Gaps separate ideal, realities of judicial transparency

BY By WANG XIAOMEI | 11-07-2016
(Chinese Social Sciences Today)


The Supreme People’s Court invited envoys from 16 foreign countries to an open day to observe trials in Beijing.

Judicial transparency is the product of past reforms and the basis of those to come. In reform, transparency is a tool to prevent corruption, safeguard judicial authority and improve the performance of judges.

Over the past few years, the Institute of Law at the Chinese Academy of Social Sciences (CASS) conducted a nationwide survey on a variety of annual indexes, including judicial transparency. The project examines judicial organs at four levels—from the Supreme People’s Court to the grassroots courts—forming a relatively complete index system.

Disclosure model
The establishment of open judicial platforms is becoming increasingly centralized. Under the former model, the local courts established their own open platform channels on the Chinese court network. In response to the growing demand for judicial information disclosure, some courts upgraded their websites, while others started from scratch.

The homogeneity of case information is higher than that of government information. In order to integrate judicial data in China, the Supreme People’s Court started to work on a unified national platform for case information. Simultaneously, some provincial and municipal courts followed the same trajectory and opened local platforms, offering public access to case information.

China’s open judicial platforms can be categorized into three models: centralized, partially centralized and dispersed. These three forms coexist, leading to a number of issues, such as redundant information, high costs for platform construction and maintenance, and difficulty of access.

To further promote judicial transparency in China, the model of open platforms should be clarified. First of all, case information should be categorized and opened to the public. Some information concerning commutation and parole, verdicts, and enforcement is suitable for a national centralized open model. Other information should be released in a partially centralized or dispersed way, such as live broadcasts of trials, which require more memory and could be hindered by a slow streaming speed.

Second, coordination between national open platforms and their local counterparts should be established so that case information on the national website is not uploaded to local ones unnecessarily. The Supreme People’s Court has launched a series of open platforms where the public can access information about commutation and parole, verdicts, and enforcement as well as a blacklist concerning people with criminal records.

Local courts can upload judicial information to the national open platform and link it to their own websites. They need to avoid uploading redundant data to enhance the efficiency and effectiveness of judicial transparency.

In addition, the amount of information that needs to be released on local websites will be greatly reduced after reams of data having been uploaded to the national open platform. There is no need to invest a huge amount of manual labor and financial input in building and maintaining websites of local courts. It is wiser to focus on one open judicial platform rather than build many overlapping ones.

In terms of case information with a high degree of homogeneity, courts at three levels should make collective efforts to establish one specific website and release case information in a centralized way. In the long run, judicial transparency will inevitably require a centralized and economical model before it can become mature.

Free information
The contradiction between free and fee-based services is a fundamental problem of judicial transparency in China. Information disclosure without charge is a principle of freedom of information, but in practice, some courts are driven by financial interests. They view court information as a commodity that they can capitalize on by publishing judicial interpretations, annual work reports and court gazettes.

For example, the gazette circulation of Supreme People’s Court is less than that of government and the Standing Committee of the National People’s Congress (NPCSC). Gazettes constitute an important channel for entities and government organs to publicize important events or major decisions. They play a pioneering role in the system of information disclosure. At present, governments and people’s congresses at all levels consider gazettes to be important tools for releasing information. The public can log on to government and NPC websites to review and download it.

The court gazette mainly records events during a period of time, such as important meetings, major activities, personnel changes as well as institutional documents. The Supreme People’s Court considers the gazette to be the most authoritative platform for releasing case information to the country and the world and hopes it will play a greater role in advancing judicial transparency. However, it still publishes the information for sale.

Courts sell their gazettes to the public, exposing a contradiction between public information rights and intellectual property protection. Access to public information is the basic right of citizens in modern society. According to law, any citizens, legal persons and other organizations have the right to obtain information of government agencies.

The public should not have to pay twice for public information. Although the annual reports, gazette, white papers and statistical data of the courts have been processed by the judiciary and are intellectual achievements, the taxpayers have already paid the costs. In other words, the intellectual property rights enjoyed by a public authority are limited.

The regulations on releasing verdict documents of Supreme People’s Court on the Internet took effect on Jan. 1, 2014. Compared with the 2010 regulations, the new ones have improved greatly. For example, the period between verdict implementation and information disclosure has been shortened from 30 days to seven, reflecting promptness as a principle of judicial transparency.

No doubt, the efforts of Supreme People’s Court have led to a surge in the number of released court documents. However, the documents that have not been opened to the public account for a larger proportion. The fundamental problem lies in the existence of exceptions.

According to the fourth article in the regulations, verdict documents are allowed to remain secret to the public when they “are not suitable for online disclosure.” This form of exceptional circumstances leaves room for discretion. As the main body of judgment, judicial organs tend to avoid releasing information on the Internet when they are not willing to do so and the fourth article will be their excuse.

In order to promote maximum transparency, all verdict documents—besides those concerning state secrets, personal privacy and juvenile delinquency cases—should be released on the Internet and the right of courts to exercise discretion should be abolished.

Trial observation
In the Internet era, judicial transparency in China has gone viral in virtual space, such as official websites, phone messages and applications. The channels and forms of judicial transparency are continuously undergoing innovation, allowing interested parties and the public convenient access to case information through modern communicative tools.

However, in real space, the courtrooms are keeping the public away, forming a huge contrast with the online circumstances. It is a crucial civil right to witness trials in the courtrooms, which enables public participation in judicial verdicts and supervision. In order to measure the level of public access, the innovation project members from the Institute of Law of CASS have carried out a series of field experiments. They checked trial notices in advance and went to a number of open courtrooms.

The survey outcome shows that the right to observe trials is blocked in some cases. A number of courts require the permission of judges or interested parties, but contact information for judges is not available. Entrance guards of some other courts claim that only relatives of the interested parties can watch trials.

A majority of courts have relatively high requirements for trial spectators, such as consent of judges or clerks, as well as the exchange of identity card for entrance card.

In terms of open trials, citizens should theoretically be allowed to enter courtrooms after a security check if there are available seats. Therefore, the Supreme People’s Court should regulate the hearing procedure and prohibit the establishment of unnecessary requirements.

Wang Xiaomei is from the Institute of Law at the Chinese Academy of Social Sciences.