Lubman details the legal related discussions at this year’s NPC
The annual meetings of the National People’s Congress (NPC) and the China People’s Political Consultative Conference (CPPCC), presently underway, offer opportunities to express views on possible law reforms. This year they will discuss a report by the Supreme People’s Court (SPC) on “Judicial Reform of Chinese Courts,” which details extensive reforms that could make significant progress toward reducing the Maoist stamp on the court system.
At the “Two Sessions,” as they are called, views that differ from current Party policy are sometimes aired. This month, a delegate to the CPPCC, Zhu Zhengfu, Deputy Director of the All-China Lawyers Association, spoke out publicly about some major issues in the criminal process that are not addressed by the Report. Other delegates have also spoken out on necessary criminal law reforms.
Mr. Zhu has criticized the common practice of using televised confessions, which are used “to humiliate human rights advocates, lawyers” and others as part of the current crackdown launched by President Xi Jinping. Dozens of televised confessions have recently been broadcast before court proceedings by persons detained for stirring up trouble, corruption and endangering state secrets.
Mr. Zhu also proposed nine judicial reforms that would include expanding bail, allowing lawyers to be present when suspects are interrogated, and articulating conditions for a judge to declare a suspect innocent. Mr. Zhu is criticizing a system with a conviction rate above 99 percent, and in which political influence and people who have not even listened to arguments in court often determine findings of guilt.
A few days later, just as the CPPCC meeting was beginning, Mr. Zhu criticized the dominant influence of the “presumption of guilt” among Chinese “law enforcers.” This presumption, he said, prompts the use of torture, which accelerates the process from arrest to confession. Mr. Zhu observed: “You can imagine how much pressure the court is under if it wants to pass an innocent verdict.”
He further proposed that a law be enacted to protect the right of accused persons to be presumed innocent until proven guilty. More broadly, he urged “proper checks and balances between the work of the police, procurators and the courts, instead of the current practice of close cooperation, which could lead to abuse.”
This comment highlights one of the most distinctive defects of the Chinese criminal process, expressed vividly by a Chinese judge: “As you may know, the police, the judge and the prosecutor are in one family,” quoted in the most authoritative English-language book on Chinese criminal law, “Criminal Justice in China: An Empirical Inquiry,” by Mike McConville et al (p.404, Edward Elgar, 2011).
Some reforms in the criminal process are proposed in the SPC Report, such as no longer requiring defendants in criminal cases to appear in court wearing prison uniforms. The rights of criminal lawyers to obtain information, review case files, appear in court, debate rights issues, apply for evidence, and apply for exclusion of illegally obtained evidence are all mentioned specifically as the subjects of guidelines previously issued by the SPC in 2015.
The balance of the SPC Report provides for implementing a large number of reforms relating to the organization and administration of the court system. Two reforms focus on reducing extra-legal influences on judges.
One of the most important proposed reforms aims to reduce local protectionism: In the current system, local governments are responsible for funding basic-level courts and appointing, promoting and disciplining their judges. The power to decide these matters is to be shifted to provincial levels. At the same time, new circuit courts are being established as divisions of the SPC to handle administrative, civil and commercial cases that involve more than one jurisdiction. Two, in Guangdong and Liaoning, have already been created as pilots, to counter “vulnerability to local influence,” and since December 2015 have concluded over 1,600 cases, according to the Supreme People’s Court.
If economic reforms are adopted to enlarge the non-state sector of the economy, reining in local protectionism will be of special significance: if the number of transactions by or among private sector businesses rises, legal disputes can also be expected to increase. In addition, administrative law cases might assume a greater importance than they presently possess. It remains to be seen, however, whether this attempt to reduce the influence of local relationships on courts will succeed.
Another proposed reform is aimed at reducing improper attempts by officials to influence the outcomes in specific cases. According to the SPC report, special databases will be created to record attempts by “external officials” to influence the courts on a specific case via “documents, letters or oral opinions” that come from “outside the litigation process by any organization or individual outside the people’s courts.” Any personnel, including senior judges, who try to suppress such information will be disciplined.
It is difficult to imagine how improper attempts to influence the outcomes of specific cases by officials or others outside the courts will be curtailed merely by requiring that they be reported. More is needed — besides publicizing sanctioning of such conduct—such as sustained efforts by courts and Party officials alike to educate and train court personnel in ways that change their mindset and the legal culture of the courts.
The SPC Report offers up needed reforms, whereas Mr. Zhu has focused on deeper and more controversial problems that must be addressed in further criminal procedure reform.
