On 29 October 2013 the Supreme People’s Court (the Court) released Several Opinions Regarding the Actual Practice of Justice for the People, Vigorously Strengthening a Fair Judiciary and Continuously Increasing Judicial Credibility (关于切实践行司法为民大力加强公正司法不断提高司法公信力的若干意见) ( 2013 Judicial Reform Opinion). It is an immediate call for action by the Court leadership, who see this as a unique opportunity to make changes to the status quo of the Chinese courts. The Court leadership is seeking to make changes in the real world of the Chinese courts, under the limitations that it works under, including:
- The role of the courts in the Chinese political system;
- Administrative nature of the Chinese courts;
- Greater societal environment, with its focus on money and power;
- Vast disparities in the quality of judicial personnel;
- Vast disparities in judicial funding;
- Deficiencies in Chinese legislation.
The 2013 Judicial Reform Opinion is significant for its timing, for what is says, for and what it does not say. This post sets out a flash analysis (supplemented as time permits).
The timing of the issuance of this document was no accident. It was approved within the Supreme People’s Court on 6 September but not publicly released until 29 October. This document requires approval by the Central Committee’s Political Legal Committee (much as a major initiative of a corporate business unit requires board approval). It was issued after the conclusion of the Bo Xilai trial and before the Third Plenum of the 18th Communist Party Central Committee. It further develops some of the issues raised by President Zhou Qiang in his August, 2013 interview in Seeking Facts.
B. What does the 2013 Judicial Reform Opinion Say?
The 2013 Judicial Reform Opinion ties its content to the Party line as set out by General Secretary Xi Jinping. This is a precondition for the rest of the opinion and the key to its success.
1. Seize the Day!
In the beginning of the 2013 Judicial Reform Opinion, the Court leadership stresses that they need to seize this opportunity to make changes (历史机遇) and
the political leadership is providing the conditions to do so and ordinary people have great expectations. However, the courts are facing the following difficulties:
- complicated issues (i.e. political, legal, personnel related);
- expectations of ordinary people for the court system are increasingly higher;
- increasingly greater gap between the courts and expectations or ordinary people;
- judges and other court personnel have to recognize their roles.
2. Uphold judicial independence and implement the responsibilities of the courts under the law
The Court leadership wants to see the courts:
- operating according to law;
- Implementing judicial power independently without interference;
- Improving the implementation of law by improving the quality of judicial guidance, including judicial policy, interpretations, guiding and reference court decisions; and
- Improving the leadership role/prestige of the courts in society by deciding cases fairly and regularizing letters and visits.
The call on the courts in point 4 of the 2013 Judicial Opinion to operate according to law and to cease instances of courts violating the law is a sad commentary on the state of affairs in the Chinese courts, but that is the Court leadership recognizes, is the reality.
The call on the lower courts to implement independent exercise of judicial power in accordance with law and prevent interference by such factors as power, money, “personal relations,” “relationships” will be difficult to realize, given the institutional reality of the Chinese courts, which makes them open to influence by all of these factors. However, the Court leadership cannot change the structure of the courts in the short run.
3. Integrate the courts with societal expectations
The Court leadership repeatedly calls on greater professionalism within the courts as well as greater sensitivity to differing demands for different sections of Chinese society. One of the issues that needs to be dealt with is the differing application of judicial policy and judicial interpretations in difficult issues involving major discrepancies in economic and social development and the status of different interests, and the consequences that judicial decision-making affected by various external factors can have on social stability. In this section, the Court leadership calls on the lower courts to separate themselves from the rest of the local bureaucracy, by not involving themselves in administrative matters such as joint law enforcement operations, development of local businesses, and land seizure/housing condemnation operations.
C. What Doesn’t the 2013 Judicial Reform Opinion Say?
Other than the obvious points that are not practically possible in the real world of the Chinese judiciary, there are a number of proposals that have been made by the Court’s Judicial Reform Office and discussed within (and outside) the Chinese courts. One of those is breaking the link between the provinces (administrative divisions) and the courts, and establishing circuit courts (analogous to the US federal system) that would hear major cases from several provinces.
The Chinese public, the foreign business community in China, and the rest of the world awaits the successful implementation of this 2013 Judicial Reform Opinion. Many obstacles face the Court leadership in doing so, including the political climate. Lastly, institutional change is always difficult, particularly in China with its particular political-legal traditions.