Mainland legal system still has a long way to go

PUBLISHED : Sunday, 09 March, 2008, 12:00am
UPDATED : Sunday, 09 March, 2008, 12:00am

The nation's top lawmaker yesterday stated in his work report that the mainland's establishment of a socialist legal system with Chinese characteristics is complete. This is a sign of progress but also a reminder that much still needs to be done to make the law an effective means of solving China's problems.

Wu Bangguo said every area of social, economic, political and cultural activity is now covered by law. This marks a significant achievement, especially as the mainland's legal system was essentially destroyed during the Cultural Revolution.

But this should not blind us to the serious and fundamental flaws which persist in the legal system. Having a law is one thing, enforcing it is quite another. This has always been a problem on the mainland. The courts have functioned as an instrument of political control, rather than as independent, impartial adjudicators.

Serious efforts have been made to give them a little more independence, but gross unfairness and injustices, as well as corruption, still plague the judicial system. The country must now focus on improving on these. Mr Wu, chairman of the National People's Congress, inadvertently acknowledged problems in enforcement yesterday when he put workers' rights and environmental pollution on top of the legislature's supervision list. He said there must be proper oversight in enforcing these laws. The country already has detailed statutes to protect workers and the environment. They look impressive on paper, yet the mainland's record on both fronts has been poor.

Beijing is well aware of these problems, and there are welcome signs that top leaders are moving to tackle them. But the notion of a harmonious society based on the rule of law appears to be ideologically at odds with the classic communist view that the judiciary is an instrument of the state. For example, intimidation of defence lawyers and obstruction of their work by law enforcement officers is common on the mainland. But a draft law aims to confer basic rights and protection on both lawyer and client.

Under it, they will be able to confer in private without monitoring. It also entitles lawyers to inspect evidence and materials relating to their cases.

Last year, the Supreme People's Court resumed the power to review all death sentences handed down by lower courts. Since then, 15 per cent of sentences have been overturned due to a lack of evidence, miscarriages of justice or improper legal procedures. And while most judges continue to be appointed by party officials, legal qualification and expertise - rather than party loyalty - are increasingly required.

The National Judges College has launched programmes to educate judges about overseas legal systems. Hong Kong's City University will begin a master's programme this year for 30 mainland judges who will also visit Oxford University as part of their common law studies.

These are all positive signs. The mainland is moving in the right direction, but still has a long way to go before it can claim to have a fair and effective legal system based on the rule of law.