The skills of a Kremlinologist (the Supreme Court Observer first learned these skills when reading Pravda and other Communist Party of the Soviet Union publications as a Russian Studies major) are needed to unpack what a Plenum Communique and a Plenum Decision mean for the Chinese legal system. (For those who haven’t heard the term “Kremlinologist,” the Wikipedia article gives a good summary).
The Plenum Communique (now nearly forgotten) is a set of high level bullet points. The 4th PlenumDecision, released late on 28 October, is something akin to a memorandum of understanding (MOU), for those who have spent time in the world of commercial law or business. The 4th Plenum Decision cannot be implemented by itself–for many issues it requires complex bureaucratic arrangements, as well as framework legislation and detailed rules (akin to the sets of contracts that are needed for a business deal). So evaluating how the 4th Plenum Communique or Decision will affect the real world of Chinese law requires the same analytical skills as taking a deal’s high level bullet points or MOU and predicting how a business will operate.
Evaluating a Plenum decision requires analytical sifting of the standard language from the operative provisions. Those provisions are often single phrases, and have behind them years of research and policy analysis within the institutions involved, as well as Chinese universities and think tanks.
The Supreme People’s Court Observer will take this opportunity to evaluate discrete provisions in the 4th Plenum Decision in future blogposts, as time permits.
According to the Wechat postings of one of its members, the judicial reform office of the Supreme People’s Court has been working overtime for months to prepare for the 4th Plenum. It appears, at least from the initial 4th Plenum communiqué, that the hard work has paid off. We will know more about the leadership’s plans for legal reforms when the full decision is released. Four quick questions about the communique are set out below (to be supplemented as time permits).
Some questions for the Supreme People’s Court and the judiciary:
1.The communique stressed the need for improving the quality of legislation, including incorporating more public consultation and experts. Will this reduce the need for judicial interpretations? What will this mean for the drafting of judicial interpretations? Will the Supreme People’s Court require public consultation for its own judicial interpretations? The release this month of drafts for public comment of the environmental public interest litigation regulations and the trademark validity administrative case rules are a step in the right direction.
2. The communique called for greater judicial transparency, as was highlighted in the Court’s 4th Five Year Reform Plan. In its press releases to the domestic audience, the Supreme People’s Court has mentioned the visits it has hosted of the foreign press, foreign diplomats, and ordinary citizens, and of analogous events at the local level. When can we look forward to easier access by all (foreign or domestic) to proceedings in the Chinese courts (at least in non-sensitive cases)?
3. The communique indicated approval by the leadership of the establishment of circuit courts that cross administrative lines, a concept mentioned in the 4th Five Year Reform Plan (see this earlier blogpost). It also reflects the use in China of foreign legal concepts or frameworks (as is frequently stressed, a reference and not as a transplant).
4. It also called for an end to “interference” by leading cadres in specific court cases. How will this long-standing practice will be curbed? In recent weeks, articles have appeared in the legal press on changes to the Party Political Legal Committees. Will those changes imply less involvement in actual cases? And what is the distinction between “interference” and “leadership”?