Saturday, December 3, 2011

China and its Adjudication Committees

In authoritarian regimes like China, courts and their judges decide legal cases behind closed doors.

How they do so is rarely examined — but is critically important in comparative judicial studies. China’s unique Adjudication Committees are the highest decision-making body in any court, and operate at each level of the Chinese court system, wielding enormous influence.

By analysing the minutes of the Adjudication Committee from a basic-level court, several patterns can be found regarding their operational and decision-making processes. First, almost all of the criminal cases (96.8 per cent) were reviewed by the court’s Committee, as a result of jurisdictional rules. Second, and more importantly, the Committee modified almost 41 per cent of the adjudicating judges’ suggested opinions in criminal cases — a much higher proportion than in civil cases. Third, the Committee tended to increase the penalty given to defendants, especially when the penalty was a fine.

Overall, the data suggests that among the criminal cases reviewed by the Committee, legally speaking, very few were difficult or significant, but a relatively high percentage of the adjudicating judges’ opinions were modified. In contrast, many of the civil cases reviewed were legally complex, but the Committee was less willing to intervene.

The data also suggests that decision making within the Committee is dictated by the administrative ranking system inside the court, meaning the court president’s authority is enormous. In fact, among the criminal cases in which the adjudicating judges’ suggested opinions were changed, 91 per cent were changed largely according to the president’s suggestions, and 7 per cent according to the director of the criminal division. Only 1.3 per cent of changes were based on other members’ suggestions.

Furthermore, the data and analysis suggest that instead of achieving its declared goals, the Committee has largely degenerated into a device to shelter individual judges and Committee members from responsibility. In particular, judges adjudicating civil cases will submit difficult examples to the Committee, thus divesting themselves of responsibility. In criminal cases, adjudicating judges do not have much choice as to whether or not to submit for review — but being reviewed by the Committee is not inconsistent with their interests, as once a case is reviewed, the risk of being caught for corruption or for deciding cases incorrectly almost disappears.

Committee members are equally safe. Since neither a vote nor a signature is required to enforce their decisions, members can easily inject their legal and extra-legal views without taking personal responsibility for any subsequent outcome. This is also true for the president, who decides on the majority of reviewed cases, but who does so in the Committee’s name. And for particularly significant cases that may have social consequences (for which the president may thus be held responsible) he can simply suggest the Committee seek instruction from upper-level courts, or communicates with the local government in advance about his ruling. Consequently, the Adjudication Committee creates a black hole of responsibility in China’s legal system.

The Committee ultimately plays a limited role in promoting legal consistency and resisting external influences. Given these findings, researchers must turn their attention to rethinking the appropriate role of the Adjudication Committee in Chinese courts specifically, and the relationship between judges and the regime in authoritarian states generally.

Author: Xin Frank He, City University of Hong Kong East Asia Forum

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