Judges – European Chinese Law Research Hub

Judicial Transparency as Judicial Centralization: Mass Publicity of Court Decisions in China

16. May 2023

A new paper by Lei Chen, Zhuang Liu and Yingmao Tang

Beijing Dongcheng People’s Court _{^{Photo by 冯正虎}}

China runs the largest online program for publicizing judicial decisions in the world. The mass publicity of court decisions in China, this article (draft here) argues, is part of the broader trend of the Chinese judiciary becoming increasingly centralized. The mass publication of court decisions in China seems puzzling: Disclosure of government information is often linked to an aspiration for political participation, which contributes to accountability and creates an obligation for responsive government. As a style of governance, transparency is usually associated with democracies, and few authoritarian states show much interest in government transparency.

In this article, the authors explain the reform towards greater transparency of the Chinese judiciary in a principal-agent theoretical framework and contextualize it within strategic moves of the central and the local governments in this setting. Previous studies of the political system in China have documented a deeply rooted agency problem between the central government (the principal) and local courts (provincial courts and courts at the lower levels – the agents), often discussed as “local protectionism”: The primary goal of the Supreme People’s Court is that centrally stipulated laws are applied in a unified way for the entire country, however, such application may conflict with local interests and social stability in local communities. Hence, in practice, courts often function as a local apparatus that protects local interests. This tension between the central government and the SPC on the one hand and local governments and respective courts on the other is a result of the structure of the Chinese political system. For example, local courts’ finance and personnel are controlled by local governments. While it is on the reform agenda to make the high court at the provincial level control and manage the finances of all courts in the province, control over personnel remains with the local governments. More importantly, information asymmetry embedded in the multiple-layered government structure and thereby the inability for the centre to monitor the local.

Responding to this dilemma, the Supreme People’s Court carries out a reform towards transparency. The mass publicity of court decisions, this article contends, is a top-down effort to address the principal-agent problem. By means of establishing a centralized judicial data collection system, the Supreme People’s Court can more directly control the information reporting process within the judicial hierarchy and reduce information asymmetry. By making mass local court decisions publicly available on a centralized venue, it attempts to curb wrongdoing and improve decision consistency and quality in local courts through public oversight. Together, the transparency reform helps the centre (i.e., the SPC) rein in local courts.

As in most principal-agent settings, agents, here local courts, responded strategically, by disclosing fewer decisions than required. After the Supreme People’s Court mandated judicial decision disclosure for courts in 2014, disclosure rates remained low, at 39.4%, 44.5%, and 47.9% in 2014, 2015, and 2016, respectively, with strong regional variations. For example, the disclosure rate of Tianjin in 2016 was about 71%, while that of Hainan was only 16%.

In the existing personnel arrangement, local governments control the appointment and promotion of judges. Yet an increasing number of provincial high courts are now presided over by judges or
officials who have work experience at the SPC or other agencies of the central government. Our data shows that judicial decision disclosure rates increased at courts that were headed by cadres with work experience in the central government. We find that the presence of these cadres is associated with more than a 10 percent higher disclosure rate of judicial decisions by the respective court. This finding suggests that the dispatched judicial cadres were quite successful in promoting transparency of the courts in their jurisdictions according to central policy – just as they are in promoting other central policies.

The transparency reform is to be contextualized within other reforms toward a more centralized judicial sector in China. Local protectionism of courts, that is, courts serving local interests rather than following the law, is well documented in the literature. The requirement that all judgements be uploaded to the centralized website enables the SPC to supervise local courts’ behaviour not only through public oversight but also through steering legal development in a certain direction, and aligning local judicial decisions with its own policy goals. For example, the SPC can easily search for local judgements and check whether their decisions are consistent with judicial interpretations and guiding cases.

The article Judicial Transparency as Judicial Centralization: Mass Publicity of Court Decisions in China was published in the Journal of Contemporary China. A draft version is available here.

Lei Chen is Chair of International Arbitration and Chinese Law at Durham Law School, UK. He has been elected as a Titular Member of the International Academy of Comparative Law and a Fellow of the European Law Institute.

Zhuang Liu is an Associate Professor of Law at the University of Hong Kong. His research interests include the role of the courts and judicial behaviour, as well as law and development. His work has appeared in several leading academic journals specialising in law, economics, and China studies.

Yingmao Tang is an Associate Professor at Peking University Law School. His research interests include international finance regulation, investment law and the Chinese judicial system. His recent work focuses on opening China’s capital markets, online judicial transparency and big data & computational legal studies.

The Quota Reform in Chinese Courts and Its Implications

13. July 2022

A new paper by Ying Sun and Hualing Fu

^{Haikou Intermediate People’s Court. Photo by Anna Frodesiak}

From the year 2014 a new round of judicial reform was launched in Chinese courts all over the country. For Chinese judges, the most significant change is the “quota reform”(员额制改革). The quota reform aims to professionalize the ranks of adjudicators: by edging out a given percentage of judges, only the better qualified judges would be re-appointed. The background of the quota reform is the plan to reduce the level and the intensity of both political and bureaucratic control over judges in adjudication and to decentralize judicial power to the rank and file judges only, restoring individualized judging while enhancing judicial accountability.

A keen interest in the details of the quota reform drew the author (Ying Sun) to conducting interviews and observations in Guangdong province, Henan province and other places. She gained first-hand insights into how the quota reform is implemented and how the judges saw it.

Before the reform, the number of judges in Chinese courts were calculated in three groups:

the overall size of the judiciary, including judges, but also political and managerial staff and supporting personnel;
the number of judges, i.e. those with proper judicial qualification and, importantly, the percentage of judges in the overall established judicial size; and
the number of so-called “frontline judges” (yixian faguan一线法官), i.e. judges who actually adjudicate cases as judges and their percentage among judges excluding judges holding management positions who are assigned to non-judicial posts.

In 2002, nationwide, there were approximately 210,000 judges and 150,000 of them were frontliners. ^[1] The number and percentage of the frontline judges had remained stable (211,990 judges in 2014) prior to the reforms. A remaining three types of judges did little or no judging. The first group involved judges in management positions, including presidents, vice presidents and chief judges in professional chambers and their deputies; the second, judges who had transferred from professional chambers to political and administrative departments within the courts; the third, judges whose sole responsibility was to execute judgments. The long term objective of quota reform was to limit judgeship to judges whose principal job was to judge.

The reform caused a significant shake-up in the overall profile of the judiciary, with a large number of former judges ceasing to be judges. The court at hand however was able to absorb and neutralize the reform impact throughout its implementation.

First, the quota reform’s ambition to separate judges from administrators forced judges holding political and administrative offices to make a choice. And their choices were clear: the majority of them decided to stay in the administrative departments, while predictably few were willing to give up their status and ranking, especially those holding key positions.

Second, the quota reform unintentionally gave rise to a renewed exodus of middle career judges who left for law firms or other private sector employment. The trend of able judges leaving the judiciary for other careers was well-known, and the quota reform was intended to reign in the problem. However, by reducing the size of the judiciary and creating uncertainty among judges, the reform triggered another miniature exodus – judges, fearful of being left out and worried about the future prospect in an uncertain environment, seized the opportunity to leave the judiciary.

Third, the quota reform posed a significant challenge to courts as they had to contend with a sizeable group of judges who participated in the quota selection but failed and as a result were demoted to the rank of judicial assistants. They did so by offering a transition period, or grace period, during which some of the disqualified judges were allowed, de facto, to adjudicate as judges.

The centre-piece of judge quota reform was to free frontline judges from bureaucratic control in judicial decision that they used to be subjected to, and to abolish the vetting system that required judges to submit their draft opinions to leaders for approval, all to facilitate and promote individualised judging. And indeed, gradually, judging started to shift away from a collective endeavour with decisions subject to multiple layers of vetting and approval. The quota system was successful in placing individualised judging and accountability at the centre of adjudication in the vast majority of cases and in shifting the focus of judicial decisions from a fixation on the social impact of a decision to emphasis on its internal legal quality within an increasingly self-referencing judicial universe. With the new focus on the court-centric and rules-based dimension of judging, as the reforms require, judges do increasingly look for legal guidance to craft a decision. On the other hand, while the rise of individualised judging has created space for judges to deliberate individual cases, it does not reduce judicial accountability. Rather, it created an opportunity for reconfiguration of the control system. Riding on the tide of standardisation, a higher court is filling the gap that the reforms created at the local level and exercising real leadership.

Notwithstanding the fanfare, self-contradictions and tensions, the reforms have been muddled through to create a more identifiable, distinct judiciary. It is now well established that judges are those who judge, excluding political and administrative officers from holding the title of judgeship. The quota reform reflects the contradictions of judicial reform in a party-state. As the quota reform story testifies, the judiciary within a political system can explore spaces for its professionalization project – judges can judge on their own most of the time and in most of the cases. In that process, the Party could be both a helping and a restraining hand, and the bureaucratic system in which the court is an integral part creates both positive and negative incentives for the reform.

Ying Sun and Hualing Fu’s paper was published with The China Quarterly, find it here.

Dr. Ying Sun is an associate professor at the School of Law, Sun Yat-sen University, China. She teaches constitutional law and comparative legislatures. Her research interests include election process, the Chinese people’s congress system, judicial reform and law-making politics in China. Hualing Fu is the dean and the Warren Chan professor in human rights and responsibilities at the Faculty of Law of the University of Hong Kong. He specializes in public law and criminal law, with a focus on China, and cross-border legal relations in the Greater China region. His other research areas include the constitutional status of Hong Kong, in particular central–local relationships in the Hong Kong context and national security legislation.

[1] Xiao, Yang. 2002. “在全国法院队伍建设工作会议上的讲话” (Speech at the national conference on court personnel construction project), ChinaCourt.org, 8 July, https://www.chinacourt.org/article/detail/2002/07/id/7829.shtml. Accessed 16 September 2018.

Canaries or Colonials? Overseas Judges in Hong Kong

17. January 2022

A new paper by Stuart Hargreaves

^{“Hong Kong Court of Final Appeal” by johnlsl is licensed under CC BY-NC-ND 2.0}

Hong Kong’s Court of Final Appeal (CFA) typically sits as a five-member panel composed of the Chief Justice, three ‘permanent’ judges, and a fifth member that may be drawn from one of two panels. The non-permanent ‘local’ panel is composed of retired members of the CFA or of the Court of Appeal. The non-permanent ‘overseas’ panel is composed of senior jurists drawn from other common law jurisdictions, in practice primarily but not exclusively from the United Kingdom and Australia.

The possibility of inviting judges from overseas to serve on the CFA was agreed to in the Sino-British Joint Declaration governing the transition of sovereignty over Hong Kong, and is codified in Hong Kong’s quasi-constitution, the Basic Law. The Basic Law, however, provides only that the CFA “may as required” invite such overseas members to serve, with no further specifics.

Hong Kong’s first Chief Justice, Andrew Li, chose to draw the fifth member from the overseas panel to join whenever possible, rather than alternating between the two non-permanent panels. This in essence became a constitutional convention and for the first twenty years of the CFA’s existence nearly every substantive case was heard by a panel that included an overseas member. They serve on renewable three-year contracts, but are not actually present in Hong Kong for that entire period – they typically fly in for a month each year to hear the cases to which they have been assigned (during COVID they have continued to participate remotely via video conference).

It is unusual that a wealthy, well-developed jurisdiction continues to import judges from overseas. While importing judges remains common in the microstates of the South Pacific, Hong Kong in no way lacks local legal talent in the same way that might justify a need to import judges. While Singapore also invites overseas judges to serve, it limits them to sitting only on a commercial court. In contrast, Hong Kong places no restrictions on the roles that the overseas judges take – when sitting they are treated as a full member of the bench.

The system is thus not without controversy. It is fair to argue that judges who make critical decisions about a community or society ought to be drawn from that society, absent good reason – yet there can be no more of an outsider than a well-paid judge flown in for one month each year. The overseas model also has an uncomfortable colonial echo to it – the judges have primarily been drawn from Hong Kong’s former colonial ruler, all have been white, and all but two have been men. There are also fair questions regarding sovereignty that may be raised – though China did agree to the system in the Joint Declaration, the historical context and China’s experience during the 19^th and 20^th centuries necessarily will make the role a sensitive one.

But despite these issues, for many years the overseas judges have all been regarded as jurists of the highest quality and they have contributed significantly to the CFA’s output. Previous academic work found that in the Court’s first decade they wrote roughly one-quarter of the lead opinions coming out of the CFA. These opinions dealt with an unrestricted range of matters, including some key developments in local constitutional jurisprudence.

My paper updates this research and shows that the role has shifted in the years since, with the overseas judges now accounting for little over 15% of the Court’s output annually. Moreover, they no longer appear to write decisions related to fundamental rights or inter-jurisdictional questions related to the relationship between Hong Kong and the rest of China. I argue that this is a strategic decision by the CFA as a political actor in its own right, in an effort to preserve its institutional role. The paper suggests that the CFA perceives threats to its ability to serve as a check on an executive branch that is becoming more deeply entwined with policy initiatives that come directly from the central government.

I propose that one way in which the CFA is responding to this change is to reduce the prominence of the overseas judges whilst continuing to invite them to serve. The goal appears to be retention of the benefits they bring (in particular the idea that their presence indicates to both the international and local community that Hong Kong’s judicial independence remains intact) whilst minimizing the chance that politically sensitive decisions could be delegitimized through direct association with an overseas member. The CFA may be concerned that such delegitimization may serve to ground subsequent arguments that the concept of judicial neutrality itself is so suspect that ‘judicial independence’ should not extend to anything more than the resolution of disputes between private parties.

It is true that the neutrality or objectivity of judges is often overstated – they are all humans who are the product of cultures, upbringings, educations, environments, and so on. But this is an argument for increasing the diversity of the bench at all levels rather than an argument for curtailing the role of the courts as traditionally understood in Hong Kong. Of course, whether or not reducing the prominence of the overseas members will in fact help preserve the scope of the CFA’s role is an open question. It is unlikely to be enough on its own.

Find Stuart Hargreaves’ paper “Canaries or Colonials? The Reduced Prominence of the ‘Overseas Judges’ on Hong Kong’s Court of Final Appeal”, published in the Asian Journal of Comparative Law, here.

Prof. Hargreaves is an Associate Professor in the Faculty of Law of the Chinese University of Hong Kong, with a research focus on privacy law and constitutional law. He has law degrees from Osgoode Hall Law School (JD), the University of Oxford (BCL), and the University of Toronto (SJD), and qualified as a solicitor and barrister with the Law Society of Ontario.

European Chinese Law Research Hub

Tag: Judges

A new paper by Lei Chen, Zhuang Liu and Yingmao Tang

A new paper by Ying Sun and Hualing Fu

A new paper by Stuart Hargreaves