Abstract
Since 2013 judicial reforms in China have intensified. While recent studies of the Chinese judiciary have focused on structural reforms concerning the jurisdiction of courts and internal court management, it has largely gone unnoticed that the Supreme People’s Court (SPC) has established an open-access database archiving the decisions of every court in China. On the basis of legal documents, secondary literature and interviews with experts, this study investigates the implications of the new database. We find that the database establishes new channels of communication that affect the relationship between the courts and the public, and the position of judges within the judiciary. Further, the open-access database facilitates changes in the structure of communication among legal experts, which in turn promotes legal professionalism. We argue that the SPC made use of the party policy on the direct accountability of the courts towards the people in order to pursue its institutional interest in a professional judiciary.
Keywords
The reform of Chinese courts under Xi Jinping has taken a radical turn compared to the preceding administration, as a vast range of measures has been introduced to make judges and courts less susceptible to interference from local governments and to increase efficiency in the judiciary. Courts are strengthened as professional and more autonomous arbitrators of legal disputes through both a centralized judicial authority and controlled experimental reform measures on the local level. 1 Most of these measures, which have been planned and also partly implemented over the past years, have been discussed in academic circles for more than a decade. Although the reform measures envisage stronger courts, they do not imply a weaker party overview of the judiciary.
Among all of the recent reform measures, we consider the online public access database for court decisions to be the most significant change. Although establishing a database for archiving legal documents appears to be a rather technical matter, it is in fact a measure that implies less visible but far-reaching changes with regard to the structure of communication among legal professionals, the centralization of power over the judiciary, and the professionalization of judges. The court decision database affects the position of the individual judge within the judiciary with regard to accountability and performance evaluation, as well as the rights of individuals as parties of a trial. This change in access to judicial information will also have an impact on the relationship between the courts, the media and the public.
The judgement database stands out from other reform measures in terms of its sustainability and feasibility, because the implementation of this transparency measure is an internal court matter under the control of the Supreme People’s Court (SPC) and does not depend on actors outside of the court system. The database further empowers the SPC in relation to other actors of the party-state, as it provides the SPC with information which the SPC can use in the policymaking process in order to pursue the long-term institutional interests of the judiciary. Moreover, the online database is a huge innovative step through which the party-state overtakes almost all Western liberal constitutional systems with regard to the accessibility of full-text court decisions.
This study builds on literature about Chinese judicial reforms, which emphasizes that the SPC, rather than being a mere subordinate of the Chinese Communist Party (CCP) Central Political-Legal Committee, is an institution that attempts to preserve its long-term institutional interest in a professional judiciary. Eric Ip argues that the SPC has transformed into a ‘relatively autonomous policymaking organization’ and that the expansion of the SPC’s powers originated from within the court and is driven by a combination of activism and professional values. 2 Zhang Taisu considers the SPC’s behaviour as being primarily motivated by institutional self-interest, more than being influenced by party leadership or legal reform ideologies. 3 The SPC has used party policies that promoted a populist judiciary as a pretext for installing the guiding cases mechanism, aimed at retaining legal professionalism within a conservative environment. Guiding cases enable the SPC to expand its control over lower court adjudication and discreetly steer legal development, while the mechanism is, due to its complexity, relatively well protected against extra-legal influence. 4 We argue that in the case of the court decision database, the SPC is primarily pursuing its institutional self-interest, while the proclaimed aims of the database, such as improving the public’s trust in the judiciary, are to a large extent only lip service to party policy.
The analysis is based on legal and policy documents, secondary literature and interviews with experts. After addressing the most recent judicial reform measures and the new obligation to publish court decisions online, we analyse the impact of the database on the relationship between the courts and the public. Against the background of the new channels of communication that have been established by the database, we discuss the increased pressure on judges, which aims at inducing professionalization and at the control and centralization of the judiciary, as well as enhancing the communication among legal professionals.
Recent judicial reforms
A number of recent judicial reform measures aim at centralizing the judiciary and developing more professional courts that function within a framework of formal legal rules and procedures. The online database will reinforce reform measures that fall into these two categories.
The transfer of power over court budget plans from local governments to the provincial level and the establishment of courts with jurisdictions crossing administrative districts have promoted a centralization of the judiciary. 5 In order to complement the separation between courts and local governments, important decisions on judicial personnel will be passed on to the provincial level. 6 Further, regional divisions (circuit tribunals) of the SPC have been established in Shenzhen and Shenyang, with cross-provincial jurisdictions. 7
The creation of dedicated intellectual property courts in Beijing, Shanghai and Guangzhou has catered to the needs of the Chinese high-tech and creative industries, promoting specialization and professionalization among judges. 8 The performance evaluation system, which previously punished judges if appeals were made against their decisions, when their decisions gave rise to petitions or led to negative social consequences, is in the process of being amended so that judges decide cases in accordance with the law and not primarily in line with extra-legal evaluation criteria. 9 Reform plans, including a shift to a hearing-centred procedural system and changes in the internal organization of courts, including adjudication committees, also promote a rule-based and professional operation of the courts. 10
The SPC established an open-access database for court decisions that aims to include, in principle, all court decisions at all four levels of courts, which currently number about 17 million per year. 11 The 2013 Online Publication Regulations, which were revised in July 2016, were issued almost at the same time as the SPC Certain Opinions on Building Three Platforms of Judicial Transparency, which introduced two more online platforms, alongside the court decisions database, to allow the concerned parties to access pending case files and to enable the parties to monitor the enforcement status of court decisions. 12 Related measures intended to improve judicial transparency include the SPC Regulations on Case Supervision by Trial Parties of 2014, which require courts to provide the trial parties promptly with important information regarding the outcome of case filing review, trial and enforcement procedures. 13 The Case Supervision Regulations further provide for a feedback mechanism, through which the parties can criticize court management and the handling of their cases, and a follow-up mechanism to analyse and deal with poor performance of court personnel. These measures aim at introducing a more interactive approach to judicial transparency that might help overcome the general deficit of computer-mediated transparency.
The SPC further requires that all court hearings at all levels of courts in China be videotaped and that the videos be stored in a database. 14 Parts of these video recordings became publicly accessible in September 2016 when the President of the SPC officially introduced the online platform ‘China Open Trial Network’, which now also includes live video feeds from court hearings. 15
Online publication regulations
Before the establishment of the online database in 2013, the SPC initiated pilot programmes for the disclosure of judicial information on the Internet. As early as 2000, at the beginning of court reforms under the SPC President Xiao Yang, the SPC issued Regulations on the Publication of Court Decisions, which stipulated that the publication of judgements on official websites should constitute the main form of publicizing judicial information. 16 The 2000 Regulations aimed at educating judges in the lower courts on how to understand and apply the law correctly. However, they did not provide a mechanism of accountability for promoting professionalism among judges by compelling them to improve the reasoning behind their decisions or to make the application of law more transparent. At that time, the publication of court decisions was regarded as a measure that could harm the reputation of the courts, hence the SPC preferred a selective approach to publication. The 2007 SPC Regulations on Strengthening Open Adjudication Work of Courts mandated High People’s Courts to establish mechanisms, including web-based systems, for publishing judicial decisions. 17 Finally, the 2009 SPC Regulations on the Six Provisions on Judicial Openness authorized courts at all levels to publish judgements on the Internet.
Although judicial transparency policies up until 2013 included the online publication of judgements in the performance evaluation of courts, the publication of court decisions was based on case-by-case approval in order to ensure that only decisions of sufficient quality, which would not harm the overall interests of the party-state or the judiciary, were released. Hence, the publication of court decisions was used as an educational measure, but it did not effectively promote professionalization by increasing the pressure on judges in the handling of each and every case.
In contrast to previous selective approaches, the 2013 Publication Regulations stipulate as a principle that every judicial decision has to be published online from January 2014 onwards. 18 In the context of about 17 million cases decided in 2015, the overall number of over 20 million decisions contained in the database in August 2016 indicates a rather low rate of compliance, 19 although compared to only 6 million cases published in 2014, this is an impressive increase. 20 However, there are significant regional disparities. While the national median for the publication of judgements on the Internet for 2014 and 2015 was around 50 per cent, courts in Shandong and Zhejiang published 65 per cent, courts in Anhui published 68 per cent and courts in Shaanxi published 78 per cent of their judgements online. Far more reluctant to publish their decisions online were the courts in Jiangxi, Heilongjiang and Tibet, with publication rates of 21 per cent, 18 per cent and 15 per cent respectively. 21
In July 2016 the SPC issued revised Online Publication Regulations. 22 The 2016 Regulations provide for the objective of publishing every judicial decision in a lawful, comprehensive, timely and standardized manner, which should be achieved through further digitalization and automatization of the publication procedures. 23 The 2016 revision expands the scope of application of the Online Publication Regulations. While the 2013 Regulations only used the general term ‘judicial decision’, the 2016 Regulations specify in more detail what kinds of judicial decisions fall under the courts’ publication obligations. The list in Art. 3 now also includes, inter alia, executive orders, decisions on compulsory medical treatment, mediation in administrative cases, and any other decisions that bring judicial proceedings to an end.
Pursuant to the 2013 Regulations, court decisions that deal with cases involving state secrets, juvenile defendants, divorce or child custody, and some that are settled through mediation, were excluded altogether from online publication. According to the revisions of 2016, matters of individual privacy do not trigger an automatic exclusion from publication anymore. Such cases are now to be published but relevant information has to be removed from the decision. Mediated cases are not excluded from publication per se, but only if this is necessary to safeguard the interests of the state, the public or a third person. 24 The SPC decisions on death penalty reviews were only to be published selectively when they could guide the application of law by lower courts or when cases attracted widespread attention among the public. 25 This is in line with current practice, which regards the overall number of death sentences as a state secret. Further, any court decisions ‘inappropriate for publication’ are excluded from publication. 26 These include decisions on criminal cases of terrorism or heretic organizations, cases that might affect social stability or solidarity among ethnic groups, and sensitive cases concerning Hong Kong, Macao or Taiwan. 27 The vice president of the responsible court approves such exceptions after the trial judge or the collegiate bench has submitted a written request with an explanation via the relevant division chief. Nevertheless, according to the 2016 revision, even those decisions considered inappropriate for publication have to be listed in the database, including the reason why their content is not published, unless this would reveal a state secret. 28
Courts and the public
The online database provides for an unprecedentedly high degree of post-trial transparency. This affects the meaning of the open trial principle, which courts currently implement in an instrumentalist way to protect their own authority and the more general interests of the party-state.
The establishment of the database was justified on the grounds of building trust in the judiciary. However, we doubt that the open-access archiving system of court decisions can achieve this aim, as the general public is not in a position to use the database to exercise direct pressure on the courts, nor will the media use the database to report positively on the judiciary.
Public trial principle
According to Art. 125 of the Chinese Constitution, all cases handled by the People’s Courts, except for those involving special circumstances as specified by law, shall be heard in public. 29 In rule-of-law systems, the requirement for public trials is a right for the public to observe the process of adjudication, which imposes constraints on state power. In China, the principle has strong propagandistic and educational connotations and mainly serves the function of increasing the legitimacy of the regime by presenting a controlled image of the judiciary and at the same time concealing from the public any trials which may harm the interests of the party-state. 30 The online publication requirement of judgements and the obligation to make video recordings of all trials and store them in a database changes the meaning of the public trial principle, implying the physical access of the public to the courtroom during hearings.
The open-access database, with video recordings of trials and live broadcasts of court hearings, will further amplify this effect, because it makes the trial repeatable anywhere at any time; one is even able to experience court trials in real time. The reproducibility of the trial can exercise far greater pressure on judges to behave in conformity with substantive and procedural rules than the traditional open trial principle, which has been applied in practice primarily to protect the interests of the party-state and the judiciary. 31 If accountability mechanisms are strengthened and the database is, for example, used for the performance evaluation of judges, stricter transparency with regard to the outcomes of trials will compensate for the current deficits in the implementation of the open trial principle during court hearings.
Building public trust in the judiciary
The new online publication requirement for court decisions was officially justified by the political guideline of a ‘judiciary for the people’ and the right of the public to access information. 32 The attempt to enhance regime legitimacy through a fair and efficient judicial system has been expressed by the current leadership in the overarching political slogan of ‘letting the masses experience fairness and justice in every single court case’. 33 Xi Jinping used this slogan when emphasizing the necessity of safeguarding procedural rights during his speech commemorating the 30th anniversary of the Chinese constitution in December 2012. 34 The CCP Political-Legal Committee supported the establishment of the database by the SPC as a measure for reducing corruption without investing additional resources in institutional readjustments, and for providing an effective, readily applicable and swift mechanism with a maximum effect on eliminating court corruption and inducing lawful behaviour in courts. 35
Theoretically, the online database can function as a tool for the public to apply direct pressure on courts to revise decisions by way of a retrial or internal supervision procedure. 36 As only final decisions can be published online, courts cannot come under popular pressure while deciding appeal cases. However, as there are broad grounds for retrial in China, the public could pressure the judiciary when final judgements are published online, as in cases like that of Liu Yong. 37 Retrials as an outcome of public pressure are the most tangible measures that can be attributed to public supervision and are in accordance with the SPC’s Mechanisms for the Prevention of Miscarriages of Justice. 38
However, Frederick Schauer has found in a study of US Supreme Court opinions that the general public does not read court decisions. Instead, the audience is composed of legal professionals such as judges, practising lawyers, law students and law professors, who in turn use them as references for their own legal reasoning. 39 Even though the official narrative that the database was established for the purpose of public supervision by the people is widely echoed by the academy, 40 it is safe to assume that the Chinese general public is neither equipped for nor interested in making systematic use of this bulk of raw data in its assessment of the Chinese judiciary. Without the facilitating effect of mass media attention on certain high-profile cases, as discussed later on, the principal users of this database will be legal experts. As immediate peers of judges, it is this part of the public that is able to put distinct pressure on the courts through their use of the database. Thereby, this new transparency will have an effect on the ‘formation and transfer of knowledge about the content, development, and motivation of existing legal and judicial norms’ 41 within the specialized audience of Chinese judges, lawyers, law professors and students. Following Mitchell Lasser, the publication of court decisions and its inherent circularity serves as a means of accountability in itself. 42
Given the fact that popular pressure cannot arise solely from submitting a judgement to an open-access database, it requires reports by news media or discussions on social media to draw the attention of the public to court cases. When propaganda authorities control such media tightly and suppress discussion and public outrage on the Internet, public pressure cannot build up. However, courts may, in order to avoid public pressure, be inclined to align their decisions with a perceived hypothetical public demand. 43
The factors that influence how the public perceives the judiciary are difficult to identify and assess. Sara Benesh has found that public confidence in US courts rests on both experience with and knowledge of the courts. However, factors enhancing public confidence in the judiciary are mostly beyond the control of courts themselves, 44 although Chinese courts can more easily disseminate positive information on the judiciary through the channels of the propaganda apparatus than can their US counterparts. With regard to the origins of public knowledge about the courts, Christopher Johnston and Brandon Bartels argue that the types of media consumed and the depiction of the judicial system therein significantly influence attitudes towards the courts. 45 Given the level of control of the media, the party-state is generally in a position to induce a positive image of the judiciary via the media. 46
However, it appears unlikely that Chinese media will make use of the database for this purpose. In the past, the media often had an impact on the outcome of court trials, particularly in capital punishment cases. As the engagement of the media was often fuelled by commercially driven sensationalism, this compromised rather than improved the public image of courts. 47 Chinese scholars have criticized the media’s influence on court rulings as having a detrimental effect on fair and impartial adjudication. 48 Consequently, the CCP Decision on Implementing the Rule of Law in October 2014 stressed the significance of regulating media coverage of court cases and preventing interference in public opinions of the judiciary. 49
Given that the existence of an expert database of court decisions cannot as such lead to an engagement of the public with the contents of court decisions, and that the role of the media is ambiguous at best, it is unlikely that the SPC will be able to deliver on the policy goal of building public trust in the judiciary through the establishment of the court decision database.
Increasing pressure on judges to induce professionalization
The online publication of court decisions increases pressure on individual judges in terms of workload, standards of legal reasoning, performance evaluation and resisting improper interference in adjudication work.
Improving the quality of legal reasoning
The Third Plenum Decision established a nexus between the new online publication requirement and improving the legal reasoning of court decisions. 50 However, the database plays an ambiguous role in improving the quality of legal arguments in the reasoning part of court decisions. The publication requirement has the potential to improve the quality of court decisions if judges feel pressured by the fact that their judgement will be publicly available and can be checked for mistakes by anyone. However, such a pressure can also have the opposite effect in that judges choose vague and unspecific language in order to play safe and avoid possible criticism, or to conceal the true reasons for a certain decision.
It cannot be disputed that the online publication of judgements increases the workload of judges, as they have to screen their judgements more carefully for mistakes; they also have to adhere to the seven-day deadline, which requires judges to upload their judgement within seven days of the decision becoming final. 51 The special bodies within the court that deal with the online publication of judgements only perform a language and formatting check; they have no legal competence and are not qualified to perform any substantive checks of judgements. 52
This ambiguity becomes most evident with regard to the position of judges vis-a-vis administrative agencies in administrative litigation. The party-state’s primary motivation for introducing administrative litigation is related to controlling local officials and overcoming the information gap between central and local administrative bodies. 53 Against this background it is significant that the online publication of administrative judgements makes available to central authorities information on the wrongdoings of local officials. This in turn strengthens the position of courts in relation to local governments, as judgements that rule against an administrative agency will always imply the threat that unlawful behaviour of government officials will be exposed permanently and this information will be available to higher government agencies. As a corollary, this also strengthens the position of plaintiffs in administrative litigation. Their position will improve if the new online publication requirement discourages administrative agencies from exercising inappropriate and unlawful pressure on courts to hand down decisions that favour the local administration.
This effect is further enhanced by the revision of the 2016 SPC Online Publication Regulations, which stipulated that administrative cases are to be published even in cases that are settled through mediation. This approach to administrative dispute settlement had long been considered a critical element of administrative litigation because it was directly linked to the high number of withdrawn administrative complaints, which in turn was associated with pressure put on plaintiffs and the courts by administrative bodies. 54 The compulsory publication of administrative mediation outcomes is therefore an important step in enhancing the court’s authority vis-a-vis the administration.
However, the general online publication requirement not only increases pressure on administrative agencies but also reduces considerably the courts’ room for manoeuvre. In cases where it is critical that the administration should not lose, the pressure on the administration is increased by the online publication requirement. As this pressure is most likely passed on to the court and the trial judges, it brings them into the awkward situation where, on the one side, they are pushed harder to decide cases in accordance with the law and to give detailed legal reasoning for their decisions, while, on the other side, administrative law judges face increased pressure from the administration to come up with solutions that favour the interests of the administrative agency. 55 In such a situation, judges have to work out a solution that takes into account both the interests of the centre in enforcing national law and the interests of the local administration. A likely scenario is that judges use rather vague language in the reasoning part of the decision, which is just precise enough to avoid negative evaluation on grounds of lacking professionalism but which is phrased with enough ambiguity so that scrutiny will not lead to criticism. 56
Protection from interference
The primary effect of the database on judges is increased pressure to act in accordance with procedural and substantive legal standards. However, whether this pressure in fact has the intended outcome depends on other structural reform measures that strengthen judges in relation to all actors, who may exercise extra-legal influence on the decision-making process.
The CCP Central Committee General Office and the State Council jointly issued the Regulations, which mainly address the behaviour of state and party cadres. 57 The Regulations implement the decision of the CCP Central Committee 4th Plenum Decision to establish a mechanism for recording, reporting and investigating leading cadres’ interference in judicial activities. 58 The provisions aim at preventing officials from outside the judiciary from interfering with court matters, in order to safeguard the independent and fair exercise of judicial powers. Leading cadres are explicitly prohibited from requiring judicial bodies to handle cases in violation of legally stipulated competences or procedures. In the event of interference, court personnel are required to produce a true and comprehensive written account of the interference, retain all materials and submit a report to the Political-Legal Committee of the Party Committee at the same level, and to the judicial organ at the level above. Interference is sanctioned either within the party disciplinary system or, in serious cases, by criminal law. 59 Although the specific effects of the regulations against interference in practice are unclear, they increase the costs of improper influence on adjudication. The database reinforces the effects of this measure as it can reveal the misapplication of law due to improper influence on the decision-making process.
Evaluation of judges
As the search function of the database allows the retrieval of decisions made by individual judges, the database can be used as a tool for performance evaluation. Recent judicial reforms aim at differentiating between proper judges, assistant judges and administrative staff, and at changes in the selection and performance evaluation of judges. 60 The distinction between three different groups of court personnel aims to reserve the category of proper judges only for the most qualified members of the judiciary and to equip them with sufficient support staff, reducing their administrative workload and providing them with enough time to focus on their adjudicative tasks. In a pilot project in Shanghai, 33 per cent of the personnel were classified as judges, 52 per cent as assistant staff and 15 per cent as administrative staff. 61 The selection of court personnel for the three new ranks was conducted through various evaluation exercises. In Guangzhou, a written test accounted for 30 per cent of the overall assessment, an oral exam for 10 per cent and job performance for 60 per cent. 62
In September 2015, the SPC issued an Opinion on Judicial Responsibility, which provided that courts at all levels have to establish judges’ performance evaluation committees, which shall consider, among other things, the number of cases handled, the quality of judgements, the abilities of judges and their integrity and discipline, as well as external evaluations of judges. 63 After amending the previous system of evaluation criteria, which took into account the appeal and petition rate and sanctioned judges for negative social effects of their decisions, performance evaluation focused increasingly not only on the numbers of resolved cases but also on the quality of judgements.
The ability of a judge to interpret and apply the law properly can be easily evaluated on the basis of the information contained in the judgement database. Once the database has accumulated sufficient data, it will become the central tool for conducting merit-based evaluations of judges. The SPC has outlined such a development in a policy document on Intensifying Judicial Reform. It states that the quality of reasoning in judicial opinions should become a significant aspect in evaluating judges for selection or promotion. 64 This new approach promotes professionalization of judicial personnel as it strengthens the accountability of specialist peers such as judges, law professors, lawyers and other legal experts, who are members of judicial selection committees. 65
Control and centralization of the judiciary
The court decision database enables the collection of comprehensive information on the adjudication practices of basic level and intermediary level courts, which is then at the disposal of the High People’s Courts and the SPC. Instruments of the SPC to steer lower level adjudication, such as the guiding cases mechanism, which was introduced in 2010, can only fully unfold with the help of the required online publication of judgements. The guiding cases mechanism provides for the SPC to select final judgements from all levels of courts, to publish them after editing and for their adoption as guiding cases by the SPC’s adjudication committee. Guiding cases that have been published by the SPC have to be taken into account by courts when they decide similar cases. 66 Consequently, guiding cases may serve as an instrument of the SPC for controlling legal development in a swift and discrete manner by selecting suitable court decisions and elevating them to the status of guiding cases. Compared to the lengthy drafting procedure of judicial interpretations, the adoption of guiding cases is far more flexible.
The requirement that all judgements be uploaded to a database facilitates the accessibility of all lower level court judgements by the SPC. To steer legal development into a certain direction, the SPC only has to use the relevant keywords to make a full text search of judgements in the database and select a suitable judgement. The online publication requirement further allows the SPC to monitor whether lower courts correctly take into account and follow guiding cases. The mere possibility of such supervision will enhance the lower courts’ compliance with guiding cases. Hence, the database reinforces the effects of the guiding case mechanism, which thereby serves as a tool for the SPC to expand control over lower court adjudication and to promote the centralization of the judiciary.
Communication among legal professionals
The decision database has an audience that mainly comprises judges, legal scholars, law students and lawyers, and it triggers discourses on and provides answers to legal problems among this group of professionals. The database thus enables increased horizontal learning processes among judges and other legal professionals, as they can turn to the database with any legal problem and search for cases where that legal problem was previously addressed by the courts. This facilitates a development towards a unified application of law alongside vertically structured measures such as the guiding case mechanism. Currently, the rather brief reasoning sections of judicial decisions are still an obstacle for such a development as they impede the exchange of ideas in relation to solving specific legal problems. 67
Further, the online publication of judgements has induced a change in the communication practices within courts. Previously, communication functioned mainly in a vertical direction, that is, judges consulted superiors within the court, the judiciary or other party-state institutions, whereas access to legal education, legal regulations and the decisions of other courts was rather limited. 68 Court decisions were made available to judges through official and controlled channels, which meant that cases were selected and often edited with the clear intention of guiding their interpretation and the application of the law by judges in lower courts. In contrast, the online database now makes available to judges a large number of original cases that are not selected and edited for certain purposes. The database breaks away from the hierarchical structure of access to court decisions, which were only available through internal court networks. Within courts, only the president and vice presidents had access to all court decisions, division chiefs could access all cases within their division and judges were normally only allowed to access judgements through the internal network, which were decided by themselves. 69 Judges can now easily retrieve court decisions from the online database, which can serve as an authority for an interpretation and application of the law that they themselves, and not necessarily their superiors, prefer. The online database facilitates the development of horizontal communication structures between judges, which are less susceptible to direct control and the preselection of decisions. Hence, the online database serves as a new source of legitimacy, as judges can claim that their decisions are based on how other courts have decided. 70
Further, the database establishes another layer of interaction with peers outside the judiciary, by facilitating communication between academia and the courts, as well as between judges and other legal practitioners. The database, with its full-text search facility, offers legal scholars unprecedented and comprehensive access to court decisions and facilitates systematic and in-depth studies of legal practice. Consequently, academia can grasp current developments in legal practice better, provide criticism of court decisions, and offer timely solutions to legal problems that courts encounter in adjudicative practice.
Conclusion
The database increases the pressure on individual judges in terms of standards of legal reasoning, performance evaluation and resisting improper interference in adjudication work. The SPC cannot deliver, however, on its promise to establish public trust in the judiciary as an immediate consequence of establishing the online publication requirement, because the database is orientated towards legal experts and not the general public. Moreover, it is unlikely that the media will make use of the database in a way that produces a positive image of the courts. Hence, we argue that the SPC used the party policy of improving public trust in the judiciary as a pretext in order to advance its institutional self-interest in a professional judiciary that operates on the basis of legal rules.
The introduction of the online database will reinforce court reform measures in other areas that aim at a centralization of the judiciary, such as concentrating decision-making power over court personnel and resources at the provincial level and in the case guidance system of the SPC, which aims to steer the application of law in the lower courts and to provide a unified interpretation of the law.
Although the concepts of transparency and accountability are closely connected, not every measure that increases transparency also leads to an increase in accountability. 71 Jonathan Fox differentiates between clear and opaque transparency. Whereas ‘clear transparency’ refers to reliable information about institutional performance, ‘opaque transparency’ denotes information that does not reveal how institutions actually behave in practice. 72 While judgements may conceal the true moral, political or economic motivation behind a decision, they will in general contain an accurate account of the contents as well as the factual and legal justification of the court decision and hence constitute proactive dissemination of reliable information about state activities. Fox further distinguishes between two forms of accountability. ‘Soft accountability’ or ‘answerability’ denotes the right to call those in authority to justify their decisions, whereas ‘hard accountability’ combines answerability with sanctions. 73 Judicial transparency can only bring about hard accountability if it is equipped with the authority to establish sanctions directly linked to the publication of court decisions. 74 If such authority is exerted through the database and the level of this authority exceeds potential pressure from third parties, be it political actors or the media, there will be less room for external interference with judicial work. This will become particularly relevant in administrative cases, which are the most likely to be subject to external interference by other actors of the party-state. The new database therefore has the potential to generate the indirect effect of improving the substantive and procedural rights of individuals in administrative litigation.
However, even the mere answerability of courts through this comprehensive turn to transparency will produce a significant pressure on the courts to adhere strictly to procedural and statutory norms. This soft form of accountability will be especially effective if transparency is used not only for simple data retrieval but also employed for the purposes of systematic analysis. 75 It is therefore the pressure exerted by immediate peers of judges in the legal field and by the decisions of higher courts which will enhance efforts to strengthen the position of courts.
The database facilitates horizontal communication among legal professionals and considerably reduces state control over access to court decisions. It allows a deeper penetration into legal practice by scholarly research and intensified discussions among different groups of legal practitioners and academia. The introduction of a merits-based performance evaluation of judges adds a mechanism of accountability, which has the potential to raise the standards of legal reasoning and to promote the professionalization of judges, if it is based on a comprehensive analysis of the decisions in the database of judges under performance review.