Making China Law Bloglists Around the World

Thank you to Dan Harris, of the China Law Blog, and Mark Cohen, of the China IPR blog for pointing out that Carli Spina of the Harvard Law School library has listed the Supreme People’s Court Monitor among its recommended China law resources.

I am honored that the following institutions have listed my blog among their resources:

  • Congressional Executive Commission on China
  • US-Asia Law Institute (New York University)
  • Harvard Law School Law Library
  • Tulane University Law School Law Library
  • Oxford University’s Bodleian Library
  • University of Glasgow Chinese Studies
  • University of Leiden Chinese Studies
  • University of Sydney Law Library.

谢谢!

 

 

Tianjin’s environmental crisis and the courts

Tianjin's air pollutionTianjin’s environmental problems are well documented, as this presentation by a (Nankai University) Tianjin based professor of environmental sciences describes. Chinese pollution statistics list Tianjin as one of the top 10-15 polluted Chinese cities.  In the past few days, the national court website carried a report by the Tianjin higher people’s court on environmental cases, likely meant to help the Supreme People’s Court (Court) as it increases judicial resources on the environment and natural resources, and to fulfill  objectives set out in the Court’s July, 2014 policy document on environmental cases, Opinions of the Supreme People’s Court on Comprehensively Strengthening Judicial Work Related to Environmental Resources to Provide Effective Judicial Safeguards to Promote the Construction of an Ecological Civilization.  The Tianjin court identified three major problems:

Disconnect between the number of cases and the polluted environment

  • As of June, 2014, the courts had only accepted 43 criminal pollution cases, most of which arose in the last 3 months of last year, with two new ones this year, and no cases from 2011-until the middle of 2012.
  • There have been only 2 environmental administrative cases (appeals from administrative review decisions by the environmental protection authorities) so far in 2014.
  • There have been a tiny number of civil cases. The Tianjin courts have not accepted any public interest environmental civil suits.

Many difficulties with environmental cases

The Tianjin judges listed the following difficulties:

  • Obtaining evidence.
  • Obtaining evidence sufficient to document the causal link between the acts of the polluter and the pollution.
  • Obtaining competent technical evaluation.
  • Because much of the evidence in criminal cases comes from the enforcement arm of the environmental protection departments, but their evidentiary requirements are different from those demanded in criminal proceedings, the evidence they provide often cannot be used in court, because it has not been handled properly.
  • The environmental protection departments are often unable to supply evidence of causation as well as harm caused by pollution.
  • The environmental protection departments fail to provide historical data about pollution over time.
  • People petitioning about pollution.

Personnel inadequately trained

The study found that the judges assigned to the environmental panels lacked sufficient training.

The solution identified by Tianjin judges

  • More training on environmental law for judges.
  • Establish environmental courts only when conditions are suitable.
  • Involve more environmental specialists as people’s assessors to fill the technical expertise gaps.
  • Establish better liaison channels with other authorities, including environmental protection agencies and the procuratorate.
Tianjin pollution

Tianjin pollution

What can be done to improve the situation?

It appears that a critical issue in environmental criminal prosecutions is a problem with evidence.  The Supreme People’s Court Observer has the following suggestions:

1) if the Tianjin court has identified a prevalent problem, that  local environmental protection bureaus need further training on how to work with the prosecutors and the courts to prepare evidence that will hold up in court, this is an area in which training can help.  If expertise lies within the Ministry of Environmental Protection, the Supreme People’s Procuratorate and Supreme People’s Court should create a training session for local environmental protection bureau officials that can be duplicated in each province. If foreign expertise is needed, perhaps the US Environmental Protection Agency or other foreign governments, international organizations, or environmental NGOs can add this to their exchange agenda.

2) Rather than see ordinary citizens as a problem, local courts can work with local Bureau of Civil Affairs to train local environmental NGOs on the type of evidence needed to document environmental pollution cases. Some of these local NGOs include retired engineers and others with technical expertise.

Updated with further analysis: What does the 4th Plenum mean for death penalty reviews?

video interview in a death penalty review case

video interview in a death penalty review case

In a  press report in Southern Weekend last month (summarized in this report), the Supreme People’s Court (the Court) revealed that  an important legal reform related to death penalty reviews is forthcoming–institutionalizing legal representation in death penalty reviews.  It appears that this development has not yet been reported in the foreign press. This development, and others still in the works, are likely linked to the following provisions in the 4th Plenum Decision:

  • For appeals from dissatisfaction with effective judgments or decisions of judicial organs, gradually implement a system of lawyer representation. Bring appellants unable to hire a lawyer within the scope of legal aid.
  • Advance systemic reform in litigation with trial at the center;
  • complete effective guards against unjust, false and wrongfully decided cases.
  • bring about a system of lifetime responsibility for case quality and wrongful cases accountability system.

The Southern Weekend report, now more fully summarized by the Duihua Foundation  was partially reported in the foreign press, thanks to their earlier summer which missed this important development. (A full translation of this article would be helpful to non-Chinese readers interested in this issue).

(This reform caught my attention because because I raised this issue when conducting an interview at the Supreme People’s Court in the early 1990′s, when researching my 1993 Supreme People’s Court article in the Journal of Chinese Law.)

Some background on death penalty review in the Court

As many others have described, death penalty review is carried out solely within the Court (in contrast to the period that I wrote my article) in an administrative procedure (my article describes the procedure at the time, and other articles describe the current process). The Southern Weekend article describes it as taking place in an unmarked office building away from  Court headquarters, guarded by a member of the Armed Police.

The Court has increased the number of criminal tribunals from two (when I wrote about this procedure 20 years ago in my article) to five tribunals, but the Court has not issued regulations setting out their jurisdiction.  According to the Southern Weekend reporters, four of the tribunals, which review cases based on geography and subject matter, have about 70 staff (both judges and support staff), while one has about 50 staff and reviews cases only on a subject matter basis. According to Southern Weekend, there is some flexibility in the jurisdiction of the criminal tribunals.(See this report for a translation of Southern Weekend’s chart.)

Institutionalizing legal representation in death penalty reviews

The Southern Weekend article reported that a senior member of the one of the criminal tribunals had revealed that the Court has drafted regulations on institutionalizing legal representation in death penalty review and it is hoped that they will be issued before year end.  According to the article, the draft regulations are entitled:

死刑复核案件听取辩护律师意见的若干规定 (Regulations on Considering the Views of Defense Lawyers in Death Penalty Review Cases).

This reform was flagged in Article 240 of the 2012 Criminal Procedure Law:

When the Supreme People’s Court reviews a death case, it should examine the defendant; if the defense attorney requests, it should hear the opinion of the defense attorney.

Article 42 of the 2012 Supreme People’s Court interpretation of the Criminal Procedure Law provides:

When the SPC performs final review of a death penalty case and the defendant has not retained a defender, the legal aid organization shall be notified to appoint a lawyer to provide him a defense.

A statement of principle in an a Court interpretation does not translate immediately into systemic reform.  It is apparent from the Southern Weekend article, a 2013 article on the Court’s website, and other sources that the mechanism for doing so is being considered within the Court and that local justice bureaus are implementing regulatory changes.

In the Southern Weekend article, a Court judge pointed out what the academics and defense lawyers have been saying, that many persons sentenced to death are from the bottom of society and do not have a lawyer defending them. (It appears from this interview with the President of the Zhejiang Higher People’s Court that Zhejiang has been taking the lead in working with the justice authorities to have legal aid provided to criminal defendants.)

In an article earlier this year in the Legal Daily (organ of the Communist Party Central Political Legal Committee), Professor Liu Wenren of the Law Institute, China Academy of Social Sciences emphasized the necessity of involving lawyers in the death penalty review process.  A Chinese lawyer has established a website for death penalty review lawyers, highlighting cases where legal representation has been effective.  Jiangsu province justice department has implemented  regulations on giving defense lawyers rights in death penalty review cases.

It is unclear what provisions will be contained in these regulations, but it is hoped that they include a provision for legal aid as well as rights for lawyers to review the case file.

Changing the form of death penalty review: when will the time come for this reform?

It appears that the Court is considering changing the form of death penalty review to a hearing-centered procedure.  (Dean Zhao Bingzhi of Beijing Normal University, College of Criminal Law Science, Professor Liu Wenren, and  others have been advocating this for some years (see this in this 2012 interview with Professor Zhao in Legal Daily).) Movement on this issue can be seen from the following:

  • In June, 2013, the Court held its first hearing in a death penalty review case, reported here. In July, 2013, Legal Daily published a follow-up article in which it was suggested that more hearings will take place.
  • In 2013, the Court website published an article (written by a Jiangxi judge) on deficiencies in the death penalty review procedure, suggesting that a hearing procedure be adopted.
  • In July, 2014, the China Law Society held a training session for defense lawyers in death penalty cases, at which four of the five criminal tribunal heads spoke.

The Supreme People’s Court Observer understands these developments to be linked to the goal in the 4th Plenum Decision of bringing about a system of lifetime responsibility for case quality and a wrongful cases accountability system. Going to a hearing procedure for death penalty review cases in which defendants have legal representation would go far to “complete effective guards against unjust, false and wrongfully decided cases” and at the same time would better protect the hundreds of Court judges who will bear lifetime responsibility for their decisions in death penalty cases.

If there are errors in the above analysis, please use the comment function.

Those further interested in this important topic can refer to one or more of the many articles, books, and reports in English (and Chinese).  In contrast to the early 90′s, death penalty review in China has now attracted the attention of major scholars and international organizations.

A lesson in Plenumology

4th plenum voting

4th plenum voting

The skills of a Kremlinologist (the Supreme Court Observer first learned these skills when reading Pravda and other Communist Party of the Soviet Union publications as a Russian Studies major) are needed to unpack what a Plenum Communique and a Plenum Decision mean for the Chinese legal system. (For those who haven’t heard the term “Kremlinologist,” the Wikipedia article gives a good summary).

The Plenum Communique  (now nearly forgotten) is a set of high level bullet points.  The 4th Plenum Decision, released late on 28 October, is something akin to a memorandum of understanding (MOU), for those who have spent time in the world of commercial law or business.  The 4th Plenum Decision cannot be implemented by itself–for many issues it requires complex bureaucratic arrangements, as well as framework legislation and detailed rules (akin to the sets of contracts that are needed for a business deal).  So evaluating how the 4th Plenum Communique or Decision will affect the real world of Chinese law requires the same analytical skills as  taking a deal’s high level bullet points or MOU and predicting how a business will operate.

Evaluating a Plenum decision requires analytical sifting of the standard language from the operative provisions.  Those provisions are often single phrases, and have behind them years of research and policy analysis within the institutions involved, as well as Chinese universities and think tanks.

The Supreme People’s Court Observer will take this opportunity to evaluate discrete provisions in the 4th Plenum Decision in future blogposts, as time permits.

Supreme People’s Court’s new policy on protecting the rights of the military and military personnel

Conference on legal assistance to Zhejiang troops

Conference on legal assistance to Zhejiang troops

The details of how the 4th Plenum Decision is being implemented by the Supreme People’s Court are gradually being made known. This blogpost looks at one discrete (and specialized) area, relating to national defense and the military in the civilian courts.

On 31 October, the Supreme People’s Court issued its Opinion on Expanding Capacity in  Safeguarding the Interests of National Defense, Guaranteeing the Rights and Interests of Military Personnel, and Military Dependents (关于进一步发挥职能作用维护国防利益和军人军属合法权益的意见)(The Opinion) (linked here, with comments by a spokesman here).

The sixteen point policy is intended as a comprehensive statement of judicial policy on these issues to be implemented by the lower courts in furtherance of the goals set by the 4th Plenum Decision.

The Opinion draws on some of the documents and addresses some of the social and regulatory issues described in earlier blogposts.

It is intended to implement the following provisions in the 4th Plenum Decision (among others):

  • Safeguard the interests of national defense.
  • Guarantee the lawful rights and interests of soldiers.
  • Strengthen legal services in the area of the people’s livelihood. Perfect legal aid systems, broaden the scope of aid.

Several points from the Opinion are highlighted below,  as well as questions that the Opinion raises (and some of the underlying issues) .

Some Points in the Opinion

1. The Opinion directs the lower courts to improve case filing and jurisdiction in cases related to the military.  The Opinon cites  the three principal judicial interpretations on civil and criminal jurisdiction in military cases, and encourages lower courts to establish special case filing counters for the military.

Why special counters for the military rather than the handicapped, for example, or other disadvantaged groups?

2. The Opinion directs lower courts to provide judicial and legal assistance to military parties.  The Opinion explains that Judicial assistance means exempting or reducing court fees for poor military families in civil cases  known as as “involving the interests of ordinary people” (more about these in an earlier blogpost) such as:

  • support payments (to the elderly);
  • child support;
  • compensation payments (to the disabled or families of the deceased).

The Opinion directs lower courts to take the initiative to assist soldiers and military dependents who qualify in receiving legal aid.  What this means is that courts should reach out to  local justice bureaus.  In some provinces, such as Zhejiang, the provincial judicial bureau has worked with the local military district to establish legal aid centers for military personnel and their dependents, under which local law firms have concluded agreements to provide legal advice (see this report).

How does the provision of legal aid to military personnel and their dependents compare to legal aid provided to other persons in poverty?

3.  Do a better job of trying military cases.  This refers to both criminal and civil cases.

Most of the criminal cases mentioned were detailed in this earlier blogpost.

Among the new principles to be implemented in civil cases are:

  • supporting core military enterprises and military industrial companies. (依法为军队核心产业、军工企业的科学发展提供司法支持).

Government policy seeks to have more private sector involvement in military and military industrial companies.

What does this mean when commercial disputes arise– how will the interests of each party be weighed?

4.  Establish a “green channel” for military related cases (this was mocked earlier this year), by giving priority to military-related cases in docketing, trial and enforcement.  Part of this means directing lower courts to  gather evidence if military parties have difficulty obtaining evidence.

What if it is the non-military party that has that difficulty, either in a commercial or family law case?

5. The Opinion directs the lower courts to work under the united leadership and support of the Party committee and political-legal committee on these issues and to work with other related departments to deal with military related cases.

What does that mean if the approach adopted by the Party committee or political-legal committee favors one party over another?

Other points include:

  • Establishing mechanisms for resolving disputes involving the military.
  • Improving enforcement of military-related orders and decisions.
  • Improving judicial service related to the military
  • Courts should work closely with the military.
  • Explore capturing statistics on military related cases.
  • Incorporating work in military-related cases in judicial performance evaluation.
  • Working with the military courts on military-related cases.

Some of the underlying issues

As identified in earlier blogposts, some of the underlying problems causing an increase in military-related cases in the civilian courts appear to be :

  •  an increase in civil unrest involving civilians and military;
  • unresolved civil disputes involving the military and its personnel
  • criminal cases involving civilians and military that have not been prosecuted because of evidentiary issues.
  • separate operations of the military and civilian justice systems;
  • difficulties in coordinating across bureaucratic systems.
  • performance indicators for officials within the (civilian) legal system, relating to the  percentage of closed cases or other success rates.

The Opinion and the 4th Plenum

What does the Opinion mean for principles in the 4th Plenum such as:

guaranteeing judicial fairness, exercising judicial power independently according law, raising judicial credibility and striving to have the people feel that every judicial case is fair and just?

 

 

 

4th Plenum and What Ruling the Military According to Law means

rule of/by law under construction

The Supreme People’s Court Observer contributed a brief blogpost to the Global Military Justice Reform blog on what the 4th Plenum Decision means for Chinese military law, linked here.The Global Military Justice Reform blog, based at Yale Law School, looks at military justice issues all over the world, including the jurisdiction of military courts, command control of military courts and other parts of the military justice system and is highly recommended!

4th Plenum and the Supreme People’s Court

4th plenum voting

4th plenum voting

According to the Wechat postings of one of its members, the judicial reform office of the Supreme People’s Court has been working overtime for months to prepare for the 4th Plenum.  It appears, at least from the initial 4th Plenum communiqué, that the hard work has paid off.  We will know more about the leadership’s plans for legal reforms when the full decision is released.  Four quick questions about the communique are set out below (to be supplemented as time permits).

Some questions for the Supreme People’s Court and the judiciary:

1.The communique stressed the need for improving the quality of legislation, including incorporating more public consultation and experts.  Will this reduce the need for judicial interpretations? What will this mean for the drafting of judicial interpretations?  Will the Supreme People’s Court require public consultation for its own judicial interpretations?  The release this month of drafts for public comment of the environmental public interest litigation regulations and the trademark validity administrative case rules are a step in the right direction.

2. The communique called for greater judicial transparency, as was highlighted in the Court’s 4th Five Year Reform Plan.  In its press releases to the domestic audience, the Supreme People’s Court has mentioned the visits it has hosted of the foreign press, foreign diplomats, and ordinary citizens, and of analogous events at the local level.  When can we look forward to easier access by all (foreign or domestic) to proceedings in the Chinese courts (at least in non-sensitive cases)?

3.  The communique indicated approval by the leadership of the establishment of circuit courts that cross administrative lines, a concept mentioned in the 4th Five Year Reform Plan (see this earlier blogpost).  It also reflects the use in China of foreign legal concepts or frameworks (as is frequently stressed, a reference and not as a transplant).

4.  It also called for an end to “interference” by leading cadres in specific court cases.  How will this long-standing practice will be curbed?  In recent weeks, articles have appeared in the legal press on changes to the Party Political Legal Committees. Will those changes imply less involvement in actual cases? And what is the distinction between “interference” and “leadership”?