On 9 July, the Supreme People’s Court issued its fourth five year reform plan for the courts, approved by the Party leadership, which sets out 4 broad areas of reform, relating to 8 general areas. An overview has been released on Wechat and other Chinese social media and can be expected to be published very soon in more traditional media. An clear info graphic was published on the Court website and other official media, translated here.
The Court described it as taking first steps towards establishing a judicial system with Chinese characteristics and is intended to roll out reforms announced in the 3rd Plenum decision and the judicial reform decision announced earlier this spring and some of its themes were highlighted in press releases published just after Chinese new year. Many of these issues are ones that have been discussed within the Chinese legal community for many years and draw on international expertise as well. The summary below highlights five of the eight broad areas.
- Personnel reforms
- Separate administrative and judicial jurisdiction
- Improve the operation of the judicial function
- Improve the protection of human rights
- Increase judicial transparency
- Clarify the roles of the four levels of the courts
- Improve judicial administration
- Promote reforms relating to petitioning
The intention of the personnel reforms are to split the treatment of judges from other civil servants, to step away from the traditional model of judges as cadres. This will involve pushing forward the initial reforms being tested to change the personnel management of local courts, and transfer that to the provincial level. This will include:
- the establishment of provincial level selection committees, will involve clearance by Party disciplinary and other functions, and retain appointment by the people’s congress.
- Personnel reforms will also involve splitting the management of judges from other judicial personnel, such as judicial police and clerks.
- Additionally, reforms are intended to the use of judicial headcount, to focus that by increasing the number of judges.
- Two other reforms involve establishing new systems for judicial promotions and establishing differing criteria for the recruitment of different types of judges.
Separate administrative and judicial jurisdiction
Reforms in this area include:
- taking steps to take certain cases, such as some environmental and commercial cases out the local administrative jurisdictions, so that they can be heard fairly.
- Reform some of the lesser known courts, such as the forestry courts, to bring them into the ordinary court system.
- Establish a system for circuit tribunals at provincial level to hear difficult cases, and focus on environmental cases.
- In areas where there are more intellectual property cases, promote the establishment of intellectual property courts.
Improve the operation of the judicial function
The summary concerning this section admits that having the person who heard the case decide it remains difficult to implement within the Chinese jidicial system, and that despite initial attempts, internal multi-level approvals for deciding cases remains the norm. The intended reforms in this area include:
- improving the system of responsibility of the primarily responsible judge and the panel that heard the case.
- Changing the system of signing judicial decisions.
- Improving the monitoring of judicial performance.
- Improving judicial disciplinary procedures.
Importantly, reforms look to change the current relationship between the judge responsible, the tribunal, and others in a position of leadership within the courts, such as the head of the division and court president. There has been a great deal of academic writing about this, in both English and Chinese, as well as articles written by judges serving at various levels. A great deal of thought has gone into this section and implementing these reforms will involve changing long-term patterns of interaction.
Improve the protection of human rights
Reforms in this area are intended to improve the protection of human and property rights, particularly by improving judicial review of the investigation and prosecution stages:
- Eliminate the use of illegally obtained evidence.
- Improve the role of the defense lawyer and the statement by the advocate for the defendant.
- Improve systems for pursuing judicial negligence.
- Improve the protection of assets relating to [criminal cases].
- Improve reforms in the area of minor crimes, so that those cases are heard more quickly (pilot projects are underway in some areas).
These reforms represent the result of years of discussions within the judiciary, with lawyers, academics, and interactions with members of foreign courts, research into foreign legal systems, and others.
Increase judicial transparency
Reforms in this area build on the initial steps taken late last year and include:
- Make the hearing stage more open, by improving the system of announcements and permitting spectators to attend court hearings, increase real time broadcasts of hearings.
- Improve the handling of judicial information, so that litigants can determine the status of their case on-line.
- Improve the judicial decision database, Judicial Decisions of China.
All of these reforms are good practical proposals. Foreign observers of the Chinese courts would welcome easier access to Chinese court hearings.
A quick comment
Drafting this reform plan has been a tremendous undertaking and its implementation promises to be even more challenging. Some of the reforms discussed above are the subject of pilot projects in various parts of the country, ranging from Guangdong and Shanghai, where the courts have heavy caseloads and face cutting edge cases, to less prosperous inland provinces. Reforms are likely to start with what is most easily implemented and where results can most easily be achieved. What this means for some of the specialized courts, such as the military and maritime courts, will be clarified in time. The extent to which these reforms can change patterns of interaction within the judiciary and between the judiciary and government/Communist Party of many decades standing remains to be seen. It is hoped that the pressure of greater professionalism within the judiciary, and other social and economic forces will eventually result in a judiciary that better serves the needs of all.