Sunday, November 25, 2007

Will Death Penalty Review Overwhelm China's Supreme Court?



A Cold, Hard Look at the Supreme Court’s
“Expansion of the Ranks” of Criminal Judges
By Ni Jian, Beijing (Scholar)

The Supreme Court is the symbol of justice and equality in the system of state power. Put plainly, the number of cases that make it to the Supreme Court should be strictly limited to only those that are essential, substantial, and that will have general relevance for lower courts hearing similar types of cases.

Registration for the 2008 central government civil service examination has closed, with the number and composition of available positions in government bureaus remaining steady compared to last year—but, I noticed the biggest change was in the Supreme People’s Court (SPC). According to its recruitment plan, this year the SPC will hire 120 “criminal judicial officers” and nine “civil and administrative judicial officers.” Compared to previous years, in which roughly 20 new hires were sought, distributed more or less evenly between criminal and civil tribunals, this is a fundamental change.

It should be pointed out that such a change was predictable. Since January 1, 2007, authority to carry out review of death sentences has returned to the SPC, and, in order to meet the work burden of the large number of capital cases sent annually for review, the court began its largest “expansion of the ranks” since the founding of the PRC, adding three criminal tribunals and several hundred judges. Except for judges picked from local courts and institutions of higher learning, all of these new judges are chosen based on the results of the civil service examination.

Following the tremendous shock caused by the She Xianglin and Nie Shubin cases, among others, the legal community and the general public both feel that the death sentence should be handled with utmost caution and that the power to review capital cases should only be exercised by the highest judicial institutions. This has developed into a kind of social consensus. However, the volume of cases that have flooded the SPC as a result will have a considerable impact on the composition of the ranks of judges at the court, as well as its style of judgment and overall character. This deserves more attention.

The Supreme Court is the symbol of justice and equality in the system of state power. Put plainly, the number of cases that make it to the Supreme Court should be strictly limited to only those that are essential, substantial, and that will have general relevance for lower courts hearing similar types of cases. For this reason, many countries employ a system in which courts decide whether or not to accept cases for appeal, based primarily not on considerations of the right and wrong of a particular case but on whether a decision in that case can solve a certain type of problem that is the focus of society. People expect that the extremely large number of death-sentence review cases will have no impact on the court’s ability to carry out its most important responsibility, “ensuring judicial authority.”

Under a Chinese court system employing four levels, two trials, and final judgments, only a very limited number of civil and administrative cases get to be heard by the SPC; death penalty cases will make up more than 90 percent of the total number of cases heard by the court. Consequently, the ranks of SPC judges will be dominated by the large number of criminal court judges, who also will make up the principal part of the [court’s] adjudication committee. This could have an impact on the Supreme Court’s character and functional effect. Historically in China, rectification of problem cases and review of death sentences, through institutionalized procedures such as the “autumn assizes” and “court assizes,” were always the primary responsibility of the central judicial body, whether it be the Board of Punishments or the Court of Judicial Review. However, looking at the last one or two hundred years of experience in the West, the Supreme Court’s role in promoting fairness in individual cases and supervising lower courts has gradually been marginalized in favor of a more active role in economic life. For example, the series of rulings on contract freedom by the US Supreme Court basically led to the development and rise of the entire country.

The authority of an institution is typically determined by the character, quality, and reputation of its members. Compared with the past, we’ve seen the educational requirements for SPC judges drop from a doctoral degree to a master’s degree—a concession perhaps necessary in light of the recruitment needs. Though I don’t believe that academic background counts for everything, I still feel that under China’s present circumstances it is necessary to preserve a high threshold for [positions on] the Supreme Court. Only by selection according to the most exacting standards can SPC judges be differentiated from other ordinary civil servants and garner society’s trust and approval.

We live in an interconnected world, where a perfectly normal systemic adjustment enjoying popular support can produce many indirect negative consequences. We should proceed with caution.