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by Jeremy Daum
The core content of recently released companion Provisions aiming to prevent improper interference in the courts and justice system are summarized in the CHART BELOW. The first document is aimed at preventing interference from leading cadres, while the second focuses on interference internal to the judicial organs, including the courts, procuratorates and public security organs. full translations can be found HERE and HERE.
The Reform Plans for both the Courts and Procuratorate both mentioned creation of such systems, and while this is the beginning of realizing that objective, the document on internal interference calls for relevant judicial branches and ministries to also draft further specific rules. A few quick notes:
1. Practical Value: The primary mechanism of the provisions is requiring a record to be kept of unlawful interference in cases. This is sort of like fighting corruption by requiring that bribes be kept on the books. If the interference is successful, meaning the cop, judge, or prosecutor is receptive to the power or incentives being used, it will likely also succeed in having them not keep a record.
The primary value will be deterrence. An interfering official would need to be more confident that the judicial personnel he approaches can be cowed or enticed, lest they might report him upwards. A judicial official subject to influence who was on the fence, might also be empowered by these Provisions to do the right thing. There are some negative consequences for failure to record interference, but these begin with a warning the first time you get caught, so it is less likely to have an impact.
2. Visibility: Much of the reporting of this these provisions discusses that violators will be publicly named and shamed, but based on a first reading of these rules alone, that isn’t clearly the case. Instead, the discipline procedures in both documents (unless amounting to a crime) seem largely internal, calling only for release to the public “when necessary”.
The Court Reform Plan (art 55) also mentioned that records of all improper activity would be kept in the case file for at least the parties to see, but that isn’t clearly stated here. Instead, the discipline procedures in both documents (unless amounting to a crime) seem largely internal, calling only for release to the public when necessary. In the internal interference provisions, putting records in the case file is only mentioned for proper comments by higher-ups given to personnel handling a case, not for improper interference [although the SPC may add this in its implementation measures].
Much of the value of these Provisions is in persuading the public that the courts and justice system are credible and fair, but handling the situation behind closed doors can only foster suspicion.
3. Exceptions: Another challenge in implementing the provisions will be identifying improper conduct, because some contact by leadership on ongoing cases, particularly within judicial organs, is permissible in the Chinese system. Other judicial reforms have emphasized making in-court activity the center of trial, in part to minimize reliance on court leadership, adjudication committees, and requests for instruction to higher courts to resolve difficult issues. Cases are still allowed to be discussed with persons not directly hearing the case in some circumstances, however- and knowing when this becomes improper interference will be difficult.