In democracies, especially in the elected assemblies, decision-making is based on a free and majority principle among equals. However, in regards to the courts, the court procedures generally include special staff, including judges who possess legal knowledge and skills. It further includes the conflict resolution between various parties in either an authoritative or a regular way in accordance to the predetermined rules. This further includes ascertainment of facts of the different cases and assessing the arguments advanced by the conflicting parties, considering its prospective effects on similar cases in the future.
Judicialization of politics refers to the trustworthiness towards the judicial means and courts for addressing central moral dilemma, political controversies and public policy questions. Given the newly acquired judicial review procedures, national high courts universally have been frequently addressed to resolve variety of issues, right from equality rights, privacy, religious liberties, education, immigration, environmental protection, etc. In East Asian countries like china, several changes have been undertaken in the incidence and nature if conflicts, social disturbances, dispute as well as in the mechanisms used to address the same. The global trend of judicialization is seen to be inclined towards social, political and economic issues.
This research paper aims at explaining the concept of judicialization and its significance as an essential objective in law. The research talks about the growing judicialization trend and its impact on the significant developments in dealing with the socio-economic claims, issues relating to civil practice in East Asia countries like China. The paper further demonstrates a critical analysis of the changes that judicialization has brought in the dispute resolution mechanisms prevalent in china. It discusses about the changing attitude of people towards resolving the disputes post the emergence of judicialization the country.
The term ‘judicialize’ means to treat judicially for arriving at a decision or a judgment. In this context, the term ‘judicially’ would either refer to the way a legal judgment is made by a judge in the office in the capacity of judge for administering justice; or it may refer to the manner of a judge arrives at the decision with the judicial skill and knowledge that he possess to administer justice. The judgment is made by a legal process or by a sentence of court of justice. Thus, the meaning of judicialization of politics is two-fold. Firstly, it would mean expansion of the judges or the court provinces at the cost of the politicians and/or the administrators, implying, a shift of the decision-making rights from the legislature, civil service or the cabinet to at least the courts. Secondly, judicialization of politics may refer to the spread of judicial-decision-making methods outside the judicial province. In simple words, judicialization refers to transformation of any process into a legal process.
Lian (2015) states that Chinese courts have been given a little more importance than a venture of the party-state as the courts are perceived as unsophisticated, uniformly passive and politically impotent. However, Bo (2015) argues that the courts have been playing a significant role in resolving disputes as compared to its history. This evident from the incline in the cases to 8 million cases every year approximately throughout the 1980 and 1990s while the country has witnessed a decline in the arbitration and mediation rate during the same period. This incline signified the growing trend towards judicialization globally with an essential role being played by the judiciary is not only evident from the increase in the number of cases but also from the broad range of controversial economic, political and social disputes that are being dealt with by the courts.
While enforcement is often perceived as difficult in China, in the recent years, it has been observed that judicial enforcement in China is comparatively less difficult as compared to the other rich countries such as UK, Russia or USA. The reasons behind the improvement in the judicial enforcement attributes to the changes in the judicial reforms that aims at building and enhancing the professionalism of the judiciary.
However, Jin (2015) argues that the legal reform in China has lost its importance for the sole reason that it failed to untie itself from the political dominance of the ruling Chinese Communist Party [CPP] for three decades and, therefore, is deprived of institutional authority and independence that is essential to perform its functions appropriately and effectively. Jin (2015) believes that this is a one of the reasons why courts are treated as only a part of the local government. This necessitates development of rule of law in China that might be termed as ‘rights approach’. According to Bin (2015), the consciousness of the common citizens about their rights and their communications with the government plays fundamental role in the constitutional development and this approach considers courts as the agents of the state at least, if it is not perceived as the part of the government. Although this approach reflects the development in the rule of law and establishes that constitutionalism is not a top-down process, it has minimized or ignored the role played by the courts.
Nevertheless, Lian (2015) argued that this long-perceived viewpoints on Chinese courts has been subjected to controversies. Lian (2015) further asserted that although the courts play a restricted role in the policy-making process making it incapable to resolve several controversial issues, there are certain research and studies that establish that there has been occurrence of judicialization and judicial innovation to certain extent. Further, Hwang and Wang (2015) demonstrated that the Chinese courts have exhibited innovations in expanding their own jurisdictions by striking down regulations that are in non-conformity with the national legislations. Other researchers asserted that despite serious restrictions on the power of the courts, they have been able to demonstrate creative and innovative initiatives by applying the due process principle.
From the political viewpoint, development in the Chinese judiciary like any other political actors has strategically followed its institutional interests and enhanced the position and authority of the courts. Courts have the jurisdiction to deal with minority shareholders suits against the state–owned enterprises for disclosing contraventions and informing about number of complicated issues with respect to improvement of damages resulting in bankruptcy of the company and enhancement in social stability. FU and Palmer (2015) asserts that the courts are also engaged in resolving labor disputes involving legal suits against unlawful termination and unsafe and unhygienic working conditions, unpaid or underpayment of wages, etc, that contravenes the provision of labor law of the country.
There are wide range of discrimination claims that are brought before the courts, which includes claims relating to rights of the migrant worker, education, AIDS, retirement age for female workers and unequal treatment of rural and urban residents in the wrongful death cases. Ng and He (2014) agrees that land disputes are rising significantly both in the rural and urban areas of government giving rise to collusion and corruption related issues. Further, the courts have been dealing with cases relating to assembly and religion, freedom of speech. Furthermore, several cases usually give rise to issues pertaining to social justice given that people who failed out in the economic reforms usually seek protection from the court.
Zhang and Morris (2014) believes that there has been an incline in the support structures for judicialization that is evident from numerous facts. Firstly, the special interests groups and social activists are taking help of the courts to demonstrate their agendas. A number of law firms and lawyers specialize in ‘impact litigation’, which is often associated with the legal aid centers or are linked to local or national bar association or universities. Surprisingly, courts have gained its momentum and have become more powerful than it was before as is evident from the incline in the administrative litigation cases and the fact that the courts have often quashed the decision taken by the administrative agency.
Despite the judicial expansion, Koo (2015) argues that the courts play limited role in policy-making and dispute resolution with respect to certain types of issues or cases, in particular. The Administrative litigation law permits parties to initiate legal proceedings when there is an infringement of the legal interest and rights due to a specific administrative act or any administrative personnel. This legal requirement has been subjected to narrow interpretation to safeguard those with indirect interests to initiate any legal proceedings. Consequently, such a narrow interpretation prevents individuals and interest groups who act as ‘private attorney generals’ from challenging the administration or its personnel.
Koo (2015) agrees that the limitation with respect to the efficiency of the court is a significant concern in China. It is evident from the fact that quality of judiciary remains to be an issue, the basic level courts, in particular, the poorer regions. Since most of the basic level courts are situated in the rural areas, the cases that these courts mostly deal with include minor property disputes and small claims, which are usually dealt with by laypersons and magistrates without any formal legal training for the same. Chow (2015) states that courts in china carry out a abstract view of specific acts and arrive at decisions based on higher level legislations, thus, disregarding the local level legislations. Consequently, the refusal of the court to follow local regulations often causes agencies to change their policies, sometimes, after surmounting local resistance.
This is evident from the case of Guangxi people’s Congress where it passed regulations affecting a toll on non-residents, in contravention of the national laws. The regulation was challenged in High People’s Court where the High Court based its decisions on SPC’s reply, thus, deciding in favor of the plaintiff. However, the Guangxi People’s Congress threatened to remove the judge if the decision was in favor of the plaintiff and they retreated only after the intervention from SPC on behalf of the judge who insisted the court to support the national law. In most of the cases, majority of the disputes that are brought in the court are settled through judicial mediation.
However, He (2016) argues that despite the limitations, the Chinese citizens have a positive attitude towards the courts, though there may be variations in the results on the grounds of region, nature of the plaintiff, actual experience with the courts and type of cases. Courts are generally considered as a fair and effective medium to settle legal claims despite the allegations that courts are easily subjected to corruptions. In order to support the increasing trend towards judicialization, there are three theories namely, political, normative and economic theories. According to the political theory, members of the ruling party fear the risks of losing power in the near future resulting, which they surrender their power to the courts to ensure that their policies shall be reviewed by a third party instead of the incoming party and that they will be subjected to fair treatment. Further, the separation of powers theory states that politicians usually surrenders power to the courts to avert any deadlock in the system where one political party would exercise control over the legislature and the other party would control the executive branch by winning the presidency. He (2016) states that in china, the application of this theory would imply limited judicialization as the country is a single party state where state and party have distinct functions but the courts, however, do not review any decisions made by the Party.
As per the economic theories, the most powerful clarification for judicialization is economic reforms. The investors demand for a forum for resolving disputes efficiently and in a fair manner and in a reasonably complex economy, informal mechanisms and relational contracting are not sufficient to resolve disputes between the contracting parties. The four million cases per year in china establish the fact that a market economy is perceived as a rule of law economy. Lastly, the normative theory states that the increasing trend in legal globalization is encouraged by an increasingly assertive international human rights and economic legal regime.
An activist and independent judiciary having broad powers of administrative and constitutional review is often perceived as advantageous for safeguarding human rights and enhance economic growth. The extent to which judicialization has been initiated in China due to rights-protection; it has been established to safeguard property interests, which is needed to ensure growth. The constraints on political and civil rights and protection of commercial interests of businesses and property rights have become general feature of the East Asian model of development.
Dong, Zhu and Luo (2014) believes that the primary reason, which limits judicialization in China, is that courts do not provide best forum for resolving the socio, economic and political issues that arises in country like China, because of their complicate nature. Moreover, several problems are not even resolved through judicial means as the courts fail to provide any enforceable and effective remedies for such issues. In addition, Sullivan (2016) states that the courts fail to provide justifiable reliefs to the legal entitlements of the plaintiffs, thus, not providing any effective remedy. This is related to cases that are economic in nature such as retirement payments, labor suits, welfare benefits. The plaintiffs are not entitled to compensatory benefits due to lack of adequate resources available to the state to satisfy such legal claims.
Furthermore, several cases are inconsistent with the fundamental policy goals. Environmental protection related cases are difficult to deal with, as people do not have any clear idea about balancing between the need for clean water and air and the need for economic growth. Similarly, land-taking cases demonstrate tension between the desire to retain historical places and the desire to modernize such historical places. Land cases highlight problems pertaining to lack of rules that often results from the delay made in respect of policy decisions by the legislature. However, Sullivan (2016) states that the problems associated with the courts should not be exaggerated as the courts are competent to deal with most of the cases reasonably well and the parties to the suit are generally satisfied with the performance of the court and the reliefs that is granted to such parties to the cases. Despite the satisfaction of the parties to the suit in respect of the performance of the court, the courts are often fail to deal with certain form of cases especially cases that are politically sensitive and those portraying the growing difficulties of the developing countries.
One of the primary reasons that signify a pushback on judicialization is that the judges as well as the government officials find it difficult for the courts to deal with certain types of cases that are sensitive and political in nature, in particular. Notwithstanding the general growing trend towards better access through legal aid, the simplification of filing procedures and the waiving of the court fees, the limited access to the courts with respect to certain controversial cases is regarded as a significant reason for dejudicialization. This is evident from the fact that Courts often recommended the plaintiffs to file cases especially those, which are politically sensitive in a higher-level court or another jurisdiction.
The courts in China have issued rules that prevent parties from giving repeated petitions to the court for retrying the cases. If the parties are not satisfied with the decisions of the court after following the normal appeal process, they are recommended to seek remedy through administrative or political channels. The courts have provided the parties with another requirement where they are advised to exhaust all the available administrative remedies before seeking remedies to court.
The other significant reason of judicialization is the renewed emphasis given on mediation. Due to the inconvenience and difficulty, that the court faces while determining policies and laws, the Supreme People’s Court (SPC) have recently began to lay more emphasis on mediation even in cases related to administration.
The SPC believes that mediation shall permit the parties to arrive at solutions that is mutually acceptable, thus, permitting the courts to avert making any difficult decisions that are not easy to enforce. Mediation has always been a significant form of dispute resolution in China. Even during the Mao era, mediation persists to be the most popular means for resolving disputes and conflicts. Ji (2014) states that in the contemporary era, there are several forms of mediation such as mediation by People’s Mediation Committees; specialized mediation like labor mediation, formal and informal commercial mediation, judicial mediation and mediation that takes place during arbitration.
According to Du, Ronen and Ye (2015), another significant reason behind the shift from litigation to mediation was the inability and incompetency of the courts to endow with adequate legal remedy or resolve issues that accelerated pain in developing countries. Such cases include entitlements like medical and welfare claims, socio-economic rights etc. The inability of courts to resolve conflicts led to an inline in petitions before the government entities and courts by aggrieved parties seeking legal reliefs and enhanced social disturbances. Under such circumstances, mediation is considered as a broader strategy for maintaining a harmonious society. In order to maintain efficiency, some judges have ensured that mediation was conducted in manner that is cost-effective as well as less time consuming. The parties to the dispute are asked if they are willing to resolve the dispute.
In Ansung Housing Co. Ltd v People’s Republic of China, ICSID Case No. ARB/14/25 and Hela Schwartz GmbH v People’s Republic of China, ICSID Case No. ARB/17/19, the issues were resolved using the PRC Arbitration process. Peerenboom (2014) states that the socio-economic cases including welfare claims, pension, labor disputes and environmental issues are a major concern for the country as the institutions are weak and the lack of financial resources acts as hindrance to resolve such socio-economic disputes. The dispute resolution methods of the socio-economic cases include mediation, arbitration, public hearings and the administrative reconsideration. However, these alternate dispute resolution methods have been criticized for being inconsistent with the rule of law. The mediator of the people did not posses legal training and some cases are decided based on factors other than law and the parties are forced to accept settlements, thus, depriving such parties of their legal entitlements and rights.
From the above discussion, it can be inferred that courts are one of the ways to resolve any conflicts or address any social issues as a last resort in any nation. As per the present nature and development of the disputes in China, the courts are incapable of providing adequate solution in certain types of cases, in particular the politically sensitive cases and those that reflect the growing concerns of the developing countries. The failure of courts to provide reliefs often results in dissatisfaction of the parties leading to social protests and unrests.
A certain level of judicial retrenchment or dejudicialization is considered as a judicial choice that requires people to think about institutions that would be appropriate to deal with such cases and disputes. Such institutions shall also reduce the burden of courts by dealing with cases that the courts are unable to determine such cases. Dejudicialization however, should be subjected to limitations in certain arenas. The general trend shall persist towards better and greater judicialization, which would also, includes cases related to administration.
Ansung Housing Co. Ltd v People’s Republic of China, ICSID Case No. ARB/14/25
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