Article- Voice Of America: Judicial Independence & China


An annual gathering of senior officials next month in Beijing will be looking closely at China’s legal system – its fairness and how the rule of law is applied. Some legal experts hope to clear the way for true judicial reform by reducing the dominant role that police play in the current Chinese legal system.

China’s ruling Communist Party recently announced that “governing the country according to law” will be a central issue for discussion at next month’s fourth plenary session of the 18th central committee. Since this is the first time a plenary session has raised such an issue, it immediately grabbed attention.

Professor Hong Daode at China University of Political Science and Law in Beijing expects that the need for judicial independence will be a focus of the meeting.

“If the courts’ judicial powers and prosecutors’ authority are strengthened,” he said, “it would be possible to reduce the dominance of police investigations,” said Daode.

Stanley Lubman, a retired professor from the University of California, noted that judges, prosecutors and police in China are all part of the same political system.

“In one recently published authoritative book on the Chinese criminal process, one judge interviewed in China said the police, the prosecutors and the courts, ‘we are one family’. [It] very succinctly illustrates the relationship among these three institutions,” said Lubman.

He Weifang of Beijing University’s School of Law says a common saying among legal observers is “The police cook the food, the prosecutor serves the food and the court eats the food.” Whatever police investigators serve up, judges and prosecutors will have to accept.

He says the Ministry of Public Security’s dominant role in the Chinese legal system is evident during criminal cases.

“Before trial, there is no way to correct what the police did – such as collecting evidence through illegal means like torture and other acts beyond the law,” he said. “And police very rarely appear in court. Their extralegal powers are shown by the large number of illegal procedures in the trial process that the justice system cannot correct,” said Weifang.

Human-rights activists have frequently criticized the Chinese police for exceeding their authority when dissidents “disappear,” when detention without trial is used against sex workers or drug addicts, or when “black jails” are used to lock up petitioners seeking redress for grievances against state institutions.

With the Central Politics and Law Commission overseeing all law enforcement and policing in China, activists say real judicial independence is almost impossible, so unless there is an independent judiciary, any real effort to reform the judicial system will likely accomplish nothing.