Jerome A. Cohen. China’s New Court Reform Program. China times

April 2, 2009

On March 25, China’s Supreme People’s Court (“SPC”) released its Third Five-Year Reform Program for the People’s Courts. Its predecessor was issued in late 2005, toward the end of the second year of the period in question. By contrast, the Third Program has appeared promptly. Its text is dense, largely abstract and suffused with exhortations to the immediate audience–the country’s judges–to study, promote, establish, prescribe, improve, reform, perfect, strengthen, regularize, implement and complete whatever ought to be done to benefit every aspect of the judicial system. Although not nearly as detailed in its recommendations as the Second Program, it does offer some specific proposals as well as a comprehensive list of problems requiring attention. Most important, it provides further confirmation of the Communist Party’s recent renewal of the “mass line” in political-legal affairs after a decade of judicial emphasis on professionalism that occasionally pushed the envelope of Party tolerance.

Running any country’s judicial system is a challenge, but China’s may be the world’s most daunting. The sheer numbers involved are mind-boggling: a population of 1.3 billion inhabiting a vast land mass; almost 200,000 judges plus roughly as many court staff; over 3,100 basic courts, some 406 intermediate courts, 32 high courts and an SPC that itself has hundreds of judges who both deal with individual cases and handle research, guidance and administration for the entire system. Last year witnessed huge increases in judicial burdens. Courts were called upon to dispose of almost eleven million cases, an unprecedented number and undoubted reflection of not only China’s stunning development but also the increasingly complex tensions that such progress and the recent economic downturn have spawned.

Of course, the courts would have been even busier in 2008 if they had been allowed to accept many other controversial cases. For some years there has been an intensifying debate over the extent to which China’s courts should reject lawsuits that involve disputes over matters involving sensitive public issues and a large number of litigants, such as the environment, land use, enterprise bankruptcy, HIV/AIDS discrimination, stock market manipulation, police misconduct and administrative regulation. Last year’s earthquake and poisoned milk powder tragedies raised the question of court jurisdiction to national and international attention, as Party leaders resisted efforts of victims’ families and their lawyers to seek justice in the courts. These experiences also highlighted the extent to which the courts are subject to Party and government controls at all levels.

The Second Program had proposed specific, significant steps toward judicial autonomy, not only for the courts as an institution but also for individual judges. The Third Program does not reveal the fate of those proposals, merely listing some of them on the continuing agenda. Although it does endorse protecting the courts from “illegal interference”, it does not indicate what conduct would be “illegal”. Certainly it does make clear that leadership of the Party committee, participation of the procuracy in the court adjudication committee and supervision by the procuracy, the local people’s congress, other notables, the media and public opinion are all deemed essential to successful judicial decision-making.

Some of the Third Program’s specific proposals are important. Criminal sentencing has long been a concern, but the new Program suggests the possibility of a special sentencing procedure so that defense lawyers as well as procurators have adequate opportunity to persuade the court. Under present practice, determination of guilt and sentencing are lumped together. In addition, the new Program favors establishing a public process relating to applications for reductions in sentence and parole. It also supports imposition of a substantial minimum prison sentence for major offenders who have been spared the death penalty, thus avoiding the risk that dangerous persons might be released if not sentenced to death, as sometimes happens. And it advocates expunging the record of juveniles convicted of minor crimes, in order to facilitate their post-release reintegration into society.

The Third Program is also noteworthy for stressing judicial transparency. It recommends posting judicial decisions, and how to enforce them, on the internet. Moreover, the SPC explicitly recognizes that the people have the rights to know about, take part in, comment upon and supervise court proceedings and that an appropriate structure must be established for their exercise of those rights.

To what extent and when the newly-proposed reforms might be carried out remains to be seen. Since late 2007, when the 17th Party Congress launched the line that downplays judicial professionalism and autonomy in favor of closer court links to Party, government and society, China’s judges and other law-related officials and reformers, including lawyers and legal scholars, have been struggling to shape the concrete consequences of the new line. How to apply “the mass line” to the complex problems of the judicial system in ways that will genuinely benefit the masses is not a simple task. Despite some vague encouragement emanating from a meeting of the Standing Committee of the Politburo on November 28th, progress in any direction has been snail-like. Perhaps more decisive action may be stimulated by the refusal of over 25% of the delegates to the recently-concluded session of the National People’s Congress–outraged by reports of judicial corruption, inefficiency and unfairness–to approve the SPC’s 2008 Work Report.

One litmus test of this struggle’s outcome, interestingly enough, will be whether judges continue to wear the Western-style judicial robes they donned just seven years ago, which, it has been argued, symbolize the supremacy of courts and law that the “mass line” is designed to eradicate.

An edited version of this text appears in Chinese in the China Times (Taiwan) for April 2, 2009. This article will be published, in abbreviated form, in the South China Morning Post (Hong Kong) on April 4, 2009.