Björn Ahl

Retaining Judicial Professionalism: The New Guiding Cases Mechanism of the Supreme People's Court

In 2011 and 2012, the Supreme Peoples Court (SPC) published its first “guiding cases.” Guiding cases serve as decision-making models that must be taken into account by lower courts when deciding similar cases. This study argues that the establishment of a national formal legal mechanism to improve consistency in adjudication across jurisdictions and geographical boundaries will strengthen judicial professionalism. The guiding cases system provides the SPC with an instrument to steer adjudication in lower courts discreetly, thereby allowing it to exercise significant influence over legal developments. Given the complexity of cases, compared to law set out in statute, non-lawyers may have tremendous difficulty in understanding and assessing the effects of guiding cases; this in turn acts as a protective mechanism against extra-legal interference. The reform is an example of the SPCs delicate manoeuvring in order to retain judicial professionalism in a hostile yet politically conservative environment. It reflects an attempt by the SPC to strengthen its position vis-a-vis other actors of the party-state and to consolidate the judiciarys function as an adjudicative institution that works on the basis of formal legal mechanisms.

The Politicization of the Chinese National Judicial Examination (2007-2012)

The introduction of a unified judicial examination marked an important step toward legal professionalization in China. Following a conservative turn in judicial reforms between 2007 and 2012, political content was included in the exam. On the basis of exam texts, model answers, and legal and other documents, this article investigates the content of political questions on the judicial exam. The analysis of exam questions reveals the party-state’s perception of the law-politics nexus and the significance of the political content of the exam for aspiring legal professionals. Candidates learn that they have to grasp the current party ideology in order to be able to deliver the correct interpretation of the law for serving the “overall political situation.” The article argues that the examination questions imply that political guidelines serve as an instrument for fine-tuning the application of law according to new policy aims as well as social and economic change.

Towards judicial transparency in China: The new public access database for court decisions

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.

The Delineation of Treaty-Making Powers between the Central Government of the People's Republic of China and the Special Administrative Region of Hong Kong

This article investigates treaty making by the People’s Republic of China (‘China’) and its Special Administrative Region of Hong Kong (‘HKSAR’) with a focus on the delineation of treaty-making powers between the Central Government and the Region. Though China is a unitary state, the Region of Hong Kong enjoys farreaching autonomy that allows it to maintain its capitalist system and own institutions, independent judicial authority and a legal system that is separate from Mainland China. The autonomy of the HKSAR includes the power to conclude certain international agreements on its own. This study of treaty-making powers takes a doctrinal approach. It analyses Chinese and HKSAR legislation including scholarly views and the relevant treaty-making practice.