一位考验中国法院的法官：她改变了历史
作者：JIM YARDLEY
原载2005年11月28日《纽约时报》
在法院的档案室里，李慧娟法官恰巧遇见一个办事员，后者接到紧急命令，来查找一个关于种子价格的普通案件的判决。"这个案子是我判的。"李慧娟告诉办事员，她很惊讶有人对它感兴趣。
但是几天内，洛阳市中级法院的纪律委员会找到她。省政府的官员抗议这个裁决有严重的政治错误。面对省法和国法的冲突，李慧娟宣布省法无效。她无意间创造了法律史上的一个重要事件，导致了一场关于法律的独立性与政府之间关系的全国性讨论。
插图一：李慧娟2001年从中国政法大学硕士毕业的时候，还是一个天真的学生。
在许多国家，包括美国，一个法官拒绝适用低级别的法律是司空见惯的。然而在中国，政府（不是法院）却拥有终审权。李慧娟眼中的法律常识问题，在省内立法者看来，却是法院的叛变。他们要镇压这种反抗。李慧娟当法官已经将近三年了，她很担心自己的职业生涯要结束了。
"当权者的一句话就可以使人们屈服，没有人敢于坚持原则，我成了牺牲品。"她在申诉书里写，"我只是一个普通人，一个试图捍卫法制的女法官。谁会来捍卫我的权利呢？"
面对统治一个混乱无序的、逐渐现代化的国家的复杂需求，中国领导人已经将法治作为规范社会的最有效手段。但是要真正实现法治，有个核心的问题尚没有得到解决----中共是否打算允许司法独立。
李法官在2003年所做的判决，令人意想不到的成为中国法制史上一个里程碑式的案例。李的困境暴露了中国司法自治的限制和法官们所面对的政治报复。它也同样反映了法律改革派的影响正在上升。学者和律师都团结起来支持李，并将她的判决作为一个考验，让这个无意中发生的案件作为考验法院自治的试金石。
（以下翻译略，网上有全文的参考译文。）
插图二 洛阳的法院和中国其他地方一样，充满了要求照顾的"纸条"。
插图三 洛阳的两家种子公司之间的纠纷，演变成了省法与国法之间的冲突。上图是洛阳一家典型的种子公司。
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A Judge Tests China's Courts, Making History
By JIM YARDLEY
LUOYANG, China - Judge Li Huijuan happened to be in the courthouse file room when clerks, acting on urgent orders, began searching for a ruling on a mundane case about seed prices. "I handled that case," Judge Li told the clerks, surprised that anyone would be interested.
But within days, the Luoyang Middle Court's discipline committee contacted her. Provincial officials had angrily complained that the ruling contained a serious political error. Faced with a conflict between national and provincial law, Judge Li had declared the provincial law invalid. In doing so, she unwittingly made legal history, setting in motion a national debate about judicial independence in China's closed political system.
In many countries, including the United States, a judge tossing out a lower-level law would scarcely merit attention. But in China, the government, not a court, is the final arbiter of law. What Judge Li had considered judicial common sense, provincial legislators considered a judicial revolt. Their initial response was to try to crush it. Judge Li, who had been on the bench less than three years, feared her career might be finished.
"An order by those in power has forced local leaders, none of whom dared to stand on principle, to sacrifice me," she wrote in rebuttal. "I'm just an ordinary person, a female judge who tried to protect the law. Who is going to protect my rights?"
Faced with the complex demands of governing a chaotic, modernizing country, China's leaders have embraced the rule of law as the most efficient means of regulating society. But a central requirement in fulfilling that promise lies unresolved - whether the governing Communist Party intends to allow an independent judiciary.
The 2003 ruling by Judge Li has become, quite unexpectedly, a landmark case for the evolving Chinese legal system. Her plight exposed the limits on judicial autonomy in China and the political retribution faced by judges. But it also revealed the rising influence of legal reformers. Scholars and lawyers rallied to Judge Li's defense and embraced her ruling as a test case, if an accidental one, for a more autonomous court system.
"For the first time, a judge announced a local law or regulation was void," said Xiao Taifu, a member of the Beijing Lawyers Association, which petitioned the central government on Judge Li's behalf. "It was historic. For the legal process in China, it was a first, and it carried deep meaning."
Today, China's court system is far from an independent entity that can curb government power. Often, the courts remain a pliable tool to reinforce that power. Many judges are poorly educated in the law and corrupt. Judges often must answer to government officials as much as to the law. Political pressure is common, and private trial committees often dictate rulings.
There are also signs of change. One of the busiest courts in Beijing announced in November that it would stop punishing judges if a ruling was later deemed politically or legally "wrong." A budding idealism about the law, and its potential to transform Chinese society, is evident not only in the number of new lawyers but also in the emerging civic belief that ordinary people have "legal rights."
The case of Judge Li illustrates how such changes continue to meet enormous resistance within the system. Judge Li, now 32, a Communist Party member, is among the new generation of younger judges expected to become the future backbone of a strengthened court system.
That Judge Li and others granted interviews for this article reflects, to some extent, the evolution of China's legal system and an effort by the judiciary to be more assertive. But the dispute over the seed case taught her that being a judge involved far more than simply interpreting laws. "When I look back on the cases I dealt with, I have no regrets," she said. "I don't think any of the parties involved can complain." But, she added, any judge who acts on conscience does so at a risk.
"I think my colleagues and supervisors think I'm naïve," she said. "And they think I'm not wise."
Youthful Ideals Meet Reality
As a teenager, Li Huijuan first saw a judge as a character in a television soap opera. She grew up in southern Henan Province in the city of Nanyang, where she watched dramas about judges in ancient China. Their passion for justice was scripted, but it inspired a young girl.
"I saw these images of judges and lawyers defending the people," she said. "I thought it was glorious."
She was one of three children, and her father was a government official who oversaw local markets to ensure that merchants and vendors abided by city rules and regulations. To curry favor with her father, vendors often visited the family's apartment at night, banging on the door with offers of gifts or bribes.
"My father never accepted," Judge Li recalled. "He lectured them and drove them out. I think I have the same stubbornness in my character. My parents taught me to be a straightforward, honest person."
Her two siblings became teachers, an honored profession in China, but Li Huijuan graduated from Henan University with a four-year degree in law. She later earned a master's degree in law at the prestigious University of Politics and Law in Beijing. Her qualifications placed her in an elite circle at a time when China was starting to introduce new, tougher standards for the legal profession. Even so, she said much of her education had been "more like legal theory."
"The teacher was telling us how it should be," she recalled of her undergraduate studies. "But they did not teach us how it really worked in China."
She began learning that lesson in 1996 after she started working at the Middle Court in Luoyang in Henan's north. She arrived at a courthouse dominated by older judges, some with limited legal education, including retired soldiers given judgeships to reward them for serving their country. Her naïve belief that judges ruled independently - as they did on television - was quickly dispelled.
Instead, she learned that cases were heard by panels of judges, whose rulings were often reviewed by supervisors or, in major cases, by private trial committees of court officials. Judges were held responsible for rulings that carried their name, even if others in the court actually made the decision. But if government officials or influential citizens complained about a ruling, a judge could be punished, fined or even fired.
Some judges tried to reduce the pressure of a potential mistake by taking on fewer cases. "The less you do," Judge Li said, "the fewer mistakes you make."
She began as a court secretary but quickly qualified as a judge and, later, as a presiding judge. In January 2003, she was named presiding judge over a three-judge panel hearing a dispute between two local companies over the price of seeds. The legal dispute revolved around a conflict between provincial and national law, but Judge Li never anticipated that that would bring her trouble.
Instead, the political subtext of the case - the parochial interests of two local companies fighting over thousands of dollars - infused the process. At one point, a city official forwarded a letter from one company to Judge Li's supervisor. In the margin, the official had written an instruction for the court: "Please pay attention."
"I felt quite uncomfortable when I received the letter," she said. "I felt they were making assumptions that I was already taking sides. I didn't do anything about it. I just put it in the files."
At another point, the director of the Luoyang court - since replaced on an unrelated matter - telephoned Judge Li. A representative from one of the companies was in his office. Could she meet with him?
"I considered this very inappropriate," Judge Li said. "But I couldn't say so because of the director. So I told the man to come to my office."
When he arrived, Judge Li said, she pretended to be stuck on a long telephone call. Exasperated, the man finally left.
A System Grappling With Reform
Legal experts say political pressure on judges is routine and derives, in part, from the subservient status of the court system within the Chinese bureaucracy. Nationally, the chief judge of the People's Supreme Court is not even a member of the Politburo, the inner decision-making entity of the Communist Party. By comparison, the head of the Ministry of Public Security is a member.
Locally, judges are appointed by their people's congresses, while the courts receive their budget from local governments. In addition, branches of the Communist Party operate committees that can apply pressure and exert influence on a court behind the scenes.
Earlier this year, a presiding judge in the northeastern city of Harbin told Workers' Daily, a state-controlled newspaper, that government officials had overruled three different innocent verdicts and ordered the courts to convict a local businessman of fraud. The presiding judge was later censured for publicizing the case.
The system also can make it easy for corrupt court officials to exploit their position. In April 2004, two vice directors of the Middle Court in Wuhan, a large city in central China, were sentenced to prison for selling verdicts in exchange for $500,000 in bribes. The directors paid judges to participate in the scheme.
Many legal reformers believe the court system must become more autonomous to eliminate corruption in the legal system. But in seeking more authority, they also are trying to rapidly modernize the system and improve judicial training to counter public perceptions that too many judges are corrupt or unqualified. "The public may be skeptical about judicial independence, given the quality of judges and judgments," said He Weifang, a prominent constitutional scholar. "But if you want accountability, you can only have accountability if you have independence. Otherwise, it is never clear who made a decision."
On the campus of the National Judges College on the outskirts of Beijing, the primary educational arm of the People's Supreme Court, roughly 10,000 judges spend a month of every year on professional training. In the past, judges were taught to serve the interests of the Communist Party, but now a different message is emphasized.
"We train them with a modern theory of law: that the courts are impartial, on the need for legal justice and of innocence until proven guilty," said Huai Xiaofeng, president of the college. "We stress that during a trial, you cannot favor the government or the National People's Congress. In the past, they told them to emphasize the political qualities.
"Now, we tell them to emphasize the law and the facts."
For Judge Li, the reaction to the ruling on the seed case proved how political considerations remained deeply embedded in the legal system. Because the case seemed likely to provoke controversy, she had submitted a draft ruling to the court director, who in turn forwarded it to a trial committee. Everyone signed off, and both parties were informed in June 2003.
But by October, word of the case had reached the Henan Province People's Congress, the provincial legislature. In the legal affairs office, the ruling was interpreted as a naked challenge to the lawmaking authority of the People's Congress. Provincial officials publicly described the ruling as "a serious breach of law."
"The authority of the National People's Congress system is not to be challenged," said Mao Yinduan, head of the legal office, in an interview. "The judge in this case was very young and had little experience. She had every right to choose which law to use. But courts have no right in a verdict to say which law is invalid."
The reaction stunned Judge Li. To research the verdict, she had studied Chinese law, as well as the speeches of senior political leaders. China's Law on Legislation stated that local laws that conflicted with national laws should be abolished. She thought including this point in her opinion was within her judicial purview.
She had not intended to challenge the political system, nor, apparently, did her director or anyone on the trial committee. "He read the verdict and didn't realize the significance of what it said," Judge Li said of the director. "I, at first, didn't realize the significance, either."
But Judge Li, not the court officials who had approved the decision, faced the possibility of serious punishment. "I felt persecuted," she recalled. "Everyone I talked to told me what I had done was wrong."
Job Saved but System Unchanged
Anxious and uncertain of her future, Li Huijuan telephoned her husband, Chang Jianyi. High school sweethearts, they married in 1999 but lived apart because Mr. Chang worked in Beijing as a software developer. His wife reached him on a business trip to Tibet, and he advised her to seek help in Beijing. He believed she had been wronged.
"She had to fight back to restore her reputation and her dignity," Mr. Chang said. "If she did not fight back, she would have to live with the stain."
She left for Beijing and planned to seek help from an association of women in the judiciary. She wrote a long passionate letter in which she promised to "undergo criticism and education" if she had erred. "But if I'm right, I will protect my integrity and defend the integrity of the law, even if it means being like a moth that flies into a flame."
At the association's office, a woman told her that she had been treated too harshly and agreed to contact someone at the People's Supreme Court. Then the case attracted the attention of the Chinese news media and of scholars and lawyers pushing for legal reform.
Mr. He, the constitutional scholar, rose to her defense in an op-ed article. In an interview, he characterized the seed case as one of the most important in the legal evolution of China because of the attention it focused on judicial independence.
"It may not be Marbury v. Madison," Mr. He said of the landmark case credited with establishing the authority of the United States Supreme Court, "but it is a very important case."
As it turned out, Judge Li had stumbled upon a fundamental contradiction. In the Chinese system, based loosely on European models and the old Soviet structure, judges are supposed to refer conflicts in law for review by the Standing Committee of the National People's Congress, the country's center of legislative power. Judges are then expected to follow the decision made by the Standing Committee.
Yet, in practical terms, those referrals rarely happen and when they do, the Standing Committee has rarely showed interest in the housekeeping role. As a result, judges have become accustomed to assuming this role, if doing so silently, and then simply leaving the conflicting law untouched.
To many lawyers, the system was grossly inefficient and outdated. Mr. Xiao, the Beijing lawyer, joined three other lawyers in formally requesting that the National People's Congress review the situation. Scholars organized a legal conference at the elite Tsinghua University to debate the seed case and other issues about judicial autonomy. The public attention, and the possible intervention on her behalf by the People's Supreme Court, apparently saved Judge Li's career. She returned to work in summer 2004 before leaving on maternity leave later that year. She is now in Beijing on a leave to continue her legal studies.
But the system remained largely intact. In summer 2004, the Standing Committee announced the creation of a new review panel to mediate conflicts of law. Some lawyers have hailed the panel as the equivalent of a constitutional court. Others are concerned about the panel's secrecy and believe the responsibility should belong to the courts.
Judge Li still believes in the rule of law, but she is no longer the impressionable teenager who watched soap operas about judges. "Judges are confused," she said. "It is not that they do not know how to do cases professionally. It is just all these relationships to coordinate. And they also have to weigh consequences."
In 2004, Henan's High Court reheard the seed case. It ruled exactly as Judge Li had, with one exception: it criticized her for invalidating the provincial law.
（完）
