by Di Wu
Academic and civil society organizations globally have had broad consensus on how to define and measure transparency in the judicial system. It is such a comprehensive issue that there is a whole checklist of key recommendations for judicial transparency ranging from providing public access to judicial proceedings to civil society monitoring of the administration and operation of the courts1. While in China, official discourse on judicial transparency seems to have exclusively emphasized information disclosure as a norm, this article examines the perceived role of ICTs in promoting judicial transparency in China.
Setting the Background
Transparency is identified as a priority in two of China’s most important reform directives – the Decision of the Third2 and Fourth3 Plenary Session of the 18th Communist Party Central Committee (CPCC). In both decisions, transparency is phrased not as “tou ming” (literal translation of transparency) but as “gong kai” (“openness”). Linguistically, whereas “tou ming” contains a more comprehensive meaning and emphasizes the status of being “transparent”; “gong kai” has a narrower meaning of “openness” and focuses on the action of “disclosing” or “revealing”. This has set the tone for the transparency reform – one of the seven key reform areas of the Supreme People’s Court (SPC)’s current Judicial Reform Five Year Plan (2014-2018). Transparency in the judiciary is cross cutting through all aspects of the judicial system, covering issues such as the selection of judges, the justification of decisions, financial disclosure statements and access to the courts by citizens4. China’s Judicial Reform Plan does touch upon issues such as improving its judges’ selection system. Yet it is not framed as transparency but as an issue of trial power. It is interesting, therefore, to see how transparency is understood by the reformers in China, in terms of what is included or excluded compared to global norms, and the reasons for such decisions.
This post does not intend to “measure” how transparent China’s judicial system is; rather, it will provide a glimpse of how and why transparency is defined in a particular way by analyzing three official documents from SPC on judicial transparency – Certain Opinions on Building Three Platforms of Judicial Transparency and Provisions of Publicizing People’s Courts’ Verdicts on the Internet (hereinafter referred to as “Three Platforms”), the Fourth Five Year Plan (2014-2018) (hereinafter referred to as “4th Five-year Plan”), and the White Paper on Judicial Transparency of Chinese Courts (hereinafter referred to as “White Paper”).
Discourse Analysis
“Transparency = ICTs”
The 4th Five-Year Plan of SPC, setting the direction of judicial reform for the next five years, covered seven areas with 65 articles, including a specific Chapter dedicated to “transparency”, calling for building “mechanisms for an open, dynamic, transparent, and convenient sunshine judiciary”5:
“To establish the trial-centered system with Chinese characteristics, it is necessary to rely on modern information technology […] By the end of 2015, establish three [online] platforms that are systematic, complete, and convenient [to disclose information]. ”(4th Five-year Plan, Chapter 5)
ransparency here is narrowly defined as information disclosure and even more interestingly there is an exclusive linkage between information disclosure and the use of ICTs. The “three platforms” here refer to online platforms (e.g. official websites, SMS systems, social media, online broadcasting systems, etc.) to disclose three major types of information: 1) trial process, 2) judgments, verdicts and reconciliation statements, and 3) enforcement information. In November 2013, SPC issued Certain Opinions on Building Three Platforms of Judicial Transparency and Provisions of Publicizing People’s Courts’ Verdicts on the Internet to guide the establishment of the three platforms. The very existence of an official Opinions explicitly issued for the online platforms is a manifestation of the importance attached to ICTs by the judiciary to promote transparency. Emphasis on ICTs is also evident in the official documents specifically dedicated to transparency. In the White Paper on Judicial Transparency of Chinese Courts, the SPC comprehensively reviewed the achievements of the three platforms and praised their creation as key measures in the new round of reform. “Previously, information was disclosed in a sporadic way by local courts. Building national platforms to disseminate information in a uniform way has improved the practice,”6 said He Xiaorong, who was in charge of drafting the white paper, at the press conference. In the Studies of Judicial Transparency edited by the SPC Judicial Reform Office, 10 out of the 15 selected case studies on international judicial transparency practice are related to the use of ICTs7. “ICTs is a reason of transparency, not a result” Normally in China, policy change derives from the leadership of the Party and the influence of other factors is incomparable. But the “information age” may be an exception: “In the new century and new stage, facing new requirements in the work of the Party and the State, new expectations of the masses and new challenges in the era of information, the deepening of judicial transparency has become more important and urgent.” (White Paper, pp.27) All these new trends together prompted the courts to be more transparent. In other words, transparency was not traditionally a necessity; it is only made inevitable by the new conditions. It is also rather a “choice” made by the authorities than basic rights of the people: “Establishing three major platforms for judicial openness is an important strategic measure in the people’s courts adjustment to an information age, and in satisfying the public’s new expectations for judicial openness.” (Three Platforms) In a transparency-as-rights regime, the right to public information is considered a “fundamental right that the State must enforce and guarantee” 8, which means it is the judiciary’s obligation, not just a “strategic measure”, to not only disclose the information but also ensure the effective enforcement of this right. China clearly has a different mindset. “The more ICTs the more transparent” The passion for ICTs goes beyond websites. Anything that can represent “information era” is considered a driver for transparency reform, even when it is only remotely relevant: “With the rapid development of big data, cloud computing and new media, the speed, models and patterns of information dissemination change greatly, and the masses’ demands for judicial information vary, and under the new situation, the promotion of judicial transparency is facing an unprecedented opportunity and great challenges.” (White Paper, pp.28) There also seems to be a belief that all ICTs are intrinsically good therefore the more e-channels the better, without a thorough understanding of what medium works best for what communication purpose and how much resources and efforts are implied by each of them: “The people’s courts at all levels shall make full use of modern information technologies to constantly expand the channels and ways for the public to obtain judicial information by building websites on administrative affairs of courts and 12368 litigation service platform , and making public Weibo and WeChat IDs, mobile news client and president’s email, so as to explore the three-dimensional, one-stop, comprehensive and interactive judicial transparency services to build up a more transparent and open judicial environment.” (White Paper, pp.31) The limitation of ICTs as a tool and as merely a single aspect for the reform is rarely reflected in the official discourse, not to mention the potential risk of ICT-related issues such as privacy, cyber security and so on. Why ICTs? Besides the influence of the on-going global obsession for technology, China’s top judiciary has its own reasons to prioritize ICTs in its reforms. ICTs is a relatively safe entry-point for sensitive reforms. Creating a space for flexible interpretation by different stakeholders at their convenience is the premise of any intervention in political affairs in China, even within the government. ICTs is such a space: it appears formalistic but has the transformative potential for bigger changes. It is easier to control, monitor and evaluate. ICT-based reforms by definition have more access to comprehensive data, which makes more sophisticated M&E possible. Furthermore, ICTs can provide as much convenience for the users as for the suppliers. Whoever controls the medium also controls the message, which is a position that the government would like to be at. It has tangible results. “Justice is not to be done, but to be seen done.” This is one of the most popular quotes in the official documents to justify openness and information disclosure. As an output, a website or a mobile APP is far more visible than “enhanced transparency” or “strengthened capacity”. Infrastructure comes first. The entire modernization of China is marked by the philosophy of materials over spirits, infrastructure as a premise for substance. By the same logic, when the judiciary decides to be more transparent, the first thing is to strengthen its material basis. Summary From a non-comprehensive reading of the official documents, it is not difficult to get a sense of the salience of the ICT-focus in China’s efforts to promote transparency in the judicial system. Such seemingly disproportionate representation is deeply rooted in China’s political culture that values risk aversion, information manipulation and publicity. But this is not to discredit the progress that it symbolizes to even consider transparency as a priority for the country’s next five-year judicial reform plan. ICTs could well be an incremental and cautious stimulus to further progressive changes. (The views expressed in the article are personal) 1 See “Enhancing Judicial Transparency,” Transparency International Policy Position #01/2007, 2008, http://www.transparency.org; “Access to Justice and Legal Information” in Judicial Transparency Checklist, note 15, supra; “Good Practices, Initiatives, and Experiences in Combating Corruption and Promoting Judicial Transparency” in A Guide to Rapid Assessment and Policymaking for the Control of Corruption in Latin American Justice Systems, Due ProcessFoundation, 2007, http://www.dplf.org. 2 “promoting open trial and open prosecution, recording and retaining the entire court hearing and trial material; improving rational explanation of legal documents, and encouraging the court to publicize verdicts in force” 3 promoting a “sunshine judiciary” with more open trials, prosecution, police and prison work, including the timely publication of legal decisions and related documents 4 Access to Information and Transparency in the Judiciary, World Bank, 2010: “the Global Integrity report specifically examines the level of access to information and transparency of the Judicial Branch, using variables such as the selection of judges, the justification of decisions, financial disclosure statements and access to the courts by citizens.” 5 4th Five-year Plan, chapter 5建立中国特色社会主义审判权力运行体系，必须依托现 代信息技术，构建开放、动态、透明、便民的阳光司法机制，增进公众对司法的了 解、信赖和监督。到2015年底，形成体系完备、信息齐全、使用便捷的人民法院审 判流程公开、裁判文书公开和执行信息公开三大平台，建立覆盖全面、系统科学、 便民利民的司法为民机制 6 “China issues white paper on judicial transparency”, Supreme People’s Court, 12 March 2015, http://en.chinacourt.org/public/detail.php?id=4952 7 《司法公开理论问题》 8 Access to Information and Transparency in the Judiciary, World Bank, 2010, pp.43