Jamie Horsley and Robert Williams Engage Chinese Judges and Scholars on Judicial Transparency
In recent months, The China Law Center’s work on judicial reform and government transparency have converged in tandem with new efforts by the Chinese government to promote openness in China’s court system. Among other developments, under the leadership of recently appointed Supreme People’s Court (SPC) President Zhou Qiang, the SPC announced an ambitious new requirement (effective January 1, 2014) that court decisions from across the country be posted online to a central web database. Just preceding this announcement, our Center took advantage of an exciting opportunity to support reform efforts in this area, culminating in a series of workshops in October 2013 on judicial transparency and the handling of court cases involving China’s Open Government Information (OGI) Regulations.
In connection with these workshops, China Law Center Executive Director Jamie Horsley and Senior Fellow Robert Williams worked closely with U.S. District Court Judge Barbara J. Rothstein of Washington, D.C. and U.S. District Court Magistrate Judge Stephen Wm. Smith of Houston, Texas—both noted experts on court transparency and the handling of cases involving disclosure of government information. Among the important issues addressed at our programs were open and clear judicial standards and processes for accepting cases; transparency in the process of enforcing court judgments; the publication of court decisions and related documents, including how to do so in a way that makes them accessible both to legal professionals and the general public; open trials, including whether and when to allow cameras and social media reporting in courtrooms; striking a balance between judicial transparency and concerns about individual privacy, national security or trade secrets; and improving the reasoning of judicial decisions to promote fairness and public confidence in the judicial system—an issue closely related to other China Law Center work on court reform, notably with respect to the SPC’s “guiding cases” system.
On October 14, we took part in an intimate roundtable on transparency of the judicial process organized with our partner Professor He Haibo of Tsinghua University School of Law. The roundtable was attended by representatives from the SPC Judicial Reform Office and the Beijing High Court as well as prominent scholars. Participants brought a deep understanding of the issues facing China and a keen interest in hearing the perspectives of our U.S. judges, who provided insight on a range of questions such as the sealing of cases, the use of gag orders, media access, the use of pseudonyms to protect the identity of juveniles in litigation, the need to distinguish between privacy and mere embarrassment, the relationship between transparency and constitutionality in the United States, and more.
For the centerpiece of our workshop series, in coordination with our longtime partner and China Law Center Fellow Professor Wang Xixin of Peking University (PKU) Law School, we co-hosted a full-day workshop on October 15 on the theme of Transparency and the Courts. The Chinese workshop participants included over 60 judges from the Supreme People’s Court, provincial high and intermediate courts and municipal courts from around the country, government officials, lawyers, academics and journalists. In the morning session, a panel of Chinese judges raised particular issues they face in handling OGI cases in the Chinese context, Judge Rothstein explained how the U.S. federal courts would deal with such issues in deciding U.S. Freedom of Information Act (FOIA) cases, and U.S. and Chinese panelists engaged in a lively exchange of views and responded to active questioning from the audience. Professor Wang presented a report developed by his “OGI Watch Alliance” team containing findings and policy recommendations related to judicial review of OGI cases. The team’s analysis of judicial handling of OGI cases over the past five years revealed a surge in OGI lawsuits after a slow beginning and that, although plaintiffs still win less than 20 percent of the cases, the percentage of requester success continues slowly to increase.
The afternoon session on October 15 was devoted to transparency of the judicial process, including open trials, open decisions and their online posting, and media access. Judge Stephen Smith introduced the American system and historical roots of judicial transparency, and Chinese district court judges used his insights as a springboard to offer their own perspectives and recommendations on how Chinese courts can become more open and fair forums for advancing the rule of law. This unique opportunity to bring together judges to discuss reforms and the complexities of the judicial profession in China stimulated an impressive dialogue and exchange of ideas. Professor Wang’s team of researchers at PKU Law School also compiled and distributed to conference participants a comprehensive set of background materials on judicial transparency, which included a judicial transparency assessment methodology for which our Center provided substantive input.
The final event of our judicial transparency program was a roundtable discussion on October 16 at the Central University of Finance and Economics (CUFE) Law School, organized in coordination with CUFE Dean Guo Feng and Professor Gao Qinwei. Dean Guo, who is also seconded as Deputy Director of the SPC Research Department, chaired the meeting. After his opening remarks, our experts gave presentations and answered a host of questions on issues ranging from classified information and the role of a case precedent system in promoting transparency to the confidentiality of jury deliberations and live-blogging in the courtroom. Following the October 16 event, our CUFE counterparts compiled our experts’ presentations and an account of the comparative discussion into a comprehensive report for consideration by judicial policymakers.
This work on judicial transparency comes at a fascinating moment, as China’s judiciary has begun to implement a series of reforms related to court openness. In addition to requiring that all courts post their judgments online, the SPC has also issued opinions on improving “judicial credibility” and has made new rules for access to court information, case status and enforcement information. While they are not comprehensive in addressing the array of challenges to judicial openness, such measures represent important steps forward toward accountability, professionalism and independence in China’s judiciary.