Criminal Justice Reform Moot?

Looming changes to China’s offer mixed prospects, theoretically providing new protections while legitimising the use of enforced disappearances. But new research based on hundreds of interviews suggests that, with actual practice widely diverging from the letter of the law, the revisions’ real impact may be limited. The authors’ findings include routine co-operation between judges and prosecutors, and a general weighting of the scales in favour of conviction. From Stanley Lubman at China Real Time Report:

Among their most critical findings is that the relationship between prosecutors and judges tends to be so close that there is “little space for lawyers to work within.” More basically, a judge is quoted as saying, “the police, the judge and the prosecutor are in one family ….”

The interviews found that some participants in the system would prefer a higher level of legality. Ultimately, however, criminal justice is “a process within a system, a Party-centered system which demands certainty of outcome (conviction).”

The authors write that despite “traces of due process,” the value system allows exceptions that violate the law. Violations of the law have become “systematic and entrenched… they have also become internalized… the rules to be followed are quite different from the rules in the formal rules” of the Criminal Procedure Law and merely changing legal rules would not improve rights and increase the reliability of the system. It would be necessary for the Party-state to “discard existing prejudices and adopt new and liberal values… ‘system reform’ not ‘law reform.’”

See also two previous posts by Lubman, via CDT: Laws on Paper vs. Law in Practice and A Glimpse into Chinese Law-Making.

February 8, 2012 2:07 AM
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Categories: Human Rights, Law, Society