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  • Jul 26, 2014
  • Updated: 3:07pm

Shortage of judges a neglected issue

PUBLISHED : Thursday, 03 November, 2011, 12:00am
UPDATED : Thursday, 03 November, 2011, 12:00am

A magazine article last week on the training of mainland judges is a timely reminder of an aspect of legal reform that has been unwisely neglected in recent years.

Presently, any Chinese citizen - who is older than 23 and holds a postgraduate degree in law, and has passed the civil service and judicial examinations and, by an unwritten rule, is a Communist Party member - can become a judge, subject to a one-year traineeship.

However, as the article in Oriental Outlook pointed out, while it only takes a year to train a judge on the mainland, there remains a serious shortage of judges.

It has been a common lament in recent years by judges who are National People's Congress deputies during the NPC's meetings. They say that judges often have to handle two to three cases a day and often have to work on the weekends.

But what is even more worrying than the lack of judges is the quality of those on the bench - which is evident from a string of judicial corruption cases and wrongful convictions.

To be sure, even the performance of good judges would be compromised by the heavy caseloads.

The mainland's judiciary uses the continental legal system. For a long time, the mainland legal system held that anyone with the right political mindset and the right training could become a judge.

The professionalisation of judges did not happen until after the Cultural Revolution. The requirement that 'judges must be equipped with professional legal knowledge' was only written into the law in 1983.

However, it was not until 1995 - with the passing of the Judges Law - that judges were required to pass a standard examination and hold a law degree. And it was not until 2001, with a revision of the Judges Law, that judicial applicants were required to sit a standard judiciary examination alongside lawyers and prosecutors and hold a postgraduate law degree. In 2006, a regulation on the training of judges mandated for the first time that anyone who passed the necessary examinations must be trained for a year before they could become judges.

However, the Oriental Outlook article said the one-year training period was unsatisfactory because there was no standard curriculum or assessment method. The training stint was meant to be a combination of legal classes offered at the provincial level and a court internship.

However, most of the classes are too theoretical to prepare students for dispute resolution at the grass-roots level, while the court internships lack a standard format and therefore vary from court to court.

And while efforts to make judges more professional have been a focus of the authorities for about two decades, reform in relation to judges has slowed recently or has even been halted and reversed, as some mainland legal experts would argue.

Many legal professionals note a worrying trend that arose since the end of 2007, when the current chief of the People's Supreme Court shifted the policy focus from the 'professionalisation of judges' to the 'three supremes' - where judges are told to try cases with three interests in mind: those of the Communist Party, the people and the law, in that order.

Since then, the authorities have appeared to be uninterested in academic discussions on improving the system of judges and the professional standards of judges. Instead, they busied themselves with training judges to be politically correct and to be key figures in 'social management'. For instance, a fundamental question that remains unanswered is: What is the right number of judges for the mainland?

In 1999, when a quota on the number of judges was introduced, the argument was that there were too many judges. So what now accounts for today's shortage? Is it only because of unforeseen growth in litigation or is it something more structural? According to official statistics, the mainland currently has about 300,000 court staff, of whom 193,000 are judges. Most of these judges - 148,000 - work in so-called grass-roots courts at the county level or below. They handled 9.34 million cases last year, about 90 per cent of the total court system caseload.

Some experts argue that the mainland should have about one judge for every 40,000 mainlanders - similar to other continental jurisdictions, which means about 30,000 to 40,000 judges in total. Other experts say that situations unique to the mainland mean that its judges handle much more than just trying cases, and that a cutback in the number of judges a decade ago resulted in today's shortage, especially in the grass-roots courts.

Revamping the system of judges would also involve looking at the suitability of a range of other systemic designs: how judges are now both judicial officers and civil servants; how behind-the-scene judicial committees still have the final word on important cases; and how most cases could only be heard by a panel of three judges when there is a shortage.

Given the evident problems under the current system of judges - be they in terms of quantity or quality - the authorities should refocus on improving the professionalisation of judges and to reopen discussions on the topic. As a start, they could consider a proposal for the establishment of a more direct route for lawyers to become judges.

96

judges and judicial police officers died from overwork between 2008 and last year, according to China's chief justice, Wang Shengjun

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