Judicial Mediation – A Deprofessionalization?

ON 15 AND 16 APRIL 2009, CityU of HK Law School held an international conference on the mediation. Experts from China, Hong Kong, Australia and Macau presented their latest academic outputs in the meeting.

 

The interesting thing is: Most Chinese experts are focusing on the judicial mediation, which is the mediation coordinated, and in many circumstances initiated, by judges during the litigations. Experts in other jurisdictions, by contrary, tends to discuss the mediation out of the court.

 

ON 15 AND 16 APRIL 2009, CityU of HK Law School held an international conference on the mediation. Experts from China, Hong Kong, Australia and Macau presented their latest academic outputs in the meeting.

 

The interesting thing is: Most Chinese experts are focusing on the judicial mediation, which is the mediation coordinated, and in many circumstances initiated, by judges during the litigations. Experts in other jurisdictions, by contrary, tends to discuss the mediation out of the court.

 

China’s judiciary system is actually now experiencing a new wave of transformation. Contrary to the trend before 2007, the current path of the "judicial reform" is to make the judiciary more "close to people". One of the core measures is to enhance the "judicial mediation". In my view, if the "profesionalization is a world trend for the mediation" (stated by Professor Nadja Alexander, a prominent expert in the arena of mediation), then the emphasizing of the "judicial mediation" in Chinese courts can be named a trend of de-professionalization of the litigation.

 

In a lunch seminar a week later from the conference, Mr. WU Zhi, an Asso. professor from Hunan Normal University brought his interesating talk about the "the mediation in Chinese IP litigations" in CityU. His presentation proved again my assumption. In resent three years, Chinese judiciary system has issued a good many of documents on the policies of the mediation. Now the Supreme People’s Courts seems stressed the mediation as the preference in the dispute resolution.

 

The most interesting thing in prof. Wu’s seminar is the discussion among auditors. Most of auditors are the students who registered in CityU’s creative LLM program for mainland judges. Because they are judges on the mainland China, they have many experiences in those judcial mediation. This makes the discussion being exciting. As a real auditor, I do obtain many useful knowledges and inpirations.

 

  VS  ?

One of the most impressive inspiration is: why the Chinese courts eager to be mediation centers? Two judges answered this question respectively (one was in the seminar and the other was on his way back to the dorm together with me, and their answers are amazingly identical!): because the China’s courts are aiming at providing dispute solutions rather than the justice. This reminds me a precedent post in this blog on the "mission of the Supreme People’s Courts" (in Chinese). Yes, the Chinese courts are not set as a seperation of sovereignty powers but the institution for dispute resolution authorized by the people’s congress (at least in the Constitution literarily). The Constitution and Laws are just one of the "three supremacies" (the slogan of the supreme court – and a question in 2008 China Bar exam).

 

As a layman either in the mediation or in the procedure law. I cannot figure out whether this "deprofessionalization" is good or bad in an acedemic way. The only thing raised in my mind is: the conflict among dispute resolution mechanisms. Mediation is a more efficient way in resolving the disputes than litigation, while the feature of the litigation is it’s formal procedure which may be costly but guarantted the rule of law. When the judicary simplified its procedure and compete to the unformal (or less-formal) mechanism of dispute resolution, it actually retreated itself from the position of "transporting justice". And its status will be conflict to the existing mediation institutions. How many cost will be paid in this institutional competition?

 

Another interesting topic in is: whether the IP litigation can really be deprofessionlized in the judicial mediation – even if we narrow the aim of the courts only at efficient dispute resolution? Let’s leave this question in the next thread.

Is a Justice of the Peace a Judge?

A revised version of this essay was published in The Standard (Student Edition),  17 September 2008, p. E05.

 Is a Justice of the Peace a Judge?

 Donnie DONG*

As an Andy Lau fan, I am delighted to hear that he was appointed a Justice of the Peace (JP, 太平紳士) by the Hong Kong government this July.[1] What exactly is a JP? Is a JP a Judge? Let’s review the story of JP and see what Andy is supposed to do in his new position.
 
In ancient Britain, the rule of law was not perfectly established, so the King had to look for reputable knights to keep the peace in unruly areas. Those knights, appointed as “Keepers of the Peace” (和平維護官),[2] were widely respected by the residents in their counties. In 1327, an Act referred to "good and lawful men" to be appointed in every county in the British land to "guard the peace".[3] They were called “Conservators of the Peace” (和平守護官).[4] As such they were authorized to curtail wanderers, dissipate all mutinous and riotous groups, and crack down on thieves and outlaws, and other persons disaffected to the peace. In 1361, their name was altered to “Justice of the Peace” because a statute authorized them to try (審理) the felonies (違法行爲) happening in their own communities.[5] We can conclude, therefore, that JPs were originally judges in the history of British judicial system.
 
During the colonial times (殖民時代), the British JP tradition had spread around the world. Many colonized countries and regions, such as Australia,[6] New Zealand,[7] Canada,[8] Malaysia,[9] certain states in the United States,[10] as well as Hong Kong,[11] had established their own systems of JP. However, the JP system in different countries began to evolve variously over time. In some countries, JPs still sit in the local courts hearing and judging cases,[12] while in other jurisdictions (法域) such as Hong Kong, the JP’s function of judging the cases has been taken over by full-time, legally-qualified magistrates (裁判官).The reason for this replacement is that the legal system has been more and more complicated, and only professional lawyers can ensure consistency in legal judgments. The result of this development is that in contemporary Hong Kong, JPs are actually not real judges.
 
Although the responsibility of hearing cases has been shifted to the magistrates, JPs are still very important to the peace of our society because they are all honourable persons with great influence over our communities.[13] According to the law, a JP may visit any custodial institution (羈押院所) or detained person (被羈押者) and receive complaints.[14] This is essential for protecting the human rights (人權) of the detained persons. In other words, as a JP, Andy Lau has the power to investigate any wrongful treatment of prisoners, juvenile offenders (少年犯) and mental patients, or he can refer the cases to the institutions concerned for follow-up actions.[15] That means he will not only act as heroes in movies, but also be a real guardian of justice for Hong Kong people.
 
“It was a great honour.” Andy said. Yes, indeed. I definitely agree with him, whether as his fan or as a lawyer.

——————————————————————————–

* Donnie DONG, PhD Candidate in City University of Hong Kong.
[1] G.N. (E.) 30 of 2008, in Gazette, No. 26 Vol. 12 (1 July 2008).
[2] James Birch Sharpe, An Inquiry Into the origin of the Office and Title of the Justice of the Peace (Shaw and Sons, 1841), p. ix.
[3] See Her Majesty’s Court Service, The History of Justices of the Peace (Magistrates) , available at http://www.hmcourts-service.gov.uk/aboutus/history/magistrates.htm.
[4] Sharpe, p. 108.
[5] Edward Hasted, The History and Topographical Survey of the County of Kent: Volume 1 (1797), pp. 215-221.
[6] See http://www.australia.gov.au/Justices_of_the_Peace.
[7] See Justice of the Peace Act 1957, New Zealand.
[8] See Justice of the Peace Act, R.S.N.W.T. 1988, c.J-3.
[9] The Justices of the Peace in Malaysia are appointed by states separately. See for example: http://www.jppenang.org/.
[10] Many states in the United States have their own system of Justice of the Peace, such as Arizona, Massachusetts, Connecticut, Vermont, New Hampshire, and so forth.
[11] See Justices of the Peace ordinance, Hong Kong.
[12] For example, In Ontario (Canada), a justice of the peace has judicial jurisdiction throughout the province. See Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 17 (1).
[13] For a list of JPs of Hong Kong, see http://www.info.gov.hk/jp/eng/JPList_g.htm.
[14] See Art. 5, Justices of the Peace ordinance, Hong Kong.
[15] See Administration Wing of the Chief Secretary for Administration’s Office, 2007 Annual Report on JP Visits, p. 3, available at http://www.info.gov.hk/jp/eng/anreport07_eng.pdf.

A revised version of this essay was published in The Standard (Student Edition),  17 September 2008, p. E05.

A revised version of this essay was published in The Standard (Student Edition),  17 September 2008, p. E05.

 Is a Justice of the Peace a Judge?

 Donnie DONG*

As an Andy Lau fan, I am delighted to hear that he was appointed a Justice of the Peace (JP, 太平紳士) by the Hong Kong government this July.[1] What exactly is a JP? Is a JP a Judge? Let’s review the story of JP and see what Andy is supposed to do in his new position.
 
In ancient Britain, the rule of law was not perfectly established, so the King had to look for reputable knights to keep the peace in unruly areas. Those knights, appointed as “Keepers of the Peace” (和平維護官),[2] were widely respected by the residents in their counties. In 1327, an Act referred to "good and lawful men" to be appointed in every county in the British land to "guard the peace".[3] They were called “Conservators of the Peace” (和平守護官).[4] As such they were authorized to curtail wanderers, dissipate all mutinous and riotous groups, and crack down on thieves and outlaws, and other persons disaffected to the peace. In 1361, their name was altered to “Justice of the Peace” because a statute authorized them to try (審理) the felonies (違法行爲) happening in their own communities.[5] We can conclude, therefore, that JPs were originally judges in the history of British judicial system.
 
During the colonial times (殖民時代), the British JP tradition had spread around the world. Many colonized countries and regions, such as Australia,[6] New Zealand,[7] Canada,[8] Malaysia,[9] certain states in the United States,[10] as well as Hong Kong,[11] had established their own systems of JP. However, the JP system in different countries began to evolve variously over time. In some countries, JPs still sit in the local courts hearing and judging cases,[12] while in other jurisdictions (法域) such as Hong Kong, the JP’s function of judging the cases has been taken over by full-time, legally-qualified magistrates (裁判官).The reason for this replacement is that the legal system has been more and more complicated, and only professional lawyers can ensure consistency in legal judgments. The result of this development is that in contemporary Hong Kong, JPs are actually not real judges.
 
Although the responsibility of hearing cases has been shifted to the magistrates, JPs are still very important to the peace of our society because they are all honourable persons with great influence over our communities.[13] According to the law, a JP may visit any custodial institution (羈押院所) or detained person (被羈押者) and receive complaints.[14] This is essential for protecting the human rights (人權) of the detained persons. In other words, as a JP, Andy Lau has the power to investigate any wrongful treatment of prisoners, juvenile offenders (少年犯) and mental patients, or he can refer the cases to the institutions concerned for follow-up actions.[15] That means he will not only act as heroes in movies, but also be a real guardian of justice for Hong Kong people.
 
“It was a great honour.” Andy said. Yes, indeed. I definitely agree with him, whether as his fan or as a lawyer.

——————————————————————————–

* Donnie DONG, PhD Candidate in City University of Hong Kong.
[1] G.N. (E.) 30 of 2008, in Gazette, No. 26 Vol. 12 (1 July 2008).
[2] James Birch Sharpe, An Inquiry Into the origin of the Office and Title of the Justice of the Peace (Shaw and Sons, 1841), p. ix.
[3] See Her Majesty’s Court Service, The History of Justices of the Peace (Magistrates) , available at http://www.hmcourts-service.gov.uk/aboutus/history/magistrates.htm.
[4] Sharpe, p. 108.
[5] Edward Hasted, The History and Topographical Survey of the County of Kent: Volume 1 (1797), pp. 215-221.
[6] See http://www.australia.gov.au/Justices_of_the_Peace.
[7] See Justice of the Peace Act 1957, New Zealand.
[8] See Justice of the Peace Act, R.S.N.W.T. 1988, c.J-3.
[9] The Justices of the Peace in Malaysia are appointed by states separately. See for example: http://www.jppenang.org/.
[10] Many states in the United States have their own system of Justice of the Peace, such as Arizona, Massachusetts, Connecticut, Vermont, New Hampshire, and so forth.
[11] See Justices of the Peace ordinance, Hong Kong.
[12] For example, In Ontario (Canada), a justice of the peace has judicial jurisdiction throughout the province. See Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 17 (1).
[13] For a list of JPs of Hong Kong, see http://www.info.gov.hk/jp/eng/JPList_g.htm.
[14] See Art. 5, Justices of the Peace ordinance, Hong Kong.
[15] See Administration Wing of the Chief Secretary for Administration’s Office, 2007 Annual Report on JP Visits, p. 3, available at http://www.info.gov.hk/jp/eng/anreport07_eng.pdf.

A revised version of this essay was published in The Standard (Student Edition),  17 September 2008, p. E05.