Between 2002 and 2008, I served as a judge in the criminal tribunal of the Intermediate Court in the city of Chengdu, Sichuan Province. A few years ago, some of my former colleagues at the criminal court started to talk about the anxiety of being held accountable for cases they had handled no matter how long ago the case had been decided. It seemed, according to commonly heard slogans, that accountability could be imposed on a judge for a mistake at any time for the rest of her life.
In July 2013, the Central Political-Legal Commission (CPLC) of the Chinese Communist Party issued the “Guiding Opinion on Effectively Preventing Miscarriages of Justice” (“Guiding Opinion”《关于切实防止冤假错案的指导意见》). The Guiding Opinion was issued in response to the publicity generated by a series of high-profile wrongful conviction cases, in which innocent people like Zhao Zuohai, Sun Wangang, and Du Peiwu were finally exonerated after years of imprisonment. This document for the first time explicitly called for a nation-wide policy of holding judges, prosecutors and police officers accountable for life for all the cases they have ever handled.
To many people in the legal community, this policy of lifetime accountability seemed rather unreasonable. First, wrongful convictions occur to some extent in every country. The causes are multifaceted and often arise from systemic weaknesses in the criminal justice system. Why did the Party fixate on the accountability of judges, prosecutors and police officers as the primary factor without addressing other root causes of injustice, such as bad eye-witness identifications, false confessions, cognitive bias and junk science? Second, in many other countries, judges are entitled to some immunity if it turns out that their judgments were mistaken but made in good faith. Why are judges in China not entitled to enjoy such rights?
Evolution From “Accountability” to “Lifetime Accountability”
In fact, the notion of “judges’ accountability” is not new but “judges’ lifetime accountability” is.
The judges’ accountability system was formally established in China with the 1995 promulgation of the Judges’ Law (《法官法》). In this legislation, judges’ accountability is attached to two categories of misconduct (Article 33). One is related to judges’ special governmental position[i] and the other is related to their judicial activity.[ii] According to the Judges’ Law, administrative liability or criminal liability may be imposed depending on the nature of misconduct. There is nothing in the Judge’s Law that could be interpreted as imposing personal liability, let alone lifetime personal liability, on a judge simply for making a mistake in deciding the outcome of a criminal case, even if the outcome is to wrongly convict an innocent person for a crime he did not commit.
In 1997, in the report to the 15th Party Congress, then Party leader Jiang Zemin called for “establishing an accountability system for wrongful conviction cases.” Some local courts launched pilot programs but received criticism for lacking reasonable and clear standards for what constitutes a “wrongful judgment.”
In 1998, based on the experience from these pilot programs, the Supreme People’s Court (SPC) issued Provisional Measures to Pursue Judges’ Accountability for Unlawful Judgments (《人民法院审判人员违法审判责任追究办法（试行）》) and Provisional Measures on Disciplinary Rules for Judicial Misconduct (《人民法院审判纪律处分办法（试行）》),[iii] stressing that judges’ accountability is not strict liability; only intentional or grossly negligent misconduct is punishable. The next year, some provincial courts promulgated their own regulations and rules to implement the SPC’s Two Measures. Though the SPC did not address the issue of “lifetime” accountability in these two documents, the high courts in Yunnan Province and Henan Province set up lifetime accountability mechanisms in their provisional regulations, respectively in 2008 and 2012. This may be, in part, due to the fact that several high-profile wrongful conviction cases originated in those provinces (Du Peiwu and Zhao Zuohai, respectively) and that they received national attention.
In 2010, in its effort to develop the accountability system, the SPC turned its focus from the outcome of individual cases to judges’ professional ethics, and issued the Basic Principles of Judges’ Professional Ethics (《法官职业道德基本准则》) and the Judges’ Code of Conduct (《法官行为规范》).[iv].
“Lifetime Accountability” – Origin in Policies of the CCP
In July 2013, the CPLC issued a Guiding Opinion that introduced the notion of “lifetime accountability.” The original text of this document is not available on-line (though summaries are available). One month later, in August, the CPLC officially issued the Provisions on Effectively Preventing Miscarriages of Justice (《关于切实防止冤假错案的规定》), in which lifetime accountability is explicitly imposed on judges, prosecutors and police officers. However, there is no detailed explanation of how a lifetime accountability system would be implemented.[i]
Despite the lack of any explanation of the nature of such accountability or any enforceable procedural provisions, the term “lifetime accountability” rapidly circulated in officials’ public statements, as well as in everyday conversations among legal professionals and academics.
Within two months, the SPC issued its own implementation document – the SPC’s Opinion on Establishing and Improving the Working Mechanisms for the Prevention of Miscarriages of Justice in Criminal Cases (《关于建立健全防范刑事冤假错案工作机制的意见》).[ii] It carefully avoided the term “lifetime” and stressed that judges should not yield to local governmental pressure to maintain social stability and consequently make illegal judgments.
In October 2014, the CCP passed the Decision on Major Issues Concerning Comprehensively Promoting the Rule of Law (《全面推进依法治国若干重大问题的决定》) at its Fourth Plenum. This Decision applies a system of lifetime accountability to both government officials and judicial personnel. The head of governmental agencies and case-handling individuals should bear the responsibility for the rest of their lives for major policy-making mistakes and omissions that have caused serious harm or caused adverse consequences. But the provision on the lifetime accountability of judicial personnel lacks clarity – it merely states that “lifetime accountability should be imposed to ensure that cases can stand the tests of law and history,” without illustrating any criteria.
“Lifetime Accountability” – Reactions from the Judiciary
Like the pattern we’ve observed from interactions between the party-state and the judiciary, the SPC tends react swiftly to CCP policies. After the Fourth Plenum, the SPC promulgated its Several Opinions on Enhancing Judicial Accountability in People’s Courts (《关于完善人民法院司法责任制的若干意见》) in September 2015, applicable to courts in pilot programs. In this document, the SPC addressed both the responsibility of individual judges to decide cases as well as the standard for holding them accountable for mistakes. In addition, it also stressed that individual judges should not be liable in cases where reasonable minds could disagree,[i] and that the actual vote of the adjudication committee should be checked when imposing liability – only those who have voted for the wrongful decision should be held liable.[ii]
It provides that only a certain percentage of all judges (usually around 33%) should be selected to actually handle cases. Compared with line judges before this reform, those in the quota system are empowered with relatively more independence in decision-making. [iii] Moreover, the Opinions provided that “legal responsibility attaches only when the misconduct is intentional or results from gross negligence” (emphasis added). It is the first document containing detailed regulations on how to implement the responsibility reform.[iv]
This document also specifically carves out eight exceptions under which, when a judgement is overturned after retrial, the judges involved in previous procedures should not be held liable and the case should not be counted as a mistake. In addition, it also enumerates seven types of misconduct[v] that should lead to lifetime accountability. The text of this document can be found here (hyperlink).
To further implement this reform, in November 2016, the SPC and the SPP co-published the Opinions on Establishing a Disciplinary System for Judges and Prosecutors (Provisional) (《关于建立法官、检察官惩戒制度的意见(试行)》), to set up disciplinary committees in each provincial court and procuratorate to review whether there is intentional or grossly negligent misconduct on the part of judges or procurators.[vi]
In November 2017, Zhou Qiang, the Chief Justice of the SPC, reported to the Standing Committee of the National People’s Congress regarding comprehensively deepening judicial reform. In its on-going accountability reforms, the SPC’s report stresses the principle of “letting the judges hearing the cases render judgments and assume related responsibilities.”
Issues and Questions I - Does accountability mean lifetime accountability?
On this matter, the Party’s statements and the SPC’s documents are inconsistent. The Party’s line has consistently stressed holding judges accountable for the rest of their lives. SPC documents, on the other hand, never mentioned “lifetime” responsibility until the September 2015 publication of Several Opinions on Enhancing Judicial Accountability in People’s Courts. Despite contradictions among the SPC documents before and after this turning point, these documents are both still in effect.
From the hierarchy of document sources, it is unclear which documents are, or should be, considered most authoritative. Neither the Party’s decisions, opinions or provisions, nor the SPC’s measures, opinions or regulations, are governed by the Legislation Law. As “normative documents,” the rules from the Party and the SPC should be applicable to Party members and judges, respectively. But it remains unclear which rules take precedence when imposing accountability on a judge who is also a Party member (as is usually the case).
From the perspective of laws, strictly speaking, imposing accountability on a person for “a lifetime” contradicts the established criminal law and criminal procedure law in China. The laws clearly stipulate that even for the most serious crimes, the statute of limitations expires after 20 years, unless special approval for prosecution is secured from the SPP. Neither the Party nor the SPC has given an official explanation as to how to hold a judge accountable for life given the current statute of limitations on the books.
Some prominent Chinese law scholars and some high-level judges have openly opined on this matter. It seems the general consensus is that holding a person accountable for life is not legal. For example, the chief judge of the second circuit court of the SPC, Judge Hu Yunteng, has stressed in many public talks that he believes this reform is mainly for the purpose of the Party and the State to clarify their attitude on wrongful criminal convictions. He writes, “‘lifetime accountability’ is more of a choice in value and policy than a realistically implementable reform. If we take it literally, there would be ‘many hurdles to jump.’” His analysis includes the principles in conflict of laws, the fairness of the different accountability systems for different government cadres (judges are government cadres under China’s state structure), and the puzzling consequence of criminal conduct being exempted from responsibility after a certain time but administrative or disciplinary misconduct being accountable for “lifetime.”
Judge Hu opines that because it is not pragmatic to impose accountability on a person regardless of his status of life many years later, the lifetime accountability system is likely to run afoul of the Party’s original intention.
Issues and Questions II – Accountability?
1. Great responsibility without great power?
It should be noted here that Chinese courts have several institutional mechanisms that limit the authority of individual judges to make final decisions in cases. All Chinese courts have “adjudication committees” made up of the leadership of the courts as well as other experienced judges. Traditionally, the judge presiding over a case[i] reports to the adjudication committee and recommends an outcome, but the actual decision-making authority is the adjudication committee, not the individual judge.
Compared to the SPC Several Regulations on the Collegial Panels’ Work of People’s Courts (2002, 《最高人民法院关于人民法院合议庭工作的若干规定》),[ii] the SPC Implementation Opinions on Reforming and Enhancing the Adjudication Committee System (2010, 《最高人民法院关于改革和完善人民法院审判委员会制度的实施意见》) and the SPC Several Opinions on Enhancing Judicial Accountability in People’s Courts (2015, 《关于完善人民法院司法责任制的若干意见》) appear to significantly narrow the scope of cases that should be decided by adjudication committees.[iii] However, even under the new two Opinions (2010, 2015), the adjudication committees can assert authority over cases involving “state security” “social stability” and authorities can interpret “state security” and “social stability” broadly. Therefore, authorities seem to have broad discretion subject cases to the supervision of the adjudication committee as desired.
In addition to the adjudication committee, the Chief Judge and other court leaders used to hold a great deal of power over individual judges both in case assignments, in the review of decisions, and in the annual personnel evaluation of individual judges, which determine salary increases, promotions and demotions. The current judicial reform on the judges’ quota system is purported to improve line judges’ autonomy in decision making. However, the outcome of this reform is yet to be seen.
Finally, the Chinese Communist party, through its Political-Legal Committees, which oversee the work of all courts in China, have the authority to influence the outcome of individual cases.
Since 2013, individual judges have, at least on paper, been given more authority to make judgments in cases over which they preside. However, their decision-making authority is still subject to multiple potential and actual levels of oversight and interference. This diffusion of decision-making authority raises questions about the efficacy and fairness of holding individual judges accountable for judgments later determined to be mistaken.
2. What kind of accountability is attached to judicial misconduct and what procedures should follow?
The SPC Several Opinions (2015) basically set up a road map for the types of accountability attached to judicial misconduct. There are two types of accountability. The first is the unlawful abuse of adjudication responsibility, which attaches to intentional violations of law, or grossly negligent misconduct causing wrongful judgments and serious consequences. The second is disciplinary accountability, which attaches to violations of professional ethics and disciplinary rules, such as accepting presents from litigation parties and inappropriate contact with lawyers.
To pursue unlawful adjudication accountability, a court’s internal disciplinary committee should conduct the investigation and report to the provincial Judicial Disciplinary Committee. The Judicial Disciplinary Committee decides which kind of disciplinary punishment should be imposed according to the Judges’ Law. If the misconduct constitutes a crime, the Committee should forward the case to the prosecutor or the police to handle. Therefore, three types of consequence could follow: a) the court’s internal personnel punishment, b) the court’s internal disciplinary punishment, and c) criminal punishment.
If a misconduct is minor in nature and related to professional responsibility, it should lead to personnel and disciplinary punishment and be handled by the court internally.
Issues and Questions III – Implementation?
According to media reports and news articles on the internet, since 2014, 693 local courts have launched pilot judicial accountability programs.[i] In some highly publicized exoneration cases, some judges, prosecutors and police officers have been punished with disciplinary accountability for misconduct.[ii] But in more cases,[iii] media reports show that the exonerees have filed requests to impose responsibility on the case handling personnel, while the outcome remains unclear.[iv]
Before the 2013 reform, based on available online information, 11 judges were prosecuted from 1999 to 2012. The common feature in these cases is that the judges were not necessarily prosecuted for their intentional or grossly negligent misconduct, but rather because of outside pressure from Party leadership and society (i.e. litigation parties threatened to commit suicide and the Party acted out of a perceived need to “maintain social stability”). Some of them were acquitted,[v] some were convicted,[vi] and some received personnel and disciplinary punishment.[vii]
Four of the eleven judges were punished for the alleged misconduct in criminal cases – two for wrongful acquittals, one for a wrongful conviction and one for a wrongful commutation of sentence. All other judges were punished for misconduct in handling civil cases. Given this record of punishments – primarily for civil cases or for a failure to convict or failure to impose adequate punishment in criminal cases – it is unclear whether this accountability system can do much to curtail wrongful criminal convictions.
Issues and Questions IV – Judicial Immunity?
Judges in China do not enjoy the privilege of judicial immunity. The Constitution, the People’s Court Organization Law and the Judges’ Law provide that judicial organizations independently exercise judicial power, and judges try cases in accordance with law, without interference from administrative or social organizations, or from individuals. However, these legislative statements do not shield judges from accountability raised from acts or omissions done within the scope of their jurisdiction or authority.
In the absence of judicial immunity, imposing judicial accountability (not to mention “lifetime” accountability) can have a chilling effect on judges. Human beings make mistakes. Judges should not be punished for decisions based on good faith but later proved mistaken. Without a clear boundary between good-faith mistakes and intentional or grossly negligent misconduct, the accountability system cannot prevent mistakes from happening, but may encourage nonfeasance, which contributes nothing to the prevention or redress of the miscarriage of justice.
In sum, comparing the judicial accountability cases before and after the judicial lifetime accountability reform initiated by the CPLC in 2013, it seems that the pre-2013 cases were more influenced by extra-judicial factors, and were divided between both civil and criminal litigation, while the post-2013 cases have been based on wrongful convictions in criminal cases. Unlike the pre-2013 reform, the current reform has focused on allocating more power to individual judges, and has integrated the judge-quota system, professional judges’ commissions, and interventional adjudication tracking mechanisms as part of the systemic change. In this regard, the judicial accountability system seems to be making some progress in uncovering the underlying causes of wrongful convictions.
However, policy makers have prioritized social stability in both reforms. “People’s satisfaction” is still considered as one of the indicators of courts’ performance. Under this mentality, disciplining judges seems more like the Party-state’s method of identifying scapegoats against which to vent the citizenry’s resentment at injustice, rather than a method for punishing, let alone rectifying, true wrongdoing.
When it comes to individual accountability, it is not clear if good-faith mistakes will be shielded from it. The SPC’s Several Opinions limits accountability to intentional or grossly negligent misconduct. But the scope of punishable conduct under the SPC definition is narrower than that suggested by the CPLC documents, which represent the Party’s position on this matter. The bottom line is that many judges and scholars perceive the imposition of judicial accountability as quite uncertain. As some of my former colleagues have put it, “‘lifetime accountability’ is like a sword hanging over our heads - we don’t know whether it will be used.”
[i] In some civil cases, a couple of judges were prosecuted and convicted of misuse law in adjudication civil affairs (民事枉法裁判罪) in 2014 and 2018.
[ii] For example, in the Huge Jiletu (呼格吉勒图) case, 8 judges, 7 prosecutors and 11 police officers were held accountable for this wrongful conviction. Except for one police officer who was prosecuted for duty crime, all others were punished under the Party disciplinary rules.
[iii] For example, the Yu Yingsheng (余英生) case, the Li Huailiang (李怀亮) case, the Zhao Yanjin (赵艳锦) case, the Wang Benyu (王本余) case, the Xu Hui (徐辉) case.
[iv] In fact, before the 2013 nationwide judicial accountability reform, some local courts had started their own lifetime accountability programs. It seems there is some geographic correlation between the provinces where the courts have shown initiative to enact regulations to hold judges accountable and the provinces where high profile wrongful convictions have been exposed. For example, in 2012, the Henan High Court, where Zhao Zuohai was wrongfully convicted and exonerated, promulgated its provisional measures on imposing lifetime responsibility in wrongful convictions. In Henan province, as of July 2017, 12 judges and 7 government officials had received punishment for misconduct in wrongful conviction cases.
[v] Judge Mo Zhaojun (莫兆军), Judge Liu Deshan (刘德山), Judge Ma Ruizhi (马瑞芝).
[vi] Judge Wang Guirong (王桂荣), Judge Jin Linxiang (金林响), Judge Lin Hongbin (蔺宏彬), Judge Wei Yingjie (魏英杰), Judge Xue Yan (薛延).
[vii] Judge Xing Wei (邢威), Judge Li Huijuan (李慧娟), Judge Guo Xuehong (郭学宏).
[i] According to the Criminal Procedure Law, the SPC’s judicial interpretation of the Criminal Procedure Law, the SPC’s two Provisions on collegial panels and the Implementation Opinion on adjudication committees, certain types of criminal cases must be decided by the court adjudication committee and such decisions are binding to the collegial panels. These cases include death penalty cases, acquittal cases, reopening a retrial and etc.
[ii] It is still valid and authorizes adjudication committees to decide both facts and application of law in major, complicated, difficult and new types of cases, including cases that affect “state security” and social stability.”
[iii] In addition to death penalty cases, acquittal cases, the others cases are mostly restricted to issues related to application of law.
[i] Article 28 of the SPC’s Several Opinions on Enhancing Judicial Accountability in People’s Courts (“Several Opinions”).
[ii] Article 31 of the SPC’s Several Opinions.
[iii] According to the SPC’s Several Opinions, 1) common/ordinary cases should only be decided by the panel of judge(s) who have attended the trial; 2) panel judge(s) should make decisions on the facts of a case; 3) when issues in application of law appear in major, complicated and difficult cases, the panel judge(s) may bring the case to a professional judges committee for discussion and take its opinion as reference (not binding); 4) concerning issues only involving the application of law, the adjudication committee can make decisions in major, complicated and difficult cases involving state diplomatic affairs, state security and social stability; 5) in the four categories of cases below, the president of the court, deputy presidents, and the chief judge of a tribunal have the power to require panel judge(s) to report on the status of a case and on the panel’s decision. This leadership group may order the panel to bring the case to the professional judges committee or the adjudication committee, but cannot alter the panel’s decision: a. cases involving multiple parties that might have an impact on social stability; b. complicated and difficult cases that might attract the public’s attention; c. decisions that might conflict with precedents; d. cases of panel judge(s) accused of illegal conduct in adjudication.
[iv] Another recent document related to judges’ accountability is the Implementing Opinions on Judicial Accountability (Provisional) (《司法责任制实施意见（试行）》) issued by the SPC in July 2017. It is an internal document regulating the division of labor and responsibility inside of the SPC itself. Following the SPC model, many local courts have established their own implementation plans. But the content of this thread of documents does not focus on some of the fundamental questions like the nature of judges’ accountability.
[v] According to Article 26, the seven types of misconduct are: 1) corruption, bending the law for personal gain, fraud and adjudicating against the law; 2) adjudicating without authorization or fabricating case materials; 3) tampering, hiding, fabricating and destruction of evidence, or losing evidence out of gross negligence with serious consequences; 4) while reporting a case to the collegial panel or the adjudication committee, intentionally hiding and fabricating important evidence, or missing important evidence and critical facts out of gross negligence with serious consequences like wrongful judgement; 5) intentionally issuing court document against the decision of the collegial panel or the adjudication committee, or making mistakes out of gross negligence in the judgement with serious consequences; 6) illegal setting probation or commuting a sentence, or gross negligently committing such misconduct with serious consequences; and 7) intentional violation of law procedures and evidence rules, or gross negligently making wrongful judgement with serious consequences.
[vi] For intentional or grossly negligent misconduct, the disciplinary committee could directly impose disciplinary punishment on or forward the case to judicial authorities if the misconduct is criminal in nature. According to this document, a disciplinary committee should be composed of people’s representatives, members of the political consultative conference, law scholars, lawyers, prosecutors and judges, in which the members from the last two groups must make up at least 50% of the committee members.
[i] Article 12 provides that, within their authority and discretion, judges are accountable for the rest of their lives for the quality of cases they have handled. Illegal adjudication conduct should be punished according to relevant laws and regulations.
[ii] It provides that a collegial panel should be jointly accountable for determining the facts of a case, and that the case-handling judge must take primary accountability. It also states that for judges who violate judicial discipline or bend the law for selfish ends, they should be punished according to the judicial discipline regulations and the law. Nevertheless, “lifetime” did not appear in this SPC’s Opinion.
[i] For example, judges must not: 1) disseminate statements that harm the reputation of the state, 2) join illegal organizations, 3) participate in strikes, or 4) participate in for-profit activities.
[ii] For example, judges must not 1) reveal state secretes or adjudication secrets, 2) take bribes or compromise law and justice for personal gain, 3) intentionally delay the handling of cases, or 4) attend dinners or accept presents from litigation parties.
[iii] These two provisional measures hold all personnel working at a court, including judges and their assistance, bailiffs and judicial forensic experts, accountable for intentional or gross negligent illegal misconduct. They also explicitly provide that when a wrongful judgement is based on different understanding of law, evidence or case facts, judicial personnel are exempted from accountability.
[iv] In line with the CPLC’s Four Nevers “四个一律,” the SPC raised slogans like Five Forbiddens “五个严禁” and Ten Proscriptions “十个不准” on top of the foundation of the formal ethical principles and codes. These regulations and rules seemed to expand the scope of punishable misconduct beyond that listed in the Judges’ Law. But some officials and scholars argued that the expansion is legitimate, based on a loose interpretation of the provision “other conduct violating laws or discipline” under Article 33 of the Judges’ Law.
Editor’s Note: For several years, the Chinese government, the Chinese Communist Party, the Supreme People’s Court and the Supreme People’s Procuratorate have been touting a “lifetime accountability” system for judges and prosecutors as a cure for wrongful convictions. It sounds as though judges and prosecutors who presided over or prosecuted cases in which the defendant turned out to have been innocent would face some form of punishment and that such punishment could be imposed at any point in their lifetimes.
A “lifetime accountability” system raises several questions. First, do individual judges and prosecutors have decision-making authority in criminal cases and, if not, why hold them individually accountable? Second, does such a system provide a perverse incentive for judges and prosecutors to conceal any mistakes they may have made in deciding cases. Third, is there any empirical evidence that holding such accountability over judges and prosecutors has the desired effect of avoiding mistakes? Before reaching these questions, however, one has to ask what China’s proposed “lifetime accountability” system even means.
My U.S.-Asia Law Institute colleague, YIN Chi, a former Intermediate Court judge, takes a close look at the question of whether, in fact, China has a “lifetime accountability” system for judges and prosecutors and, if so, what exactly does it mean.