Reforms spark legal brain drain in China

Reforms spark legal brain drain in China
PHOTO: The Straits Times

Judges and officials are stepping down as changes designed to streamline China's judicial system prompt concerns about long hours, low pay and the pressure of work. Cao Yin reports.

Jiang Yangbing was a judge at an intermediate people's court in Zhanjiang city, Guangdong province, until June last year, when he quit his post because of stressful working conditions and concerns about new guidelines related to independent verdicts.

The 33-year-old lawyer said a number of cases related to administrative procedures or property disputes had left him with the double challenge of trying to quell dissent that could have sparked a mass incident, such as public protests, while also combating interference from the government departments involved.

"I was so worried when the litigants argued or even fought in front of me. It always upset me. I was desperate to escape," he said.

Jiang resigned just a month before the July implementation of a series of pilot programs to reform the judiciary, initiated by the central leadership in 2013.

He is the tip of an iceberg: Since January, 50 judges have voluntarily left the Shanghai judicial system, according to reports in the Yangcheng Evening News. The resignations followed the departure of 105 judicial officers, including 86 judges, in the city last year, a rise of 90 per cent from 2013.

Mu Ping, president of the Beijing High People's Court, confirmed the talent drain, saying that more than 500 legal officers in the capital have resigned in the past five years.

Some insiders accepted that more judges will resign as the reform process deepens, but insisted that the changes will prove beneficial in the long run.

He Xiaorong, director of the Judicial Reform Office under the Supreme People's Court, China's top court, said the pain caused by the process will be temporary, and urged judicial officials to view the reforms though a long lens.

In September, President Xi Jinping ratified higher salaries for court officials and prosecutors, and also signed off new administrative procedures to ensure greater independence for judges and legal officers and challenge the widely held misconception that they are little more than civil servants .

Zhang Xiaojin, a judge at the Beijing Intellectual Property Court, said reform always impinges on someone's interests, "but I strongly feel that the aim is to provide us (legal officials) with more protection and benefits. That's why I intend to stay in my post.

"I've witnessed the achievements fostered by the reforms, including the setting up of the IP court last year, which has made the conduct of cases more professional," he said. "I'll carry on, and I hope the reforms will prove positive and successful."

Independent oversight

In 2009, Jiang was excited to be appointed as a full judge, qualified to oversee disputes independently. The promotion meant he was freed from the constraints of the "judicial panel" system, under which a team of judges who may not have even been present in court presided over verdicts and sentencing.

However, a year later, he found himself deeply depressed because of interference by litigants, who often refused to accept his verdicts and lobbied against them, and, occasionally, from governmental departments who pushed for retrials if they were dissatisfied with the outcomes of cases.

"That interference made it hard for me to do my job properly," he said. "Some litigants didn't understand the law and attempted to overturn my verdicts by threatening and harassing me.

"I was concerned that the litigants' extreme behaviour could spark a mass incident, but the worst thing was that I didn't know what to do," he said. "I was deeply concerned about my personal security, and I was also being pressured by some government departments that were unhappy with my rulings."

Lin Jinbiao, a judge at the Guangdong Provincial High People's Court, said that he was pleased to see that measures to eliminate outside interference are among the top priorities of the reform process.

The Supreme People's Court now requires every court to collate and record all evidence and legal advice submitted during cases as a means of maintaining impartiality and ensuring independent verdicts.

"It is progress, but outside interference is a stubborn disease in our courts. It will be difficult to cure, but we'll just have to follow developments and see if the new rules are effective. After all, independent assessment of cases is the key to ensuring fair verdicts," Lin said.

More cases, fewer judges

In May, China's courts adopted a new system of accepting appeals. Before the reforms, appeals were assessed by a panel which then either accepted or rejected the case, but now litigants can register their suits without prior review. The result has been an explosion in the number of cases, further increasing the pressures on judges.

Jiang Ying, a chief judge at the Beijing IP court, said the large number of new cases means her working day has been extended, and she often works in her chambers until after midnight. The workload has left her exhausted and concerned about the accuracy of her judgments. "Working overtime adds an element of potluck for me," she said. "Before the reforms, I heard 60 cases a year, but this year I've already ruled on more than 50 disputes. It's an honour to hear cases in the court because it was set up in November to make IP trials more professional, but the number of disputes is beyond expectation. That's making life a struggle for the limited number of judges employed by the court," she said.

The reforms established a quota for top judges to ensure they receive assistance that frees them from administrative and research work, and helps them to produce impartial, well-considered judgments. Some critics have complained that the quota has drastically reduced the number of judges on the bench, while case numbers soar. The IP court in Beijing has 25 judges, but by Aug 20, it had accepted 6,595 cases.

Zhang Xiaojin, a chief judge at the court, said the seemingly endless number of cases has increased the judges' workloads, resulting in delays and leaving litigants in legal limbo as they await verdicts. "I'm 45. It's hard for me to stay up to work late," she said.

She has been heartened by the creation of a new post-legal assistant-which will see junior lawyers, many of them prospective judges, shouldering some of the burden. They will prepare case notes, conduct research, offer legal advice and draft, but not decide on, verdicts. Some serving judges will also be reassigned to work as assistants.

"Assistants will improve the efficiency of court hearings because they will handle administrative and related matters, and that will take the pressure off the judges to some extent," Zhang Wei said.

"In the long run, the assistants' work will be invaluable to the court, and it's good for young judicial officials to gain experience before they are given the right to hear cases themselves. The move will help the judges to conclude disputes more quickly," she said.

"The burdens imposed by the rapid rise in the number of cases will be temporary," she added. "I'd like to see the new mode of working result in more-efficient resolution of cases."

High expectations, low pay

Last year, Zhang Wei resigned his post as a judge in Beijing. He was unhappy with new rules that require judges to accept lifelong responsibility for the verdicts they hand down. The changes-intended to ensure that judges consider cases from every legal angle to avoid miscarriages of justice-have left many of his former colleagues uneasy.

"I have some sympathy with the requirement, but it is far too harsh," he said. "After all, we are only human. Sometimes mistakes occur."

Some judges have expressed concerns about facing retrospective legal action if a verdict is shown to be incorrect, even many years after the decision was made and when the laws and public attitudes may have changed, according to the former judge.

"If we're retired and such a situation arises, will we still be expected to shoulder the blame?" he asked, pointing out that judges' salaries are not commensurate with the pressures they are expected to shoulder.

"I earned less than 5,000 yuan ($787) a month as a judge. In Beijing, that made it really hard to feed my two sons. Making a living must come first," he said.

He welcomed the news that the central leadership passed proposals in September to raise the salaries of judicial officers, saying the development would encourage people still working in the system.

In September, the Supreme People's Court issued a guideline clarifying judicial officers' responsibilities, and stipulating that judges will be offered protection if they are threatened, slandered or libeled. The guideline also pledged that judges will face heavy punishments if they are found to have accepted bribes, acted corruptly or handed down intentionally incorrect verdicts.

"Better protection and a more-transparent approach will set the minds of judicial officials at rest. I hope the new guidelines will be implemented as soon as possible," Zhang Wei said.

The changing face of China's legal system

An overview of some of the reforms undertaken since pilot programs were introduced last year:

In November, the Beijing Intellectual Property Court was established. One month later, IP courts were also established in Shanghai and Guangzhou, the capital of Guangdong province.

In late January, two circuit courts were opened under the Supreme People's Court-one in Shenyang, Liaoning province, the other in Shenzhen, Guangdong. Residents of the regions and areas under the courts' jurisdiction can lodge appeals with them instead of traveling to Beijing, where the country's top court is located. The new courts will also help to spread the workload for top judges.

In March, a pilot programme signaled the start of a programme to reduce the number of judges serving at Shanghai's courts. The programme aims to streamline the judicial process and improve the quality of decisions handed down. The number of judges will be lowered and some current judges may be reassigned to work as assistants, helping judges with legal research and administration, but will not be allowed to decide verdicts.

Since May, all courts have been obliged to file and process cases without delay. Moreover, under the new case-registration system all appeals that fulfil legal and evidenciary requirements must be accepted immediately, without prior review.

First person: Life was too tough, so I quit Cao Yin

He Wei, 33, a former court official who faced an uphill battle to become a judge, resigned in June.

In 2011, along with seven other law graduates, I was excited to start work at the court. I had to pass a civil service exam and then a judicial exam. They are two of the toughest tests in the country and many people fail them several times.

Newcomers are required to undertake a one-year qualification period and then a further year of training.

Before the judicial reforms, potential judges were required to work as engrossment clerks, who are responsible for recording the details of trials, for more than three years before they were deemed qualified to hear cases. Even then, they still had to be named as a judge by the president of the court.

Under the reforms, that decision will be taken by the local legislature, but it seems that it will be harder to become a judge and will take longer to reach that level.

Now, the position of legal assistant has been created. The assistants will help judges research materials, prepare trials and draft judgments, but they will not have the right to decide verdicts.

I often worked overtime. I spent a lot of time studying complicated cases and even gave advice in court, but I was not a judge and I had no real status.

Even more annoying, seniority was a key factor in the appointment of judges at grassroots courts. Before the reforms, judges could be promoted to chief judge or president as a result of seniority, and that's still the case.

I can understand why the reforms state that the best qualified or most experienced people will be the first to be appointed as judges, but I cannot accept that some people-officials, for example-will get the same employment status because of their long service in the court.

I had no idea how long it would take before I became a judge, even though I was qualified to be one. I had to spend time maintaining links and good relations with the court's leaders and those who were allowed to appoint judges. I was exhausted and my career was foundering.

Before I began at the court, I believed I would simply pronounce verdicts in line with the law, but the reality shook me and led me to an employment crossroad.

I'm sure that the reforms are aimed at solving the problems in China's judicial system, especially by ensuring that the best judges hear cases and by preventing local authorities or government departments from interfering in the process or verdict, but I couldn't wait to see how they would pan out.

The economic pressure and other factors didn't allow me to wait. I was paid about 3,000 yuan ($472) a month, and that's not enough to get married on.

Life was too tough. That's why I left my dream job.

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