New directions and trends

Despite the proclaimed ambition to establish a socialist legal system by 2010, legal reform has been steered towards an uncertain direction by the Chinese, or precisely, the CPC, in the past two years.

When Xiao Yang was the President of the SPC, judicial reform followed a direction towards modernisation and, to some extent, westernisation, featuring values such as judicial independence, supreme authority of the rule of law, and procedural justice. This has incurred a political backlash in recent years. On the one hand, the emphasis on judicial independence has undermined the CPC's authority and even its legitimacy. Active involvement of lawyers in politically sensitive cases involving citizens' civil and political rights has led to concerns within the Party-state that the rule of law is being used as a tool to promote social and political changes, such as colour revolutions,^[147] in China. On the other hand, there is growing discontent that the reform promoted by Xiao Yang has not enabled the courts to provide an effective remedy to disgruntled parties with legitimate complaints.^[148]

Following Chinese President Hu Jintao's remarks that judges and procura­tors �shall always regard as supreme the party's cause, the people's interest and the Constitution and laws' (which were characterised by the famous �Three Supremes'),^[149] an internal legal document on judicial reform was issued by the powerful Central Political-Legal Committee of the CPC in December 2008, aiming to shift the reform from the emphasis on judicial autonomy and profes­sionalism to the �mass line' approach.^[150] In this light, the new move has a number of guidelines.^[151]

First, judicial reform must adhere to the leadership of the CPC. Second, the reform must be politically correct in the sense that it must be conducted within the boundaries of socialism with Chinese characteristics.

One of the specific impacts of the new reform is the legal system's refocusing on substantive justice. One of the SPC's new policies on judicial settlement of disputes is �anjie shi liao^,, meaning the problems must be solved when the case is closed. That is to say, simply providing a judicial solution is not good enough; it must also be a good solution which contributes to social harmonisation or at least does not cause social instability. This has encouraged the judiciary to shift the focus to mediation. Indeed, senior leaders of the CPC have strongly requested the courts to �use as much as possible methods such as mediation, reconciliation, search exhaustively the balance point between various conflicting interests, and attempt to achieve a win-win solution in disputes settlement'.^[152] Wang Shengjun, the current President of the Supreme Court, indicated that the courts should consider mediation as the first method to use in resolving disputes.^[153] In practice, the judiciary has begun to channel the disputes to other organisations in the pre­filing period. For cases docketed by the courts, the judges would conduct first a pre-hearing mediation followed by an after-hearing mediation.

It might be too early to conclude that the recent new move injudicial reform signals a significant setback in China's legal construction.

A plausible explanation for the mixed message sent by the �Three Supremes' is probably that the Party-state would tolerate, or even encourage, rule of law development to the extent that law does not become a threat to its monopoly of the political powers. It is certainly true that the �Three Supremes' stress the Party's leadership, but it can also be read that the CPC must also act within the boundaries of the PRC Constitution and basic laws. In this sense, the �Three Supremes' also legitimises the essential role of law in the Party's political discourse.

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