Exposing People’s Courts to the People
There has always been this weird tension when it comes to modern courts and judges. You want judges to strictly follow the law, but on the other hand, you want them to be human and understand what’s going on out there in the real world. We had this discussion recently in the U.S. (albeit in a rather absurd fashion) during the confirmation process for Supreme Court Justice Sonia Sotomayor, when President Obama suggested that a good nominee would be an empathetic individual. Why some folks on the Republican side found fault with that is anyone’s guess.1
Anyway, we’re having the same conversation here in China as the judiciary matures and the number of lawsuits multiplies. The biggest problem, of course, is political influence. However, some day the pendulum could swing too far in the other direction. This was in the news today:
The Supreme People’s Court (SPC) of China on Tuesday urged courts across the country to accept scrutiny by the press and general public.
The courts must constantly listen to the public so they can carry out their work in a better way, Shen Deyong, executive vice president of the SPC, told a national conference on the publicity work of courts.
After hailing achievements of the courts in providing information to the public, Shen said some courts did not pay enough attention to public opinion.
“The public are paying more attention to court work, their expectations are growing. They want to know more, participate more and supervise more,” he said.
Judges in China have a lot of discretion, and the legal system here rests on a Civil Law structure (as opposed to Common Law). Therefore judges have a great deal of power and are in a position to fill the big holes that the written law leaves open.
It therefore seems reasonable to have judges that act like human beings, draw upon their own life experience, and are aware of what is going on out there outside their courtroom. That being said, what’s the limit?
Should judges be constantly looking to the public for guidance? That’s rather scary. Although we want judges that pay attention to real life, they shouldn’t be unduly influenced by the public either (that’s why I vehemently oppose elected judges in the U.S.). Very often the public doesn’t know all the facts of a case or is otherwise prejudiced against one of the parties.
In recent years, we’ve seen mob rule in a variety of situations reacting to environmental damage, land disputes, criminal cases, etc. This is often a good thing, for example, when a large group of Netizens draws attention to injustice. But a mob can be wrong as well, particularly when they have imperfect information.
I don’t want mob justice, and if judges start listening too closely to what the public wants, we may end up with unjust outcomes. Just something to think about.
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- Yes, I know, they were being dicks.[↩]
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Isn’t the power of judges in China in spite of the fact that it is a Civil Law system, not because of it? I think I’m too dim to understand.
Would be an accurate statement in Europe, I think. Over here, the legal system is young, the Civil Code has not filled in a lot of the holes yet, Chinese law is notoriously vague, and a judge here is given tremendous discretion. A Common Law/stare decisis system over here would tie a judge’s hands much more (i.e. he would be bound by precedent).
Got it. I guess it’s a legal-process-y point, in that Chinese judges have more power over each decision, even if they have less power to determine the law “as it stands?”
That’s a VERY good way of explaining it.
Great find. Seems too, like the problem of judicial independence from another angle. We often hear that the judicial branch is seen as just another bureaucratic agency, usually in reference to problems of judicial independence or the lack of a truly separate judiciary. Here’s they’re being treated like all other government officials, but in terms of their “democratic sensibilities,” with no recognition of institutional differences.
Courts are part of the overall ‘harmonious society’ policy, and judges are supposed to do a lot more mediation these days. If they don’t listen to public concerns about the environment, land, etc. then they cannot fulfill this role correctly. That’s one way to look at it, anyway.
We have an interesting case taking place in Lantian County, outside Xi’an.
The issue here involves the attempted confiscation of a small joint venture producing mineral water. A Xi’an Middle Court decision has been subverted in an effort to gain control of 40 mu of land. A criminal gang has been operating in the county for some time, and we have been battling their intimidation for a number of years. Their game: illegally convert industrial properties to residential development. They have torn down 17 factories so far. (Full story on this web site: http://lantiancorruption.net )
Opening China’s courts to greater public scrutiny cuts two ways. While it may be that greater openness translates into more public influence over the courts, greater transparency would also make judicial manipulation — similar to what has taken place in our case — harder to pull off.
You can get a quick overview of what took place here: http://snurl.com/102q4c