Judicial Independence Versus Public Supervision

At the annual Supreme People’s Court conference on publicity work held in early September, Deputy Chief Justice Cao Jianming announced a few new measures to limit the media’s access to several news sources, setting a future tone for releasing news of China’s judicial system.

In the presence of top officials and senior judges, Cao clearly spelled out the new rules on information release for both the courts and the media.

For its own part, the courts cannot release the following information: content related to state and business secrets or infringing on individual privacy as well as names, home addresses, photos and other related information of defendants if they are minors; progress of non-public trials; information that is deemed unnecessary to be released; rulings made by court en banc and jury; correspondence between the courts of different levels and other information the leaders of the court determine not to be released.

Media organizations are also prohibited from predicting the rulings of trials or giving opinions beyond legal procedure.

Given the new regulations, the media is also required to accurately report on actual cases with authentic evidence, avoiding any possible negative impact of false information being passed on to the public.

The Supreme People’s Court also promoted the establishment of a spokesperson system. President Xiao Yang proposed to set up an information release system at local courts to assist the spokesperson system at the central level.

A total of 65 spokespersons have been appointed nationwide to help improve communication between courts and media.

Cao said those spokespersons found to provide improper and inaccurate information to the media would be severely punished. It was also agreed that the courts and relevant staff would be charged in the case of failing to release news to the media immediately and suitably.

The announcement of the regulations was met with mixed reactions. Some said it is a step forward toward international practice, while others believe it will restrict news reporters’ right to interview, the public’s right to know and restrain the media by stifling opinion.

As a matter of fact, judges have been cautious about their public statements since 2001, when their code of conduct was enacted.

Under Article 15 of the ethics rules, judges should not be affected by media reports and public opinions at trials or when making decisions; Article 16 states that judges should not make comments that will damage the seriousness and authority of effective rulings in public places or at press conferences.

It is the arguing rules released by the Supreme People’s Court this time that have pushed the problem involving public supervision and judicial independence to hot debates again.

Currently, there are no rules, regulations or codes to clearly elaborate the subtle relationship between judicial organizations and the media. Some experts suggest the best solution would be to introduce a neutral state organization to act as a coordinator.

Judicial independence

Zhang Guifeng (Shanxi Evening News): It is essential that the judges are not allowed to accept random interviews. Superficially, it seems that all the measures are intended to prevent the media from reporting and infringing on the public’s right to know. However, it is necessary and reasonable because of the principle of judicial independence. Modern society is a society ruled by law. Without independent trials, justice cannot be realized in the real sense. Under China’s Constitution, “the people’s courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals.” Obviously, this is also applicable to media organizations.

One thing is certain. The media’s supervision shares equal importance with judicial independence. Only when reporters can work without interference will the public be better informed and their legal rights protected. Under China’s Judges Law, judges shall perform their obligations including the duty to accept legal and public supervision.

The centerpiece of the debate is about balancing judicial independence and accurate news reporting.

Liu Wujun (research fellow with the Ministry of Justice): To me, to warn the judges to watch their words is to set the professional ethics rules for them.

The judges should not be involved in the arguments of the parties concerned. The courts are places to interpret laws, and judges are there to make fair decisions on cases of subtle distinctions through rational thoughts. The judges, like the soccer referees, should be neutral and objective. Chatty judges at trials would be a disaster for both the defendants and the plaintiffs. Judges are not lawyers, who are eloquent and can talk smoothly to convince people. Judges are there to reach careful and accurate rulings that are consistent with the spirit of the law. The value of judges is their fairness.

Outside the courts, it is also impossible for them to talk a lot and give random opinions. Instead, they should behave like diplomats. Generally speaking, the presiding judges cannot accept any interview during the trial; also they do not have the right to publicize any inconclusive points. To solve the communication problem and to curb the curiosity of the media, judges can appoint spokespersons. On the one hand, this is convenient for media accuracy, while on the other hand, it would prevent any outside interference in the jury.

Ouyang Mijian (21st Century Business Herald): The new rules are aimed at controlling the judges but not the media. Judges and court staff are disciplined for giving interviews without approval, but journalists can still make reports around the events.

It is a great leap forward. Most state organizations try to cover things up when they feel it is improper for information to be known. The Supreme People’s Court has taken a new stance, not to limit media reporting, but to control its own staff.

Now that the courts are self-disciplined, the media should be more conscious about what to report and how. Random interviews and biased reports can easily ignore the facts. This distracts the attention of the public from the facts at hand. For reporters, facts are even more important than results.

He Jiahong (professor at the Law School of the Renmin University of China): When it is hard to get access to evidence, the media usually turns to rumors to beef up the story. Of course the incomplete scraps of information means reporting will be harmful to the judiciary process.

The right to know

Na Xiaofang (jschina.com.cn): The media is prone to make predictions about events. How could the media’s guess put pressure on the courts or even influence the final judgments? Unless I saw proof of that I would never believe it.

Honest media reporting represents the power of the public to evaluate the justice, transparency and fairness of the final rulings made by courts. Inevitably, it would be the best supervisor for the judicial system.

The courts that restrain media access to their trials are hopeful that their final decisions could not be influenced by human factors. In reality, if the judges were transparent, professional and wise enough, why would they fear having media report to the public on their work?

Dongfang Mu (Jinan Times): Accurate reporting and judicial independence play equal roles in the public’s right to know. Laws should define the ground rules of free reporting and independent trials, so that any conflicts can be resolved. As a mark of mutual respect, each side should be cautious about how to use the power given by the public.

Since the Supreme People’s Court has elevated itself to a higher position than the media, reducing the media’s ability to report, whatever balance that had existed will be damaged and the media will be reduced to a passive role.

Most Western countries are tolerant about media reports. Only when the judicial system is pressured by the public will limitations be set. Take the courts of the United States for example. Whenever media reports are intensive and subjective, judges will delay verdicts to avoid being influenced. Juries can even be hidden away from the outside world if so requested by defense lawyers.

Essentially, a judicial system short of independence is not able to handle cases properly. The outside disruptions are not the major problems, instead the resistance to administrative power and bribes will be the best way to avoid corruption of judges and wrong rulings. In this regard, accurate media reporting will be beneficial to judicial independence in the long run.

Wei Wenbiao (Beijing Youth Daily): There is no need to worry about the media’s role. Mass media cannot control the courts, so any ruling predictions will not sway or affect in any way the final decisions made by judges.

To close its doors to the media in no way fosters judicial independence. If judges are professional and transparent, their rulings cannot be influenced by anyone else.

As to the legal procedure, the media is not at all related. Legal procedure is effective merely within the framework of the judicial system, while the media’s responsibility is to tell the public the truth.

Fan Fu (reporter from Beijing): Recently, many courts have instituted the spokesperson system to publicize information regularly. However, for every authority with public power, its relationship with the media cannot be stopped at communication, there must be some kind of monitoring.

Perhaps, in some cases, a spokesperson will refuse to answer questions acting under instructions from court leaders. In other cases ‘filtered’ information could infringe on the public’s right to know. It is alarming that some local courts could harbor corruption by keeping the media out.

Cao Lin (Yanzhao Metro Daily): In truth, the big influence on China’s judicial system is not the media, but the abuse of administrative power. The media, in its watchdog role, could curb that abuse of power to help the courts become more transparent.