Today I'm returning to the Chinese Government 101 series and that cliffhanger I left for Chinaful readers in this post. Last installment, I detailed the structure of China's judiciary, its appeals system and its requirements for judges. Today I cover what happens inside China's courts, or more accurately, behind them.
In a US courtroom, the presiding judge makes the final rulings. That ruling may be appealed to a higher court, but otherwise it stands. Not so in China. In China, the presiding judges are only the face of the court and not the only decisionmakers of the case. Instead, adjudicate committees resident in each people's court are the final arbiters. These committee members don't necessarily sit in during hearings or trials - instead, the responsible judge of the originating panel often issues either an oral or written report regarding the issues in the case. Further, their decisions are not made public, or even revealed to the parties in all cases. And the committee's ruling is not a recommendation to the presiding judges, it is the final judgment.
Adjudicative committees play a central but not clearly articulated role within the Chinese judiciary. The Chinese saying “Verdict first, trial second,” represents the function of adjudicative committees as the decisive judicial organ, with the corresponding trial as secondary, or sometimes even a sham, in the judicial process. The committee of a court is composed of various members of the court’s leadership. Members of the adjudicative committee of local courts are appointed and dismissed by the Standing Committee of the People’s Congress at the equivalent local level. However, all appointments are also vetted by the Communist Party of China.
{China's Adjudicative Committees: A look behind the court's door}
Not every case in a court is considered by the adjudicative committee, and my understanding from talking with former Chinese judges and attorneys is that the adjudicative committee can participate in any given case at varying degrees. Cases are transferred from the assigned court to the adjudicative committee for several reasons. Typically, a case is transferred because the case is considered “major” (zhongda) or “difficult” (yinan) and guidance is considered necessary. For example, death penalty, corruption, or cases that will have an impact on local or national economy. Cases involving foreign business interests are also considered major, and likely to have input from an adjudicative committee.
Randy Peerenboom, a renowned China law expert and my law note advisor, wrote in China’s Long March Toward the Rule of Law (2002) that politically sensitive cases are the genre most likely to be taken under supervision by a court’s adjudicative committee. Such a case may be sensitive because it involves a prominent political figure or political dissidents as well as organizational conflicts involving questions of the hierarchy of government organs (i.e., a suit against the executive, or a case which stretches the boundaries of judicial powers).
Interestingly, the adjudicative committee typically becomes involved post-decision, when approval from the committee is sought prior to issuance of a final judgment. Transfer of a case is not necessarily within the control of the assigned panel - the committee may become involved by force. Generally, however, the presiding judge is very deferential to the committee and eager for its input to bless the decision and remove the chance for political consequence later if the decision is not viewed favorably by higher government. Likewise, a local adjudicative committee often requests advice from higher adjudicative committees, which to some degree obviates the purpose of appeal.
At first glance the role of the adjudicative committee seems odd, but many supporters of the system claim it provides greater consistency to court decisions. What do you think about this system?
Courtney Gould Miller
