Public opinion supervision and the courts: it’s not really justice.

The National People’s Congress yesterday saw the report of Supreme People’s Court president Wang Shengjun. Among the usual Chinese policy language, Wang also raised the Court’s relationship with public opinion, by stating the court would “give even more regard to news and public opinion supervision, pay even more attention to online public sentiment, timely respond to social concerns, incessantly strengthen and improve People’s Courts’ work” (更加重视新闻舆论监督,更加关注网上舆情,及时回应社会关切,不断加强和改进人民法院工作).

As Charles Custer indicates, a number of voices indicate that this may mean that the Court will become more open on sensitive cases, in order to counter online rumours and increase the Court’s credibility.  Stan Abrams, on the other hand, questions the relationship between public opinion supervision and judicial independence.  More specifically, his concern is that “the judiciary “listening” to grievances from the public […] sounds like a political function, not a judicial one.”

While I agree with Stan’s sentiment, I think the issue runs quite a bit deeper, and concerns the entire legitimacy of the legal system, and the balance between procedural justice and substantive justice. Generally, in order for a system of law to maintain its popular support base, it preferably offers both to a large extent. If, for whatever reason, trade-offs need to be made, people tend to be able to accept a loss of the one if the others are present. In other words, people mind losing less if they know the decision was made on procedurally justifiable grounds, and mind less that procedure wasn’t quite followed if it gives them their desired outcome.

The deal with public opinion supervision seems to be a play to ensure Court decisions are palatable because they provide a desired outcome, given that there is preciously little popular input in and supervision over the Chinese process of lawmaking and implementation. The problem with this, however, is that we can’t simply assume that public opinion itself is just. Neither can we assume it is consistent, and certainly not in the light of China’s increasingly diverse society. In other words, for every example where public opinion brings corrupt officials or a Deng Yujiao case to light, it may also push for punishments we may find manifestly unjust, or invade privacy in ways that are hard to justify, such as the human flesh search engine. In cases with strong competing interests, public opinion may become just a shouting match with the winner being the side having the press or the internet on their side, or who can be appeased more easily (social stability, anyone), rather than those with the law on their side. Out of fear for public opinion retaliation, judges may simply refuse to accept controversial cases, which are often those in which justice is needed most. Shortly put, public opinion supervision may be nothing different from majoritarian mob rule, damaging the minority interests and endangering individual rights.

Obviously, the answer would be to introduce a bit more procedural rectitude in the judicial system, but also in the lawmaking process.  Also, judges should not be put in a position where they are made more afraid then necessary to make unpopular or controversial decisions, and some decisions will always be so. However, this would require deep political and philosophical shifts in the Chinese governance structure, which doesn’t seem on the cards at the moment.

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