Strong Economic Development Without Judicial Independence in China: a Review

AuthorM. S. Islam - X. Xin
PositionInternational Islamic University Chittagong (Kumira, Bangladesh) - School of Law, Beijing Institute of Technology (Beijing, China)
Pages148-177
BRICS LAW JOURNAL Volume VII (2020) Issue 1
COMMENTS
STRonG EConoMIC DEVELoPMEnT wITHouT JuDICIAL InDEPEnDEnCE
In CHInA : A REVIEw
MOHAMMAD SAIFUL ISLAM,
International Islamic University Chittagong (Kumira, Bangladesh)
XU XIN,
School of Law, Beijing Institute of Technology (Beijing, China)
https://doi.org/10.21684/2412-2343-2020-7-1-148-177
Over the last four decades, China has sustained extraordinary economic development
despite Western assertions of under-constructed economic markets and the lack of an
independent adjudicative process. The purpose of this paper is to set out the context
of China’s judicial independence and high economic development scenario in the
global economy. The paper aims to establish that vast economic expansion is possible
without the conventional concept of an independent judiciary in which China provides
an important example for the world. The study is mainly qualitative in nature and takes
the analytical approach. The data and statistics have been collected from sources of the
World Bank, IMF, WTO, UNCTAD, The World Factbook of the CIA, and the Chinese National
Bureau of Statistics. The content analysis references the Chinese Constitution and judges
law, reports of the Supreme People’s Court, books, journal articles, newspaper ar ticles,
media reports, and internet documents. The ndings of the study are that China preserves
“adjudicative independence” as a unique feature instead of embracing the Western
concept of judicial independence that promotes the condence of investors to make more
investments. Additionally, the initiatives of “Made in China” and “One Belt, One Road”
attach new wings to China’s emergence as the world’s crucial economic power. The article
concludes that China’s experience provides a lesson for policymakers and economists of
other developing or transitional countries struggling with weak legal and court systems,
and emerging nancial markets. The study strengthens the ourishing literature on the
connection between judicial independence and economic development.
MOHAMMAD SAIFUL ISLAM, XU XIN 149
Keywords: economic development; adjudicative independence; judicial reform; nancial
reform; corruption.
Recommended citation: Mohammad Saiful Islam & Xu Xin, Strong Economic Deve-
lopment Without Judicial Independence in China: A Review, 7(1) BRICS Law Journal
128–177 (2020).
Introduction
As an obligatory branch of the state, the judiciary performs the core function of
resolving disputes between parties. It explains and interprets the accurate meaning
of the law, and it protects constitutionalism in respect of a matter relating to a written
constitution through its exercise of the power of judicial review. Alexander Hamilton
stated,
No legislative act ... contrary to the constitution, can be valid.1
The interpretation of the law is a tricky business that belongs to the jurisdiction of
the judicial authority. In other words, it has broad discretion to make law in the absence
of vibrant indications of congressional legislation. Furthermore, the judiciary can play
the healthy role of shaping a nondiscriminatory society through conrming fair justice,
safeguarding citizens’ rights, imposing a penalty on oenders, and ensuring the safety
and security of innocent people from harm. The competent judiciary is a check on
the corruption of the executive, bureaucrats, the judiciary itself, corporations, and
is an institution whose actions are a crucial factor in maintaining economic growth
and poverty reduc tion. Thus, the independence of the judiciary is essential if it is
to perform all of its functions relating to the administration of justice properly. The
concept of judicial independence, or the independent judiciary, was invented in
Europe and underwent further development in the United States by the framers of
the U.S. Constitution.2 The U.S. concept is based on the political theory of separation
of powers and checks and balances among the governmental organs so as to restrain
them from oppressive abuses of their authority. The primary and core feature of an
independent judiciary is the maintenance of the judiciary as a separate institution in
which one arbitrator or judge can adjudicate disputes neutrally and impartially.3
1 Alexander Hamilton, Federalist No. 78 in Alexander Hamilton et al., The Federalist Papers 235, 237 (New York:
Palgrave Macmillan, 2009).
2 For a deeper understanding of the development of judicial independence as conceived in the United States,
see Hamilton et al. 2009.
3 James L. Gibson, “New-Style” Judicial Campaigns and the Legitimacy of State High Courts, 71(4) Journal of
Politics 1285 (2009).

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