China's judicial reforms are no revolution
Recent court reforms should increase competency and help to reduce corruption within the judiciary, but will not fundamentally challenge the status quo.
A new law recently passed in China is designed to restrict the operations of the estimated 7,000 foreign non-governmental organisations there. These foreign NGOs, ranging from Save the Children and Greenpeace to smaller human rights organisations, had the potential to be an increasingly influential component of Chinese civil society. From January 2017, however, there will be limits on their work: they will not be allowed to engage in any activity that damages China’s ‘national interest’ or ‘ethnic unity’ and will have to register with a public security official who will watch over them.
Such a law is part and parcel of China’s new ‘legalism’, a highly centralised and autocratic ‘management style’ practised by the emperors of China’s past and by the new leadership since coming to power in 2013. So far, it’s brought about a noticeable deterioration in human rights and freedoms. As China’s economic prowess falters (and the rest of the world holds its breath), this has been a time of reassessment in many areas of law and policy.
Not all of it is bad news. Starting in late 2013, there have been a series of court reforms and changes to the civil and administrative justice systems tabled by the Communist Party of China (CPC) and China’s highest court, the Supreme People’s Court (SPC). These aren’t groundbreaking, but within the confines of a one-party system they may make small, significant changes to governance in China.
As one academic puts it, they will ‘make the courts more competent and less corrupt’. Ben Liebman, the Robert L Lieff Professor of Law at Columbia Law School in New York and Director of the Center for Chinese Legal Studies there, continues: ‘These are the most important reforms in decades and the courts themselves are very serious about them and those involved want to do their jobs better.’ He adds: ‘There is, however, an unspoken understanding that they will not challenge “the underlying system”.’
Chinese characteristics or Russian doll
The Chinese judicial edifice is a crowded space. Though public officials like to contend it’s a structure through which ‘the rule of law with Chinese characteristics’ operates, one commentator has described it as more akin to a Russian doll, with layer upon layer of officials, committees, decision-making chains and approval processes. For instance, a judge does not sign his own judgment; often this must be carried out by higher officials at court, its president or similar. There isa committee, the judicial committee, which sits behind the judge or panel of judges. A network of political-legal committees answer to a central political-legal commission, which acts as a CPC supervisor to all legal institutions, including the courts. Some of these myriad layers are being given an airing under the judicial reform proposals.
Villagers will be able to resolve disputes by means of the law rather than the typical way, which is to settle it in private ways
Managing partner, HJM Asia Law & Co;
IBA Asia Pacific Regional Forum Co-Chair
The judicial committee’s role is to oversee complex cases and often has the final say. But it makes its decisions by only a simple majority. This creates a situation described in Chinese media ‘…in which the persons hearing the case do not decide it, and those deciding the case do not hear it’. One of the reforms being proposed by the SPC is to create more transparency and better record-keeping. The judicial committees’ deliberations will be recorded and minuted.
The SPC also wants their involvement to diminish so that they are only engaged in the most difficult and sensitive cases.
In a similar vein, judges will now sign their own judgments, cutting through the chains of command, a scheme that is already being successfully piloted. Though there is no suggestion that the political-legal committees’ role should be reduced, there is now an official website detailing some of their work, an unprecedented act of disclosure.
Reform of judicial committees should give judges greater authority and status in the court itself. As it stands, a Chinese judge is often just one player in a vast and complex set of administrators and officials and has a role not dissimilar to a clerk in an English court.
Other reforms focus on this point as well. There is to be greater delineation between judges and non-judges (the court administrators, the cadres, the officials) so that there is a clearer understanding about who hears and decides on cases.
The number of judges overall is to be drastically reduced. China currently has an estimated 200,000 judges. The reforms propose to cut that number considerably, to around 80,000. This has been controversial within the judicial community and is cited as a reason for a reported exodus of young judges in recent months (around one hundred in Shanghai alone, says the Western media). As Liebman puts it: ‘There is going to be a lack of advancement if there are fewer positions. This is a problem because the ones leaving are often the more sophisticated judges.’
If you have judicial corruption then you can’t even begin to eliminate corruption in other aspects of government
David W Rivkin
But those staying will be better paid.
Some pilots have increased judges’ pay by as much as 50 per cent, though this varies by location. There is real concern about whether the state can afford this increase, not least because it will also be given to judges in the procuracy, China’s prosecution system. The increase in pay is also intended to outweigh the temptations of corruption, in line with the tried and tested argument that if you pay people enough they won’t need to accept bribes. As the global anti-corruption organisation Transparency International states, ‘fair judicial salaries and pensions make court personnel less vulnerable to bribery’.
Judging the judges
As well as improving base pay, China has changed the way its judges are assessed. What mattered before was how many cases they had resolved by the end of any given year. This led to judges refusing to take on cases if they were filed at the tail end of the year; they also avoided class actions because they took so much longer to resolve and so would insist that petitioners refile cases individually. This performance indicator has been abandoned.
Grappling with graft
Shortly after taking office, President Xi was keen to be seen taking decisive and swift action against corruption within state organisations, the military – and the courts. There was the high-profile conviction of Zhou Yongkang last year, once a security chief who was in charge of the courts and law enforcement, followed by the removal of the then Vice-President of the Supreme Court in China, Xi Xiaoming. There have been hundreds of arrests of top officials (including military leaders), as well as thousands of investigations of minor officials.
Within the court system there are new rules that judges must notify the court and record any instances of external ‘interference’, particularly by local party cadres. The rules say: ‘Where leading cadres interfere with judicial activities or tamper with the handling of specific cases, judicial personnel shall make a complete and faithful record, so that there is a complete trail with evidence for review.’
Of course, much of this may be political manoeuvring as much as an attempt to clean up China’s system, but the prevalence of corruption in China is well-documented
(it is ranked 83 out of 168 in Transparency International’s Corruption Perceptions Index) and measures aiming to engage with the judiciary to challenge corrupt practices should reap some benefit.
Indeed, the role of the judiciary in combating corruption globally is the focus of the IBA’s Judicial Integrity Initiative (JII). As IBA President, David W Rivkin, tells Global Insight: ‘If you have judicial corruption then you can’t even begin to eliminate corruption in other aspects of government.’ The initiative has now completed a root-level survey on corruption. It has analysed, explains Rivkin, ‘what actually takes place when there is corruption – who is offering the bribes? Who is actually receiving them? How is it being done? Where are the vulnerabilities?’
Another criterion in assessment was the conciliation rate, which meant that judges would try and persuade litigants to conciliate. It also had the added benefit for judges that outcomes could not be overruled by a higher court, rather than go to a full hearing in order to increase their scores.This has also been scrapped.
Changing the criteria in this way has led to a direct increase in cases being heard in courts as judges are no longer encouraged to manipulate their caseload.
Zhang Xiaoke, a lawyer with Beijing-based commercial firm Jincheng Tongda & Neal, says that these reforms for judges are desperately needed because at the moment judges have very little social status. ‘Judges are really only half judges because they are treated more like administrators and civil servants. Compared with lawyers who are now really well paid, judges have had little economic status, which is what really matters in China.’
China is a vast territory stretching over 3,000 miles from Western Asia to the coast of the Far East. Much of its economic power and development is in the deltas of the Yangtze and Pearl Rivers of the south-east. In the distant desert and mountain regions of the north and west, life is very different. There, local and municipal courts are detached from China’s political and economic centres, tending to be wrapped up in local government. A local judge’s appointment, pay and promotion are all dependent on local government, which is in charge of selecting personnel and funding local courts. These
far-flung courts are heavily influenced by local officials and CPC ‘cadres’. If a local court wants to rule against a local company or against a local authority, then there is pressure put on them (or bribes offered) to ensure that such decisions are not made (or that such cases are not even accepted by the court in the first place).
Reforms are currently being piloted whereby the funding of local courts and the selection of local judges is given to the higher-level provincial courts that China has in its 23 provinces, imposing a more vertical reporting structure with the aim of combating local influence.
In a similar vein, the SPC has introduced circuit courts, established in January 2015. The first two have been set up in Shenzhen and Shenyang. Susan Finder is Visiting Lecturer at the School of Transnational Law of Peking University (Shenzhen) and has been observing the SPC for over 20 years, recording her observations on a blog, the Supreme People’s Court Monitor. She explains: ‘The circuit court acts as a form of quality control and a means of providing a more neutral forum for cases, protected against pressure from local interests. They also perform the role of incubator for many of the court reforms needing piloting.’
It’s raining cases
As a result of new rules in China that mean courts must file all cases lodged with them (as opposed to refusing to file them or hear them), the number of civil and administrative cases has increased. Statistics from the SPC published this spring show that there was a ten per cent overall increase in civil cases. Looking at it in more detail, the number of administrative cases is up by as much as 50 per cent
(and some of these include challenges to punishments), although the numbers are still very low (around 200,000 cases in 2014 rising to just under 300,000 cases).
SPC cases are also up by 43 per cent in the same period. The most litigious provinces are ones with highly developed economies: Jiangsu, Zhejiang, Shandong and Guangdong. Commercial cases increased by about 20 per cent with increases in product liability, labour and loans. Intellectual property and fraud were also on the up. The SPC is proud of the increase, arguing it demonstrates greater confidence in the court system. Zhang Xiaoke, a lawyer with Beijing-based firm Jincheng Tongda & Neal, is more sceptical: ‘The public do not use the courts, they do not use the law and prefer to rely on personal favours or contacts to resolve their problems,’ he says. ‘The increase in cases is an improvement but there is still a long way to go.’
The new circuit courts are reminiscent of the first assizes in England in the 12th century, which assisted in bestowing justice at a local level, but also acted as a means of ensuring national laws – as opposed to common local ones – were properly understood and implemented.
Caroline Berube, managing partner at HJM Asia Law & Co and the IBA Asia Pacific Regional Forum’s Co-Chair, adds that such itinerant courts should help to engage people in more remote areas. ‘Villagers will be able to resolve disputes by means of the law rather than the typical way, which is to settle it in private ways,’ she says. ‘The circuit court should also reduce time and expense for plaintiffs as well as educate the villagers by letting them attend a court hearing.’
Until last year, courts in China were under no obligation to accept a case and one of the most common complaints from lawyers and plaintiffs was that courts would simply refuse to take on a case or a court administrator would ask for supplemental material from the plaintiff and continue to do so until he or she eventually gave up. That has changed under new rules introduced in 2015 that stipulate that courts must file cases, criminal or civil (though cases involving issues of ‘national security’ are allowed to be refused). As a result, the number of filed cases has increased dramatically in China [see box: It’s raining cases] across the board, particularly administrative cases.
Just as simple a reforming idea was the mandate that cases and judges’ decisions should be published. In an official edict in November 2013, the SPC stated that ‘disclosure shall be the rule and non-disclosure the exception’. It is estimated that around 17 to 20 million cases have now been published online (indeed, Chinese entrepeneurs are keen to get in on the act and there is much bidding for the relevant IT contracts with the courts). Liebman believes this is only one-third of the total number of possible decisions, but that is a huge step forward. ‘There is no question that this puts greater pressure on courts and judges to hear a case properly and make a recorded decision and definitely improves quality,’ he says.
Reform is a misleading term
The court reforms are the product of dissatisfaction with the court system at a Party level. ‘The courts were becoming an embarrassment with so much inefficiency, corruption and poor quality,’ says Finder. ‘Party delegates began expressing their displeasure at national plenary sessions.’ With a newly appointed president of the SPC, reforms began to appear.
The changes improve governance, but do not challenge the foundation of the existing system, which is that the courts, the judiciary, must ultimately answer to the CPC. For this reason, some question the usefulness of the reforms. Take the shift from local courts being controlled by local government to local courts being controlled by provincial courts. Read one way, it looks like a sensible shift from horizontal to vertical governance, but it can also be seen as a means of centralising control. Stanley Lubman is a Senior Fellow at Berkeley School of Law in California. ‘[These reforms] take away pressure on the courts from one place, but replace it with pressure from another source. There is a dense web of relationships deeply planted in the Chinese governance system whichever way you structure it,’ he says.
Some are concerned about the consequences of the reforms – publishing court decisions may mean less power for a judge. ‘He can be watched with greater detail,’ says Eva Pils, Reader in Transnational Law at King’s College, London. ‘Reform’ is a misleading term because it has positive undertones that are not necessarily justified. ‘We think reform is inherently good, but it is not the case here,’ Pils continues. ‘Much of these reforms are intended to increase control of the judiciary; that for the Party is an improvement, but for us it is a disaster.’
China’s recent human rights record certainly supports a cynical interpretation, particularly since it is lawyers who are currently facing heavy scrutiny. According to Human Rights Watch, between July and September 2015, over 300 lawyers, legal assistants and activists were detained by police and, to date, around 18 of them are still in custody. ‘The legal profession has been very badly suppressed,’ says Pils. ‘There are new rules which say that a lawyer can be accused of creating a public disturbance in a courtroom simply by advocating for his or her client.’
Compared with lawyers who are now really well paid, judges have had little economic status, which is what really matters in China
Lawyer with Beijing-based commercial
firm Jincheng Tongda & Neal
The IBAHRI has twice published an open letter to President Xi expressing deep concern at the way in which lawyers and human rights activists were being treated, most recently in July. And in a recent trip to China, IBA President David W Rivkin met Vice Minister of Justice Dacheng Zhao, and again raised the IBA’s concerns about the detention of lawyers there.
Finder describes these developments as ‘pentatonic – there are apparently conflicting tones playing at the same time’. ‘Whilst we see lawyers being arrested, we also see pillars of the legal establishment in China speaking out on policy,’ she says. One example she gives is the recent criticism of televised confessions, which have become more commonplace since the new leadership took over. During a TV confession, defendants publicly admit their alleged guilt to a crime on state TV. This happened recently to booksellers who sold books critical of the leadership, and a Swedish activist. Yet a prominent judge, Zhang Liyong, Chief Judge of the High People’s Court in Henan province, and a high-profile lawyer, Zhu Zhengfu, Deputy Chairman of the All-China Lawyers Association, both establishment figures, have spoken publicly and critically against these confessions.
The new legalism of China certainly has concerning repercussions for human rights and freedoms there. However, these governance reforms are still important because, argues Finder, they are improving the quality of justice in ordinary cases and could shift the way Chinese people think about justice in the longer term. ‘Judges are acting as much as they can within the confines of a political corset. Some of them are working very hard to change the system in small yet significant ways. Increasingly, these are educated and informed people who will not want to be controlled in the way that previous generations have been.’
Polly Botsford is a freelance journalist and can be contacted at email@example.com