Nov 18, 2013 06:13 PM

Closer Look: Party's Judicial Reforms Mean Giving Provinces More Say


(Beijing) – Judicial reforms mentioned in a document released after a major Communist Party meeting will put the management of court funding and personnel in the hands of provincial officials, a judge in the nation's highest court says.

The third full meeting of the party's 18th Central Committee closed on November 12 and days later Xinhua released a document detailing the decisions finalized at the conclave. The document listed 60 reform items in 16 categories, ranging from changes to the one-child policy to having state-owned enterprises turn more of their profits over to the state.

Regarding judicial reform, the document said the party will "push for unified management of the appointment and removal of judges, staffing of local courts and other personnel matters at the provincial level." The document said the goal of judicial reform is protecting the rights of judges and prosecutors to act independently.

One popular interpretation of this was courts would come under some sort of system of vertical management, perhaps under the Supreme People's Court, the country's top court, but this was wrong.

A better interpretation of the changes is that the party wants to reduce outside influence on courts by having certain decisions made at the provincial level. Government in China has five tiers: central, provincial, city, county and village. There have been complaints in the past that courts are too easily influenced by government officials close to them.

He Fan, a judge in the top court's Judicial Reform Office, published an analysis article (in Chinese) in the people's court newspaper on November 17 that said the goal of the reform is reducing the localization of judicial power. When court personnel and funding are both controlled by the local government, it is hard for them to operate independently and fairly, He said.

However, He said putting these powers in the hands of provincial-level officials does not mean the judicial system would be changed so lower courts were answerable to higher courts.

"We must avoid a situation where higher-level courts, especially the high courts (in each province), interfere with independence of lower courts," He said.

In fact, a system of vertical management is not desirable, He argued. "China has 3,500 courts and 200,000 judges. Having all these personnel and budgets under the management of the central level would be difficult to implement."

The country's constitution requires that judges and prosecutors are appointed by legislative bodies called people's congresses at the same level of government. They also have to report to these people's congresses. Changing this reporting system would involve revising the constitution and other laws.

A number of questions still remain to be answered about the party's intended judicial reforms. Moving courts' budgets to the provincial level should be straightforward, but changing how personnel are managed is more complicated.

In theory, judges are appointed by people's congresses, but in reality they are nominated by a party organization department at the same level. Under the reform, the provincial-level party organization department will have more power over appointments. How exactly provinces will handle this new responsibility is unclear.

Another question regards the role of local party political and legal affairs committees, which used to manage the courts, prosecutors and police on their level. It appears their role need to be redefined.

The plenum did not seem to have addressed a call made by many in legal circles to separate courts' jurisdictions from administrative borders; in others words, having some courts preside over several provinces or cities to avoid direct influence by local officials. The former top court chief justice Xiao Yang suggested this as early as 2004, but the idea seems to have stalled.

However, the decision released after the party plenum announced another step designed to make judges more independent. This involves changes to "adjudication committees," which are unique to China's judicial system.

The committees are the highest decision-making body in any court. They review important cases and have the right to review judges' suggested opinions and decide on penalties. The plenum document indicates that judges hearing a case should be left to make their rulings and be responsible for them.

He Xiaorong, director of the top court's Judicial Reform Office, said in a recent article published on the official website of the country's court system that this reform will reduce the scope of cases reviewed by the adjudication committee, increase the proportion of judges on the committees and improve the transparency of the bodies.

But He said certain conditions would have to be in place for the role of the adjudication committees to be lessened.

"Giving power completely to judges and the bench must have some premises:  the relative independent status of the court system and the professionalism of judges," He said. "Without these two premises in place, the supervision and management rights of court directors and committee heads cannot be removed, and the power of the adjudication committee cannot be reduced."

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