Late last month, the general offices of China’s Central Party Committee and State Council jointly released a new regulation on the ‘protection of judicial personnel in the lawful performance of their duties’. Although there have been some high-profile attacks on judges, and physical safety is one of the document’s focuses, the ‘protection’ in the regulation’s title is broader and includes measures to ensure that both judges and procurators are able to successfully perform their duties. As such, it touches on many of the most pressing issues in China’s judicial reform including:
- judicial independence,
- judicial accountability,
- job security, and
- preserving judicial order.
Below is a brief overview of the new document, which can be viewed as an implementing mechanism for article 56 of the People’s Courts’ 4th 5-year plan.
Judicial Independence is addressed in part by prohibiting certain types of improper interference with the courts’ and procuratorates’ work. Much of the content here echoes other recent reform documents, including a pair of Provisions from March 2015, aimed at preventing improper interference in the courts and justice system [summarized in a CHART HERE] and also their implementation measures from the Supreme People’s Court and Procuratorate. The first of the Provisions is aimed at preventing interference from ranking officials, while the second focuses on interference internal to the judicial organs, including the courts, procuratorates and public security organs.
The reach of the new protections document, however, is arguably broader, in that it prohibits interference from any ‘administrative organ, social group, or individual,’ although no specific penalties are given for such interference. It also empowers courts and procuratoratorates, as well as individual judges and procurators, to refuse requests to act outside the scope of their authority from any ‘unit or individual’, and threatens to hold persons making such requests accountable. [Articles 2,3]
In a further effort to insulate judges and procurators from retaliation for resisting undue interference, conditions for their transfer, termination and changes in their work conditions are also provided [Articles 4-8]. The general principle, stated in the earlier documents, is that judicial personnel should only have their work conditions adjusted for legitimate and legally prescribed reasons, so that these measures cannot become a form of punishment. This new document expands on this by listing more situations that justify each sanction or reassignment. There are also procedural protections put in place, such as requiring that the reasons for employment changes or termination be provided in writing, and that the affected personnel have the right to pursue a reconsideration, review or appeal. [Article 9]
Just as China has been making efforts to ensure that cases are prosecuted and tried free of interference, it has also been working to better hold judicial personnel accountable for improper conduct. Here again, a pair of documents from the SPC and SPP respectively have already provided substantial detail on the scope and force of judicial responsibility mechanisms.
The rhetoric around judicial accountability has been closely linked to that on preventing ‘wrongfully decided cases’, with the promise that the judicial personnel responsible for such cases will remain liable for their entire lives, regardless of retirement or transfers. This new document restates the important limitation on this rule, that judges and procurator are only liable for wrongfully decided cases that result from their intentional or grossly negligent conduct. [Article 11]
Moreover, liability in such situations should only be upon review and a hearing by a judges or procurator disciplinary committee, a new structure currently being phased in. At such hearings, the accused is allowed to make statements and present a defense. [Article 14] Violations other than those in adjudication are to be addressed through separate procedures.
The areas of reform touched on above put individual judges in a difficult position. They are required to be more active and bold in handling cases and resisting outside interference, but at the same time have their own conduct placed under additional scrutiny. This bind, and personnel adjustments within the judicial organs, have led to a fear that many judges and procurators might leave the profession for higher paying jobs in the private sector.
A number of provisions in the new document seek to ensure the security and satisfaction of judicial personnel. These include a right to breaks and leave-time, with comp-time or overpay systems to make up for overtime hours, [Article 20] and protection of medical and pension benefits [Article 21]. Promotions that are delayed due to ongoing discipline investigations are to be granted retroactively after a favorable outcome. [article 16]
Perhaps more critical are comments on the judicial performance evaluation 考核 system, which is a great source of pressure. Judicial reforms have emphasized refining the system to better reflect the unique nature of judicial work. In the past, review indexes have overly emphasized quantifiable features, such as the number of cases handled, which this document expressly forbids. The document also insists that performance indicators not go beyond the scope of professional duties and ethics, seemingly in an attempt to ensure that evaluations are fair and strictly ethics based.
As mentioned at the beginning of this summary, some of the provisions in the new document do seek to protect judges and procurators from harm. This is also, of course, to protect their independence which could easily be encroached upon if judges felt threatened.
Measures to this end include offering special protections to judges who are handling high-risk cases, and also to their families. Those handling cases of terrorism, organized crime, cult activity, or big drug offenses, are entitled to special protections including concealing the identity of family members. [Article 18] The document also calls for severe punishments where judicial personnel are harassed, through stalking, threats, abuse, or intimidation, destruction of property and even protection of personal information. [Article 17,19]
Preserving Judicial Order
As was true with many of the items discussed above, the items included in this section here could have easily been included within another section as well; just as the items on protection could be viewed as an essential protection of independence. A special category is created for articles that maintain order, however, because this has been a major and controversial theme of judicial reform. The goal in highlighting these provisions is to show that some of the judicial protections mentioned in the document could easily be used as swords as well as shields.
Articles stressing protection from physical attacks, for example, also provide for ‘severe’ punishment’ for those who ‘defame’ or ‘demean’ judicial personnel and their close relatives. [Article 17] Another article calls for responsibility to be pursued where harm is caused to the “reputation” of judges and procurators via the internet or other information networks. These are all vague terms that suggest a low bar to punishing individuals for supposed disruptions of judicial activities, or even for talking negatively about a judge outside of court. Similarly, the ability to pursue liability of those who injure a judge’s dignity by revealing personal information [article 19] should be refined to require a definite showing of harm before it is actionable, to prevent its overreaching.
Ensuring that judges and procurators can independently and effectively perform their duties is necessary for realizing China’s many legislative reforms and for increasing public confidence in the legal system as a whole. Accountability is also major part of this, countering public perceptions of rampant abuse and neglect of judicial authority. Whether it comes from within the government, court leadership, or external threats, judges and procurators must be protected so that they can make objective and independent decisions.
At the same time, there must be clear procedures in place for the protection of falsely accused judges, and also of the rights of others in relation to the courts and procuratorate. Just as it is essential that protections exist to let judicial personnel know they will not be penalized for lawfully performing their duties, judicial personnel must also be confident enough in their authority to endure disparagements and insults of the public and those before them. Unlike with higher ranking officials or supervisors, not all derision by a normal citizen or lawyer carries the implicit threat of real consequences to one’s post or career, and while a leader’s remarks inside or outside might be seen as influencing a case, this is not necessarily the case with out of court statements comments by those without such authority.