Public Opinion and the Judiciary: Moving Beyond Censorship

March 12, 2012

This past weekend, the Supreme People’s Court (SPC) presented its work report which, as usual, was chock full of statistics and vague policy guidance language. There were also a number of accompanying speeches by officials and the usual Op/Eds commenting on everything. Quite a few potential topics there, but I want to briefly mention the issue of public opinion and its role in the judicial system.

Charlie Custer wrote a quick post about censorship and transparency aspects today, which is a good way to start this off:

Yesterday, China’s Supreme Court president Wang Shengjun gave the Court’s work report to China’s National People’s Congress. In it, he said something that has captured the attention of Chinese net users:

[...We must] place emphasis on listening to the opinions of the grassroots masses and other strata of society, we must place more emphasis on supervising public opinions about the news, we must pay more attention to the mood on the internet, respond quickly to the concerns of society, and unceasingly strengthen and improve the work of the Court.

It’s a short statement, to be sure, but in the eyes of a Hunan Supreme Court justice who spoke with the Beijing Times, it is suggesting that the Court will push for tighter controls on the internet but that it also may open up some information about high-profile cases in response to the demands of the net-using public.

As is usually the case, whenever the government here discusses public opinion, the ensuing conversation focuses on censorship and transparency (the “supervising” part), with a special emphasis on Internet-based platforms like Weibo and bulletin board systems. No great surprise here given past efforts to manage such channels and current regulatory initiatives, including the various “real name” systems. Moreover, the government’s continued emphasis on such management is obvious — you can’t swing a dead cat without hitting an official making a speech about the pernicious effects of online rumor-mongering.

But I always like to bring up another issue that is almost always ignored in these discussions, and that is the matter of judicial independence. Keep in mind that the SPC report and related commentary was primarily about the judiciary, and not public security or regulation of the Internet. And when we talk about public opinion, there are (at least) two issues here: the ability of citizens to make and access public statements, and how that information is then digested and used. Using the above language, the issues are “supervision of” and “listening to” public opinion.

The first issue, involving management of public opinion, is the one that gets the most attention generally; as the topic has political significance, this is appropriate. But the second issue is much more important in terms of the judiciary itself. As I’ve pondered many times before in earlier posts, what is the role of public opinion when it comes to the judicial system? Or to put it another way, should judges be influenced by public opinion, and if so, how much weight should this be given?

Keep in mind that the topic of judicial independence is a complex and important one. Discussions of judicial independence in China usually focus on political influence, not the effects of public opinion. Obviously the former has much more influence on judicial action than the latter. That doesn’t mean, however, that public opinion does not sway judges and prosecutors — there have been several high-profile criminal cases in the past few years that illustrate this point quite well.

So when the judicial establishment talks about listening to the “grassroots masses,” this could refer to a number of things. Primarily it means paying attention to sensitive issues like local corruption, land misappropriation, environmental degradation — disputes that lead to social instability. This sounds all well and good, since we want the judicial system to take an active role in solving these problem. But what does it really mean that the judiciary should “listen”?

This is what worries me. An emphasis on prosecuting the bad guys, insulating the judiciary from local political influence, and working on reforms that allow folks to access the legal system — thumbs up. Aside from that, do I want the judiciary “listening” to grievances from the public? That sounds like a political function, not a judicial one.

This is a very old argument that is rehashed intermittently all over the world. You hear it almost constantly in the United States, for example, in arguments between “Strict Constructionists” and “Judicial Activists.” While this is a very broad generalization, one of those schools of thought argues that judges should be insulated from public opinion, while the other thinks that judges must be open to personal experience and societal influence. My own rather odd take on that argument is a bit complicated and rests on an extremely cynical approach to American Constitutional Law; at the same time, I greatly admire the way the system works. (I’ll save that for another time.)

But we are talking here about China and the Chinese legal system. Lawyers and judges here are not hermetically sealed off from society and in fact owe duties to the public. (A significant contrast, for example, from the Common Law idea of a lawyer as a “zealous advocate” whose client’s concerns are paramount.) This responsibility to the public cannot be discharged, one might argue, without learning the concerns of the public. Therefore some sort of information exchange needs to take place.

What are we left with here? Judges (and prosecutors) should listen to concerns of the public, and yet should not allow such opinions to influence their decisions in improper ways? That sounds like a very tall order to me.

In the absence of specific, user-friendly guidance on how public opinion can and should be utilized by the system, I’d rather see a conservative approach that places less emphasis on what the “grassroots masses” are thinking and works hard to root out other deleterious influences on the judicial system (e.g. local political influence and corruption). To the extent that reformers can get that job done (note that this is only possible locally, if at all), then the average litigant will receive much better treatment in court.