China Judicial Survey and the Dangers of Snapshots
A Xinhua survey published yesterday found that 14 out of 30 provincial chief justices have had no legal training. Of the judges surveyed, fourteen possessed no prior legal training or had previously worked in China’s court system prior to their appointments. (h/t China Briefing)
In the next couple of weeks, we’re going to see more of this, particularly in light of the Rio Tinto case and the increased scrutiny of the judicial system here. This one originated with Xinhua, but I expect the story to circulate overseas.
I hope that as all this goes on, news agencies will give these stories a bit of perspective, although I’m not going to hold my breath.
On this specific issue, for example, there are still quite a few judges out there who lack legal training. Let’s keep in mind, however, that it used to be a lot worse, and that judicial training and personnel screening has changed markedly over the past decade or so.
Pointing to today’s numbers is interesting information, but it fails to recognize that this problem is longstanding and has been acknowledged by the government. This sort of thing cannot be remedied overnight, particularly when you are dealing with powerful folks with political muscle. Sometimes it takes a generation and a lot of retirements.
Way back when, judges in the United States were political appointees with no legal backgrounds either. Before my time, but not really all that long ago.
Fair enough – but what worries me is that the government/Xinhua is trying to put a positive spin on these stats, rather than “recogniz[ing] that this problem is longstanding” or acknowledging it.
According to SCMP, Xinhua “praised provincial chief judges for instilling fresh ideas into the judicial system” …
I think that’s a little too much to ask from Xinhua. Putting a positive spin on things is kind of their raison d’etre.
Update on link to China-briefing article – it has moved.
http://www.china-briefing.com/news/2009/07/23/half-of-china%E2%80%99s-judiciary-%E2%80%9Chave-no-legal-training%E2%80%9D.html#more-4133
I am not a Panda Puncher. I also refuse to be one of those foreign suck ups like the American who went to the Beijing theater holding up a sign protesting a showing of “Kung Fu Panda” as an insult to Chinese culture. But, I do take issue with the simple matter of the title of the article.
Can we really use sample of 30 provincial chief justice to conclude half of China’s judges have no experience. The China-Briefing title is a misleading paraphrase of the original article. The original article limited the analysis properly to “top judges.” This doesn’t mitigate the truth behind the problem, but the China-Briefing title suggests that the problem is more widespread. That does not mean I disagree. I think that in truth the number may not be far off of the mark. However, I think they took liberties with the wording that gives an over-reaching air of inaccuracy.
I just got done spending most of Spring 2009 teaching at a Judicial Education Program at National Judges College in Tongzhou on the outskirts of Beijing. As an American lawyer, when I think of the term “judge,” I envision an experienced attorney who eventually works his or her way to the bench. Procedurally, that is not how it works in China. The title “judge” is assigned to entry level graduates and is in no way a mirror image of the US or UK. Westerners reading the article have a different expectation when they hear the word “judge.” It would be like calling traffic police and those who issue parking tickets “police officers.” Sure, they work for the department, but they aren’t cops.
I started teaching Chinese judges and lawyers a year ago. It was a shock to me when I arrived at my first lecture. I expected to see “judges” – instead, my classroom was predominately people in their 20′s. Every term at least one students ask me, “why are US judges always so old?” There is a mutual misunderstanding because the judges play different roles in the respective systems.
Judicial independence is not an integral part of this system. The judges express this openly and I don’t think I am disparaging my students or betraying a confidence by repeating this. Judges often take direction from the prosecutors (procuratorates). They are not “conductors” in the courtroom as in western courts. You cannot be an independent judge and oversee the criminal prosecution of someone accused of being a member of a banned “cult;” I think you know the names. These are no brainers and you don’t need a lot of legal training to do as you are told. Most of the qualified judges are assigned to lower administrative areas overseeing IP, patents, trademarks, licensing and business related issues that the party deem open and worthy of judicial development. Criminal law does not fit into this category.
A good methodological survey would require separating criminal and civil law. It would also require separating “acting” or “sitting” judges from the subordinates who merely hold the title. The number would be bad, but not this bad. The CR decimated the judicial system. There are few people of proper “judicial” age with the experience and education to fill the gap.
Xinhua will put a spin on it. But the real issue is still back to the civil war – the Communists didn’t want to be seen to be following the legal structure as put in place by the preceding Kuomingtang. That still holds largely true today, as does a bias towards the principles of upholding the interests of the Communist Party ahead of any individuals involved in the case. Until China’s hardline party members get moved out, China’s legal reforms will proceed very slowly. But it will start to increase in time.
Kelly: I’d like to clarify your main point. The 30 judges weren’t a simple “sample” of hundreds of judges. These were the specific Chief Provincial judges in each of China’s Provinces – ie: the most senior judge in each Province. Half of them have no legal training. (which is what we said). To recognise that the most senior judge in 50% of China’s Provinces actually lacks any judicial expertise is a very serious matter indeed, which is why we brought it to peoples attention.