Thursday, January 11, 2018
Ira Belkin has posted Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age (F. Sapio, S. Trevaskes, S. Biddulph, & E. Nesossi (Eds.), Justice: The China Experience (pp. 195-228). Cambridge: Cambridge University Press, 2017) on SSRN. Here is the abstract:
The inﬂuence of Chinese public opinion on individual criminal case decisions is a phenomenon that has received a great deal of attention in China and around the world. Some commentators have lauded the phenomenon as empowering the public to seek justice in Chinese courts. Others have expressed concern that following public opinion may achieve justice in an individual case but does little to improve the justice system. Even worse, some fear that appeasement of public opinion in the name of maintaining social stability is leading to a kind of mob justice where life and death is determined by the emotion of the online crowd of the moment. This chapter discusses how the Chinese Communist Party (CCP) and the Chinese government have addressed this phenomenon. We focus on a series of cases that led up an official policy that courts should follow public opinion in certain cases to preserve ‘social stability’. By focusing on this policy change and how it was implemented, this chapter questions whether such a policy promotes or undermines China’s decades-long project to establish a society under the rule of law.
Between 1979 and 2009, the Chinese public demanded leniency in some cases and severity in others. In some cases, they demanded that the defendant’s life be spared and in others that he be executed. In most cases, the CCP-controlled courts acceded to the weight of perceived public opinion but they did so on a case-by-case basis and not as part of an ofﬁcial policy. Beginning around 2008, the CCP made the policy of listening to public opinion in deciding cases explicit. Chinese courts were required to consider the ‘people’s feelings’ and decide cases according to whether their decisions would ‘win the broad support of the masses,’ ‘preserve social stability’ and ‘reduc[e] social protest.’ These new populist judicial policies had an effect on individual case decisions and on the behaviour of litigants and other advocates. Empowering the public meant incentivising advocates and parties to appeal to public opinion instead of the courts. ‘Judicial populism’ moved the centre of the case from the courtroom to the electronic public square, the Internet. The CCP’s ‘judicial populism’ policies were also linked with a policy of emphasising the ‘forgiveness’ of victims as a condition for the ‘lenient’ treatment of defendants. Together these policies empowered victims to demand high amounts of compensation in exchange for their ‘forgiveness’ and to threaten to unleash public opinion demanding the harshest punishment, including the death penalty, if the defendant refused or was unable to meet their demands.
As for individual cases, the CCP’s adherence to public opinion spared the lives of some, including a battered woman who murdered her abusive spouse and a business tycoon convicted of a massive fraud. However, Chinese courts also reluctantly ordered the execution of defendants who, absent the inﬂuence of public opinion, would have been sentenced to life imprisonment. It is not hyperbole to conclude that under these policies public opinion could determine whether one lived or died.
In the end it is fair to question whether a policy that promotes judicial populism not only undermines the rule of law but results in less, rather than more, social stability.