Official interference or leadership?

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Interference in cases forbidden!(©Xu Jun, Xinhua)

In late August, the Supreme People’s Court (Court) issued a pair of regulations, aimed at reducing the phenomenon of officials, within and outside a court, involving themselves in cases.

Translations of the regulations are available, thanks to Chinalawtranslate.com: (the Chinese originals are available on the Court’s website here and there):

  • Implementing Measures for People’s Courts Carrying Out the ‘Provisions on Recording, Reporting and Pursuing Responsibility of Leading Cadres Interfering with Judicial Activities or Tampering with the Handling of Specific Cases (Leading Cadres Measures); and
  • Implementing Measures On Pursuing Responsibility In Cases Of Internal Judicial Personnel Prying Into Cases (Judicial Prying Measures).

This blogpost takes a quick look at the first one.

What do the Leading Cadre Measures say?

The Leading Cadre Measures (which implement State Council/Central Committee (General Office) regulations issued in March are directed at officials outside the judiciary who seek to influence court decisions, and require judges (who are other subject to penalties for not doing so) to  record all communications relating specific cases made by entities and individuals other than those in courts, and retain the relevant materials. These Measures implement language in the 4th Plenum Decision (Establish a system for recording, reporting, and investigating the responsibility of instances wherein leading cadres interfere in judicial activities or get involved in the handling of certain cases.)  The reports are to be submitted to the local political legal committee (or next higher political legal committee, depending on the status of the offending individual) and the next highest court, generally on a quarterly basis. If the conduct is serious, and might cause unjust, false and wrongfully decided cases or other “serious consequences,” the court is directed to report immediately.

Article 7 of the Leading Cadre Measures lists some of the most frequently used techniques, many of which have a economic, rather than political motivation:

The Leading Cadre Measures place the views of certain organizations in a different category:

“Party and government organs, professional associations, social public interest organizations and public institutions with administrative functions in accordance with law retained or permitted by people’s courts to follow the working procedures to submit consultative opinions in cases of national interest or societal public interest, may be not entered into information archive on prying, but relevant materials shall stored in the case file for future reference.”

Professor He Haibo of Tsinghua University explains what this means:

the courts must accept these materials, and it gives those organizations a chance to participate and speak; placing the materials in the case file gives the other party as well as possibly the public an opportunity to understand and evaluate them. This is consistent with the requirements of due process…

Will documents issued by Political Legal Committees at various levels really be placed in case files and made accessible to lawyers?

How do officials and judges interact?

The patterns of behavior that these regulations are aimed at changing are long-standing. From Doing Business in China, a leading book for practitioners (chapter by Harry Liu, Meg Utterback, Yu Simin):

Informally, judges are occasionally given instructions by political leaders on individual cases. Intervention by Party leaders in individual cases remains acceptable…The forms of interference vary: sometimes oral instructions are given, or sometimes the instructions are incorporated into official documents, with a requirement that the judge report back on the outcome. As to the content, the instructions may (1) tell courts to emphasize a case or handle a particular case “according to law,” (2) express an opinion on certain aspects of the case, or (3), recommend certain action to the court in lieu of dictating the outcome.

Professor He Haibo of Tsinghua University School of Law, writing in the People’s Court Daily–the line between “coordination in accordance with law” and interference with judicial activities is very hard to draw (什么是“统筹协调依法处理”、什么是“干预司法活动”,界限似乎难以划得清清楚楚)。

Comments from an unscientific sampling of judges

  • How the regulations work out in practice will depend to a large extend on how the officials undue intervention recorded will affect their future career or have legal liability.  If yes, the leaders will refrain from intervening. It will also depend on whether the judges would suffer from recording the intervention, particularly if he institutions are not administratively or financially independent from the agencies the officials represent or are able to influence.  In the latter case, judges wold be reluctant to record the intervention. It is likely that court leaders will interfere less frequently and with less success.
  • It will be of some help, when the interference is from strangers. But if from old friends, direct leaders, those won’t be reported, because it would betray the relationship.

More autonomy under Party leadership

The Leading Cadre Measures are not a magic bullet that will change the way the Chinese courts operate. The intent is to reduce the involvement of local officials in court cases to achieve fairer outcomes, while maintaining central policy leadership (and recognizing current reality by having a framework for Party officials to provide their views “for consideration”).

How well will the Measures work during the transitional period that the local judiciary remains under the control of local authorities? And how should the line be drawn between interference, leadership, and coordination?

A model case?

In late August, the Jinhua Intermediate Court (Zhejiang province) used the March regulations to call the attention of the press (and higher authorities) to a local official who threatened a judge with physical harm, when local courts ruled against the official’s wife in a shareholding dispute, although the case led one Zhejiang University law professor to comment that it wasn’t typical of official interference. According to the latest reports, the Jinhua Intermediate Court has withdrawn the notice, and both the judge and official in question are being investigated by the relevant CCDI organization.  A local Jinhua lawyer was quoted as saying that the local court staff had erred in making the matter public at this point.

The Jinhua case, while perhaps not a typical interference case, is typical of the widespread lack of civility confronting Chinese judges (and doctors), that in too many cases means a threat to their physical safety, and could indicate how difficult it will be to actually implement the Leading Cadre Measures.

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