Supreme People's Court Limits News Media Coverage of Court Cases

Supreme People's Court (SPC) President Xiao Yang and Vice President Cao Jianming on September 12 announced new restrictions on news media access to information regarding court cases, according to a September 12 Xinhua report and a September 13 Xinhua report. The policies include a requirement that news media obtain information from court spokespersons and not interview judges and other court officials without government permission, a requirement that courts must receive government approval to make announcements in sensitive cases, and a prohibition on a court's release of certain types of information, including "any other information that a court's leaders instruct should not be released," according to the September 13 Xinhua report. Cao also called on the media to avoid, among other things, issuing commentary regarding court cases, according to the September 13 Xinhua report.

Some members of China's state-run media criticized the new policies for limiting the media's oversight of the courts, giving courts discretion to withhold information that may be of public interest but that the government deems inappropriate for release, and restricting judges' right to freedom of expression, according to a September 14 South China Morning Post (SCMP) article (subscription required), a September 14 Southern Daily editorial (in Chinese), a September 20 Beijing News editorial (in Chinese), and a September 21 Southern Weekend article (via NetEase, in Chinese). Xiao and other state-run news media, however, said the new announcement system would increase the transparency of court proceedings, lead to fairer trials, and ensure more truthful media reports, according to a September 13 report (in Chinese) on the SPC's Web site, a September 12 People's Daily article (in Chinese), and a September 13 People's Daily editorial (via Xinhua, in Chinese).

Under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), courts can exclude the press and public "from all or part of a trial" but only to protect "morals, public order or national security in a democratic society" or the privacy of individuals, or "to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." The SPC's prohibition on the release of "any other information that a court's leaders instruct should not be released" is overly broad because SPC officials did not indicate that the "court's leaders" would be subject to any standards for determining when they may exercise this discretion. A search of publicly accessible sources of China's laws and regulations did not turn up any rules issued in connection with the announcement of these policies.

Both the Basic Standards of Professional Ethics for Judges of the People's Republic of China and the Bangalore Principles of Judicial Conduct (Bangalore Principles, also available in Chinese), which the U.N. Economic and Social Council endorses and has invited U.N. member states to consider, call on judges to refrain from making public statements that might affect the fairness of the court but do not call on judges to refrain from all public statements. The Bangalore Principles also provide that judges are entitled to the same freedom of expression as any other citizen, so long as the judge exercises such freedom so as to avoid harming "the dignity of the judicial office and the impartiality and independence of the judiciary." According to the September 21 Southern Weekend article, a university law professor said that judges should not be subject to "excessive restrictions" and even though, as judges, they should be subject to special restrictions, this "does not mean they have no rights to freedom of expression."

New Restrictions on News Media Access to Information on Court Cases

The SPC officials announced the new restrictions on news media access to information regarding court cases at a "national news propaganda work meeting," which was attended by spokespersons from China's higher courts, according to the September 12 and September 13 Xinhua reports, and the September 13 report on the SPC's Web site. The policies include the following:

• Following establishment of the court spokesperson system, court spokespersons will handle announcements and accept news media interviews. Judges and other court officials may not accept media interviews without authorization and should not comment on "major or sensitive issues" to the news media.
• Any case involving state security, nationalities, religion, major emergenices (tufa shijian) or sensitive incidents, and "other countries, Hong Kong, Macao, or Taiwan," should be communicated to the relevant departments as soon as possible and any announcements must be approved by "this court's leaders." The term "this court's leaders" was an apparent reference to top officials at the SPC. Those giving "inappropriate news" to the media would be "handled severely."
• The SPC will be responsible for announcements regarding "major or special cases or cases of national influence."
• Courts will not release information regarding state secrets, commercial secrets, an individual's private affairs, juvenile defendants, closed trials (other than limited details), internal court documents and discussions, and "any other information that the court's leaders instruct should not be released."
• The news media should avoid commentary on cases, reports that might negatively influence a case, or reports that seek to predict the outcome of pending cases. In May 2005, the State Administration of Radio, Film and Television issued its Circular Regarding Calling for Resolutely Strengthening and Improving Radio and Television Public Opinion Supervision Work, which requires television and radio news media not to "publicly report on the circumstances of a trial before it is concluded." In 2003, the Guangdong Propaganda Department and Guangdong Province High People's Court issued regulations prohibiting the news media from reporting on cases before the court announces a decision, and also prohibiting news media from writing commentary that opposes the court's decision after the decision has been announced, according to a December 17, 2003, Xinhua report.

Additional Analysis

Limits on Media Oversight

Some members of China's state-run media said the court announcement system would limit media oversight of the courts. According to the September 14 SCMP article, a senior editor said "the restrictions would sacrifice the media's supervisory role." The September 14 Southern Daily editorial, referring to criticism that media coverage had caused some cases to be decided in the "court of public opinion," said that "if freedom of public opinion is sacrificed in the name of getting rid of the court of public opinion it will be difficult to guarantee a fair judicial system." The September 13 People's Daily editorial, however, said that the court announcement system would help the public supervise the courts by providing citizens with accurate information on which to base their supervision.

At the September 12 meeting, the SPC officials sought to limit media reporting on court cases and to use the media to assist in the court's propaganda work. In addition to Cao's call on the media not to issue commentary and other reports, Xiao said that courts should be receptive to critical reporting, but "only if such reports are well-intended and assist in improving the work of the courts," according to the September 13 report on the SPC's Web site. The same article reported that Xiao acknowledged the news media's power to influence society and said that the "judiciary could no longer ignore the function of the media." He called on courts to step up their propaganda efforts, in line with the efforts of the Party and the government, and to use the spokesperson system to "correctly guide public opinion," according to the September 13 report and the September 12 People's Daily article.

A January 2005 Columbia Law Review article titled "Watchdog or Demagogue? The Media in the Chinese Legal System" written by Columbia law professor Benjamin Liebman notes that judges have complained that the media have unfairly favored certain parties or shown an ignorance of the law. He also noted that courts have attempted to resist pressure from the media by directing the media's coverage of cases. "Reporters complain that courts rely increasingly on arguments of judicial independence to prevent reporters from covering cases, and that courts are restricting the media while at the same time issuing statements welcoming popular opinion supervision," the article said.

Discretion to Withhold Information

Two Chinese commentators criticized the SPC for giving courts discretion to withhold information that may be of public interest but that the government deems inappropriate for release. Beijing lawyer Pu Zhiqiang said "[t]he item that restricts court staff from releasing information which court officials don't want released is totally unreasonable and illegal, because the court officials' preferences cannot represent the law," according to the September 14 SCMP article. Pu feared that courts might use this discretion to withhold information related to court corruption. A senior editor quoted in the September 14 SCMP article said that the system was "designed" to block the release of information in connection with "sensitive cases concerning state-owned enterprise reform, wage disputes, housing demolitions and property disputes."

For more information on China's judicial system, see Section VII(c), Access to Justice, of the Commission's 2006 Annual Report.