International Law

Lubman on China Judicial Reform and the Problem of Public Pressure

By Stan

Stanley Lubman’s latest China law article on judicial reform is as usual a must-read for the China law set, not to mention business types who need to be aware of legal trends here. The article covers not only specific influences on judicial activity (e.g. when a Party official influences a particular case because of politics or financial interest), but also broader influences on the policy of judicial reform itself. How the Party wants to use the judiciary towards specific policy ends, such as mediating disputes over property and environmental degradation, is a very interesting discussion.

Of even more interest to me is the influence of public opinion on the judicial process, and here I would bring in the entire law enforcement infrastructure, which would include the police (PSB) and prosecutors (PP).

New pressures on the courts originate from the media, from protests, and from petitions, of which almost four million reached the courts in 2005. Activist lawyers, especially when their lawsuits generate unwelcome publicity, add to the pressures.

The Party-state wants the courts to act as safety valves, both to bring grievances to the attention of officials as well as to obtain remedies for the violation of rights. The courts respond to concern for social stability, but as government agencies they also contribute to strengthening the overall capability of the Party-state to expand its abilities to resolve grievances and deal with abuses, all within Party oversight.

So the Party has policy goals, the public has grievances, and the judges are supposed to fix the unpleasantness to ensure a Harmonious Society. This is a tall order. To make matters worse, a lot of the public pressure these days involves areas like criminal law, where you have specific incidents that become infamous via online popularization.

I have talked about several of the better-known cases on this blog in the past. Many of them involve suspected police abuse, protection of local officials who are accused of things like rape, and personal injury cases where compensation has been lacking for one reason or another.

What worries me about this phenomenon is that the Net allows for mob mentality. When “justice” is served, everyone is happy (not that I condone the process). But when the public gets the facts wrong (easy to do when all you have is rumor and speculation), the police and prosecutors can be treated quite badly through no fault of their own. And worst of all, judges feel a great deal of pressure to act towards a specific outcome notwithstanding the merits of that particular case.

Dangerous stuff. I hope to have more time in the future to write about this topic.

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Post tags: china judicial reform, political influence, rule of law, stanley lubman

Full post as published by China Hearsay on March 09, 2010 (boomark / email).