About 10 years ago, a lawyer with a major firm in Hong Kong was involved in a case over the mainland boundary in Shenzhen. She arrived at court one day and was surprised to find that the judge had been replaced – and his replacement looked oddly familiar.
“Eventually she realized it was the previous judge’s driver,” recalled Stuart Valentine, a partner in the Hong Kong office of Mallesons Stephen Jaques. “He had clearly received no legal training.”
There is little doubt that China’s judiciary has improved since then. The question is how much.
Just over 8 million cases were heard in Chinese courts last year, according to data supplied by the Supreme People’s Court, up from around 6 million in 2002. Of this 8 million, 2.15 million generated rulings were successfully enforced, 300,000 fewer than in 2002.
Given that judges weren’t required to have relevant qualifications before the mid-1990s – the original post-reform judges tended to be de-mobbed military officers – it’s not surprising that the well-trained ones are still few and far between. According to the Supreme People’s Court, the number of trained judges more than doubled last year over 2005 to reach 230,000.
While some might contest that a trained judge doesn’t necessarily equate to a capable one, there is a general consensus that there is still a shortage of judges and lawyers in the system.
“The risk attached to introducing all these new laws is that there are not enough judges to hear all the cases,” said Steve Dickinson, a Shanghai-based partner with boutique law firm Harris & Moure and one of the authors of the China Law Blog.
“There is a concern that the courts will just get even more backed up.”
Dickinson, who ran the University of Washington Law School’s training program for Chinese legal professionals in the 1990s, is upbeat in his assessment of local judges – in the major cities, at least.
He blames criticisms from other foreign lawyers that judges lack experience and sophistication on a lack of familiarity with the system. Under the UK and US common law system, judges must first prove themselves as lawyers. In China, as in other civil law countries such as France and Germany, law school graduates opt to pursue a career in the judiciary. They have appropriate further training but nevertheless end up on the bench at a relatively young age.
But this doesn’t satisfy everyone.
“People say China is a civil law system, but this is pushed to the extreme in that the courts and judges are just minor players,” said Jacques deLisle, a professor of law at the University of Pennsylvania who specializes in contemporary law and politics in China.
“It is leagues behind what has gone on in continental Europe.”
The complaint that judges are not accorded the same level of authority as their foreign counterparts – “They are treated more like employees,” said C.F. Lui, a senior associate at law firm Baker & McKenzie in Shanghai – is a common one.
Punishments for undermining the legal process are light. Judges have limited scope to act against disobedience, the forging of evidence and perjury, which means there is a greater risk of people not taking the judiciary seriously.
This spills over into enforcement of judicial decisions, an area where China has been particularly lax. Valentine recalls dealing with a certain foreign company that frequently ran into problems with local firms that bought its equipment but defaulted on the payments. Unable to find much traction in the courts, the company figured out that the best way to recover the equipment was simply to wait until dark and go into it to retrieve it directly.
Putting it right
Many of these judicial shortfalls were addressed as part of a reform plan delivered by China’s chief justice last March to the National People’s Congress. The goal is to deliver a more transparent and disciplined legal system – and more money is required to do this. Government investment in the judiciary has risen by US$3-4 billion per year over the last few years and stood at just over US$28 billion in 2006. But lawyers don’t believe this has borne much fruit: Courts are still under-resourced and IT-deficient while judges are still underpaid.
“Anyone would have a much better life working for a large Chinese law firm or an international law firm than being a judge,” said Valentine.
Yet this issue of fair pay taps into a much more deeply rooted problem within the judiciary: local political influence.
Judges are appointed, paid and retained by the local authorities in whose courts they preside. And before making a decision, a judge is supposed to refer the political and legal content of the case to an adjudication panel controlled by local party members. It is unclear whether the adjudication panel becomes involved in all cases or whether there are certain situations in which a judge is allowed to proceed of his own volition.
“These panels are a means for political interference in the judicial process,” said a partner at an international law firm in China who asked not to be named. “They are deliberately non-transparent.”
What this system inevitably throws up are situations in which judges find themselves in a bind: they have to make rulings in cases where their direct employer – the local government – is the defendant or at least has a vested interest the result. Calling it the wrong way can have severe consequences.
Local leverage
This was the experience of Judge Li Huijian who, presiding over a court in Henan province in 2004, was faced with a seed price dispute that pitched provincial law against national law. Li sided with the national law, declaring the provincial one invalid, only to be set upon by local legislators who believed “their” judge had committed an act of judicial revolt. Had the situation not attracted national attention – and ultimately high-level intervention – it could have cost Li her career.
According to Valentine, most judges simply avoid making the hard decision and procrastinate and mediate in the hope that government officials will engineer a compromise.
“I’ve been involved in a lot of cases in China since 1986, and in each one I have been disappointed,” he said. “The cases have been resolved through the government organizations putting pressure on the other side to come to an agreement.”
He now makes a point of telling foreign clients that China’s courts are really just a small part of dispute resolution.
“Ultimately you would hope to have a political system that is compliant with rule of law,” added Li Xiaoming, a partner with law firm White & Case in Beijing. “There is a lot to be desired here.”
