Chinese Courts And The Media
by Ming Yan Paul Cheng
The Chinese media plays an integral part of the Chinese judicial system. Some have argued that the media does not increase the transparency of the Chinese Judicial system and may actually undermine court autonomy. Others have argued that the media promotes public interest and plays a positive role in the process of democratization. However, the media is a necessary component for the Chinese judicial system to exert itself and become a more independent branch of the government.
Traditionally, the Chinese media was the “eyes and ears” of the Party so they are often more powerful than the institutions or individuals that they cover.1 The recent rapid commercialization of the Chinese news media has caused a growth in defamation litigation.2 These suits are mostly brought by the government, the Communist Party entities, the corporations and ordinary citizens.3 The media loses a majority of these cases showing that the courts are able to challenge the media’s authority and influence.4 The courts’ willingness to rule against powerful entities is an important step for it to exert itself and become a more powerful branch of the government.
The media is an important weapon that lawyers can employ to help publicize their cases and in some situations, inform the public about the violations of certain laws by their local governments.5 The media is a strong channel where the facts and truths can be disseminated to the public. Cases that are not originally politically sensitive can be transformed into one of concern for Party officials when they receive extensive media coverage.6
The 2002 “black whistle” case, where the media had reported that some soccer referees were accepting money to affect the outcome of games, is a typical example of this. The media was critical of a lack of legal actions against these referees. As a result, the Supreme Court’s Procuratorates issued a notice stating that the case should be under the criminal code that “governs the acceptance of bribes by employees of companies or commercial enterprises.”7 A Beijing district court found the referee “guilty of corruption by a state official,” a more serious crime that wasn’t even alleged. The court implicitly rejected the Procuratorate’s interpretation of the criminal law.8 The media pressure played a major role in forcing the Procuratorate to act,9 but the court had the final say in interpreting the law, establishing their power in the government.
The media is also an important channel of communication amongst the scattered courts throughout China. When some courts are willing to expand its role, the media is an integral part in disseminating the news to courts in other parts of the country. An example is in education litigation, where courts have expanded their role with recent development.10
Traditionally, education institutions were seen as social service organizations and outside the jurisdiction of the courts. The development in this area is due to the Chinese courts’ willingness to take a creative approach in interpreting and implementing the law.11 The media has favored the student plaintiffs and has played an important role in transmitting the new legal norms developed by the courts to new plaintiffs and to other judges.12 Without the media, the students and judges from other parts of the country would not know what the new legal trends are in education litigation.
The media is instrumental in allowing the Chinese courts to exert themselves in order to play a stronger role in the Chinese government. The Chinese courts are able to challenge the politically powerful media without directly clashing heads with the government. The media allows the courts to see what other Chinese courts have done to expand their roles. The media can also generate a lot of publicity so that the courts can rule fairly and not base their decisions on political pressure.
1 Benjamin L. Liebman, Innovation through Intimidation: An Empirical Account of Defamation Litigation in China, 47 HARVARD INT’L L.J. 33, 47 (2006).
2 Id. at 46.
3 Id. at 34.
4 Id. at 35.
5 Eva Pils, Asking the Tiger for His Skin: Rights Activism in China, 30 FORDHAM INT’L L.J. 1209, 1224 (2007); see also Jerome Alan Cohen, Law: China Trips Up Its Barefoot Lawyers, FAR EASTERN ECONOMIC REVIEW, Nov. 18 2005, at 17.
6 Benjamin L. Liebman, Watchdog or Demagogue? The Media in the Chinese Legal System, 105 COLUM. L. REV. 1, 80 (2005).
7 Id. at 73-75.
8 Id. at 77.
9 Id. at 79.
10 Thomas E. Kellogg, “Courageous Explorers”?: Education Litigation and Judicial Innovation in China, 20 HARV. HUM. RTS. J. 141 (2007).
11 Kellogg, supra note 11, at 153.
12 Id. at 142.