Judging the Judges

China’s highest court has released new rules for evaluating the nation’s judges. This is a critical reform as performance evaluation systems convey policy and work priorities, not only assessing judge’s conduct, but necessarily influencing it. While individual courts will still draft their own specific evaluation indicators, the new rules are the clearest attempt by the Supreme People’s Court to standardize the process.

Performance evaluations are a ubiquitous feature of China’s governmental bureaucracy. They are used to allocate and guide civil servants and aim to restrict the exercise of power by rewarding faithful compliance with rules, and by punishing incompetence and abuses of power. They are a tool for encouraging efficiency, uniformity, and discipline.

Unfortunately, the logic that works for an administrative bureaucracy is not always a good fit for the judiciary. The measure of a good judge, after all, is not just efficiency and uniformity, but justice. Their work requires a definite degree of independent discretion; i.e. “judgment”.

Efforts to improve the judges’ evaluation systems to reflect the unique and diverse nature of judges’ work have been a stated priority since at least 2015. This has generally focused on removing ‘unreasonable performance indicators’ including overly mechanical measures such as appeals rates, mediation rates, and case completion rates, as well as factors outside the control of the courts, like parties’ fulfillment of court judgments. Some judges have even complained that their priorities are sometimes divided between following the laws and satisfying performance measures. This can result in situations such as judges aggressively pushing parties to mediate or even delaying the acceptance of cases that couldn’t be completed within an evaluation period.

The new rules do make promising reforms in these directions. These include a detailed framework for weighting caseload counts to reflect the types of cases heard, the trial procedures applied, the need for incidental work like forensic evaluations, background investigations, and follow-up work. They also consider the administrative and supervisory roles of court leadership and all judge’s non-trial contributions, such as participation in research programs. There is room for local courts to make rules further encouraging the implementation of trial reforms, such as weighting criminal cases more heavily based on the number of witnesses appearing to testify to encourage judges’ facilitation of in-court testimony.

Unfortunately, in a move that seems contrary to recognizing the special nature of judge’s work and likely to further divide judges’ loyalties, the new rules also incorporate evaluation standards from the broader Civil Servants Law requiring a comprehensive review of “morality, ability, diligence, achievement, and integrity, emphasizing the evaluation of political caliber and actual work performance.” The purpose is to avoid duplicative evaluation procedures for judges, but the result is the court system itself further emphasizing political character.

Even in the Civil Servant’s Law, the emphasis on ‘political caliber’ [政治素质] was only added alongside ‘actual work performance’ as part of revisions in 2018. A subsequent 2019 revision of the Law on Judges did not adopt that phrasing, saying only that “(t)he content of judges’ evaluations is to include: actual trial work performance, professional ethics, professional skill levels, work capacity, and trial styles” and expressly placing the emphasis on work performance alone.

The new evaluation rules elaborate how each piece of the Civil Service Law’s “morality, ability, diligence, achievement, and integrity” framework is meant to apply to judges. “Morality” is distinguished from “integrity” (uprightness/康洁) which includes avoiding corruption and outside influences, and “diligence” which includes compliance with judicial discipline rules and personal work styles. Instead, morality as presented here focuses on a judge’s political character. Specifically, this novel conception of ‘morality’ is to include indicators of judges’ implementation of Xi Jinping Thought, acceptance of absolute Party leadership, and rejection of “western notions” of constitutional democracy, an independent judiciary, and separation of powers.

China’s courts have voiced such ideas before, and good political character and continuing political education are already requirements for judges, but it’s jarring to see this included as part of a judge’s performance evaluation. Direct mentions of Xi Jinping, even enshrining the ‘two preserves’ which include preserving Xi’s position as the core of the Party, have also been increasingly common in legal authority, but again, especially jarring in the context of rating judges, who should uphold the laws, not a given leader.

Moreover, this is not just the boilerplate recitation of Party rhetoric often included in the preamble of laws and regulations. Being found to have ‘average’ political caliber is grounds for a judge to be rated as only ‘basically competent on the courts’ four-point performance rating scale of ”exceptional, competent, basically competent, and incompetent” regardless of their performance in other areas. A poor political caliber will have them found ‘incompetent’.

It would be understandable if one assumed that these loyalty requirements indicated an increased likelihood of direct Party influence in trials, but the bigger problem lies elsewhere. China’s rejection of ‘western judicial independence’ focuses on disparaging the idea of a judiciary empowered to serve as a check on legislative authority, rather than obstructing the independent trial rulings of individual judges. China’s courts at all levels are responsible to the people’s congress for the corresponding level in addition to being supervised by higher courts. The legislature, rather than the judiciary interprets the Constitution, so Chinese judges’ consideration of legislation is limited to correct implementation.

Over the last several years, the Chinese authorities have even released a series of documents meant to better ensure that judges hearing cases are protected from external influences. These ‘3 provisions’ include preventing Party leadership meddling in cases, preventing other members of the judiciary from prying into cases, and preventing improper ex parte communication between judges and parties, lawyers, and other stakeholders. Compliance with these provisions is specifically mentioned as a measure of ‘integrity’ in the new evaluation standards. So as not to overstate judges’ trial independence, however, it should also be remembered that judges are still required to submit many ‘difficult and complex’ cases for decisions by their court’s adjudication committee– a committee comprised of court leadership that meets to review case materials outside of the trial procedures- and this is seen as legal and proper.

The tension with the evaluation reforms is less that they insert politics into case handling than that they place equal importance on politics and case handling. In allocating their time, judges must remember that their performance in political education is considered just as critical as their trial activities. The emphasis on political character also undermines the potentially positive role of evaluation systems in identifying the best judges. How many excellent judges will be overlooked or lost due to their ‘average political character’ or simply because they do not want so much of their time devoted to political study? Instead, selection bias will emphasize judges’ mastery of dogma. The Party increasingly permeates the laws the judiciary enforces, and the evaluations seek to further ensure that commitment to the party defines the judicial profession as much as a commitment to the laws.