Five-year plan gives few clues to reform of the legal system

PUBLISHED : Thursday, 17 March, 2011, 12:00am
UPDATED : Thursday, 17 March, 2011, 12:00am

If the mainland's legal community was looking for substantial steps towards reform of the legal system in the 12th five-year plan, it would have been disappointed by what the National People's Congress passed this week.

The plan contained only one vaguely worded paragraph on the legal system - hardly a fitting follow-up to the enactment of 236 legal codes and the establishment of basic legal institutions, which NPC Standing Committee chairman Wu Bangguo last year proudly described as the completion of a 'socialist legal system with Chinese characteristics'.

While mainlanders now have laws to follow, there is still much to do to ensure the 'strict following of the law' by prosecutors and the judiciary, legal professionals said.

They cited greater transparency and better enforcement by the administration and the judiciary as two of the biggest necessities if the wider goals set down in the plan were to be achieved.

Strengthening the role of lawyers and respecting their rights - which were, essentially, the rights of the people - was equally important, they said.

Many litigators claimed that their working environment had deteriorated as the authorities prioritised maintaining stability. The right of aggrieved citizens to turn to a good lawyer should be considered a way of easing social pressure, they said.

The paragraph in the plan talked about the need for new laws to support the mainland's transition from a focus on economic development to improving people's livelihoods, raising living standards and improving government. It said the country would deepen judicial reform and further spread the spirit of the rule of law.

It also mentioned strengthening the legal aid system and protecting human rights.

The plan gives few details on how those goals will be achieved, but other legal documents - such as guidelines for the Supreme People's Court and recent amendments to the Criminal Code - suggest that the focus will be on improving grass-roots courts and expanding the mainland's jury system, so lay people hear cases alongside judges.

Zhou Yongkang, the Politburo Standing Committee member in charge of law and order, said in November that two-thirds of the 60 judicial reform items targeted by the central government in 2008 had been completed, including the exclusion of evidence obtained through torture, and pilot schemes to standardise sentences.

This year's reform priorities included improving death penalty reviews by the Supreme People's Court and setting up a database of judges to weed out corruption, he said.

Amendments to both the Criminal Procedure Code and Civil Procedure Code were also included in this year's legislative agenda, sparking hopes that some of the biggest problems facing defendants and their lawyers would be addressed. That would include the protection of suspects under interrogation and the rights of lawyers to meet clients and review court documents.

The government has also pledged to promote mediation as a way to resolve social conflicts. While legal professionals welcome the flexibility associated with mediation, others are sceptical, pointing to reports that litigants are sometimes forced into mediation.

However, just as important, some legal professionals say, is better public consultation on major administrative decisions.

'Rules governing the decision-making process of government policies are still rather vague,' said Peking University administrative law professor Wang Xixin , one of four academics who openly called for new demolition regulations last year to better protect landowners' rights. 'We should have more specific legal procedures which protect the effective and orderly participation of experts and interest groups.

'Many controversial major policies would have been more smoothly implemented if more proper public consultation had been carried out in the first place, such as a policy on housing prices.'

Guangdong lawyer and Chinese People's Political Consultative Conference delegate Zhu Zhengfu said members of the public should be allowed to sue over a wider range of administrative decisions. An individual cannot sue over a decision affecting a wider group.

'For example, in order to overturn the recent controversial property tax suggested by some provincial governments one would have to petition the NPC Standing Committee or the State Council. This threshold is too high for citizens,' Zhu said.

Meanwhile, lawyers involved in defending suspects pointed to growing outside influence in some sensitive cases.

'We are not short of laws and regulations,' veteran rights lawyer Liu Xiaoyuan said. 'The problem is that judicial officers do not follow the law once faced with a case that is politically sensitive.'

Other lawyers see the judiciary's distrust of lawyers as a central problem that needs to be urgently addressed. They suggest a solution: the recruitment of more lawyers as judges and prosecutors to create 'a common legal worker community'.

Since 2001, the qualification examinations for lawyers, judges and prosecutors have been unified, but lawyers who want to become judges and prosecutors must still take a further civil servants examination, as courts and procuratorate still view lawyers as opponents and are reluctant to recruit them.

'The goal of a legal worker should be fairness and justice, and it should be the same for lawyers, judges and prosecutors,' Beijing lawyer and NPC delegate Peng Xuefeng said. 'But right now sometimes the courts and prosecutors have a different interpretation, and they talk about serving the 'big picture'.

'It's like three people singing an ensemble; you play the flute, I play the erhu, he sings. If we play in harmony, we will sound beautiful; if we each play to our own tune, it will become noise.'



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