Automated Justice and Fairness in the PRC
Straton Papagianneas - Leiden University
-- In 2017, the People’s Republic of China (PRC) opened its first internet court in Hangzhou, tasked with resolving e-commerce related disputes. The Hangzhou Internet Court conducts the entire judicial process over the internet via online litigation platforms where parties can up-and -download their case files and attend trial hearings via video-conference (Xu, 2017).
Chinese courts are increasingly automating and digitising the judicial process by integrating technological applications in all aspects of their work. I examine this process in my recent paper, “Automated Justice and Fairness in the PRC.” This ‘judicial informatisation’ (sifa xinxihua司法信息化) has been ongoing for two decades, but has accelerated under the new judicial reform agenda, formulated in 2014 by the Central Committee. Since then, technology has been given a prominent role in the judicial reform agenda and China’s judiciary has accelerated the mass-digitalisation of its procedures and archives of court judgments (Ahl and Sprick, 2017) as well as introduced live-broadcasting and online video depositories of trial hearings (Fan and Lee, 2019).
This virtual judicial environment constitutes the foundation for what is officially called the smart court (zhihui fayuan智慧法院 ). A fully integrated network between different systems such as judicial databases, online litigation platforms, and courts’ internal systems is envisioned to link not only legal courts and other judicial organs such as procuratorates and police, but also private technology companies and law firms (Guo, 2019). The end-goal is “a more scientific and accurate judiciary” by creating a fully digital judicial process where judicial officers make use of technological applications sustained by algorithms and big-data analytics, the majority of tasks are automated, and opportunities for human discretion or interference are minimal.
The ‘mechanisation of justice’ (Roth, 2016) is believed to enable litigants to “feel justice and fairness in every case” (SPC Opinion 2017). It is hoped it will make the judiciary faster, more transparent, and consistent, as well as curb judicial misconduct by reducing opportunities for procedural and judicial discretion and the judicial process becomes more transparent and visible to the public. This should help restore the credibility and legitimacy of the judiciary.
In light of the many ethical issues and widespread concerns about using artificial intelligence (AI) and machine learning in justice and governance (e.g., see O’Neil, 2016; Simmons, 2018; Završnik, 2019), the article tries to explore and understand how and why an automated judicial process can be considered to constitute fairness in the Chinese context. In the Chinese context, fairness and justice are encapsulated in the concept of judicial fairness or ‘judicial justice’ (sifa gongzheng 司法公正). In Chinese legal scholarship and its political-legal culture it refers to procedural fairness as part of the overall aim of facilitating and obtaining a fair substantive outcome. Therefore, this concept entails both substantive and procedural fairness, with a focus on substantive. In other words, procedures are mostly structured to enable overarching receptivity of substantive law to central party-state policies (Nesossi and Trevaskes, 2017: 3).
Judicial fairness in China then needs to be assessed in its political, economic, social, and administrative context (Ng and He, 2017). Ongoing judicial reforms and the rhetorical focus on judicial fairness need to be seen in the Chinese party-state’s highly legalist and instrumentalist vision of law that seeks to fulfil two core objectives: enhancing party credibility and maintaining social stability (Biddulph et al., 2017: 64-66). What is just and fair, therefore, largely depends on the collective, rather than the individual. Substantive justice thus refers to a desirable judicial outcome that is conductive to achieving central party-state policies and maintaining social stability. It is conceptualised through a utilitarian lens.
Therefore, this article argues that automated justice in China is considered fair because it caters to a stripped-down concept of fairness that focuses primarily on efficiency, compliance, and transparency, rather than individual rights. Automation and digitalisation enable the judiciary to reduce judicial misconduct through its supervisory functions. Moreover, it significantly reduces the discretion of front-line judges by enforcing procedural compliance through the digital environment in which the judicial process is now taking place. On top of that, deviations or procedural missteps automatically trigger warnings and supervision form superiors. It improves judicial consistency by providing a specific framework to make a decision through its advisory and assistive functions.
Automated justice, then, contributes to achieving fairness in the judicial process through its supervisory and assistive functions. It enforces a more efficient, compliant, and transparent judicial process and enhances the work of courts in achieving state development and stability maintenance. This is mainly achieved through the reduction of human discretion by introducing technological applications in the judicial process.
This article does not intend to provide an analytical critique of the Chinese concept of fairness. Rather, it has attempted to assess developments in the Chinese judiciary by reference to its own standards that are compatible to its own politics. It is doubtful whether automation and digitalisation can effectively improve Chinese defendants’ right to legal assistance, the status of criminal defence lawyers during the trial, the use of live witnesses during the trial hearing, or truly enhance procedural guarantees against coercive tactics. These reforms are not necessarily the right approach to address these issues. Admittedly, procedural justice as understood in the ECHR, is a remote dream in the PRC.
Therefore, the fairness of automation in China needs to be seen within the policy-drive of making the judiciary a more legitimate and efficient agent of the Chinese party-state. Whether a scientific and more accurate administration of justice leads to a fairer kind of justice, depends on what perspective one is taking. As we have seen, from the perspective of the Chinese party-state, it is indeed so.