This post looks at the role of public consultation when the Supreme People’s Court (Court) drafts judicial interpretations.

This is an important area in which the Court can institute reforms, but has not yet focused on.

Since taking office, Zhou Qiang, the new Court president has made a push for greater transparency in the judiciary, recently urging courts to guarantee the public the right of access to judicial information and supervision.   Earlier this spring, the Court organized a conference on judicial openness, but the conference did not address judicial interpretations, but rather transparency in the area of judicial decisions. Recently the Court released a number of its judicial decisions, but not yet the regulations under which the decisions were released.

How does the Court consult now?

Since 2007, public consultation has been an optional step in drafting judicial interpretations.  Previously, there was no such requirement.

The 2007 judicial interpretation regulations require the drafting group within the Court to “extensively solicit opinions” as part of the drafting process. It means continuing with their customary practice of consulting with affected ministries and other selected organizations. The drafting group can only seek public consultation if the judicial interpretation “involves the vital interests of the people or important difficult issues” and a Court leader has approved.

I described the “customary practice” in my 1993 article on the Supreme People’s Court—after the drafting group within the Court had a draft, which it would often send to the lower courts for their views, the drafting group would send a draft to an invited group, such as affected ministries, and experts at research institutes and universities. In recent years international institutions, such as the Asian Development Bank, have provided technical assistance to the Court in drafting judicial interpretations.  The process is similar to that described by Jamie Horsley for other legislation, who has written extensively on public participation in China.

Chinese leaders, however, have traditionally made law and policy through selective consultations with trusted groups of government officials, academics and other identified experts, supplemented by orchestrated “field investigations” to ascertain the “will” of the people.

Both Chinese and foreign academics have called upon the Court to increase public consultation.

When has the Court consulted the public?

The Court launched its first formal public consultation at the end of 2003, by releasing a draft of the second interpretation of the Marriage Law for public consultation.

In the last few years, among the areas in which the Court has released a consultation draft include:

• Finance lease contracts;
• Sales contracts;
• Internet copyright.

Why wasn’t the public consulted?

For many other interpretations, the Court did not issue a draft for public consultation.  One example is the judicial interpretation of the Law on Foreign-Related Civil Relations. The law and its interpretation relate to China’s body of conflicts (choice of law) and is aimed at developing a comprehensive set of conflict (choice) of law rules for China, based on international principles.  The judicial interpretation sets out legal rules on areas such as:

• The meaning of mandatory provisions of Chinese law;
• The applicability of Chinese conflicts of law rules to the jurisdictions of the Hong Kong SAR and Macau SAR; and
• The meaning of “foreign related.”

These seemingly theoretical issues affect persons ranging from multinational corporations, companies trading with China, parties to arbitrations, to individuals married to Chinese nationals.

According to press reports and my contacts, the Court consulted certain academic experts and lower courts in areas with many foreign disputes.  However a draft was not publicly circulated.  Rationales for not circulating a draft that may easily identified include:

• Court personnel considered that they and their stable of experts had a good grasp of the issues and did not require widespread input; or
• Public consultation would require more staff time to sift through the submissions to sort out the ones with useful input.

The danger is that the Court promulgates rules that are inappropriate, unworkable, and are out of touch with the actual practice.

Start with the Civil and Commercial area

The Court should start with the easily doable. The civil and commercial area presents fewest politically sensitive issues.  It would be the easiest area of law in which to permit broad public consultation.