Judges and prosecutors feel hindered by system

PUBLISHED : Thursday, 12 May, 2011, 12:00am
UPDATED : Thursday, 12 May, 2011, 12:00am


Mainland judges and prosecutors say they have been hindered from exercising criminal justice and acting impartially by administrative interference, a new book reveals.

Hong Kong-based Professor Mike McConville interviewed 88 judges and 96 prosecutors, all anonymous, and reached one conclusion - they all took a passive role in a system primarily driven by the police.

In Criminal Justice in China: An Empirical Inquiry, the dean of Chinese University's faculty of law calls for further legal reform in light of the coming round of amendments to the Criminal Procedure Law.

'Judges and prosecutors join hands with the police to make a case against suspects,' McConville said.

One prosecutor quoted in the book echoed that view. 'The system of dealing with cases should be reformed in order to avoid administrative interference,' he said.

Judges interviewed by McConville admitted showing bias towards the prosecution, rather than presuming a suspect's innocence.

'All cases are investigated by the investigative organ and examined and prosecuted by the people's procuratorate. And both of these are state organs. Judges naturally presume the defendant is guilty,' one judge said.

He was referring to the prominent role of the police in the mainland's criminal system. Two state committees, the adjudicative committee and the political-legal committee - chaired by the chief of police - play no part in the trial process but can direct verdict and sentence.

McConville's research also found that police concentrated on building a case against the suspect, instead of gathering evidence.

'And far from being neutral, judges sometimes want to go out to collect evidence too,' he added.

After observing 227 trials involving 335 defendants, McConville found that the role of defence lawyers was minimal.

Some mainland legal experts agreed with McConville's findings.

Veteran defence lawyer Mo Shaoping said the law gave police sweeping power.

Police on the mainland do not need approval from courts to conduct covert investigations or tap telephones, unlike in many other jurisdictions, and can hold suspects for up to 37 days without court approval.

'A common legal theory is that the bigger the power police enjoy, the weaker the rule of law,' Mo said.

The Criminal Procedure Law is scheduled for its first major round of amendments since 1996 later this year, and experts have high hopes that the amendments will address some of these problems.

Mo said he understood the amendments would include clauses that protected a suspect's right to silence, and also give equal weight to protecting human rights and fighting crime.

A Beijing-based law professor involved in drafting the amendments, who preferred not to be named, said the amendments would formally recognise the exclusion of illegally obtained evidence and guarantee that lawyers could be present during the investigation stage, without being monitored.