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.

7 thoughts on “Public Opinion and the Judiciary: Moving Beyond Censorship

  1. Mike

    I agree with your assertion Stan that it is a tall order for judges to acknowledge public opinion but not let it influence their decisions. But I also think that it is nearly impossible for judges to know what public opinion in China is except in the most controversial or extreme of cases.

    We know true public opinion in China is mainly seen through social media, weibo, blogs, etc, and not the more traditional media outlets we see in Western countries. But we also know that social media in China is awash with all kinds of rumors, wu mao members, US interests (possibly), fake accounts, and other things. So even if judges did get user friendly guidance, how do they tell what the public’s opinion is? If they rely on traditional news media, then we know this is the government and not the public (most of the time but there are more exceptions now a days). If they rely on social media then we find it hard to determine what public opinion really is. I do think though that public opinion becomes clear on the most controversial of topics as the netizens seem to unite more forcefully in those cases.

    Ultimately, I agree that rooting out other influences in the judicial system is important for the judiciary to become more effective. But I would also argue that even if user-friendly rules do come down from the higher ups, it may not make using public opinion anymore useful or actually provide real public opinions.

    1. Stan Post author

      Agreed. The online community is quite self-selective anyway, and not necessarily representative of all citizens. We run the risk sometimes of over-emphasizing online opinion just because it’s comparatively easier to access.

      1. Mike

        I agree with you, and good point about the over emphasizing online opinion. I think though in the future that the courts are likely to be more influenced by such opinions. Everything in the party is about maintaining stability, and so if throwing the mob a bone will keep the mob on the party’s side then they will likely do that. I think it will be interesting to see what happens with Wu Ying in her death sentence review. http://www.unhcr.org/refworld/type,COUNTRYNEWS,RFA,CHN,4f55c6b523,0.html.

        I think the bigger problem as you mention above is how does the government manage this dynamic in a way that doesn’t undermine the court system. Ultimately, it is to the benefit of the party if people feel the courts are fair and legal (even if they are influenced by party opinion) but by having the Supreme Court review this case after widespread netizen disapproval then it leaves the public with the question about the fairness of the courts. Was Wu Ying’s case reviewed because it was the right (Legal) thing to do, or because people demanded it and the party relented? The fact we have to ask that question I think shows the major hurdle that China needs to overcome if the courts are ever to be trusted by the common people.

  2. pug_ster

    I kind of agree with this. Considering that America’s justice system has so many loopholes that results in many injustices. If you have money and a good lawyer, you can literally get away with murder. I recall that some time ago with one of the most anticipated cases regarding OJ Simpson, I remember at that time I was in class when people with their am/fm radios was listening to the verdict to OJ’s crime and many of them just shook their heads. I’m sure that many people outside the US can view the America’s judicial system where this kind of stuff would never happened in China’s judicial system.

  3. Quigley

    Again in this post, you highlight your view that lawyers (and judges) owe a duty to the public in China, compared to the Common Law idea of the “zealous advocate.”

    I am curious why you think this is the case? Sure, in the 律师职业道德和执业纪律规范 (Standards for Lawyers’ Professional Ethics and Practice Disciplines) there is a bit more discussion of public responsibility than, for example, in the Model Rules of Professional Responsibility, although there is still substantial emphasis on responsibility to the client.

    Based on my personal experience with Chinese lawyers and what I have read, Chinese lawyers are no less likely to be zealous advocates seeking personal profit (and success for their clients) than in the US. Not even mentioning grey areas of law, my sense is that Chinese lawyers are much more likely to bribe a judge or official than in the U.S.

    In terms of criminal law, sure, I understand that the role of a defense lawyer is largely to serve the public, ie not question the government’s case. But, when it is a civil lawsuit, I think Chinese lawyers do tend to be zealous advocates.

    1. Stan Post author

      In terms of day-to-day work, lawyers are lawyers, pretty much wherever they are. I was mostly talking about emphasis when it comes to professional responsibility and the system as a whole. The US model is more client focused, whereas Civil Law countries are less so. You can make similar arguments when it comes to the actions of judges and how they “fit” into the system.

  4. Lynne

    I have often thought how to “refine and improve” the Chinese judicial system in China. Working in a Chinese law firm for some time I would actually talk with cohorts about measures that could be taken and philosophical endpoints to strive for. In the end, we came to one blocking point “conflict of interest” that described the nexus between the law as practiced and law in fact. One of my young, articulate students put it best, “How can you keep talking about change when the system itself, has not.”
    Sometimes “experts” should really stop talking and listen more.