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!
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”?
In a build up to the National Day holiday (and since), the Supreme People’s Court (the Court) has focused some of its attention on combating the disease of judicial corruption. The prescription is in the form of three types of Communist Party documents. This blogpost highlights the prescription and speculates on the timing.
The herbs in this traditional prescription comes in the form of:
- Six model (typical) cases of violations of the Communist Party’s Eight Point Regulations by court officials ( “cadres and police”/干警)). (An earlier blogpost analyzed seven earlier model cases that the Court issued. The six (relatively minor) cases included:
- a Guizhou county court spending over 500,000 RMB on a trip to Hainan at public expense, lavish banqueting, and abuse of bonuses;
- leadership of a Shaoguan (Guangdong) court, that caused the death of their dinner guest, an official of a county court, from alcohol poisoning;
- vice president of a Hunan county court, who used a court vehicle to take his daughter to school;
- the head of the disciplinary department of a Hancheng (Shaanxi) court caught by a reporter playing video games during work hours;
- Holiday rules on what not to do during the Mid-Autumn Festival and National Day holidays. The Central Commission for Disciplinary Inspection (at various levels) issued notices distributed to the courts forbidding officials “gifting” moon cakes, shopping vouchers, “red packets”, and touring at public expense,
- A document, linked here, providing policy guidance to the disciplinary departments of the courts in rooting corruption out of the courts. The head of these departments is Zhang Jiannan, who is the Communist Party’s Central Commission for Discipline Inspection’s (CCDI’s) chief representative in the Supreme People’s Court, and directs the disciplinary departments of the lower courts. The document is again focused on anti-corruption efforts within the courts. It directs the disciplinary departments to focus on discipline, report to the local Party disciplinary authorities as well as the disciplinary department of the higher courts, participate in major court internal meetings, improve the operation of disciplinary inspectors (described below). It directs disciplinary officials to participate in important meetings, drafting of important documents, and clear personnel appointments. The disciplinary officials are directed to implement the Party Constitution as well as 2008 regulations on supervision work in the courts.
- the Court’s Party Committee issued a June, 2014 document on Party discipline:
- the Court dispatched teams of its own disciplinary inspectors（最高人民法院司法巡查组) to Henan, Ningxia, Fujian and Anhui in May and September. These disciplinary inspectors are the Court’s counterpart to the CCDI’s inspection teams, which at the central level called Central Inspection Groups (中央巡视组) (“CIG”). These CIGs uncover corruption and other abuses, under which semi-retired high ranking officials are dispatched to provinces, ministries and SOEs for disciplinary inspection. The political background for these inspection teams is analyzed in this article. These inspection teams have operated in the courts for a number of years and operate according to these rules.
- The Communist Party Central Committee’s Political Legal Committee issued three batches of “typical cases” of violations of law and Party discipline among the “political legal departments,” (each linked here) which included a substantial number of judges, including Liu Yong of the Supreme People’s Court, removed for suspicion of having taken about 2 million yuan in bribes (about $330,000).
The timing for the release of these recent documents appears to be linked to the upcoming Fourth Plenum of the 18th Chinese Communist Party Central Committee, on the rule of law. Part of the agenda, according to reports, is the role of the judiciary, curbing corruption and announcing forthcoming judicial reforms.
A traditional prescription
This prescription for curing the courts of corruption uses the traditional cure of Party discipline rather than judicial ethical models more commonly used in other jurisdictions. The Chinese judiciary has looked at approaches to judicial ethics in other jurisdictions, including Germany, the US, and Hong Kong. Elements of this prescription, such as having disciplinary officials participate in important meetings and the drafting of important documents appear to be inconsistent with some of the goals in the judicial reform plan of having the judges who heard cases decide them.
Will the prescription be effective?
The current prescription is a variation of what has been prescribed before. The Court needs to show the political leadership that it is it doing what it can to combat corruption in the courts and is implementing anti-corruption initiatives. The anti-corruption drive is being led by the CCDI, using Party channels and methods.
Corruption prevents or at least complicates efforts to establish and operate a court system that meets the needs of ordinary people. It appears that the Court leadership is under no illusions about what goes on in the court system. However, the Court leadership can only work within the current system and with current personnel. Will the broader anti-corruption campaign lead to a change in China’s social and business culture, of which the judiciary is a part? Or do these latest initiatives not go to the core of the problem? 换汤不换药?
On 30 September John Henry Wigmore Professor of Law Ronald Allen of Northwestern University School of Law was one of 100 foreign experts to be awarded China’s Friendship Award in the Great Hall of the People for his work with the Academy of Social Sciences, the China University of Political Science and Law and Supreme People’s Court on evidence law and related issues. The national court website ran a story on Court Vice President Shen Deyong’s meeting with Professor Allen, at which Judge Shen thanked Professor Allen for his work on behalf of the Supreme People’s Court. Judge Shen commented on the importance of evidence law. He also noted that although China’s court reform must be based on China’s situation, it can draw on foreign law methods and experience, including that of common law systems. Well done Professor Allen!
If you want to review and comment on China’s model for environmental public interest litigation, now you have your chance. On 1 October the Supreme People’s Court (Court) issued its regulations on environmental public interest litigation for public comment. The Court had highlighted the importance of these regulations in its July, 2014 policy document on environmental and natural resource tribunals. The Environmental Protection Law, amended earlier this year, gives the legislative framework for the regulations (a quick summary of the amendments can be found here).
The comment period is 1 month. The draft was published on the Court’s official website and is linked here. The notice requests that comments be accompanied by an explanation, and be submitted either on paper or electronically. The mailing address in Chinese is: 北京市东城区东交民巷27号，最高人民法院环境资源审判庭，邮编100745. The English address is: Environmental and Natural Resources Division, The Supreme People’s Court, No. 27, Dong Jiao Min Xiang, Dongcheng District, Beijing 100745. The email address for comments is: email@example.com.
The Supreme People’s Court Observer contributed a post to the Global Military Justice Reform blog, linked here, entitled “Does law have a place in China’s military and national defense reform?” The post commented on two recent articles, one by a researcher at China’s Academy of Military Sciences and the other by the Legislative Affairs Bureau of the Central Military Commission (中央军委法制局). The blogpost concludes with the prediction of the Supreme People’s Court Observer that when the Chinese leadership meets in October for the Fourth Plenum of the 18th Chinese Communist Party Central Committee to focus on the rule of law, some broad principles for military legal reform will be laid down, but notes that this prediction with be (dis)proved by events.
An article on the judicial reforms in the 25 September edition of Southern Weekend (南方周末) is now making its way across Chinese social media, featuring an interview with Peking University Law professor Fu Yulin and Tsinghua University law professor He Haibo. The article addresses some of the questions many inside and outside of China have been asking:
- What is the status of the judicial reform pilot projects outside of Shanghai?
- What is the status of some of the issues mentioned in the judicial reform documents?
- Why haven’t China’s judicial reform documents been made public?
The two principal judicial reform documents approved by the highest political authorities are:
- the Fourth Five Year Plan Judicial Reform Outline, a summary of which was issued on 9 July (blogpost analysis here and here).
- the Shanghai Judicial Reform Pilot Project Work Plan（上海市司法改革试点工作方案). A detailed description of how the Shanghai authorities will implement this (上海市司法改革试点工作方案>实施意见) has been released by both the Shanghai and national press (an English translation available here).
The published reports on the Fourth Five Year Plan Judicial Reform Outline have mentioned that pilot projects would be implemented in Guangdong, Hubei, Jilin, Qinghai and Hainan, but no outlines of those pilot projects have surfaced.
What is the status of those judicial reform plans?
According to Southern Weekend, drafts for judicial reform plans for Guangdong, Hubei, Jilin, Qinghai, and Hainan are basically finished and have been submitted to the Central Political Legal Committee. They are awaiting approval.
What is the status of some of the issues mentioned in the judicial reform outlines?
Judicial selection committees
According to Southern Weekend, it is unresolved under the judicial reforms, who will select judges and how they will be selected. Plans for all five pilot plans designate the the head of the provincial political legal committee as the head of judicial selection committee, with the judicial selection committee to be based at the provincial political legal committee. The reforms in Shanghai are the exception, where the judicial selection committee will be based in the Shanghai Higher People’s Court. The two law professors interviewed suggest that the provincial people’s congress would have been more appropriate (for the other five pilot plans), but they state that the people’s congresses in these locations did not want to take on that role. (And one comment on the article was that the Party, after all, selects people’s congress members.)
The law professors stressed the need for legal professionals to be members of judicial selection committees. One noted that in China, the principle of “the Party manages cadres” (党管干部) cannot be avoided and suggested that judicial selection committee and Party organization department clearance could run parallel.
It seems that the tension between Party involvement and professionalism in judicial selection remains an issue.
Quota system for judges
The quota system for judges refers to establishing quotas on the numbers of judges in relation to other personnel within the judicial system. As described in these articles, the plan in Shanghai is to limit judges to 33%, with administrative and support staff constituting 55% and 15% respectively. The framework in Shanghai has been widely discussed and criticized in the Chinese legal press and on social media, particularly for its impact on younger judges, who note that they would not fit the judicial criteria and would be made “obsolete.”
Professor Fu echos criticism made by judges and others in the press that imposing a rigid quota system for the number of judges was inappropriate. She pointed out that at the basic level, having a system with fewer than 40% judges was unworkable, given that the Chinese courts at the basic level had to deal with large number of minor offenses. The reason was that China had not yet established separate courts to deal with minor offences [the Supreme Court Observer notes that pilot projects for these courts are underway in some areas]. Another issue is the many responsibilities that Chinese judges have in addition to hearing cases and how a smaller number of judges will be able to hear cases as well as carry out their other responsibilities (research, compiling judicial statistics, promoting the courts).
Why haven’t the current judicial reform documents been made public?
The professors note that they themselves have not seen the judicial reform documents either. They suggest that policies for many issues have not been worked out, but that the uncertainty about the direction and content of the reform policies has a negative effect.
The upcoming plenum
It seems likely that the upcoming fourth plenary session of the Chinese Communist Party’s 18th Central Committee, on rule of law, in October will give us more certainty about the direction and content of the judicial reform policies. In the meantime, the issues and their implications give us all much to think about.