Although Supreme People’s Court president Zhou Qiang has said that judges must “conscientiously resist the infiltration of western wrong ideas,” the May 8 edition of the People’s Court Paper (and the Court’s Wechat feed, which goes out to over 100,000 subscribers) contains a pitch for the Chinese translation of Judges on Judging: Views From the Bench, by David O’Brien, Professor of Government at the University of Virginia.  For those who do not know the book, the publisher describes it  as offering: insights into the judicial philosophies and political views of those on the bench. Broad in scope, this one-of-a-kind book features off-the-bench writings and speeches in which Supreme Court justices, as well as lower federal and state court judges, discuss the judicial process, constitutional and statutory interpretation, judicial federalism, and the role of the judiciary. The translation team for the book was five Chinese judges, including one from the Court.

What are the takeaways?

• The book is a collection of “greatest hits”–with essays by Cardozo, Posner, Brennan, Ginsburg, Souter, and many others;
• It provides a diversity of perspectives and insights into the operation of the US judiciary, including from the state as well as federal judiciary, and from the lower courts, including case selection, internal meetings and opposing views;
• The book shows judgment with feeling (感性判断);
• It echoes China’s problems.  Some of the issues it discusses are being disputed in China’s judicial reforms.Are there enough or too few federal judges?  Is having a small number of judges and many cases a real problem? What is the importance of trials (court hearings)?  Are judges resolvers of disputes or makers of policy? For those (in China) accustomed to use the US as a model, remarks the chief translator, it is interesting that as the number of cases in the federal courts have risen, the number of trials/hearings has gone down, and that lower court judges spend most of their time with case management and pre-trial negotiations;
• Finally, (according to the chief translator) although the book has no answers for China, it provides much food for thought. With rule of law talked about by all, for Chinese judges, to be able to make a contribution to the rule of law, they need to be able to decide independently ( 真正成为独立判断), take matters on, and have sufficient job security.
• The chief translator dedicates the book to the late Judge Zou Bihua, who has become a model judge (but whom he knew personally).

In March, 2015, the Supreme People’s Court (the Court) issued Judicial Transparency in Chinese Courts, its bilingual white paper on judicial transparency (a note for those who don’t know Chinese that the two language versions are not entirely identical, and the English version could have benefited from some polishing).

The paper begins (both in Chinese and English) with the quote–Justice is not to be done, but to be seen done.”  The authors appear to be aware with the frustrations of both Chinese and foreign users (and observers) of the Chinese court system with its inadequate transparency, although as an official publication, the report does not confront those issues.The report identifies the (Chinese) general public as having greater expectations concerning judicial transparency and it posing great challenges to the judiciary.

The report highlights the following:

• Trial process disclosure platform–the establishment of electronic platforms for litigants and their counsel.  Case filing information is not available to third parties  (unlike many other jurisdictions).  The Court can consider expanding access in this area as well;
• Greater access to trials, through on-line broadcasts.
• Use of electronic files.  China is following a worldwide trend in national court management in piloting electronic files in several locations. It is unclear how China’s current complicated requirements for authenticating a foreign power of attorney, and foreign evidence will interact with this.
• Video recording of trial proceedings.  Court reporting is not mentioned.  This recent blogpost by an anonymous basic level judge criticizes the elimination in the judicial reforms of written transcripts and clerks. The author decries the elimination of written transcripts and the role of clerks as creating an even greater burden on judges, especially at the basic level, who now rely on clerks to review written transcripts.  The reforms, according to the author, will mean that the judge must review the video transcript of a trial before drafting a decision. Clerks, according to the author, are generally temporary rather than permanent staff, poorly paid (RMB 1500-2000 in the Yangtze River Delta region) recently law graduates.
• Amending Court Rules to permit persons to attend trials more easily.  Will those Court Rules be issued for public comment? Will the rules distinguish between foreigners (including foreign journalists) and domestic observers?
• The Judicial Opinions of China database.  For those with a long-term perspective, it is a a major step forward in Chinese judicial transparency. The database has been criticized both inside and outside of China.  Sensitive cases (as may be expected) rarely are posted.  In some areas, posting judgments centrally has resulted in less transparency rather than more.  For those observers seeking to analyze Chinese court practice, the database makes for slow going, because the search function does not work well, and copying and downloading is apparently not possible.  The database is an important tool for lawyers, scholars, and others to understand court practice in specific areas of law, but upgrading the database functionality would be very helpful.
• Greater transparency in parole, sentence reduction, and medical parole procedures (described in this earlier blogpost).
• Disclosure of enforcement information (described in this earlier blogpost).Use of press conferences, guiding and typical cases (the latter have been the subject of earlier blogposts) As for press conferences, the practice seems to be for one or more judges (and officials of other central authorities) involved in the drafting of a new judicial interpretation (or other document) to speak at the press conference. For those analyzing Court judicial interpretations or other documents, the press conferences are invaluable, because they provide useful background information concerning their provisions, policy goals, and drafting.
• Judicial transparency and state secrets. The white paper mentions state secrets several times. In view of greater transparency in state secrecy classification matters, it would be a step forward for state secrecy regulations relating to the courts to be made public.
• As has been highlighted earlier, greater transparency is needed in the drafting of judicial interpretations and other documents.

The report concludes that in the near future, the “Supreme People’s Court will continue to thoroughly deepen judicial transparency…so as to make greater contribution to the full promotion of the rule of law, the construction of a socialist country under the rule of law and the realization of the China Dream of the great rejuvenation of the Chinese nation.”  There is still much to be done and many challenges ahead, as the Court navigates between the expectations of lawyers, litigants and the general public and robust state secret/information control regulatory systems.

My article on the 4th Five Year Reform Plan for the courts appeared in the Diplomat earlier this week.  It gave me an opportunity to put court reforms in their systemic context.  This blog will focus on the some of the many micro-steps needed to implement it.  One of those micro-steps occurred earlier this month, when the Shanghai #1 Intermediate Court issued regulations on implementing a registration case acceptance system for commercial cases.