21 January China Law Society organized discussion of Judges Law draft (note disproportionately few women)
Although the redraft of China’s Judges Law has the potential to have an impact on many in the world outside of China, few people have taken an interest, judging by the pageviews of its translation on Chinalawtranslate.com (62). (I’m indebted to Jeremy Daum and others for translating it). Judging by a search on Wechat, the same is true in China. The workshop pictured above, organized by the China Law Society, appears to be one of the few in which views on the draft were aired. There must have been strong views on the draft, but the report did not provide any details (and it is apparent no foreigners participated). The draft was released before the Communist Party (Party) Central Committee’s 2019 Political-Legal Work Conference and therefore does not reflect the most current political signals. The draft is open for public comments until 3 February and over 800 comments have been submitted as of 25 January. An earlier draft was made available for public comment (as well as related institutions) for comment and the China Law Society organized comments on that draft as well. The current draft incorporates input from various sources.
The law, if enacted in its current form, will have short and long term implications for the Chinese judiciary. As the Chinese judiciary seeks to be increasingly connected with the outside world, through its work in negotiating the (draft) Convention on the Recognition and Enforcement of Foreign Judgments at the Hague Conference on Private International Law, the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between mainland China and Hong Kong, as well as other more controversial involvement, the questions it raises for outside observers (and Chinese ones as well) is–what vision does it convey of the Chinese judge? What rights and responsibilities does a Chinese judge have under this law? Will this law, if enacted in its current form, encourage competent people to remain in the judicial system and promising young people to enter it? When I first flagged the redrafting of the law in 2015, I commented–“how to reorganize the Chinese judiciary and what professional status Chinese judges should have and work under will affect how judicial reforms are implemented and less directly, more fundamental issues concerning China’s economy and society.”
Some brief (not comprehensive) comments follow:
It consolidates the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and reflects current Communist Party (Party) policy towards political-legal institutions and their personnel as set forth in the 2019 Party regulations on political-legal work.
The Judges Law does not stand on its own. It is connected with other legislation, such as the recently amended Civil Servants Law the amended court organizational law, and of course, relevant Party rules. The initial drafting was led by the SPC, in particular, its Political Department (as the Party is in charge of cadres).
Chapter I: General Provisions
This section with broad statements is longer than the previous version. Among the notable amendments.
Article 1, concerning the purpose of the law: “advance the regularization, specialization, and professionalization of judges; to strengthen the management of judges; to ensure that the people’s courts independently exercise the adjudication power; to ensure judges’ performance of their duties in accordance with law; to ensure judicial fairness; and to preserve the lawful rights and interests of judges”–sends signals concerning the professionalization of the Chinese judges, with principles of independence (better read as autonomy) and fairness not listed first. It should be noted that during the 2019 Political-Legal Work Conference, the “revolutionization” of political-legal teams was listed before regularization and professionalization (加快推进政法队伍革命化、正规化、专业化、职业化建设，忠诚履职尽责). (“Revolutionization” appears to meant to signal the absolute leadership of the Party.) SPC President Zhou Qiang gave a speech at a meeting to implement the spirit of that Political-Legal Work Conference which also listed “revolutionization” first, but he stressed the greater importance of professionalization (加快推进队伍革命化、正规化、专业化、职业化建设，把专业化建设摆到更加重要位置来抓) as the operation of and public confidence in the Chinese court system depends on retaining and attracting professionals. The establishment of the CICC, the Shanghai Financial Court and the Intellectual Property Court of the Supreme People’s Court all represent professionalization and specialization.
Article 2 mentions various types of judicial personnel, the functions some of which are defined in the court organizational law, but for others, such as division chiefs and deputy division chiefs, mentioned without definition. A Chinese court has many administrative characteristics, but it would be helpful for the Chinese and offshore public to flag some basic principles regarding the functions of persons with these different titles, as these are found scattered in various SPC regulations.
Article 4: Judges shall treat parties and other litigation participants justly. The law is applied equally to any all individuals and organizations. But the law treats different types of parties differently (embezzling money from a private enterprise vs. state-owned company) and other provisions of law treat cases involving senior officials differently from ordinary people (see this article on the principle of trying criminal cases involving high officials in a jurisdiction outside which the case arose).
Chapter II: Judges’ duties, obligations and rights
On Judicial duties, Articles 8 and 9, on the duties of ordinary judges and ones with a title do not clarify what participating in trials and being responsible for their cases mean (the latter is linked to the 2015 responsibility system that (as this blog has mentioned), gives judges a great deal of stress. Perhaps the German Judiciary Law could be a source of inspiration on judicial duties.
Chapter III: Requirements and Selection of Judges
This chapter incorporates a number of policy changes that have been implemented under the judicial reforms and also explains why the China International Commercial Court (CICC) will not be able to appoint foreign judges, unlike its counterparts in Singapore and Dubai.
Article 12 is a revised version of old Article 9, requiring judges to be PRC citizens, uphold the PRC constitution, and have a good political and professional character. Article 65 mentions that new judges must have passed the legal qualification examination.
This chapter mentions the establishment of Judicial Selection Committees (also a borrowing from abroad) and which must have some linkage to Party organizational departments. The chapter mentions recruiting judges from outstanding lawyers and academics (thus far, proving more difficult than anticipated), and requiring higher court judges to be recruited from those with experience in the lower courts. I described the “classic” appointment system in my 1993 article on the Supreme People’s Court, in which fresh graduates were assigned directly to the SPC. As mentioned in my earlier blogpost on the court organizational law, court presidents are required to have legal knowledge and experience.
Chapter IV: Appointment and Removal of Judges
This chapter has expanded conflict of interest rules for judges considerably. that had previously been set out in a separate chapter of the Judges Law. Some of these had mostly been contained in subsidiary rules that the SPC has issued but are now being incorporated into the Judges Law itself.
Chapter V: Management of Judges
This chapter flags a number of issues, including the quota judge system, pre-career judicial training and the resignation of judges.
Article 24 states that a personnel ratio system is implemented for managing judges. This codifies the quota judge system, but it does not explain how it works and whether is any way to challenge the determination of the personnel ratio.
Article 30 provides that a uniform system of pre-career training is to be carried out for new judges. This is an innovation in which the SPC has looked to what is done in Japan and Taiwan, and was flagged several years ago in this blog. As mentioned in that earlier blogpost, training is likely to include both ideological and professional aspects.
Article 34 provides that”judge’s applications to resign shall be submitted in writing by themselves, and after approval, they are to be removed from their post in accordance with the legally-prescribed procedures.” It is unclear from this article what the procedure is for resignation and the standards for approving or rejecting a judge’s application. But it is meant to harmonize with the Civil Servants Law，2017 regulations of the Party Organization Department and two other authorities on the resignation of civil servants, and SPC regulations implementing the latter regulations (discussed here). From Wechat postings and other discussions in Chinese legal circles, it is not unusual for the senior management of a court to delay decisions on permitting a judge to leave for a year or more.
Chapter VI: Evaluation, Reward and Punishment of Judges
This chapter sets out the outlines of the recent judicial reforms regarding the evaluation of and disciplining of judges.
Article 45 on punishment of judges–while many of the provisions are found in many other jurisdictions, some are unique to China and could be worrisome to judges, as they could be widely construed–such as “(5) Causing errors in rulings and serious consequences through gross negligence; (6) Delaying handling cases and putting off work.” There is considerable concern among judges about the standard for “errors” in rulings because that standard may evolve over time (see this earlier blogpost) and the reason for delay may not be solely a legal one.
Articles 48-50–In contrast to the previous version of the Judges Law, this draft provides for disciplinary committees (rules to be drafted by the SPC) under which the judge will have the right to be represented and to provide evidence in his defense.
Chapter VII: Professional assurances
This section, on professional protections for judges, also flags the limitations on and weaknesses of those protections, with inadequate procedural protections against unfair determinations made against judges.
Article 52, providing that “Judges may not be removed from the trial post except…”–also does not provide a mechanism for judges to challenge a decision or determination made against them.
Article 64: Where there are errors in judicial sanctions or personnel dispositions, they shall be promptly corrected; where it causes reputational harm, the reputation shall be restored, the impact eliminated, and formal apologies made; where economic harm is caused, compensation shall be made. But there is no mention of how a judge can challenge the judicial sanctions or personnel disposition, or request that he (or more likely she) be reinstated. Dispassionate analysis of the responsibility system by both academics and judges (previously mentioned on this blog) describes the responsibility system as a “Sword of Damocles” hanging over the heads of judges and lists some cases in which judges were prosecuted and found not guilty, with another one reported by another Wechat account.
A final word
It is unclear at this stage of the draft whether comments on the draft will have any impact on the final draft. Presumably, some of the comments made at the workshop mentioned above will be accepted, as the participants included a group of senior experts either working within or retired from “the System” or academics whose expertise is recognized and valued.