Themis v. Xiezhi: Assessing Judicial Independence in the People's Republic of China under International Human Rights Law

Abstract: 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.