In late November (2018), the Supreme People’s Court (SPC) issued its latest transparency policy. The question is, after reading past the references to the 19th Party Congress and the ideology guiding this document, is what, if anything new does it require of the lower courts (and of itself)? And why? Decoding this document (Supreme People’s Court Opinion Concerning the Further Deepening of Judicial Transparency (Judicial Transparency Opinion 最高人民法院关于进一步深化司法公开的意见)) requires some background. The why is easier to answer (I have written about this in an academic article in the academic publication pipeline), but I will also explain the “what is new” and what it means.
As to the why, it appears to be linked to criticism from within the court system and by prestigious research institutes within China. Some of the critics and their criticism:
In 2015, Justice Hu Yunteng wrote that judicial statistics needed to be made better and more transparent. In 2016, He Fan, department head in the SPC’s judicial reform office, wrote “as long as it does not infringe the privacy of the parties, does not violate state security, the court’s data interface should be open to the community.” Local judges, too, are writing critically about judicial statistics, with at least one comparing unfavorably China’s practices with those of the US Department of Justice’s Bureau of Judicial Statistics.
The team of researchers at the Institute of Law, China Academy of Social Sciences (CASS) evaluated court websites in this volume, advising the courts to “consider judicial openness from the viewpoint of public users,” and expand transparency of judicial statistics, devote manpower to updating court websites, and put some order into chaotic judicial transparency. On December 10, a team from the CASS Institute of Law announced the results of their third-party assessment of the SPC’s judicial transparency, the first time that the SPC had authorized an institution to do so, finding problems with compliance by some lower courts.
What does is the Judicial Transparency Opinion require?
The Judicial Transparency Opinion requires the courts to expand the scope of transparency while keeping secrets secret It refers to two types of secrets, state secrets and trial secrets(审判秘密) (also called trial work secrets).
Expanding the scope of transparency while maintaining secrecy
The Judicial Transparency Opinion requires the lower courts to expanding the scope of information that they make public while keeping state and trial work secrets secret. Although most people who a basic idea about Chinese law have heard about its broad definitions of state secrecy, that same cannot be said about the concept of “trial secrets”. Although the general legislation on state secrecy has been updated in the past 10 years, it is unclear whether the same can be said of the specific regulations on state secrecy in the courts. “Trial secrets” is a related concept but the relevant regulations appear to be almost 30 years old and do not define the scope of the secrets clearly. They include accounts of discussions of judicial committees, and “views from relevant units.”
What is required?
In addition to setting broad principles such as timely and substantial disclosure (research done at Tsinghua has found that some courts upload their decisions to the SPC’s judgment database months late, or not at all) and a team of leading scholars based at several US universities that includes Columbia Law School Professor Benjamin Liebman found a “missingness problem” when looking court judgment databases), the Judicial Transparency Opinion sets out specific requirements on transparency. Those requirements are set out in seven broad areas in which the courts should voluntarily release information (except those where law, administrative regulations, judicial interpretations do not permit release information and other information that is unsuitable for being made public (其他不宜公开). The phrase “unsuitable for being made public,” is flexible enough to cover both the politically sensitive on a larger and minor scale. (For more on unsuitability, see the article that Professor Liebman and colleagues wrote). The preliminary section also calls for the greater use of white papers and court gazettes.
The seven categories include:
- Basic information about the court
- Litigation Services;
- Judicial reform;
- Judicial administration;
- International judicial exchanges and cooperation; and
- “Team construction” (队伍建设)
I have selected some areas in each category where greater openness is anticipated (and included some comments in italics).
A. Among the useful new items in “basic information”
- institutional establishment (机构设置) (generally refers to internal structures–both the Chinese and English version of the SPC website have this);
- Normative documents (规范性文件)–Chinese law does not require these documents, which are not legally binding to be made public, but they guide the operation of the courts–if the SPC makes more of these documents public it would be a service to all;
- Work reports to the people’s congress at the same level (makes life easier for research seeking to access this information over time);
- Other basic information that needs to be widely known in society (it should include information for the “litigant in person” (the person without a lawyer, but it doesn’t).
B. On enforcement, the SPC direct the lower courts to gradually expand the scope of enforcement openness. Matters on the 12-item list include:
- judicial statistics (presumably to include greater consistency among jurisdictions, unclear the scope of the statistics that may be released);
- enforcement procedures (unclear whether this is for parties only or the general public);
- bankruptcy information (not much is being made public);
- Annual reports on enforcement in different substantive areas;
- Judicial big data reports.
C. Litigation services
- Litigation guides (see the Shenzhen intermediate court’s list–while a good start, they are not user-friendly (guide to criminal collateral appeals, for example):
- court notices and information about judicial auctions and other information relating to the disposal of judicial property (this could be interesting in corruption-related cases);
- judicial services, experts, bankruptcy administrators, etc.
- specially appointed mediators and mediation organizations; lawyers stationed at the courts, other volunteers assisting with litigation;
- Channels for collateral appeals and petitioning;
- other information relating to party’s rights in litigation and other information the public should know–again see the suggestion above (for Chinese litigants) and this blog has previously made for non-Chinese litigants and defendants as well (foreigners and others from outside of mainland China also need some easily understandable information about the Chinese court system).
D. The SPC calls for greater transparency relating to Judicial reform so that the public will have greater confidence in it, including:
- judicial reform documents (would make the life of researchers trying to assemble the judicial reform puzzle much easier);
- Information on progress in judicial reform [unclear whether the drafters are referring to white papers]
- Other information the public should know (that ideally should include statistics related to judicial reform, including resignations of personnel, but appears unlikely);
E. Judicial administration–The SPC calls for the courts to accept supervision by society. The measures include:
- Matters relating to societal interests and follow up from suggestions made by National People’s Congress/Consultative Congress members (it would be useful to know what percentage of court staff is “on the front-line” of hearing cases rather than being in an administrative role);
- Technical standards.
F. International judicial exchanges and cooperation–increase exchanges and reference between legal cultures, create a good impression internationally of the Chinese courts, promote their international competitiveness, influence and credibility:
- important international judicial exchanges
- important international judicial conferences;
- other matters that society should know about.
No mention of lists of projects for which the Chinese courts would welcome international exchanges and interchange of legal concepts. No mention of how a foreigner would be able to attend a court hearing in China.
- “Team construction”–this term is a Party term (but the Party is in charge of cadres)–i.e. this section relates to judicial personnel
- the situation relating to Party construction (listed first, understandable in the post 19th Party Congress era);
- Personnel work (it would be useful to have a breakdown of the number of judges and other judicial support personnel as well as those in administrative roles, as well as resignations and appointments);
- Disciplinary information (it would be useful to have full decisions published, as in other jurisdictions);
- Training and education.
The final paragraph of the Judicial Transparency Opinion calls for implementing measures and more detailed measures to be drafted and for measures to be put in place. So it can be expected that specific departments of the SPC will be involved in drafting more specific guidelines (will that involve more specifics on the types of statistics on criminal convictions released)? Once the national guidelines are in place, we can anticipate that provincial high courts (or their equivalents) will issue implementing documents. It is only then that we will be able to comment on what the actual impact of this document is.