Supreme People’s Court & Supreme Court Justice Roberts’ 2017 year-end report

download-2Chief Justice John Roberts of the United States Supreme Court may be surprised to learn that a translated version of his 2017 year-end report on the federal courts was recently published by the People’s Court Daily, as it has been for the past twelve years. It was republished by Wechat and Weibo sites affiliated with the Supreme People’s Court (SPC) and other prominent Wechat public accounts and legal websites. What significance does the report have?

The translators that bring the year-end reports to Chinese readers are Mr. Huang Bin (formerly of the SPC’s China Institute of Applied Jurisprudence and now of the National Judicial College, a former Yale Law School visiting scholar) and Ms. Yang Yi (China Institute of Applied Jurisprudence, a former Columbia Law School visiting scholar).

Two subjects in Justice Roberts’ 2017 report are likely to resonate with Chinese readers. The first is how the federal courts dealt with national disasters in 2017 (introductory comments in some of the Wechat versions mention that China has only scattered legislative provisions related to emergency measures for the courts). The second is sexual harassment and Justice Roberts’ request to the Director of the Administrative Office of the United States Courts to organize a working group to review the code of conduct for the federal judiciary, guidance to employees on issues of confidentiality and reporting of instances of misconduct, and rules for investigating and processing misconduct complaints.

The #Metoo movement has not yet explicitly affected the Chinese courts. However, it is likely that Chief Justice Roberts’ acknowledgment that existing rules and structures for dealing with sexual harassment complaints are inadequate that resonates with Chinese women judges and judicial support staff, who make an increasingly large percentage of the Chinese judiciary. It seems likely (confirmed by discrete inquiries) that sexual harassment occurs in Chinese courts as well.

More broadly, what relevance does Justice Robert’s report and others on the US federal and state judiciary have for the Chinese judiciary after the 19th Party Congress, when in October, 2017 Communist Party Central Committee policy on the training of judges and prosecutors lists first resolutely opposing erosion by the mistaken Western rule of law viewpoint” (坚决抵制西方错误法治观点侵蚀)? To the careful observer, the publication of these reports and other articles on specific issues in SPC publications means that the senior and lower levels of the Chinese courts have an ongoing interest in what the US federal and state courts are doing and look to commonalities and takeaways (despite the vast differences in the two systems).

Another example of the Chinese courts looking to commonalities with the US courts occurred earlier this month (January) when the China Institute of Applied Jurisprudence published a Chinese summary of the National Center for State Courts’ 2017 survey on public confidence in the state courts. The article appears to be a republication of an article previously published internally and reflects the concern of the Chinese judiciary with public trust.

The takeaways, that is referring to or borrowing foreign legal concepts or models to reform China’s judicial system remains politically sensitive. In Party General Secretary and President Xi Jinping’s 19th Party Congress speech, he called for the continuation of judicial reform:

We will carry out comprehensive and integrated reform of the judicial system and enforce judicial accountability in all respects, so that the people can see in every judicial case that justice is served.

 Earlier in 2017, when visiting the China University of Political Science and Law, Xi Jinping cautioned that Chinese legal reform does not mean wholesale adoption of foreign law and institutions:

China shall actively absorb and refer to successful legal practices worldwide, but they must be filtered, they must be selectively absorbed and transformed, they may not be swallowed whole and copied (对世界上的优秀法治文明成果,要积极吸收借鉴,也要加以甄别,有选择地吸收和转化,不能囫囵吞枣、照搬照抄).

What a careful observer notices from monitoring SPC media is that those involved with reform of discrete areas of Chinese legislation and judicial practice continue (in the pre/post 19th Party Congress era) to look at US federal/state law (and other foreign law) structures and practices, including: use of mediation in federal appeals cases; bankruptcy practicereform of Chinese nuclear safety legislation to broaden the scope of information released to the public, that is in specific areas that do not involve basic principles of the Chinese courts.

 

 

 

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Profiling Judge Merrick Garland on Wechat

urlI recently published a profile of Judge Merrick Garland, President Obama’s nominee for the Supreme Court, on a Wechat public account.  The English version is linked here  (so far about 7600 page views) and the Chinese version is linked here (about 5500 page views).  Many thanks to: the holder of the public account, for inviting me to write the article and commenting insightfully on an initial draft; four of my students at the School of Transnational Law of Peking University, who translated the English article into Chinese, and several others, in China and elsewhere, who provided comments; and one of Judge Garland’s classmates, who generously shared an anecdote about him.

More on Justice Scalia and what he means to the Chinese legal profession

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Judge Jiang

Followers of this blog are likely to have seen the New York Times (Chinese version) and Wall Street Journal stories on Justice Scalia and what he means to China.  At least two additional articles are worth mentioning:

Judge He Fan published an article by a former Shanghai judge and current Fulbright Scholar on her experience paying her respects to Justice Scalia lying in state at the Supreme Court, with the following comments:

While we sigh with regret with every “model laborer” or “advanced” [worker], here [in the US] the President announced to the entire people that the late judge was one of the Supreme Court’s most important judges and thinkers, and will be remembered by history.

当我们还在为每一位“劳模”或“先进”扼腕叹息时,这里的总统向全国人民宣布逝去的法官毫无疑问是最高法院最重要的法官和思想者,将被历史所铭记

Judge Jiang Qiang of the Supreme People’s Court in his Wechat account (junnylaw) desribed how American legal controversies are relevant to Chinese judges.  His Wechat post contains an excerpt from one of Justice Scalia’s lectures, included in the book Judges On Judging. (Judge He Fan translated the book, previously discussed this blogpost.)

Judge Jiang prefaces the excerpt with the following comment:

Although we here cannot use the Constitution as the basis of a judgment, American controversies concerning Constitutional interpretation can still provide a reference to us here in principles and techniques in interpreting areas of [Chinese] law.

(虽然我们这里的宪法不能作为裁判依据,但是美国关于宪法解释的争论,仍然能为我们这里关于部门法解释的原则和技术提供参考.]

Farewell to Justice Scalia from the Supreme People’s Court

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Judge He

The US Supreme Court holds a special fascination for many members of the Chinese legal community, including some members of the Supreme People’s Court.  Judge He Fan of the judicial reform office of the Supreme People’s Court, who has translated eight or nine books on or relating to the US Supreme Court, published on the morning of 14 February a moving (and accurate) profile of Justice Scalia on his Wechat public account that (as of the evening of 14 February) had received over 60,000 page views.

Some phrases from He Fan’s profile for Chief Justice Roberts to consider when he writes his eulogy:

  • He (Justice Scalia) rode a crane to the West (他已驾鹤西去)(a phrase meaning he passed away–in traditional Chinese symbolism, a crane takes the souls of the departed to the (Western) heaven);
  • Whether you love him or hate him, everyone must admit that Antonin Scalia was the most influential contemporary American judge (无论爱他还是恨他,所有人必须承认,安东宁·斯卡利亚是对当代美国法律影响最大的大法官。
  • Farewell, Justice Scalia (别了,斯卡利亚大法官).