Does law have a place in China’s military and national defense reform?

Office building of CMC (from Wikipedia)

Office building of CMC (from Wikipedia)

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.

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Some questions about Chinese judicial reforms answered

law professors Fu Yulin and He Haibo (©Southern Weekend)

law professors Fu Yulin and He Haibo (©Southern Weekend)

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?

 

Some background

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.

Open government information litigation in China–an oxymoron?

Individual suing government to release information

Individual suing government to release information

To show that open government information litigation in China is not an oxymoron, and send messages to the lower courts, government, and public,  the Supreme People’s Court (Court)  in a  press conference on 12 September, released statistics and typical open government information cases brought under China’s version of the US’s Freedom of Information Act (and its counterparts elsewhere in world). For the first time, the Court issued 10 typical (model) open government information cases, although it had issued a guiding case earlier.  (The cartoons hint at the difficulties). The underlying issues are relevant to many, including foreign investors and their lawyers.

As others have described, China’s 2007  Open Government Information Regulations give individuals and groups the right to request government information and to challenge the failure to provide it in court. In comparison to the prevalent refusal of government departments to release government information, a small but increasing number of people have dared to take government to court.  In particular (as highlighted by a variety of publications, NGOs, scholars and foundations), China’s environmentalists and environmental groups have been very active in using the regulations and litigating the failure of local government to release environmental impact statements.

(artist Wang Weibin, published here)

Individual suing xxx department for information

 

What are the  “take-aways” from the press conference?

  • Statistics on open government information cases;
  • The rationale for issuing typical/model cases;
  • 10 typical/model cases;
  • Possible rationale for releasing the cases now.

Statistics on open government information cases

The Court revealed that the number of open government information cases are increasing, although the numbers are small in comparison to commercial cases. In 2013, the Chinese courts dealt with almost 5000 open information cases (despite the difficulties of suing government to release information highlighted by the cartoons). These cases account for the greatest proportion of administrative cases. Li Guangyu, deputy head of the Court’s administrative division said that the courts have helped protect the individual’s “right to know.”  In understanding the demands of the Chinese public for more government information (and the frequent refusal of government to provide it and comply with legal requirements when doing), these cases represent the tip of the iceberg. Most people will accept, rather than challenge a government refusal.

Why did the Court issue these cases?

The Court issued these ten government information cases for several reasons:

  • In May, 2014, the Court formally announced it would issue model cases monthly (see the earlier blogpost on the subject).  It has decided that issuing typical/model cases helps to guide the lower courts before judicial practice has settled enough and Court manpower permits issuing a judicial interpretation.
  • The single Guiding Case that the Court issued early addressed a narrow set of issues, and issuing these cases provides guidance on a wider range of issues.
  • The Court is sending a message to government departments, including central government ministries to comply with obligations under the Open Government Information Regulations to set out the legal basis for the decisions and their rationale, or risk having leading officials sitting in the defendant’s  seat in a courtroom.
  • The Court is signaling government to increase government transparency (within the many limitations imposed) and improve their open government information procedures or risk losing court cases. The behavior of government departments, including on the central level, in dealing with open government information requests seen in the cases indicates that educating government officials on compliance with the legislation is needed.
  • The cases are needed guidance to the lower courts.  Because the Open Government Information Regulations are not specific enough, they create difficulties for the lower courts trying to apply them to a large range of cases raising many different legal issues.  The 2011 judicial interpretation does not deal with the principal recurring issues. These cases help unify judicial standards on a range of issues.
  • The cases send a message to the general public that the courts are protecting the interests of the individual against government action (or inaction) and that these disputes can be resolved through litigation rather than petitioning.
  • The cases provide a heads up to companies and their lawyers that members of the public (or competitors) may attempt to access their information submitted to or relating to their transactions with government.

What are the 10 cases?

Li Guangyu, the deputy head of the administrative division of the Court, who was involved in drafting the 2011 judicial interpretation on open government information, highlighted the cases and the issues raised.  As discussed in earlier blogposts,the typical/model cases are not full decisions by the lower courts, but brief summaries.  The important part is the section labeled “significance of the case.” Brief highlights include:

  1. Case one (relates to the release of an environmental impact statement. According to earlier reports, many open government information cases have involved citizen demands for the release of this information.
  2. Case two, Xi Mingqiang v. the Ministry of Public Security. As could be expected, the information requested was classified, and the court refused release.  It is unclear whether the court considered whether the information had been properly classified.
  3. Case three, Wang Zongli v. the Tianjin Heping District Real Estate Administration Bureau (Tianjin Bureau), relating to a major social issue, the expropriation of real property and compensation of owners. The plaintiff demanded the release of the contract signed by the developer with a center under the Bureau for payment of government fees for expropriation (which would reveal the gap between the compensation to owners and the amount paid to government (issues discussed here).  The court determined that the Tianjin Bureau had failed to address whether the information requested by the plaintiff was considered a commercial secret.
  4. Case four,  Wang Zhengquan v. Hecheng [Shandong] Real Estate Administration Bureau, (relates to another major social issue, the allocation of low cost rental housing), involving the conflict between personal privacy (of the persons allocated housing) and the individual’s right to know;
  5. Case five, relates to issues in case three, the expropriation of rural land and the compensation of farmers, and the refusal of local government to release documents related to expropriation of land.  These issues already account for many  “mass incidents” and are likely to becoming even more important with the government’s planned urbanization of the countryside.
  6. Case six: Zhang Hongjun v. Rugao Municipal Price Bureau, in which the plaintiff challenged fees imposed by a township government, raising issues of access to government internal information.
  7. Case eight, a case against a Zhejiang Township government, in which the plaintiff sought details about land use and expropriation of property, raising issues of access to information created before the Government Open Information Regulations became effective.
  8. Case nine, Zhang Liang v. the Shanghai Urban Planning and Land and Natural Resources Bureaus, in which the plaintiff sought access to payment concerning 116 parcels of land granted by the government. It is yet another case relating to access to information about urban land use, and the government refusal to understand and reply flexibly to a request for information by an ordinary citizen.
  9. Case ten: If You Like Marriage Company Ltd. v. the Ministry of Civil Affairs, requesting information concerning the registration of the China Society for the Research of Marriage and Family (under the All Women’s Federation).  It is yet another case in which a government department (this time a central government department), failed to set out the legal basis and rationale for refusing to release government information.

Why now?

The Court may have several reasons for publicizing these cases now.

  • They are related to the ongoing drafting of the overhaul of the Administrative Litigation Law.
  • They are related to greater transparency requirements (affecting business) being rolled out under the Company Law Reforms and set as goals in the Third Plenum Decision
  • Government control of information, the individual’s right to know in the Internet age, and the role of the courts vis a vis government are major issues that may be addressed in the upcoming Fourth Plenum of the 18th Central Committee of the Chinese Communist Party.  That these issues are on the Party agenda is indicated by the fact that a Central Party School official published on these issues earlier this year.

If others would like to contribute further analysis of these cases or further information about any of them, please use the comment function.