New for China's courts: trained judges, standard rules
Change begins for a legal system that even China's president has criticized.
BEIJING — A favorite opera character for ordinary Chinese is the black-faced Bao Gong (Justice Bao), an ancient, saintly arbiter so incorruptible that he even punishes the emperor's son-in-law.
Few of today's Chinese judges, who are poorly paid and widely perceived as inept or corrupt, command the same respect.
But as China undergoes a massive transition to a market economy - something that may bring social unrest - Chinese leaders are moving to reform the feudal and Soviet-era-style justice system in the hope that this will provide an important "safety valve" for popular grievances. It is a vast and difficult undertaking.
Experiments are under way in local and state courts with relatively new rules, like the presumption of innocence for those accused. Legal aid centers are being set up in every county. And three weeks ago, a highly touted new mandate from the National Party Congress ordered all judges to have legal training.
For years, China's judges have been drawn from a pool of retired military officers with no legal background or students fresh from law school who "do what they are told," according to one expert who did not wish to be identified.
Chinese courts do not have an independent judiciary that can make decisions separate from Communist Party influence. There are no rules of evidence or US-style due-process laws - as Chinese-American scholars recently held on spy charges here can attest.
Yet in official Beijing, "rule of law" is the fashionable reform phrase. Using terms like "modernization," "professionalization," and "international standards," Chinese officials are willing to entertain changes in the legal arena, even at a time of political stolidity and curbs on free expression. Unlike politics, judicial reform is viewed as a "safe area" of social criticism, experts say.
When President Jiang Zemin met last week with a visiting US delegation, Sen. Arlen Specter, (R) of Pennsylvania, complained that the Chinese-American scholars were "arrested without proper charge, without counsel, had no public trial, and with no basic conditions of fairness."
"He [Mr. Jiang] told us that the Chinese judicial system left much to be desired," Senator Specter said to reporters later. "And he said words to the effect, 'Be patient, we are working on the rule of law.' "
So far, the main change is a gradual regularization of commercial law. Chinese leaders like economic reformer Premier Zhu Rongji continue to assert publicly that a healthy market economy and overseas investment depends on a fair adjudication of rights, and reliable courts that can honor and enforce contracts made by foreigners.
But the dimension of reform, at least discussed inside China, goes further. In journals like China Legal Daily and among a small but broadening group of scholars and senior judges, one can read such revolutionary sentiments as calls for an independent judiciary, or questioning of the ways in which police gather evidence. Ideas like giving power to judges to compel witnesses to appear, and to allow cross-examination of those witnesses, are topics of lively debate.
Last year, for the first time, a lawyer was appointed chief justice of the Chinese Supreme People's Court, China's highest court. The same year, the court ordered all members of the legal profession to receive legal training. Revelations at the People's Congress in March that the new rule had not been enforced set off fierce diatribes - resulting in last month's decision on legal training for judges, lawyers, and prosecutors.
"The judiciary is under attack from the leadership and from the Party Congress," says Robert Reinstein, dean of the Temple University School of Law in Philadelphia, which conducts a joint program with the Tsinghua School of Law in Beijing. "The leaders understand the need for an educated judiciary. They are writing new laws. What's lacking is enforcement."
Some China hands are dubious that legal reforms represent anything more than window dressing designed to keep investment levels high and to satisfy World Trade Organization (WTO) accession requirements. Others, who argue for greater US funding for education efforts that support Chinese legal reform - currently the US gives $2 million a year - say that such funding will help.
"Whether China implodes, as some think, or whether it becomes dynamic through WTO and trade, the legal system will remain important," says one Western diplomat. "If the best and the brightest are going into law, if you want some influence with the next generation of leaders - you should be in the game."
Germany, Sweden, Canada, and Australia have long funded legal exchanges with China. The US recently ended a post-1989 Tiananmen Square block on funds to introduce education and legal training here. Most US exchange is done through foundations and colleges.
"Only 20 years ago, there was no private ownership, no freedoms to speak of," says a leading Beijing lawyer with ties to upper circles. "We are leaving the status of 'developing country.' We know we must modernize, and that is our difficult task. We are bringing the legal framework into a higher standard. But we don't have the education levels to put people in place yet."
During the Cultural Revolution of the 1960s and '70s, Chinese courts had almost no uniform rules. In 1980, a small booklet of some 170 basic rules governing trials, guilt and innocence, and procedures was introduced. Steadily, the judicial system added new codes, practices, and rules - culminating in a major liberalizing Judicial Reform Plan in 1996. That reform included new trial procedures, most importantly a presumption of innocence. Defense lawyers were allowed to see the accused before trial and to see what kinds of evidence would be presented, and were given more leeway to ask questions in court.
"Gradually, we are seeing a shift toward a more adversarial legal system in China," says Titi Liu, director of the Ford Foundation's legal-education program in Beijing.
In practice, judges and lawyers are only starting to sort out these changes. The presumption of innocence means judges who formerly rubber-stamped a guilty verdict now have to weigh evidence - although conviction rates in most courts still run between 95 and 98 percent.
Nearly a dozen judges interviewed by the Monitor in Xian, a city in central China, said the number of cases brought to their courts by police dropped after 1996, when panels of judges started asking for more evidence of guilt. "About 97 percent of my cases are convictions," said one judge, who would not allow her name to be used. "Cases that are thrown out are those with no evidence, when police bring in the accused based on their own theory of the crime. I admit that when we rule against the state, the police get really angry. You can't do that too often."
Still, accepted trial procedures are starkly different, compared with that of the US or Britain. At a recent mock trial sponsored by the Ford Foundation in Xian, a domestic-violence case was decided in two hours by a Chinese court. The American jury trial, conducted by members of the American Bar Association, took a day - and the US judge said that in her Memphis court, the proceedings would likely have run two days.
A number of Chinese judges said the speed of their trial was a sign of efficiency, and expressed impatience with what they considered over-elaborate US procedures to ensure fairness.
Chinese courts have no rules of evidence, and lawyers cannot "object" to the opposing counsel's questions. There are no Miranda laws, no search warrants, no case law or precedents that lawyers can cite to influence judges.
"I can write a note to the police saying that someone stole $100,000 from a company," one lawyer stated. "That person can be brought to court with little more than my note. An American lawyer might win with legal knowledge, history, case law, and briefs. In China, what still matters is the lawyer's contacts, money, and the human influence."
One characteristic of a Chinese society that has long been controlled, say some legal scholars here, is a bias against defendants. Said one judge in Xian: "The Chinese people hate the criminal defendants.... In the Chinese people's eyes, the arrest is the No. 1 thing; everything else comes after that. Even if the procedure isn't right, what people care about is a result. The ends justify the means."