General Party Secretary Xi Jinping Issues Written Instructions (批示) to the Supreme People’s Court (Updated)

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On the eve of the Chinese New Year, a banner headline was posted on the  Supreme People’s Court (Court) websites:

Study the Important Written Instructions of  General Party Secretary Xi Jinping

A revised version of that banner has remained on those websites since (the photo above), apparently unobserved by outside commentators, who may have not realized its significance.   This blogpost will look at:

  • what written instructions (批示) are;
  • the significance of Xi Jinping giving written instructions;
  • what Xi Jinping’s instructions were;
  • why the instructions were issued on eve of the New Year; and
  • why Zhou Qiang, President of the Court called on the lower courts to study diligently Xi Jinping’s instructions.

What are written instructions (批示)?

”Written instructions“ (批示) means notes or comments made by a superior on a written document submitted for approval or comment.  It is used in reference to Party/government documents as well as documents within the court system (see the regulations on handling each type of document).  The term has been used throughout the history of the PRC as well as in Chinese history.  Analysis of Chinese political documents often mentions written instructions.

According to the reports on various Court websites and in the press, Xi Jinping gave his written instructions on 28 January in response to a report submitted by the Supreme People’s Court  entitled Situation Concerning the Work of the People’s Courts in 2013 and Proposals for their Work in 2014 (关于2013年人民法院工作情况和2014年工作打算的报告).  The report has not been made public.

What were Xi Jinping’s written instructions and what is their significance?

Xi Jinping wrote what to the outside observer appears to be a collection of slogans from the Third Plenum Decision.  However appearances can be deceiving.

He wrote that the courts had diligently implemented the Center’s policies and implemented their responsibilities and achieved new results.  He expressed his hope that the courts will make persistent efforts, implement the spirit of the 18th Party Congress, Third Plenum etc, uphold the Party’s leadership, promote judicial reform, advance the building of a judicial system that is fair, efficient, and authoritative..provide powerful judicial protection for reform, and continue to promote the building of the rule of law in China.

The significance of the written instructions is not so much in its content as the fact that Xi Jinping issued it to the Supreme People’s Court.  It is unusual for a Party General Secretary to have issued them.  By doing so, Xi Jinping expresses his support, praise, demands, and hopes for Zhou Qiang and the Court leadership.

Why were the written instructions issued on eve of the New Year?

The written instructions were issued on the eve of the Chinese New Year to approve what Zhou Qiang and the other Court leaders did in 2013, as well as confirm the planned policies of the Court for 2014.  The written instructions were issued before the Chinese New Year to enable the Court leadership to be better equipped when dealing with issues at the National People’s Congress (NPC) meeting in early March. Court leaders are likely anticipating that local opposition to judicial reforms under consideration may be expressed at the NPC meeting.

Why are the lower courts requested to study diligently Xi Jinping’s instructions?

Xi Jinping’s instructions summarize in one paragraph the Central Committee’s policy towards the courts and their role in the Third Plenum reforms as well as judicial reforms.  The written instructions enable the lower courts  to understand the political background against which they work and the political goals for their work in the near and longer term.

The more sophisticated lower court judges understand that the written instructions mean that the Party leadership values the work of the Court leadership, but recognize that this will not resolve their caseload.

Concluding Remarks

To the outside observer:

  • it illustrates what is meant by Party leadership of the courts at the highest level;
  • in the political context of China, it is a major coup for Zhou Qiang (and colleagues) and their reform policies for Xi Jinping to have issued those written instructions; and
  • It means the political leadership is behind those reforms.
  • At the same time, it places a great deal of pressure on the Court leadership to deliver results (as seen from the political leadership) in the judicial reforms.
  • It would not be surprising to hear voices opposing some of the reforms at the NPC meeting.

The Supreme People’s Court: Interpretations of Law as a form of Official Document (公文)

This post explains why:

  • the Supreme People’s Court (Court) releases normative documents  inconsistent with the law and its own definition of “judicial interpretations;”
  • the Court issues normative documents that guide the judiciary in deciding cases but that are not publicly released;
  • the Court issues normative documents with government organs that are not authorized to issue judicial interpretations.

The explanation is based on recently issued Court regulations.

The practical implications of these phenomena depend on your role.  For those in policy roles, rule of law work, diplomatic or governmental role with the Chinese judiciary, or those otherwise those involved in dispute resolution strategy in China, it is critically important, because it explains why China has a system of non-public normative documents guiding judges in deciding cases. It is not a mode of operation beneficial for domestic or foreign litigants and their counsel.

Official documents—the key concept

The key to understanding how the Court treats interpretations of law is the recently issued Measures for Handling Official Documents of the People’s Courts (Court Official Documents Measures, linked here) (人民法院公文处理办法)。 They replace 1996 regulations on the same subject.

What are the Court Official Documents Measures?

 The Court reissued the Official Documents Measures at the end of 2012  because the Communist Party and State Council General Offices re-issued the Regulations on the Work of Handling Official Documents of the Party and Government (Party and Government Official Documents Measures) (党政机关公文处理工作条例).[2]  The Court Official Documents Measures state that they were drafted with reference to the Party and Government Official Documents Measures and a comparison of both reveals that the Court Official Documents Measures reveal are an iteration of those Official Documents Measures for the court system.

What do the Court Official Documents Measures do?

The Court Official Documents Measures define “court official documents” as “official documents of the people’s courts which are formed in the course of trials and enforcement and judicial administrative operations which have special effect and have a special form.”   (This definition is close to that in the Party and Government Official Documents Measures.) The definition further states:

“court official documents are important tools in transmitting the Party line, direction, and policy, implementing state law, issuing judicial interpretations…”

What are interpretations of law?

As for interpretations of law, the Court Official Documents Measures state:

“litigation documents, judicial interpretations and others are special legal official documents of the people’s courts which should be handled according to relevant provisions of law, regulations and judicial interpretations.”

This means that the Court regards judicial interpretations as “special legal official documents” (特定法律公文) of the courts.

Although the Chinese constitution vests the power to interpret  law with the Standing Committee of the National People’s Congress, a 1981 decision by that same organization delegated to the Court the authority to interpret law relating to questions involving the specific application of laws and decrees in court trials, while the Supreme People’s Procuratorate was delegated authority to interpret law relating to questions involving the specific application of laws and decrees in procuratorial work.  The Organic Law of the People’s Courts re-iterates the delegation of authority to interpret law to the Court.  Interpretations by both organizations are known as “judicial interpretations.”  In 2007, the Supreme People’s Court issued regulations on judicial interpretations (linked here)  limiting judicial interpretations to the following four types:

  • “interpretation” (解释); (a set of legal rules in a specific area of law, unrelated to a specific case);
  • “provision”(规定)  (often similar to court rules);
  • “reply” (批复)(a reply to a “request for instructions” from a lower court relating to a specific case); and
  • “decision”(决定) (a document abolishing or amending existing judicial interpretations).

Those 2007  regulations also mention judicial interpretations may be jointly issued by the Court and the Supreme People’s Procuratorate and requires that judicial interpretations be made public. These regulations also provide that judges may cite judicial interpretations as the basis for a court decision or ruling.

However, a review of the Gazette of the Supreme People’s Court, the official website of the Court, and lists of superseded judicial interpretations and judicial documents reveals the following phenomena:

  • a category of documents labelled “judicial documents” exists (a term not defined);
  • documents that the Court issues with administrative organs, such as the Ministry of Public Security and Ministry of Justice are published under that classification and contain normative provisions;
  • documents such as “conference summaries”(纪要) and “opinions” (意见) that are classified as types of official documents are also published under that classification or elsewhere on the Court website, and seem to have normative provisions, because many of which contain language that the lower courts should “implement their provisions” or “use them as guidance.”

Some of these normative documents address new issues or phenomena where the Court is of the view that the law is not settled enough for judicial interpretations.  Other normative documents have a more overtly political purpose and are more closely related to current Party policy.

However, there is no requirement in the Court Official Documents Measures that all Court normative documents be made public, although the Measures designate two forms of official documents as ones that will be released both domestically and internationally, either broadly or for limited circulation.  The Measures refer to the secrecy classification and secrecy level of court official documents and how those should be handled.  Moreover, an Internet search reveals that some Court official documents such as “conference summaries” which were never officially published have made their way into the public domain through unofficial sources such as law firm websites and blogs. (linked here)

What does this mean?

It means that judicial interpretations are considered by the Court to be a type of official document but that the courts often rely on official documents that are not “judicial interpretations” in deciding cases, in addition to the law and existing judicial interpretations, although (according to former judges), it will not be apparent from the face of the judgment or ruling.   However, there is no requirement that these normative documents be made public.

Some of these normative documents may be ones that the Court issues with administrative organs (for example the Ministry of Public Security) (although such documents do not fit the definition of “judicial interpretation”).  The rationale for this practice is that officials of the administrative organ involved will comply only if their administrative organ jointly issues it with the Court and requires compliance of its subordinates.

It means that there is no assurance for any party, domestic or foreign, corporate or individual, that the legal rules on which the court has relied in his case have been made known to him.   It is not an issue in every case, of course, but is more likely in new or sensitive areas.

This is an area for the new Court president to turn his attention, and for foreign and international institutions to encourage the Court to make positive changes to implement regulations requiring the publication of all normative documents.