The idea that courts can include opposing views in their official decisions reflects a reform trend to open up the judicial process and make judges more accountable, or in the words of the Shanghai No. 2 Intermediate Court, to “bring sunshine to the court room” and to “make judges feel responsible” for their decisions (www.shezfy.com). The experiment with dissenting opinions, which a number of Chinese court systems in addition to Shanghai are beginning to explore, is itself one aspect of a broader reform to revamp how Chinese judges write decisions (court judgments). Until recently (and still the prevailing norm), court decisions have been very brief documents—typically several or a half dozen pages—consisting only of a highly compressed and usually over-simplified summary of the facts of a case and a recital of the court’s ruling. Noticeably absent has been explanations of how and why a court arrived at its decision, either in terms of legal reasoning or factual analysis. Similarly, decisions have not bothered to address in any depth the specific arguments raised by the litigants; many of these points are not even mentioned.

The deficiencies of this form of court decision—another example of what Chinese critics call the opaque, “black-box” (暗箱) nature of the judicial process—have been obvious for a long time. It was not until the late 1990’s, though, that calls for reform began to receive serious consideration. Various courts, including the Supreme People’s Court (最高人民法院), have asked their judges to state the rationale for their rulings and discuss the points raised by the parties in their decisions. Change has not been dramatic, but it has been real. Although most decisions are still brief statements that overly simplify the underlying cases, others, particularly—but not exclusively—in complex commercial disputes, have been multi-page opinions that delve to some extent into the legal issues and facts in dispute. Many judges are conscious of the need to justify their conclusions in their rulings. According to a report by the People’s Court Daily 《人民法院报》, the Foshan Intermediate Court (佛山市中级法院) in Guangdong Province issued a decision in July 2004 which ran over 100 pages. However, even in longer decisions, Chinese courts generally still do not display sophisticated legal reasoning skills.

The introduction of dissenting opinions is one indication of how far thinking about the judiciary has come in China over the past decade. While hardly revolutionary, this innovation would have been dismissed out of hand only a short time ago as inappropriate for Chinese courts. In theory, Chinese courts are supposed to make collective decisions reflecting the consensus of a panel of judges. In reality, the presiding judge of a panel or the head of the division in which the panel sits largely determines a case’s outcome. It would have also been rejected as unseemly for divisions of opinion within a court to be aired publicly. Today, more confident in their judges’ abilities and convinced that change is necessary to improve the judiciary, Chinese judicial leaders are considering reforms that seemed beyond the realm of possibility just a few years ago. Moreover, the extent to which U.S. and common law system models and approaches are influencing the reforms is also striking: in addition to dissenting opinions, reforms under discussion include the establishment of a senior level of courts with jurisdiction over a number of administrative (government) districts, similar to the U.S. Court of Appeals, and a system of assistants to senior judges, roughly modeled after the U.S. law clerk system.

Will dissenting opinions eventually become standard practice in Chinese courts? Even in pioneering Shanghai, it is far from clear if they will ever be more than a novelty. The Shanghai court was careful to stress the trial nature of its experiment and made it clear that the disclosure would not include the name of the dissenting judge, details of the decision-making process or information concerning “national secrets” and personal privacy (www.shezfy.com). There have been no reports of further dissenting opinions being published by the same court.

Several major Chinese newspapers, including the People’s Daily, one of the Chinese Communist Party’s main outlets and the Legal Daily, have called on other courts to follow Shanghai’s lead. But in a legal system in which most court decisions are not officially published to begin with (only a handful of carefully selected cases deemed by the Supreme People’s Court to be of particular instructional value are edited and published in the court’s official bulletin 《最高人民法院公报》 each month), it is unlikely that most courts will go to the extra trouble of including dissenting opinions in their judgments, absent an institutional requirement to do so. Despite changing attitudes, Chinese judicial leaders continue to run their courts as administrative units—bureaucracies that attach little importance to individual accountability—and they feel most comfortable with centralized and collective decision-making. In such a system, even if a judge disagrees with his or her colleagues’ (or leaders’) disposition of a case, he or she will not care enough to push for a reconsideration or to want to issue a dissenting opinion. Absent an institutional change which gives individual judges the power to decide cases and a concomitant sense of responsibility and individual pride in the case’s outcome, it is unlikely that dissenting opinions will become a regular practice.

If the Haidian prosecutors adhere to the spirit of the agreement, it may help to rectify the great imbalance of power between the prosecutors and defense lawyers. Though the Marxist notion of accused parties being “public enemies” has less currency now, China’s criminal justice system remains heavily stacked against the criminal defendant. In the majority of cases, court-appointed lawyers are notified of a case they are to take only days before the trial date. Most make just a perfunctory effort to defend their clients. Typically they will only seek a reduction in the sentence rather than trying to exculpate the accused. Even those who try to mount a vigorous defense are handicapped by procedural obstacles. Defense lawyers are only permitted to obtain copies of the indictment and other procedural documentation filed by the prosecutor prior to trial. They usually have no access to critical evidence such as confessions or statements made by the defendants. In addition, pursuant to Article 306 of China’s Criminal Law (刑法), defense lawyers themselves are subject to criminal liability if they introduce false evidence at trial or assist in the fabrication of evidence. This is a controversial provision which has had a chilling effect on lawyers’ willingness to take on criminal cases. One of China’s better known criminal defense lawyers, Zhang Jianzhong (张建中), was tried in February 2003 on charges of assisting a client to fabricate evidence. Zhang had been a member of the Beijing Bar Association’s Criminal Law Committee and was the defense counsel in several high-profile corruption cases involving senior political figures. While his guilt or innocence is uncertain, what is clear is that Article 306 is not a paper tiger. Chinese prosecutors, on the other hand, are the strong arm of the state law enforcement apparatus. They have full access to police records and can, effectively, question defendants at will. They are frequently in close contact with courts before the trial and are able to block defense lawyers’ effort to collect pre-trial evidence.

Recent reforms, most notably the major overhaul of China’s Criminal Law in 1997, are intended to strengthen the rights of criminal defendants. But they have not greatly improved the lot of suspects due to ingrained police and prosecutorial attitudes, which have undermined such reforms in practice. For example, suspects may be allowed to meet with a lawyer as required by law, but police are present in the room or the time provided is too short to make the meeting meaningful. The new procedures and rights have also been hampered by practical problems, particularly the lack of lawyers willing to do criminal defense work. Recent statistics reveal that the percentage of criminal cases in which defendants are represented by counsel has been declining, despite a continuing increase in the number of lawyers in China. According to the Beijing Bar Association, only 9% of the criminal defendants in Beijing are represented by counsel, leaving the majority of them fending for themselves in court. (Sources: Beijing Youth Daily, July 2, 2003 and October 23, 2002)

The Haidian District prosecutors’ agreement to allow pretrial discovery by defense lawyers bears watching even though the scope of the reform is still limited. According to the Beijing Youth Daily, the Haidian District People’s Procuratorate (located in Beijing’s university and high-tech district) handled only one-fifth of the city’s criminal cases during the first six months of 2002 and only 25 out of the more than 100 law firms which applied were selected to participate in the pre-trial discovery program. It also remains to be seen whether politically sensitive cases would be covered by the new program.