Black Hole of Responsibility: The Adjudication Committee's Role in a Chinese Court
He, Xin, Law & Society Review
How courts and judges in authoritarian regimes decide cases behind closed doors has rarely been studied, but it is critically important in comparative judicial studies. Primarily drawing on the minutes of the adjudication committee in a lower court in China, this article explores its operational patterns and decision-making process. The data suggest that among the criminal cases reviewed by the committee, very few were difficult or significant, but a relatively high percentage of the suggested opinions of the adjudicating judges was modified. In contrast, many civil cases reviewed were difficult to resolve but the committee offered little assistance. Overall the operation and decision-making of the committee were subsumed by the administrative ranking system inside the court and the authority of the court president was enormous. The analysis also demonstrates the limited role of the committee in both promoting legal consistency and resisting external influences. Instead of achieving its declared goals, the committee has degenerated into a device for both individual judges and committee members to shelter responsibility. The findings compel researchers to reevaluate the role of the adjudication committee in Chinese courts, and the relationship between judges and authoritarian regimes.
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How judges and courts make decisions is undoubtedly central to legal studies. While forms of political control of the judiciary and of individual judges exist in every country, the specific dynamics of these controls differ drastically. But the institutional designs have nonetheless been a crucial factor in judicial decision-making process, both in liberal democracies and in authoritarian states. In the United States, for example, judicial politics depends upon whether judges are elected or appointed (Friedman 2009). In authoritarian regimes, in contrast, the institutional arrangements overwhelmingly affect judicial decision-making process, as demonstrated by a burgeoning literature on such courts around the world (see Ginsburg and Moustafa 2008).
The institutional environment in which Chinese courts and judges are embedded is also a key to understanding their decisionmaking process. The financial reliance of Chinese courts on local governments, for example, has generated incentives for local protectionism, and judicial independence is limited because the appointments of senior court officials are controlled by local political elites (Clarke 1995; He 2011; 2012b; Lubman 1999; Peerenboom 2002). Institutional constraints, especially the measures on individual judges' performance, also markedly affect their decisionmaking (He 2009a). In addition, the institutional environment of judges has been an important factor in understanding the room for Chinese judges to make autonomous decisions (Stern 2010).
While this institutional approach has a lot to offer in understanding the judicial decision-making process in authoritarian regimes, it suffers from a paramount difficulty: some core judicial decision-making institutions are seldom accessible for direct examination. The adjudication committee (...) is the highest decision-making body in Chinese courts. We also know that the committee reviews and rules on the most complicated, controversial, and significant cases behind closed doors without hearing cases (Cohen 1997, 2006). But more than six decades after the establishment of the People's Republic, and three decades after China's reforms, our understanding of this central decision-making body remains rudimentary. Since the meetings are not open, and the minutes are not available to the public or even to the involved parties, the details of the committee's operation remain mysterious. Earlier researchers have had to rely on legal regulations, sporadic interviews, published judgments, media reports, speculations, and anecdotal accounts (Chen 1999; He 1998; Woo 1991; Wu 2006; Zhu 2000). …