What does China’s Judges Law draft mean?

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21 January China Law Society organized discussion of Judges Law draft (note disproportionately few women)

Although the redraft of China’s Judges Law has the potential to have an impact on many in the world outside of China, few people have taken an interest, judging by the pageviews of its translation on Chinalawtranslate.com (62). (I’m indebted to Jeremy Daum and others for translating it).  Judging by a search on Wechat, the same is true in China.  The workshop pictured above, organized by the China Law Society, appears to be one of the few in which views on the draft were aired.  There must have been strong views on the draft, but the report did not provide any details (and it is apparent no foreigners participated). The draft was released before the Communist Party (Party) Central Committee’s 2019 Political-Legal Work Conference and therefore does not reflect the most current political signals. The draft is open for public comments until 3 February and over 800 comments have been submitted as of 25 January.  An earlier draft was made available for public comment (as well as related institutions) for comment and the China Law Society organized comments on that draft as well. The current draft incorporates input from various sources.

The law, if enacted in its current form, will have short and long term implications for the Chinese judiciary.  As the Chinese judiciary seeks to be increasingly connected with the outside world, through its work in negotiating the (draft) Convention on the Recognition and Enforcement of Foreign Judgments at the Hague Conference on Private International Law, the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between mainland China and Hong Kong, as well as other more controversial involvement, the questions it raises for outside observers (and Chinese ones as well) is–what vision does it convey of the Chinese judge?  What rights and responsibilities does a Chinese judge have under this law? Will this law, if enacted in its current form, encourage competent people to remain in the judicial system and promising young people to enter it?  When I first flagged the redrafting of the law in 2015, I commented–“how to reorganize the Chinese judiciary and what professional status Chinese judges should have and work under will affect how judicial reforms are implemented and less directly, more fundamental issues concerning China’s economy and society.”

Some brief (not comprehensive) comments follow:

It consolidates the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and reflects current Communist Party (Party) policy towards political-legal institutions and their personnel as set forth in the 2019 Party regulations on political-legal work.

The Judges Law does not stand on its own. It is connected with other legislation, such as the recently amended Civil Servants Law  the amended court organizational law, and of course, relevant Party rules.   The initial drafting was led by the SPC, in particular, its Political Department (as the Party is in charge of cadres).

Chapter I: General Provisions

This section with broad statements is longer than the previous version.  Among the notable amendments.

Article 1, concerning the purpose of the law: “advance the regularization, specialization, and professionalization of judges; to strengthen the management of judges; to ensure that the people’s courts independently exercise the adjudication power; to ensure judges’ performance of their duties in accordance with law; to ensure judicial fairness; and to preserve the lawful rights and interests of judges”–sends signals concerning the professionalization of the Chinese judges, with principles of independence (better read as autonomy) and fairness not listed first. It should be noted that during the 2019 Political-Legal Work Conference, the “revolutionization” of political-legal teams was listed before regularization and professionalization (加快推进政法队伍革命化、正规化、专业化、职业化建设,忠诚履职尽责). (“Revolutionization” appears to meant to signal the absolute leadership of the Party.) SPC President Zhou Qiang gave a speech at a meeting to implement the spirit of that Political-Legal Work Conference which also listed “revolutionization” first, but he stressed the greater importance of professionalization (加快推进队伍革命化、正规化、专业化、职业化建设,把专业化建设摆到更加重要位置来抓) as the operation of and public confidence in the Chinese court system depends on retaining and attracting professionals. The establishment of the CICC, the Shanghai Financial Court and the Intellectual Property Court of the Supreme People’s Court all represent professionalization and specialization.

Article 2 mentions various types of judicial personnel, the functions some of who are defined in the court organizational law, but for others, such as division chiefs and deputy division chiefs, mentioned without definition.  A Chinese court has many administrative characteristics, but it would be helpful for the Chinese and offshore public to flag some basic principles regarding the functions of persons with these different titles, as these are found scattered in various SPC regulations.

Article 4: Judges shall treat parties and other litigation participants justly. The law is applied equally to any all individuals and organizations.  But the law treats different types of parties differently (embezzling money from a private enterprise vs. state-owned company) and other provisions of law treat cases involving senior officials differently from ordinary people (see this article on the principle of trying criminal cases involving high officials in a jurisdiction outside which the case arose).

Chapter II: Judges’ duties, obligations and rights

On Judicial duties, Articles 8 and 9, on the duties of ordinary judges and ones with a title do not clarify what participating in trials and being responsible for their cases mean (the latter is linked to the 2015 responsibility system that (as this blog has mentioned), gives judges a great deal of stress. Perhaps the German Judiciary Law could be a source of inspiration on judicial duties.

Chapter III: Requirements and Selection of Judges

This chapter incorporates a number of policy changes that have been implemented under the judicial reforms and also explains why the China International Commercial Court (CICC) will not be able to appoint foreign judges, unlike its counterparts in Singapore and Dubai.

Article 12 is a revised version of old Article 9, requiring judges to be PRC citizens, uphold the PRC constitution, and have a good political and professional character. Article 65 mentions that new judges must have passed the legal qualification examination.

This chapter mentions the establishment of Judicial Selection Committees (also a borrowing from abroad) and which must have some linkage to Party organizational departments. The chapter mentions recruiting judges from outstanding lawyers and academics (thus far, proving more difficult than anticipated), and requiring higher court judges to be recruited from those with experience in the lower courts.  I described the  “classic” appointment system in my 1993 article on the Supreme People’s Court, in which fresh graduates were assigned directly to the SPC.  As mentioned in my earlier blogpost on the court organizational law,  court presidents are required to have legal knowledge and experience.

Chapter IV: Appointment and Removal of Judges

This chapter has expanded conflict of interest rules for judges considerably. that had previously been set out in a separate chapter of the Judges Law.  Some of these had mostly been contained in subsidiary rules that the SPC has issued but are now being incorporated into the Judges Law itself.

Chapter V: Management of Judges

This chapter flags a number of issues, including the quota judge system, pre-career judicial training and the resignation of judges.

Article 24 states that a personnel ratio system is implemented for managing judges. This codifies the quota judge system, but it does not explain how it works and whether is any way to challenge the determination of the personnel ratio.

Article 30 provides that a uniform system of pre-career training is to be carried out for new judges.  This is an innovation in which the SPC has looked to what is done in Japan and Taiwan, and was flagged several years ago in this blog. As mentioned in that earlier blogpost, training is likely to include both ideological and professional aspects.

Article 34 provides that”judge’s applications to resign shall be submitted in writing by themselves, and after approval, they are to be removed from their post in accordance with the legally-prescribed procedures.”  It is unclear from this article what the procedure is for resignation and the standards for approving or rejecting a judge’s application.  But it is meant to harmonize with the Civil Servants Law,2017 regulations of the Party Organization Department and two other authorities on the resignation of civil servants, and SPC regulations implementing the latter regulations (discussed here).  From Wechat postings and other discussions in Chinese legal circles, it is not unusual for the senior management of a court to delay decisions on permitting a judge to leave for a year or more. 

Chapter VI: Evaluation, Reward and Punishment of Judges

This chapter sets out the outlines of the recent judicial reforms regarding the evaluation of and disciplining of judges.

Article 45 on punishment of judges–while many of the provisions are found in many other jurisdictions, some are unique to China and could be worrisome to judges, as they could be widely construed–such as “(5) Causing errors in rulings and serious consequences through gross negligence; (6) Delaying handling cases and putting off work.”  There is considerable concern among judges about the standard for “errors” in rulings because that standard may evolve over time (see this earlier blogpost) and the reason for delay may not be solely a legal one.

Articles 48-50–In contrast to the previous version of the Judges Law, this draft provides for disciplinary committees (rules to be drafted by the SPC) under which the judge will have the right to be represented and to provide evidence in his defense.

Chapter VII: Professional assurances

This section, on professional protections for judges, also flags the limitations on and weaknesses of those protections, with inadequate procedural protections against unfair determinations made against judges.

Article 52, providing that  “Judges may not be removed from the trial post except…”–also does not provide a mechanism for judges to challenge a decision or determination made against them.

Article 64: Where there are errors in judicial sanctions or personnel dispositions, they shall be promptly corrected; where it causes reputational harm, the reputation shall be restored, the impact eliminated, and formal apologies made; where economic harm is caused, compensation shall be made.  But there is no mention of how a judge can challenge the judicial sanctions or personnel disposition, or request that he (or more likely she) be reinstated.  Dispassionate analysis of the responsibility system by both academics and judges (previously mentioned on this blog) describes the responsibility system as a “Sword of Damocles” hanging over the heads of judges and lists some cases in which judges were prosecuted and found not guilty, with another one reported by another Wechat account.

A final word

It is unclear at this stage of the draft whether comments on the draft will have any impact on the final draft.  Presumably, some of the comments made at the workshop mentioned above will be accepted, as the participants included a group of senior experts either working within or retired from “the System” or academics whose expertise is recognized and valued.

What China’s judicial reform white paper says about its vision for its judiciary

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Portrait of Qing dynasty inspector

Over one year has elapsed since the Supreme People’s Court (SPC) has implemented the judicial reforms set out in the February, 2015 4th five year plan for reforming the judiciary.  While thousands of words have been written in Chinese and English, some praising,  criticizing, mocking, and bemoaning the reforms, it was only in late February, 2016 that the SPC issued a comprehensive official assessment, focusing on its achievements. That official assessment takes the form of a bilingual white paper (White Paper) issued in early March (but full text released on-line only in English), plus a section of President Zhou Qiang’s work report devoted to the judicial reforms, a first for the SPC.  I surmise that it was approved by the Judicial Reform Leading Group.

This blogpost looks at the vision for the Chinese judiciary that the White Paper conveys, by looking at several sections.

 

Chinese court system and the reform process

The description of the reform process in the first section of the White Paper tells us who/what is driving the reform process, the nature of the process, the core issues, and how the judicial reform process is being monitored.

Facts highlighted:

  • During 2014-2015,13 out of 19 plenary sessions held by the Central Leading Group for Deepening Overall Reform involved judicial reform, where 27 judicial reform documents were adopted.
    • A partial list of those 27 documents is found here.
  • The Social System Reform Specialized Group (the Central Leading Group for Judicial Reform) is in charge of judicial reform;
  • The SPC has a leading group in charge of judicial reform, replicated at the provincial level, and any judicial reform plans piloted by them need to be approved by the SPC or above (the 4th Judicial Reform Five Year Plan states this).

According to this section, the four core judicial reform measures are:

  • improving the classified management of judicial personnel [treating judges differently from clerks and other support personnel and civil servants0;
  • the judicial accountability system [the lifetime responsibility system set out in regulations issued in September, 2015, but only implemented in areas piloting judicial reform, controversial among judge and academics];
  • professional protection of judicial personnel ;
  • unified management of personnel, funds and properties of local courts below the provincial level.

These four measures will be piloted throughout the country in several rounds before they are implemented nationwide.

Comments

From the description of the reforms we can see that the specific reforms discussed in the remainder of the report have been cleared by the Party leadership.  It seems reasonable to assume that each reform involved hundreds of hours of policy paper drafting by SPC staff and internal and cross-institutional discussions, and responses to comments during those discussions.

What the White Paper did not mention is that the Central Leading Group for Deepening Overall Reform and the Central Leading Group for Judicial Reform established their own inspectorate for monitoring the progress of reform,including judicial reform, (reviving a traditional institution).  It is unclear which reforms will be targeted this year for inspection. The separate inspectorate seems to indicate that these Central Leading Groups want their  own source of information on how reforms are being implemented.

 

Judicial independence (Ensuring Independent and Impartial Exercise of Judicial Power Pursuant to Law)

One of the messages conveyed in this section is that local courts do not belong to local governments but are established by the State at the local level to exercise judicial power on behalf of the State. The goal as stated in this section, is to “form an institutional environment and social atmosphere that respects [the] judiciary, supports [the] judiciary and trusts [the] judiciary.”

It  lists about a dozen measures. What is new in this section:

  • a summary of the policy thinking on judicial appointments and funding of the local courts.  On judicial appointments, judges will be selected by judicial selection committee at the provincial level in terms of professionalism, and will be appointed and removed according to common standards. This is a push in the direction of professionalism, and away from the phenomenon noted in the past few years of having chief judges who lacked a legal education.  On the funding issue, the Central Government will fully guarantee the funding of the local courts. The provincial fiscal departments manage the funds of local courts below the provincial level, the local courts will submit their budgets to the provincial fiscal departments, and  budget funds will be appropriated by the centralized payment system of the national treasury.
  • Fuller discussion of cross-administrative district courts to hear administrative cases–piloted in Beijing and Shanghai and other locations, under the umbrella of a policy document of the SPC that has not been made public. The concept is to have cases against local governments heard outside of the area in which they arose.  The SPC recent policy document on the development of the greater Beijing area has further content in that area.

This section also discusses the following reforms, previously discussed: circuit courts; cross-administrative division courts; intellectual property courts (by Mark Cohen, chinipr.com); administrative cases being centralized in one court (Shenzhen is one of the pilot project venues); maritime courts; environmental protection divisions; official interference.

Improving the way the courts function ( Improving the Functional Mechanism of Adjudicative Powers)

The fourth section of the White Paper provides useful insights into how the judiciary is intended to operate post reform.  It starts out with a statement that judicial power is a judging power in essence and emphasizes impartiality, neutrality and personal experience.”

The focus on this section is on reforms to the way Chinese courts operate. As I have written previously, they have operated in many of the same ways that other Party and government organs operate.     This section describes pilot reforms, new policies, or regulations concerning the following (among others):

  • personnel reforms described above (but do not mention the pay rise that goes along with it in at least some courts);
  • senior judges within a court (court presidents, vice presidents, division chiefs) will no longer approve judgments, except for a small number going to the judicial committee);
  • senior judges will hear cases instead of concentrating solely on administrative matters;
  • courts will establish a specialized judges council made up of judges in specialized areas (criminal, civil, etc) to provide views to judges hearing cases on the interpretation of substantive issues, on an equal basis rather than seniority;
  • the SPC has abolished irrational performance indicators and forbidden senior judges from involving themselves in cases that they have not heard;
  • the SPC has issued policy guidance on the reform of judicial committees (not yet made public).  The principles set out follow generally what was described by President Zhou Qiang earlier, but include judicial committee discussion of “major and complicated cases concerning national diplomacy, security and social stability and those required by law.”  The guidance calls for more transparency (unclear whether to be within the court or greater), better record-keeping, and less involvement by judicial committees with specific cases. As discussed in an earlier blogpost, judicial committees have often been a route for transmitting the views of local officials and have been been implicated in some of the wrongful conviction cases);

    judicial committee

    judicial committee ©SPC

  • judicial responsibility/accountability system, mentioned above;
  • regulations on the jurisdiction of different levels of courts in civil cases (described in this blogpost).

These reforms look to do a number of things that are significant within strictures of the Chinese system: distinguish judges from other Party cadres and give them better status and pay; break down or reconstitute some of the basic internal structures of the courts that have facilitated corruption, unjust cases, and discouraged talented judges; abolish performance indicators that have been poisonous for judges and litigants alike.

 The vision

The vision that the SPC  has for the Chinese judiciary and judges can be seen from the description of the reforms above.  The SPC intends to create a more professional judiciary (with a lower headcount), that is better paid, more competent, has performance indicators that look more like other jurisdictions, with an identity and operating mechanisms separate from other Party/government organs, that will be more autonomous, no longer under the thumb of local authorities, but operates within the big tent of Party policy.  To be incorporated in the judicial reforms, the implications of each measure must have been thoroughly discussed by the Party leadership and the Party leadership is using its own institutions to monitor results.  Will the judicial reforms achieve their goal of making people feel justice in every case?  For that, the jury (or is it the people’s assessors(also being reformed)?) is still out.