyond the laws currently in effect, it can often adversely affect judicial creditability.

 We must be proficient at taking legal concerns into consideration in dealing with political issues and political concerns into consideration in dealing with legal issues. An important reason for judicial organs to be involved in political issues is to turn political issues into legal ones, and thereby ameliorate political disputes or settle acute substantive disputes through legal procedures to avoid political unrest. This shows that we have gained a degree of maturity through our governing experience. Under special circumstances, however, we need to take political concerns into consideration in dealing with certain legal issues. Particularly given the special historical conditions present during the changes taking place in Chinese society, we must carefully resolve issues from a political perspective and make full use of non-legal means (including political means) to settle disputes and handle cases. We will often need to solve many long-standing legal issues from a political perspective by relying on the political advantages of our socialist country and the leadership of the Communist Party of China. Naturally, we must set stringent rules and conditions for their application, establish mechanisms for sound interaction between politics and the law and balance legal and political consequences in taking legal concerns into consideration when dealing with political issues and political concerns into consideration when dealing with legal issues.

(From Qiushi in Chinese No. 24, 2009)

Note: Author: Vice-President of the Supreme People’s Court of the People’s Republic of China

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