Lawyers at NPC pushed for right to become prosecutors or judges

PUBLISHED : Friday, 08 April, 2011, 12:00am
UPDATED : Friday, 08 April, 2011, 12:00am


More lawyers should be allowed to become judges or prosecutors, several government-friendly lawyers urged at the National People's Congress this year.

This one measure alone would help resolve several problems the country's court system was facing right now, and in particular help bridge the huge systemic and perceptional gulf between the judges and prosecutors on one hand, and lawyers on the other, they said.

In many developed legal systems, including those in Hong Kong and Taiwan, it is common practice, if not the only option, for judges to be selected from among senior lawyers, and prosecutors are simply lawyers who opt to represent the state instead of private interests.

On the mainland, however, although it's legally possible for lawyers to become judges and prosecutors, this rarely happens because of two main reasons.

First, to become a judge or prosecutor, a lawyer must sit a civil service test beyond the unified judicial qualification exam they, judges and prosecutors have already sat - regardless of the number of years they have practised law.

Second, even if they have passed the civil service test, few courts are willing to take them on because of an entrenched sense of mistrust towards lawyers.

Creating a more direct route for lawyers to become judges and prosecutors based on seniority and performance would help resolve the country's shortage of judges and raise the quality of both judges and lawyers, said the chairman of the All-China Lawyers' Association and Chinese People's Political and Consultative Conference delegate, Yu Ning.

'Right now we are not placing a lot of emphasis on legal professional experience when selecting our judges; even fresh graduates who passed the necessary examinations may try cases,' Yu said.

'Their lack of experience in life and the use of law has weakened their ability to adjudicate, and this has resulted in the need for all sorts of further training from the courts.'

However, a revolving door system among the three groups of legal professionals is arguably more important in the quest for the rule of law.

While judges, prosecutors and lawyers should all see themselves as part of one big legal system sharing the same legal values and common goals, judges and prosecutors currently enjoy noticeably superior status inside the courtroom, seeing themselves as loyal state servants.

Lawyers, on the other hand, are still looked on suspiciously by authorities as treading a fine line between being advocates of citizens' rights and 'troublemakers'.

More interaction and flow among the three professions would help foster trust and mutual respect and hopefully remove many of the obstacles lawyers face when they defend citizens in criminal cases, or when they represent citizens in lawsuits against the government.

Despite rounds of judicial reform, basic lawyers' rights - such as to investigate, to meet suspects and defendants, and to review documents on behalf of their clients - are still regularly hampered by police, judicial officials or even the courts, not to mention the outrageous incidents in which lawyers handling politically sensitive cases have been beaten by court guards.

With a separation of powers deemed not to be an option for the mainland's socialist legal system, what can be done to further judicial independence, which even the government says is important to create a fair and clean society?

One answer is to foster a greater sense of legal professionalism among the three groups of legal workers, and to strengthen that sense of community among them.

'Legal workers should strive for the common goal of fairness and justice, but the courts might not always think so,' said National People's Congress delegate and Beijing lawyer Peng Xuefeng, referring to the party line for judicial work since December 2007 as serving 'the Communist Party's cause, the people's interest and the constitution and laws'.

'If we cannot agree on this value, we will face a lot of problems in our work,' Peng said.

The country's top official on legal and political affairs, Zhou Yongkang, pledged at a lawyers' conference in November that measures would be taken to broaden the selection of judges and prosecutors from the ranks of lawyers, but no details have been announced yet.