It seems every time a Chinese court hands down a verdict in a sensitive case—particularly criminal cases involving political dissidents—someone suggests the decision was decided in advance and “came from above.” Such statements do not display much faith in the fairness of China’s judicial institutions, and this lack of faith is unfortunately encouraged by the secrecy and lack of transparency surrounding the handling of sensitive cases. But the basic premise—that decisions on how to handle certain cases in China are made outside of the formal judicial process—is beyond dispute. In fact, some even argue it is an advantage of the Chinese system.
Unique Chinese Institution
“Adjudication committees” (shenpan weiyuanhui) are unique to the Chinese judicial system and exist at each of the four levels of China’s court system, from basic-level county courts up to the Supreme People’s Court. The committees meet regularly to discuss important or difficult cases, “sum up judicial experience,” and review other important matters related to case adjudication. Generally, they are composed of the president and vice-presidents of the court, as well as the heads of the court’s tribunals—many of whom are, in effect, administrators rather than working judges.
Committee meetings may be attended by the head of the procuratorate, which has a dual function as prosecuting body and overseer of judicial activity, as well as members of the judicial panel hearing the case under discussion. Court rules encourage submission of written case reports summarizing the facts of the case, major issues of contention, and preliminary opinions on how the case should be handled, but some cases are simply presented orally. Detailed minutes of the committee’s discussions are kept, but they are classified as state secrets and do not become part of the formal trial record.
Among cases that adjudication committees routinely take up are those “involving serious threats to national security,” the death penalty, and “important” matters involving foreigners or persons from Hong Kong, Macau, or Taiwan, as well as cases with multiple parties (quntixing anjian) that have a major social impact or could easily intensify conflicts. Meetings are held several times per month, and multiple cases are normally discussed at each meeting. According to records published by the Foshan Intermediate People’s Court in Guangdong Province, that court’s adjudication committee in 2003 considered nearly 20 cases every month, more than half of them criminal cases.
Flaw or Feature?
Article 14 of the UN International Covenant on Civil and Political Rights requires States to provide “competent, independent, and impartial” tribunals to resolve criminal and civil disputes. The debate over adjudication committees that has taken place in China over more than a decade is often about the definition of “judicial independence.” For many, “judicial independence” means that judges decide cases based on the facts and evidence presented at trial, without being subject to outside influence. However, the Chinese judicial system places emphasis not on independent individual judges, but on the independent administration of justice by courts as institutions, subject only to the law.
One view of adjudication committees emphasizes their supervisory role, seeing them as a necessary guarantee of both quality and fairness in the administration of justice in China. This argument concedes that, at its present level of development, China does not have enough judges with suitable levels of experience and professionalism to meet the demands of its judicial system. So it might in fact be beneficial to have an internal court institution to guide judges’ handling of difficult cases and cases in which external parties might attempt to exert pressure and influence the judicial process.
The practical ability of adjudication committees to perform this function is hindered by their complex make-up. Typically, most of a court’s adjudication committee members also hold leading roles in the court’s Party organization, enabling adjudication committees to act as a principal channel through which the Party may influence judicial proceedings, particularly through the local political and legal committee. Cases in which there is a particular political interest—whether it be the handling of an incitement case against a political dissident or an administrative suit against a government agency—exemplify “important or difficult” cases on which the Party’s opinion might matter a great deal. While such an arrangement is a feature of institutions throughout China, it is easy to see it as an impediment, not a catalyst, to a more independent judiciary.
Another concern is that committees lack transparency and detachment from court proceedings such as witness testimony and the presentation of arguments. “Visible justice” has never been a strong aspect of China’s judicial system, with a far greater focus placed on achieving proper outcomes. The institution’s defenders argue that adjudication committees have value if they can help ensure courts render correct decisions. They point out that Chinese law allows for many proceedings to take place without court hearings, and that facts of a case can be sufficiently determined from documents. There certainly is room to increase transparency in how adjudication committees operate, but in this view their advantages outweigh their disadvantages.
Not long ago, it appeared China would eventually eliminate adjudication committees as a step toward adopting international standards. These days, the fact that adjudication committees are unique to China’s judicial system might well be seen as a reason to retain them as a prominent feature of China’s “socialist rule of law.” Debate will no doubt continue over the institution’s future, but will likely focus on how to increase transparency and formally regulate its role in the judicial process, not on whether it should be eliminated.