Judicial Review of Government Actions in China

Abstract

China’s laws and policies on the judicial review of government actions are often used as a bellwether of the government’s attitude towards the rule of law. Accordingly, in gauging the direction of legal reform in the Xi Jinping era, recent media reports have highlighted changes in litigation against government agencies as evidence of positive movement towards the greater rule of law, albeit only contradicted by other evidence of political repression and increasing authoritarianism. We provide a selective review of changes in China’s administrative litigation system in the last few years, giving special attention to (i) the amendment in 2014 of the Administrative Litigation Law (ALL), (ii) a 2018 Supreme People’s Court Interpretation of the same statute, and (iii) dramatic changes in empirical patterns of litigation since 2013. In our view, the question of whether lawsuits might be brought against the government has arguably become less interesting than the question of how courts will decide such lawsuits. And the generic notion of judicial independence itself no longer sheds sufficient light on the range of actual and possible judicial responses. Using the purportedly expanded scope of review of informal policy directives as an example, we show that symbolism-motivated advocacy to improve the administrative litigation in China may come at the expense of protecting the non-symbolic functions of judicial review, and of guaranteeing what judges really care about, i.e. the coherence of law and consistency in the delivery of justice.