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.

© Samuel Wade for China Digital Times (CDT), 2012. | Permalink | No comment | Add to del.icio.us
Post tags: criminal law, criminal procedure law, judiciary, legal reform, legal system
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One message that is conspicuously muted is the need to resist interference with the independence of decision-making by the courts and procuracy. The white paper states that the courts and procuracy exercise their power “independently,” which is flatly not the case.

An editorial published in the state-run China Daily after the white paper was issued shares the celebratory tone of the document, but adds a note of caution:

….just as the white paper has observed, having laws alone does not mean rule of law. More needs to be done in order to add teeth to our laws. The judiciary must be divested from departmental and local interests. And those in positions of power, no matter institutions or individuals, must set the right example.

None other than Wen Jiabao, China’s Premier, has called for an independent judiciary in stronger language than is used in the latest document. In an interview at the World Economic Forum in Geneva in September of this year, Premier Wen said: “We need to uphold judicial justice. Procuratorial and judicial authorities should keep their due independence and be free from interference by any administrative organ, social group or individual.”

See also Lubman’s ‘A Glimpse into Chinese Law-Making’, via CDT.

© Samuel Wade for China Digital Times (CDT), 2011. | Permalink | One comment | Add to del.icio.us
Post tags: China Daily, judicial reform, judiciary, legal system, rule by law, rule of law, State Council, Wen Jiabao, white paper
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The most that Westerners hear about Chinese law usually pertains to human rights violations, examples of arbitrary official conduct and a weak judiciary. While these problems remain critical, they tend to overshadow an equally important, though less headline-ready, topic: How laws are drafted in China and what that means for the country’ progress toward greater legality ….

Building a legal system is replete with deliberation over technicalities in any nation, but the enterprise is especially difficult in a huge country under authoritarian single-party rule, with traditions inconsistent with the rule of law, and which is undergoing dramatic social change. The presentation mentioned here illustrated the quiet work of legislative drafters who are producing a body of rules that could eventually constitute the framework for an effective legal system, one which could more effectively define and protect the assertion and vindication of the rights of Chinese business enterprises and Chinese citizens.

The topic of compensation is a raw one, as recent episodes have highlighted the financial dangers of helping an injured stranger, and financial advantages of killing rather than merely injuring one.

© Samuel Wade for China Digital Times (CDT), 2011. | Permalink | No comment | Add to del.icio.us
Post tags: compensation, judiciary, lawyers, legal system, monopoly
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Two major criminal cases in one week — one resulting in an execution, the other a lengthy prison sentence — have focused new foreign attention on China’s judiciary. They are vivid reminders of the limits that China’s Communist Party-dominated legal system imposes on the government’s efforts to impress the world by its “soft power”: its political, cultural and economic influence.

Both the 11-year sentence a Chinese court delivered to democracy advocate Liu Xiaobo for “inciting subversion of state power” and the execution Tuesday of British national Akmal Shaikh for heroin smuggling make clear why the People’s Republic of China emphasizes that it has a “political-legal” system.

In both cases, the party denied the courts the independence to consider the defendants’ claims. And without judicial autonomy, there can be no genuine rule of law.

© Liu Yong for China Digital Times (CDT), 2009. | Permalink | No comment | Add to del.icio.us
Post tags: Akmal Shaikh, judiciary, Liu Xiaobo, rule of law
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Dui Hua has obtained and produced English translations of the indictment and verdict (original documents in PDF) for a previously unknown case of a Tibetan sentenced to three years in prison for “inciting splittism” after the March 14 riots in Lhasa. The case against Gonpo Tserang (贡保才让), a well-respected expedition guide who has trekked with foreign celebrities and participated in high-profile mountain rescue efforts, involved a series of emails and text messages sent over three days to acquaintances outside of China. These messages, which prosecutors claim “distorted the facts and true situation regarding social stability in the Tibetan area following the ‘March 14 incident” were considered by the court to be deserving of severe punishment.

This case is significant in a number of respects. First, it is the only case Dui Hua is aware of in which a Tibetan in Yunnan Province has been convicted of a state security crime following the Tibetan protests of 2008. Second, it is not at all apparent that the charge of “inciting splittism” was properly applied. The content of the messages is never specified, and it is questionable whether individuals who are not located in China are even capable of carrying out acts that would “split the nation or undermine national unity.” An argument could thus be made that, never imagining that his messages could “incite splittism,” Gonpo Tserang did not intend to do so. This is perhaps an argument that an attorney could have raised in his defense. Unfortunately, it appears that, at least for his appeal, Gonpo Tserang was not represented by counsel—very likely a result of the reluctance of most lawyers to take on criminal defense work in political cases and the threats made warning of serious consequences for lawyers who volunteered to defend Tibetans.

Below is an excerpt of Gongbo Tserang’s indictment and verdict, translated by Dui Hua:

Defendant Gonpo Tserang, male, born December 13, 1976, identification number: 523232197612131519, from Ruoergai [Dzoege] County, Aba [Ngaba] Prefecture, Sichuan Province, understands Tibetan and English and [is employed as a] guide in the expeditions department of the Xianggelila Travel Service. Prior to arrest, resided at 3-1-2 Old Civil Aviation Development, Jiantang Town, Xianggelila County. Placed under criminal detention by the Diqing Prefecture Public Security Bureau on March 23, 2008, on suspicion of inciting splittism. On April 26 of the same year, after approval from our procuratorate, he was arrested by the Diqing Prefecture Public Security Bureau in accordance with the law. He is now in custody and has no prior criminal record.

The Diqing Prefecture Public Security Bureau completed its investigation and sent the case of Gonpo Tserang, suspected of the crime of inciting splittism, to our procuratorate on June 25, 2008, for review and prosecution. After receiving the case, we notified the defendant of his right to retain defense counsel, questioned the defendant in accordance with the law, and reviewed all of the case materials. On July 31, 2008, the case was sent back to the Diqing Prefecture Public Security Bureau for additional investigation, and on August 29 the bureau concluded its investigation and reported [its findings] back to our procuratorate.

Following investigation in accordance with the law, it was ascertained that from March 16 to 18, 2008, defendant Gonpo Tserang used the Internet and a mobile telephone to send inflammatory emails and messages that distorted the facts and true situation regarding social stability in the Tibetan area following the “March 14 incident” to Daiwei, Jimu, and Pan Feilaici, [who were all] outside the country.

© dwang for China Digital Times (CDT), 2009. | Permalink | No comment | Add to del.icio.us
Post tags: courts, judiciary, legal system, Lhasa riots, Tibet, Translation
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The Song of the People’s Judges　(人民法官之歌):

See Chinese lyrics and music at chinacourt.org, a site sponsored by the Supreme People’s Court of the PRC.

Translated lyrics via Donald Clarke of China Law Prof Blog:

Let loyalty be cast in the magnificent state seal
And support the golden balance-scales with impartiality
Open up and advance along the road to construction of the legal system
The spring wind of law blows across the cities and the villages.

To investigate the smallest detail, to eliminate the false and keep the true is our duty
To punish evil and promote good, and to support justice is our mission
O, be proud, people’s judges of the Republic!
O, be proud, people’s judges of the Republic!
Glory belongs to us
Glory belongs to the motherland
Glory belongs to the people!

Let loyalty be cast in the magnificent state seal
And support the golden balance-scales with impartiality
Open up and advance along the road to construction of the legal system
The spring wind of law blows across the cities and the villages.

To be loyal to the law and to strictly carry out the law is our bounden duty
To serve the people and to contribute selflessly is our sincere wish
O, be proud, people’s judges of the Republic!
O, be proud, people’s judges of the Republic!
Glory belongs to us
Glory belongs to the motherland
Glory belongs to the people!
Glory belongs to the people! [Above, a chorus in Zhejiang, via qtfy.gov.cn.]

Information about the song and its writer can be found at chinamil.com.cn. A translated summary by CDT:
(...)
Read the rest of Music: The Songs of the People’s Judges, Procurators, and Police (541 words)

© Paulina Hartono for China Digital Times (CDT), 2009. | Permalink | No comment | Add to del.icio.us
Post tags: judiciary, music, police, Procuratorate, Supreme Court
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China has banned local courts from helping officials enforce controversial social policies such as strict family planning and demolition of property for redevelopment, state media said on Thursday.

The move is part of efforts to give more independence to a judiciary, which human rights groups say is more inclined to bolster the Communist Party’s grip on power than to ensure justice is served.

“People’s courts are not part of township party committees or governments … Any participation in administrative law enforcement is wrong”, the China Youth Daily quoted a Supreme Court circular as saying.

“Township-level courts have been frequently required to take part in daily administrative activities such as demolition, family planning law enforcement, taxation … The courts, which have the obligation to be neutral, cannot take part in any of these.”

© Liu Yong for China Digital Times (CDT), 2005. | Permalink | No comment | Add to del.icio.us
Post tags: courts, judiciary
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