"DEMOCRATIZING" COURTS IN AN AUTHORITARIAN POLITY? USING AN INTEREST-BASED BARGAINING THEORY TO EXPLAIN CHINA'S PILOT REFORM ON ITS PEOPLE'S ASSESSOR SYSTEM.

• Author: Miao, Michelle

1. INTRODUCTION 433 II. AN OVERVIEW OF CHINA'S PEOPLE'S ASSESSOR SYSTEM 437 III. "CONTROLLABLE RANDOMNESS" IN THE SELECTION OF PEOPLE'S ASSESSORS 441 IV. "RUBBER STAMPS" IN JUDICIAL DECISION-MAKING 447 V. THE POLITICAL LOGIC OF CHEsfA'S REFORM ON PEOPLE'S ASSESSORS 453 A. A CENTRAL-LOCAL EQUILIBRIUM INVOLVING GOAL CONFLICTS 454 B. THE POLITICAL-JUDICIAL NEXUS: TENSION OR COLL USION? 462 VI. CONCLUSION 467 I. INTRODUCTION

   While the use of juries in the U.S. has been in decline, (1) Asia seems to have become the new frontier of lay participation in judicial decision-making. (2) Consistent with this regional rise of jury-like institutions is China's reform of its people's assessor ("PA") regime. As of April 2015, the national legislature authorized fifty courts nationwide to conduct a two-year pilot program. (3) Informed by these early-stage reform experiences, China's Law on People's Assessors was enacted in April 2018. (4) Rather than establishing a new institution, this experimentation sought to reconfigure and strengthen the existing role of lay participation in judicial decision-making in at least two ways. (5) First, the pilot reform set out to enrich trials with the diverse life experiences and common perspectives of laymen. The reform widened the community representativeness of PAs by relaxing qualification criteria and introducing random selection methods. (6) Second, the reform sought to empower laymen as fact-finders by increasing their proportion in mixed grand collegial panels (7) alongside professional judges.

   Of the dozens of institutional rearrangements that altered the inner workings of China's judicial apparatus in the past five years, (8) the PA reform stands out as a unique undertaking. (9) Instead of refurbishing courts from within, it pledged to engage external actors and envisaged a limited shift of authority from professionals to laypersons. Hypothetically, the reform may reconfigure the existing delicate balance of power within courtrooms between those representing the authoritarian state and society. If the reform is successfully enforced, courts may become lively arenas of contention where the citizenry can mount challenges to the exercise of state power. The primary difficulty for effective implementation of the reform plans, however, lies in its wider socio-political context, which is hostile to popular democratic control and judicial independence.

   From a comparative perspective and as a staple of the much-admired Anglophone legal tradition, trial by jury has been widely regarded as a bulwark against judicial tyranny and elite domination. In addition to offering laypersons the opportunity to directly influence judicial decision-making, processes, and outcomes, jury trials represent common-sense values, enhance public confidence in the administration of justice, and educate the citizenry. (10) While lay participation in trials operates in non-democratic settings, it is important to note that many of the benefits of jury trials are firmly anchored in democratic political ideals, the rule of law, and judicial independence. Power-sharing and participative decision-making, which have long nurtured jury trials, may be weak or even absent from the political fabric and legal culture of jurisdictions where lay participation in adjudication has been recently promoted.

   So, what is the fate of such a judicial reform in contemporary China? Most importantly, can ordinary citizens be empowered to impose checks on authoritarian state power through a judicial experiment? This article addresses these questions by presenting data from surveys given to lay assessors and interviews with judges from three local Chinese courts." All three courts were on the Supreme People's Court's ("SPC") list of designated pilot reform sites but represent varying degrees of socio-economic development throughout China. Court A is a basic court at the grassroots level of a rural county. Court B is an intermediate court in a city with a medium rate of economic growth. Court C is in a district within an industrialized city with relatively rich resources. In total, the data collected was based on questionnaires from ninety-eight PAs and interview responses of forty judges. The data centers around two main issues relating to the reform - the selection of the PAs and their role in judicial decision-making process. (12)

   Judicial institutions in authoritarian states have become an emergent and vital field of academic research within comparative law. The empirical and theoretical contribution of this research is three-fold. First, this study furnishes the most up-to-date empirical material concerning the process and impact of China's PA reform. Among others, scholars who studied the PA institution in its pre-reform days called for further research to evaluate whether the most recent reform has been implemented to address problems which plagued the regime for decades. (13) Second, this research presents data that sheds light on the extent to which the pilot reform has led to genuine advances toward layperson empowerment. As Alexis-de-Tocqueville observed, the jury serves as a judicial instrument and political institution. Similarly, China's quasi-jury systems and its reform provides clues for understanding judicial politics in authoritarian states. (14)

   Last, rather than claiming that the reform is politically embedded, this research analyzes both the bureaucratic behaviors of courts as an institution and individual behaviors of judges. It develops an interest-based explanation which treats relevant individuals and institutions as rational, calculating actors who compete to maximize their power, influence, and legitimacy from the reform process. It reveals that the tension between professional and lay assessors within courtrooms is structured by (1) an external power control dilemma inherent to China's authoritarian polity and (2) an internal tension formed between proponents of the reform at the national level and frontline judges who resist the reform at lower levels. The reform is an outcome of dynamic equilibrium formed on both dimensions.

   First, on the national level, China's authoritarian regime seeks to benefit from the utilities of lay participation in courts but takes great caution to minimize associated political risk. (15) The incentives for the state to encourage civic engagement spring from the symbolic appeal of the PA institution as a legitimacy-enhancer and its practical utility as an absorber of popular discontent. While these functions lend considerable support to authoritarian governance, the PA system also poses the potential danger of destabilizing authoritarian rule if too much power is entrusted in the hands of ordinary citizens. This dilemma facing the state is also found in the tension between courts, which make reform policies and largely serve as agents of authoritarian governance, and PAs who represent civil society. Trapped between empowering and domesticating lay assessors, the national judiciary developed a strategy combining formal empowerment with substantial constraint on the role of lay assessors as shown in the reform program. (16) This explains why national authorities appear to be enthusiastic proponents of the reform.

   Second, and most importantly, frontline judges' subdued resistance is a vital force which decisively shaped how the pilot reform was implemented. A contradiction inherent in centralized governance infrastructure--policymaking power is concentrated at the top echelon of the hierarchy but can only make an impact if successfully enforced at the grassroots--entails vertical fragmentation of power within the judicial bureaucracy. This makes an analysis of the attitudes and behaviors of individual judges at lower levels crucial so that the reform's nuanced dynamics can be captured. Indeed, Chinese courts are not monolithic, unified policy implementers. While the national level judiciary is primarily concerned with its compliance with regime expectations, lower courts make interest-based calculations. They consider the potential negative impact that the pilot reform may have on their remuneration, workloads, and career developments. These practical concerns are borne out by empirical evidence demonstrating widespread distrust, skepticism, and control of newly-hired lay assessors by judges at lower levels. (17) These findings demonstrate, interestingly, that judges and courts in authoritarian regimes may choose to support illiberal policies due to rational, self-interested considerations. (18)

   In short, this study explains that the PA reform can be studied by reference to two sets of tensions--the state-citizenry dilemma external to judicial institutions and the internal conflicts between national and lower-level courts. In such a context, it is unlikely that the reform's causes, process, and significance are products of fixed preferences of the state or national courts. Rather, the ultimate reform reached at the end of the pilot reform depends on the interactions and bargaining among stakeholders involved in the process, including those ignored by existing literature, such as the grassroots judges who are normally assumed to be mechanical implementers of policies. This study thus develops a theory of interest-based bargaining to shed light on the specific ways in which courts are transformed into sites of conflicts and resistance in the era of judicial reform.

2. AN OVERVIEW OF CHINA'S PEOPLE'S ASSESSOR SYSTEM

   China's PA regime is one of the few avenues for direct participation of ordinary citizens in state and judicial affairs. In an authoritarian polity, the public indirectly exerts pressure on courts through assertive mechanisms, (19) such as the letters and visits system, (20) mass media, (21) and popular protests. (22)

   None of these channels of influence, however, permit the citizenry a role in the determination of the fate of their peers in a legitimate, open, and...