By Stanley Lubman, The Wall Street Journal
China’s Criminal Procedure Law is about to be revised for the first time since 1996. How the new law operates will depend on the mindset of participants in the Chinese “political-legal system” who will be required to put the law into practice. What is the likelihood that those participants—police, procurators and judges—will be able to meet the law’s requirements?
An illuminating new piece of research demonstrates that it will take more than revising laws on paper to raise the level of legality of China’s criminal justice given the value system that underpins it.
The research was published recently in the book, “Chinese Criminal Justice: An Empirical Inquiry,” by Dean Mike McConville of the faculty of law of the Chinese University of Hong Kong and five co-authors. It relies on empirical research to an extent very unusual in foreigners’ studies of Chinese criminal justice and notably addresses everyday cases, not any with political significance.
Interviews with almost 300 procurators, judges and lawyers yield concrete examples of how difficult it is to implement existing laws on criminal procedure in China.
Take, for example, prosecution incentives. Under Chinese law, prosecutors who find evidence against a defendant is insufficient are required to send the case back to the Public Security Bureau (PSB) for further review. In practice, McConville et. al find, prosecutors tend to push forward with cases even where evidence is sketchy to avoid hurting an investigator’s career advancement and salary. “Few cases are not prosecuted,” the authors quote one procurator as saying. “There is an internal regulation in the [PSB]: an investigator will have his scores reduced if his case is returned.”
The book finds similar problems with the role judges play in criminal cases. Under the Criminal Procedure Law, for example, the amount of information supplied to judges before trial is limited in order to avoid bias in favor of the prosecutors’ case. Judges’ case preparation does not include leaving the premises of the court to meet defendants or engage in gathering evidence about the case before the trial commences. However, many judges do conduct their own pre- trial investigation and examination as illustrated by one judge’s statement that he frequently questions the defendant “to learn about his views and whether his views are consistent with his confession statement.”
Judges also often work in tandem with prosecutors. Although review of the case by the court is supposed to be independent of the prosecution’s views, the authors find, some judges frequently review the case in partnership with the procuratorate. As one judge confessed: “Although I should not read the case before trial in order to ensure objectiveness and impartiality, I still take a look at the case files. But by doing so, I will be affected by the prosecution case to a certain extent.”
Another cause for concern is the authors’ finding that the task of the system is to convict. Although there is legal provision for prosecutors to request courts to permit withdrawal of a case, a procurator said: “Maybe because of the system, we hope each case we prosecute would result in a finding of guilt by the courts. Our work for the whole year will be wasted and we will lose honor and bonus if there is one not-guilty verdict.” Indeed, the book finds, target acquittal rates are set that would be acceptable or that would attract sanction if exceeded.
The authors’ extensive research into the legal culture of the system overwhelmingly demonstrates the values that hinder the application of criminal justice in China. The authors’ principal emphasis was on measuring practice under the current Criminal Procedure Law, so Chinese law is the only standard of legality applied. Aiming to understand the “working practices and philosophies” of prosecutors, judges and lawyers, they surveyed the criminal process at each stage in 13 basic-level and intermediate courts “in almost all the regions in China” through interviews and observations conducted from 2001 to 2006, with some additional follow-up in 2007-2009.
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.”
Judges, the authors say, “…are clear as to their allegiance. As they see it, they are simply one component of the criminal justice machine that has been established for the purpose of processing criminal cases…through to conviction and punishment.”
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.’”
At present, the Party- state is not interested in reforming the dominant values, and indeed, in the face of increased social tensions “social management” has assumed greater priority than the rule of law. Some incremental progress may appear, but the value system will continue to distort the Law even after it is revised.