21 April 2009

Public Opinion and the Administration of Justice in China

Following on the heels of the "Lingbao post case," recent days have seen Chinese media report yet another case involving local authorities using charges of "defamation" to silence critics. In this instance, a man named Wu Baoquan was detained by police in Ordos, Inner Mongolia, after he criticized illegal land grabs online. Initially sentenced to one year in prison, Wu appealed the conviction and saw the appeals court send the case back for retrial on the grounds that the lower original court's finding of fact had been unclear. The case was retried, with no introduction of additional evidence, and Wu saw his sentence increased to two years!

The main lesson being drawn from cases like these is that it is necessary to allow greater public oversight of Chinese law enforcement. In fact, I dare say that one reason why so much ink has been spilled on these cases in Chinese papers of late (here, for example) is because journalists are engaging in a public plea for more leeway to carry out their professional duties in China's restricted media environment.

In a column in today's China Youth Daily, Xie Yuhang writes: "Judges decide cases independently, but the fairness of their judgments must undergo examination by the public, who serve as arbiters. . . If the public accepts the fairness of a judgment, it determines the authority and value of the court and, ultimately, the effectiveness of the judgment's implementation."

On the surface, Xie's argument in favor of greater public scrutiny and oversight of the judiciary sounds good as a remedy for clear miscarriages of justice. In these cases, public opinion tends to be on the side of justice for individuals whose rights are not being protected. But I was struck as I read this: isn't it equally possible to imagine cases where having judges be guided by public opinion might lead to other kinds of miscarriages of justice? Cases involving less sympathetic characters whose rights nonetheless deserve protection under the law?

This is, in my reading, part of the concern that's been raised with regard to the "three supremes" policy that is currently guiding China's judicial system. As Professor Jerome Cohen has pointed out, this shifting emphasis towards making judges more accountable to public opinion seems to have come at the expense of promoting the creation of a more professional, independent judiciary in China. While more public oversight (which, by the way, assumes greater transparency) over China's courts is probably a good thing as a general rule, it's not the only—or even the best—solution to the problems facing China's courts and the problem of how to ensure justice for Chinese defendants. A better trained, more professional, less overworked judiciary given space to decide cases on the basis of the provisions or the law and the constitution seems a much preferable, long-term strategy to me.

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