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  • Jul 24, 2014
  • Updated: 5:27am

Rule of law's shocking absence laid bare

PUBLISHED : Thursday, 05 July, 2012, 12:00am
UPDATED : Thursday, 05 July, 2012, 12:00am

Last month's disclosure that a judge in Henan province promised to sentence a defendant to death if the victim's family agreed to stop petitioning came as a bitter reminder of the main obstacle facing the mainland's quest for rule of law - a lack of judicial independence.

The history of the case, which involves the alleged killing of a villager 11 years ago, is mind-bogglingly convoluted, but after seven trials and three judgments, a defendant has been locked up for more than 10 years without a formal conviction, there is an unsolved murder and two heartbroken families are still petitioning.

Li Huailiang of Ye county, Pingdingshan, was detained on August 7, 2001, in connection with the death of a female villager whose body was found in a river earlier that week. She went missing on the night of August 2 after going in search of cicadas to sell. Li was allegedly doing the same nearby that night.

Two years later, the Ye court convicted Li of murder, and sentenced him to 15 years in prison. Both sides appealed.

The Pingdingshan Intermediate Court annulled the decision in late 2003 based on insufficient evidence. The Ye court was told to retry the case, which it did in February 2004. However, no judgment was handed down, and the case was abruptly transferred back to the Pingdingshan court, which, in a shock verdict, sentenced Li to death that August.

But in January 2005, the Henan High Court annulled the death sentence and insufficient evidence was again cited. It ordered the Pingdingshan court to retry the case, and Li was given a suspended death sentence in April 2006.

Finally, on September 27, 2006, the Henan High Court again rejected the Pingdingshan court's judgment, again ordering a retrial. That retrial has yet to happen, and Li remains in jail. However, as twisted as this turn of events was, mainland media reported last month that the case was in fact even more convoluted.

It turns out that it was originally supposed to be handled at the Pingdingshan city level, and in the two years between Li's detention and his trial, city prosecutors twice sent the case back to police for further investigation, citing insufficient evidence against Li. The Pingdingshan court twice refused to accept the case on the same grounds. Nevertheless, the case was somehow tried by the Ye county court in August 2003.

The state-owned Banyuetan magazine reported that the death sentence imposed by the Pingdingshan court in August 2004 came after a city-level judge sat down with the victim's mother on May 17 that year and promised to hear the case and impose a death sentence on Li, as long as the mother stopped petitioning.

In response to the report, the Pingdingshan court said last month that the judge never signed such a guarantee. It claimed that a guarantee - signed on paper with the court's letterhead - was written by the mother as a unilateral promise to stop petitioning if Li was sentenced to death. At least seven different decision makers rejected Li's conviction on the grounds of insufficient evidence, so how come Li is still in jail?

The case exposed legal problems in several areas. First, it highlighted weaknesses in the country's retrial procedures, which are meant to allow for the correction of a finalised and wrongful judgment in very limited cases.

The current system allows for courts to initiate the procedure, and there is no limit to the number of times a case may be retried, which makes it possible for a case to drag on, as it has with the Li saga. Mainland criminal-law experts want this system to be overhauled.

But the case also points to two other problems that are more alarming. The first is that courts are increasingly required to assist authorities in an effort to maintain stability, and the second is that it is easy for judicial work to be affected by political influence.

The directive of mainland courts since Supreme People's Court chief Wang Shengjun took office in 2007 has been 'to serve the party, the people and the law'. Meanwhile, under the banner of 'social harmony', a court's performance is now heavily assessed on its ability to facilitate settlements and reduce the number of petitions.

These two trends have resulted in judges thinking increasingly like officials rather than legal professionals, as they worry about being penalised for creating instability rather than making judgments as the law requires. After all, a judiciary abiding by the rule of law is not one that pleases everyone.

At the root of all these problems is the lack of judicial independence.

While it is clear that Beijing will not adopt a Western-style separation of powers, there is still much that can be done under the current system to increase independence in a court's adjudication, in line with policy.

This includes having more professional judges, as the country's judicial reform before 2007 emphasised, and the scrapping or weakening of the Political and Legal Affairs Commission - a party body that exists at every level of government and supervises the courts, prosecutors and police, and which is criticised by legal scholars as providing a convenient platform for interference by the party in judicial affairs.

A recent book by Qiao Shi , a former chairman of the National People's Congress who was also in charge of legal affairs, revealed that the party downgraded the commission to a body with less power in the late 1980s, but then restored them in early 1990 after the June 4 crackdown.

Nothing is more important to maintaining stability now in the nation than creating an effective judiciary trusted by the people. Increasing judicial independence must be a priority for the incoming leadership, and weakening the Political and Legal Affairs Commission would be a good start.

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