State may pay for causing distress

PUBLISHED : Friday, 24 October, 2008, 12:00am
UPDATED : Friday, 24 October, 2008, 12:00am

A draft revision of the mainland's controversial State Compensation Law has gone before the National People's Congress Standing Committee for review after constant calls for change to the 13-year-old legislation.

Quoting NPC legislators, Xinhua reported yesterday that for the first time, the draft revision allowed mainlanders to seek compensation for mental distress as a result of government and judicial blunders, including forced confessions and wrongful convictions.

Xu Zhiyong , a China University of Political Science and Law lecturer, said that by recognising mental suffering as a cause for compensation, the draft revision was moving in the right direction to heed growing public grievances over the lack of the law's enforcement.

'The 1995 law offers very limited scope for the compensation the public can seek, and the amount of compensation is often outrageously small as victims are rarely compensated for the losses inflicted on them indirectly,' Dr Xu said.

The State Compensation Law came into effect from January 1995 to much fanfare, with the legislation touted as a yardstick of the country's great strides in observing basic human rights. However, highly publicised verdicts on several compensation claims have made a mockery of the law.

Ma Dandan , from Jingyang county in Shaanxi province , demanded 5 million yuan (HK$5.68 million) in compensation after she was locked up for 15 days in January 2001 for 'prostitution' - an ensuing check-up showed that the 19-year-old woman was still a virgin.

Later, she was given 74.66 yuan as compensation, but her claim for mental distress was rejected by a district court, triggering a national outcry over the disregard for the law.

Ma Huaide , also from China University of Political Science and Law, noted in an essay that the legal endorsement of compensation for mental distress was a legislative landmark because 'it marks a shift in the law from the focus on ... the protection of tangible entities, to human rights and other intangible rights'.

If passed, the draft law would shift the onus of providing evidence for compensation claims from the plaintiff alone to both plaintiff and defendant, which in this case would be the authorities. The move could encourage authorities to come clean.