Henan's courts stirred controversy last month when they introduced a pilot system to hold judges responsible for their rulings even after they resign, retire or are reassigned, in an effort to reduce the number of wrongful convictions.
The measure was launched with good intentions, no doubt. The Henan judiciary's image has suffered from several high-profile wrongful convictions in recent years. And on the first Monday after the scheme was announced, 800 people showed up at the province's high court seeking redress.
The courage involved in introducing the measure should be applauded. However, some legal professionals question whether judges should shoulder all the blame for wrongful rulings, as under the mainland's legal system they rarely rule on cases alone. And there is concern the move might actually make it harder for wrongful judgments to be overturned.
The case of Nie Shubin in Hebei was also brought up again in discussions. Nie was executed for rape and murder in 1995, but in 2005 a serial killer claimed responsibility. Despite years of petitioning, Nie's mother has been unable to have the conviction overturned.
The system introduced by Henan works like this: a judge is held responsible and punished for wrongful judgments resulting from deliberate breaking of the law or court rules, or gross negligence. Six specific categories are listed, including fabricating evidence and hiding relevant information from the court's adjudication committee. Wrongful judgments that result from ambiguity in the law or misinterpretation of it are exempt.
The system has already yielded one result: a judge who blamed 'blurred eyesight' for wrongfully reducing the sentence of a person convicted over a traffic accident was found to have taken bribes.
A corrupt judge was clearly to blame in this instance, and held accountable. But some legal specialists caution that for the Henan approach to work, the focus should be on wrongful behaviour on the part of judges, not on the judgments themselves. Bad rulings are not always the result of a judge's improper behaviour; likewise, wrongful behaviour does not always result in wrongful judgments.
The Henan system also highlights the much-criticised role of adjudication committees. Made up of senior court officials who are not present at the initial trial, their approval must be obtained for judgments considered important or controversial. And in Henan it is the adjudication committee that has been given responsibility for carrying out reviews of wrongful judgments, prompting questions as to how effective the reviews will be.
Furthermore, as the legal commentator 'August Snow' wrote on his blog, the emphasis on holding a judge responsible for wrongful rulings might make it harder to correct them. 'Before, a judge one level above the presiding judge could simply correct a case if he thought the ruling was wrong; but now with this punishment in place, senior judges have to think of the consequences for their subordinates,' he wrote.
Short of a more fundamental change to the mainland judicial system, Henan, and other provincial courts could, in the future, consider shifting their focus onto illegal or unethical behaviour involving judges rather than wrongful judgments, and indeed strengthen existing provisions for punishing such behaviour.
However, the best way to regulate judges' behaviour and improve the standard of judgments is to promote judicial transparency: for example, by publishing rulings online. While that is already official policy, only a fifth of provincial and city courts have been complying, and even then to a varying degree, according to research by the Chinese Academy of Social Sciences released in February.
Judicial authorities should also revisit the conflict of interest clause laid out in the Criminal Procedure Law, perhaps introducing judicial interpretation to make its definition clearer and more effective. Defence lawyers need better rules to work with when they seek to have a judge replaced based on conflict of interest. Currently judges often simply ignore such applications.
Will Nie's family ever get justice? The Hebei provincial court chief said at the National People's Congress in March that investigations were continuing as police could not yet conclude that it was a wrongful conviction. However, he added that investigations have been difficult due to the length of time that had transpired.
While Henan's efforts to do something are significant, any real commitment by mainland judiciaries to reduce wrongful judgments and rebuild the public's confidence should start with Nie's case.