Judicial Independence in Dominant Party States : Singapore's Possibilities for China

Research output: Journal Publications and Reviews (RGC: 21, 22, 62)21_Publication in refereed journalpeer-review

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Detail(s)

Original languageEnglish
Pages (from-to)337-371
Number of pages35
Journal / PublicationAsian Journal of Comparative Law
Volume14
Issue number2
Online published11 Nov 2019
Publication statusPublished - Dec 2019
Externally publishedYes

Abstract

Courts in China are often criticized for lacking 'independence' from the Chinese party-state. Entrenched perceptions of interference in the judiciary by the political branches of government have continued to fuel public resentment in recent years, risking the legitimacy of the party-state. Such criticisms, however, often fail to appreciate the complex political reality in China and the evolving role of Chinese courts following China's incremental legal reforms since the reform era. What does 'judicial independence' mean in the context of a socialist rule of law state such as China? More importantly, can we identify the touchstone of 'independence' that should be intrinsic in any judicial institution? In recognition of the resilience of the Chinese party-state in the foreseeable future, the authors contend that widening the scope of judicial independence, as conceptualized herein, in line with China's ongoing judicial reforms provides a better tool for promoting economic development and good governance and enhancing the state's legitimacy in a dominant party state. In this regard, insights are drawn from Singapore, which presents two broad lessons for China: First, a rule of law framework can be established in which the state in a non-Western liberal democracy respects the autonomy of the courts and the judiciary strictly enforces the law enacted by the state within its institutional limits; second, judicial pragmatism in the exercise of judicial power enables the courts to ensure that governmental power is exercised in accordance with the principle of legality, which ensures good governance in a polity governed by a strong state. Contrary to claims that such reforms may serve as an apology for power in China, it is hoped that such reforms may lay the foundation for normative constitutionalism in the future.