Judicial Independence, transparency and Accountability
Jeremy Daum February 3, 2014
Translated By: Yanfei Bai
Independence, transparency and accountability have become key phrases in China’s judicial reform efforts this last year as President Zhou Qiang took office as head of the Supreme People’s Court and began a campaign to increase public confidence and access to the courts. Striving to realize President Xi Jinping’s exhortation that citizens be able to “ feel fairness and justice from every case,” the Supreme People’s Court has released a series of opinions and interpretations to make court information more available to the public, to put large numbers of judicial opinions online, and to prevent wrongfully decided cases. The importance of judicial independence , transparency and accountability to the rendering of impartial and accurate judgments has also been emphasized by other quarters, most notably in the decision of the Third Plenum’s chapter on advancing rule of law, and in a remarkable opinion by the Central Political-legal committee on preventing miscarriages of justice.
There is an unavoidable tension inherent in simultaneously calling for increased judicial independence, heightened public scrutiny of the courts and further accountability for judicial actors. It may even seem that these principles are irreconcilably promoting conflicting values as will be explored below, but they actually function in pursuit of a common end: ensuring that judicial functions are performed in accordance with law and in the absence of undue influence or control. Correctly understanding the complex relationship between these concepts, and how they interact to promote judicial fairness and impartiality, is the first step to ensuring that the courts can fully carry out their stabilizing social and legal functions. Only then can appropriately-balanced procedures and institutional frameworks be implemented to realize this goal.
Properly functioning courts give voice to the letter and the spirit of the law by performing their basic functions of resolving disputes, articulating legal norms, protecting legal rights and constraining the unlawful actions of both citizens and the government. For individuals and organizations to conform their conduct to the law and to act in reliance on the law, they must understand both what the law requires of them and also the likely legal consequences of their actions. Where courts resolve disputes on the basis of subjective or unknowable factors, or inconsistently interpret and apply the law, it is not only arbitrary and unfair, but it also undermines the law’s normative value. Criminal laws which are capriciously enforced cannot be expected to deter crime, nor can rights and contracts be meaningfully relied upon without consistent enforcement mechanisms.
Judicial independence is necessary so that judges might perform these functions without fear or favor, and without being beholden to any individual, organization or government. Judges must be insulated from threats, enticements or other influences that would discourage them from faithfully applying the law and considering evidence. This is the core meaning of “rule of law”, that the law, as expressed through the courts, is a bottom line that will not bend to any interest, or, to use the Chinese phrasing, to ensure that “no organization or individual’s privilege can exceed the law.” To insulate judges from external pressures, many international standards and national laws and constitutions provide conditions for the appointment, salary, promotion, discipline and removal of judges, so as to prevent these issues from becoming a lever by which to coerce judicial action. The goal of these guarantees of judicial independence, however, is not to protect judges’ interests, but to benefit the judged, who are entitled to impartial trials and whose rights and interests are within the power of the court.
Independence is a prerequisite for impartiality, but cannot alone guarantee it. Like members of governments’ other branches, judges are capable of abusing their power out of the desire for personal gain, bias or malice. Just as independence is essential to ensuring that judgments are the product only of judges’ application of laws and not of external influences, there must also be accountability to ensure that judges themselves do not stray from the law and act improperly. Judicial accountability, however, must differ from the accountability of executive or legislative actors, because of the unique role of the judiciary in applying and expressing the law. As judicial independence is essential to this role and also exceptionally fragile, oversight must be accomplished in as minimally invasive a means as possible.
One critical method of preventing abuse internal to the judiciary is through intensifying judicial education and ethical standards. As the government organ that lays down rules of behavior for others, the judiciary must be seen to hold itself to a standard at least as high. Increased training for judges also fosters a sense of professionalism and cultivates in judges an understanding of the gravity of their work and an internalization of the importance of impartiality. This helps ensure that rules such as those for recusal of judges with an interest in a case are conscientiously followed. Further, the public is more likely to place credibility in a judiciary that has confidence in its own abilities, and judges must be seen as having the courage to uphold the law and abide by their ethics even when it is challenging to do so.
Court and trial procedures are also essential forms of accountability. The use of collegial panels, for example, provides some protection against arbitrary rulings from an individual judge by requiring a majority to agree on the verdict. Similarly, appellate procedures allow for a separate, independent tribunal to review case records, which reduces the likelihood of abuse below, confirms accuracy, and also helps to standardize rulings across a larger jurisdiction. These benefits are lost, however, if the members of a collegial panel, or courts at different levels, are not themselves acting independently, such as where members of the collegial panel cannot freely deliberate, or where a trial court consults with the court above on matters of either fact or law while hearing a case.
For these procedural review mechanisms to effectively ensure that cases are decided only in accordance with the facts and the law, it is also essential that the parties issuing the judgment be the ones who tried the case and that the courtroom proceedings are the basis of trial. Where the ultimate decision is rendered by a court president or adjudication committee that did not participate in the full court proceedings, there can be no guarantee that a decision truly reflects the trial, and it will be difficult for any form of review to locate and correct an error. Similarly, if not all relevant evidence is presented and debated in court, becoming part of the record, or the judicial opinion does not clearly articulate its findings as based on that evidence, meaningful review becomes impossible. Emphasizing in-court review of evidence not only leaves a clear record for effective review, but also protects independence by preventing out of court influence on judges. Where, for example, a signed explanation of circumstances [情况说明] from investigators asserting that no coercion occurred in a criminal interrogation is allowed to substitute for investigators appearing in court to testify and be questioned, judicial independence is undermined as surely as if the prosecution or public security organs instructed the court how to rule.
Ensuring that decisions are based only on open, in-court proceedings and fully reflected in court records and judgments also facilitates public oversight of the judiciary. Rather than a useful check on judicial power, public opinion is more frequently mentioned as a source of pressure on judges to rule in a certain direction. Increased transparency, however, can actually work to alleviate this kind of pressure as well as to increase oversight. A complete trial record and well-reasoned opinion is an opportunity for judges to explain to the public why the facts of a case and the relevant law dictated their findings. While it is impossible to satisfy all the people all the time, this practice provides judges a degree of protection from accusations that their decision was made arbitrarily or for improper reasons, especially when coupled with an appellate system that can be relied upon to hear legitimate complaints on issues regarding the application of law or verification of facts. While increased transparency cannot be expected to relieve all pressure resulting from public scrutiny, experience shows that in the absence of transparency, there will always be doubt cast on judges’ motives.
We must be at our most cautious when considering liability and punishment for judicial conduct, because even the threat of such consequences might improperly influence judicial behavior. In the U.S. , for example, judges enjoy near total immunity from civil liability for judicial actions, even when their conduct was shown to be maliciously intended to harm a party. The theory is that judges must be able to hear all cases in their jurisdiction, including those that arouse strong feelings in the litigants or public, but should not have to fear that unsatisfied parties will hound them with constant litigation. The appellate review system is relied on to rectify harm from a wrongful judgment.
This does not mean that judges can act with impunity. Judges may still face criminal liability if they break the law. So, one American state court judge recently found to have accepted bribes to sentence juveniles to a private detention center, which profited from the ‘business’, was sentenced to 28 years in prison, although he was largely protected from lawsuits by the juveniles involved. Even where there is no crime, judges may be accountable to a judicial standards commission for misconduct ranging from inappropriately accepting lawyers’ gifts to failing to maintain a courteous manner in court. Such commissions exist in all US states, are usually composed of a combination of judges, lawyers and ordinary citizens and can issue punishments from private reprimands to removal. Judicial commissions however, will not investigate the appropriateness of any judgment or get involved in a pending matter- as this is a purely judicial question to be addressed in appeals.
These interactions between transparency, independence and accountability might best be shown in action by considering a recent American case from the state of Montana. The case was the criminal trial of a high-school teacher found guilty of raping an underage student who later committed suicide. The public was outraged by the light sentence, which required the teacher to spend only 31 days of his 15 year sentence in prison, suspending the rest of the sentence. Even more inflammatory were comments made by the sole judge at trial, suggesting that the victim looked “older than her chronological age’ and was ‘as much in control of the situation as the defendant.’
As media coverage of the case intensified, advocacy groups for crime victims, women and children organized hundreds of people to protest outside the court house, waving signs calling for a review of the judge’s other cases, and circulating a petition for the judge’s dismissal online. These protests, although clearly intended to influence judicial conduct, are lawful, and it is expected that judges and courts are sufficiently professional and secure in their positions to resist such overt pressure and rule appropriately. One non-governmental organization filed a complaint against the judge with the state Judicial Standards Commission alleging violations of judicial ethics stemming from his comments about the victim and from the light sentence. This began an initial internal investigation by the commission, which requested a statement from the judge, and is currently ongoing.
During the protests, the judge felt the need to respond and made a televised apology for his trial comments, although he stood by his initial sentence. While local judicial ethics do put some limits on judges’ freedom to speak on pending cases to avoid the impression of bias, judges are permitted to respond to criticism and can more readily address closed cases. At around the same time, the judge issued a formal addendum to his decision going into much greater detail on the basis for the sentence. This further insight into the judicial reasoning did not satisfy the protesters, however, perhaps because the information was not provided earlier and now rang false coming in response to the protests. (That is to say that the public may have recognized that the judge was no longer acting independently and impartially by responding directly to their protests, causing a further loss of credibility!)
Amidst this public debate and ongoing ethics probe, it came to light that there may also have been an error of law, as the sentence was so light it may have violated the state’s minimum sentencing standards. The judge, perhaps eager to rectify the situation and escape the spotlight, scheduled a hearing to reconsider the sentence. Allowing judges to reopen unpopular decisions and change verdicts is precisely the sort of problem judicial independence and accountability aim to prevent, so it is no surprise that Montana law forbids it, and the judge was stopped from holding a new hearing. Although the prohibition against double jeopardy means that American prosecutors can never appeal a not guilty verdict, the need for review of as many cases as possible allows for prosecutors to sometimes appeal a mistake in sentencing. In Montana, the only permissible way to review such a problem is appeal is directly to the state’s Supreme Court. An appeal of this legal question is still pending, and the case’s seventy-two year old judge of 30 years has now resigned.
There is much to praise and much to criticize in this sample case, but overall it appears that institutionalized mechanisms for judicial independence and accountability worked together to ensure that concerns were heard while being kept from improperly influencing the resolution of the case’s legal issues. The public vented its dissatisfaction through peaceful protest and the filing of a complaint through designated procedures, confident that they would have an answer. Even though the judge seemed ultimately to succumb to external pressure, meaning perhaps that his professional training and job security were insufficient to prepare him for a modern media onslaught, other mechanisms were in place to rein him in. Fair consideration of his competence and ethics is made possible by the diverse membership of the judicial standards committee, ensuring that no single department controls the disciplinary process. The judge himself may be sanctioned for inappropriate conduct and comments, but not for a ‘wrong’ judgment, as his opinion and discretion are part of the judicial process. The remaining legal issues are to be resolved only through open appeal to the Supreme Court, where a panel of judges will hear the case, checking each other through deliberation.
There is no single path to a successful balance between independence and accountability, but it is clear that independence is necessary to realize judicial impartiality and fairness. The challenge is guaranteeing independence while also allowing for accountability.
 This brief essay draws heavily on a much longer work by Professor Paul Gewirtz, also of the Yale China Law Center, which explores many of these themes in greater detail. That work can be found online in both English and Chinese at the CLC website:
The author would additionally like to thank Prof. Jerome A. Cohen, Heather Yu, and Elizabeth Lynch for their invaluable comments and counsel.
 Jeremy L. Daum is a Sr. Research Fellow and Beijing office director of the Yale Law School China Law Center.
 The sexual relations were ‘consensual’ but Montana law does not recognize consent of a child under 16 years old.