Teaching Comparative Government and Politics

Friday, March 14, 2014

A step toward rule of law?

If true, the report by Sui-Lee Wee and Li Hui in The Globe and Mail (Toronto) might well mean a step, albeit small, toward rule of law in China.

The report by Terrance McCoy, however, points out how far things have to go.

Remember, though, the inquisitorial system used in China's criminal system assumes that accused criminals who go to trial are guilty. Innocence is supposed to be established in the investigative process that precedes trial.

With legal reforms, China wants less interfering in cases, fewer death penalty crimes

China has curtailed the power of the ruling Communist Party’s Political and Legal Committee, a secretive body overseeing the security services, to interfere in most legal cases, scholars with knowledge of the situation said - a significant reform at a time of public discontent over miscarriages of justice.

The move, which has not been made public by the party but has been announced in internal meetings, would clip the wings of the party’s highest authority on judicial and security matters.

Interference from the committee has led to wrongful convictions… highlighted by President Xi Jinping as an issue that needs to be urgently addressed.

Part of a package of legal reforms, the move signals a willingness by Xi’s government to reform its court system as long as it doesn’t threaten the party’s overall control.

But the party would still have final say over politically sensitive cases such as those involving ethnic issues and senior politicians…

In his first work report to parliament on Monday, China’s top judge, Zhou Qiang, said his courts must improve their ability to exercise judicial power independently…

Beijing courtroom

Judges typically convene with police, prosecutors and officials from the Political and Legal Committee to coordinate on verdicts for cases that will have a “political influence” or relate to social stability. These offences range from murder to rape to corruption…

Meng Jianzhu, head of the Political and Legal Committee, had said at an internal meeting that officials “are not allowed to intervene in specific cases”, said Jiang Ming’an, a law professor at Peking University, citing people at that meeting…

Much of the previous abuses to the rule of law can be attributed to former security chief Zhou Yongkang, whose term “caused a big setback to the judicial system”, said Jiang Ping, a deputy director of the National People’s Congress Law Committee from 1988-1993.

Zhou had expanded his role into one of the most powerful and controversial fiefdoms in the one-party government. During his term, Zhou said the courts should put the party’s interests above the people and the constitution, according to Jiang Ping…

In a sign of the government’s interest in legal reform, the Supreme People’s Court said in November it would eliminate the use of torture to extract confessions, stop local officials from interfering in legal decisions and allow judges to make their own decisions…

The legal reforms reflect a desire by Zhou Qiang, who took over as head of the Supreme People’s Court a year ago, to handle cases more professionally, and tackle wrongful convictions, scholars said. But whether his reform efforts can move China forward to a country that is ruled by law is still an open question.

“Zhou Qiang seems a serious political character, he’s not only well connected, he’s legally sophisticated,” said Jerome Cohen, an expert on Chinese law at New York University. “But he’s not all-powerful, and whatever he says doesn’t necessarily take place at the local level. This is a continuing struggle.”…

Judges are still appointed by the party and the government has been silent on establishing an independent judiciary.

“There’s now no mention of judicial independence, we haven’t reached that stage yet,” said Jiang Ming’an, the Peking University law professor who has participated in consultations with Zhou Qiang on judicial reform…

China scored 99.9 percent conviction rate last year

It was another good year to be a Chinese prosecutor.

Of the 1.16 million people put on trial last year, Chinese courts returned a guilty verdict for all but 825 of them. You did the math right: That’s a 99.93 percent conviction rate.

Though sometimes, Zhou Qiang, head of the Supreme People’s Court, admitted in a rare report delivered to the National People’s Congress this week, things did get a little out of hand. ”The rulings in some cases were not fair… which harmed the interests of the litigants and undermined the credibility of the law,” he said.

The pronouncement taps into a wider debate occurring inside China over the future of the nation’s judicial branch, which has historically been marred by corruption and political infighting. ”It’s preferable to release someone wrongfully, than convict someone wrongfully,” Shen Deyong, the executive vice-president of the Supreme People’s Court, wrote last year in the People’s Court Daily. “If a true criminal is released, heaven will not collapse, but if an unlucky citizen is wrongfully convicted, heaven will fall.”...

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