Back to ‘black box’? As China tightens access to court records, legal experts fear for future of judicial transparency

The debate generated so much heat that Xu’s sentence was reduced to seven years with a fine of 300,000 yuan on appeal, and authorities eventually punished officials who were previously untouched in the scandal.

China to cut back access to court rulings, sparking transparency concerns

But starting next year, things are likely to change.

After days of silence, the Supreme People’s Court finally addressed public concerns on December 22, acknowledging for the first time that the number of published decisions had been scaled back, citing security and privacy reasons.

The court said it had never “put a stop” to publicising the documents, but new uploads dropped from 19.2 million in 2020 to 14.9 million in 2021 and 10.4 million in 2022.

“We need to emphasise that ‘openness’ isn’t equal to ‘being public’,” a court spokesperson said. “Embracing judicial transparency doesn’t mean we need to post all judicial information on the internet.”

In addition to the new internal database, an archive of exemplary cases would be created and made available to the public, the top court said, stressing repeatedly that it had never wavered from transparency.

The SPC did not respond to an interview request from the Post.

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Legal professionals have expressed concerns about the restrictions on access to the new database and what that means for the future of China’s judiciary.

A number of prominent lawyers and academics said the move, which they called “destructive” and “totally unacceptable”, went against the “sunshine judiciary” principle the top court had promoted.

“Judicial documents carry the goal of the rule of law … it is an essential part of justice to disclose the facts of a case, the results of the judgment and the corresponding reasons,” Lao Dongyan, a prominent China policy critic and law professor at Tsinghua University in Beijing, wrote on social media platform Weibo.

Huang Juntao, a Wuhan-based tax lawyer, said that if judgments were not open to the public, it would be easy for corruption to breed.

“It’s far from enough to rely on the courts’ internal supervision,” he said.

Law students said on Weibo they feared there would no longer be enough cases to study. Some have even started selling gigabytes of downloaded judgments on social media.

The number of new cases posted on CJO has dramatically diminished in recent years.

In a rough calculation, Huang found that the number of cases posted annually dropped by almost 70 per cent over the past five years.

For example, the number of criminal case judgments found on CJO in 2018 was 908,916 – or 75.87 per cent of the total 1.19 million criminal verdicts handed down that year. In 2022, just 8.32 per cent of the decisions in criminal cases were posted.

Moreover, significant numbers of cases – sometimes all cases involving certain offences – are often removed from CJO for unknown reasons, according to a study published earlier this year in the Columbia Law Review.

No one foresaw this when the website was launched in 2013 as a signature policy of then newly installed Supreme People’s Court chief justice Zhou Qiang.

Under the initiative, courts across the country were required to upload their decisions to the database, although cases deemed sensitive – including those involving the death penalty, minors, state secrets, national security, personal privacy and divorce – were excluded.

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As of December, CJO had been visited 108 billion times and a total of 143 billion documents had been posted, according to its own data.

Over the years, the database has become a go-to resource for lawyers, judges and scholars both in and outside China. The website, which covers criminal, civil and administrative cases, has search features that allow users to track court decisions.

Zhu Xiaoding, a criminal lawyer at the Beijing Cailiang Law Firm, said he did extensive searches on the website when preparing each one of his cases.

“It made our work extremely convenient. We had case studies and learned from our peers through similar experiences. It’s irreplaceable,” he said.

He said lawyers often used the website to generate a report of similar cases across the country for the courts, along with using the data and analysis to back up their positions.

“For example, in one of my cases, the local government said the case should not fall under the jurisdiction of the court, so we searched on the website and printed out past examples for the court,” he said.

The court was able to see how many cases were decided in the province and city – a much more direct way of proving it had jurisdiction than analysing legal theories, he said.

The public has also made extensive use of the website.

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Public shaming: accused human traffickers paraded through streets of China’s southern Jinxi city

Public shaming: accused human traffickers paraded through streets of China’s southern Jinxi city

The case sparked public anger, with many saying her husband had been sentenced too lightly. Several people went on the judgments website to search for similar cases in the area and found that in previous years, a number of kidnapping victims had filed for divorce from men they were forced to marry and were denied by the court.

One of the women, Zhao, was kidnapped in 1984 and taken from Sichuan province in southwest China to Fengxian county in the eastern province of Jiangsu, where she was forced to marry a local man. In 2014, she filed for divorce, but the court determined the “the couple grew apart due to lack of communication” and ruled there was still a chance for the marriage to work.

There was so much discussion about the trafficked women that the courts quickly withdrew several judgments on similar cases from the online database.

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Official explanations for the retractions range from privacy concerns to the fact that some cases were on appeal, to fears that the court documents could be used as blueprints to commit similar crimes. But legal professionals are not convinced.

Wang Jiangyu, a law professor from City University of Hong Kong, said on Weibo that making court decisions public could be troublesome for authorities because data analysis of the cases could expose how Chinese politics and the economy function.

“Furthermore, parties involved could easily search on the website to find different types of verdicts for similar cases and challenge the court,” he wrote. “There are also mistakes in the decisions that make the courts a laughingstock.”

A Columbia Law Review paper published earlier this year said Chinese courts were likely to be worried about criticism or negative portrayals of social phenomena or political-legal institutions.

According to the paper, the initial launch of CJO and subsequent retreat from transparency reflected a broader shift.

“The courts are following signals from the top, and party leaders have de-emphasised transparency amid new calls for data security, enhanced censorship, and greater emphasis on top-down control over Chinese society,” the authors wrote.

Even with all its imperfections, lawyers still prefer having tools like CJO in place.

Zhu, the criminal lawyer, said fewer than 10 per cent of his cases were live streamed and many of the judgments were hidden from the database because he represented clients in situations that confronted the government.

But for those cases that were open, he said he believed the website had positive effects.

“It’s a sword that hangs over every judge,” he said. “If they interpreted the law incorrectly, whether on purpose or not, if they made mistakes in writing or judging, all that will be seen [by the public] someday.”

“If judicial openness can regress, then I can’t imagine what the future of China’s judiciary will be like,” Zhu said. “I feel extremely angry.”

Rachel Stern, a law professor at the University of California, Berkeley and one of the co-authors of the Columbia Law Review study, said she was concerned that only selected cases would be released to the public in the future.

“I think there is still interest inside the courts in analysing and learning from court decisions, both to understand trends in society and to improve legal uniformity,” she said. “What is fading is any interest in making that conversation public.”