Ruling with an iron fist
As one among the first generation of judicial personnel of the People's Republic, I have a deep under- standing of judicial reform in China. We started in the early 1950s, when there was no law. All Kuomintang laws were repealed. Judges were party cadres, peasants and soldiers. It was not until 1954 when the Chinese constitution was introduced that we began to have judges. That was the year I graduated from college, and was sent to the provinces to be a judge.
We had to rely on three law books - the Land Reform Law, the Marriage Law and the Counter Revolution Law - for all cases. Frankly, law reform went quite well, even though it was extremely difficult. There was no corruption among judges and the presidents of courts.
We started from the ground up. There was no judicial process, no criminal or civil law. We relied on those three books of law and on party policy - which was very good in those days. It should be said that some aspects of land reform, such as the execution of land owners under the Counter Revolution Law, were a black mark on the record. But, overall, legal reform and land reform were on orderly tracks, using methods borrowed from the Soviet Union.
When we received a case, I and a few others who had received legal training drafted the trial procedures. There were only two or three of us for each province. The objective then was to build laws and procedures. The trial procedures of today's China are probably linked to the procedures we drafted.
Compared to those days, I can say that Xiao Yang , the former president of the Supreme People's Court (the equivalent of a chief justice), made tremendous progress. In the years after China adopted its open-door policy, Xiao brought a 'judicial system with socialist characteristics' to China.
There are now thousands of law books, judges, prosecutors and defence lawyers. There are also detention laws, trial and prosecution procedures in writing. All these things had a Soviet origin and the Soviet Union took them from the West.
Today, China is not learning from Russia any more, but directly from the West.
A 'socialist legal system with Chinese characteristics' has been officially declared. This makes clear that sovereignty resides with the people. This is very different from sovereignty that rests with the emperor, government officials, capitalists or anyone who has power. Whether such a concept has been put into practice is debatable, but at least there is now an open acknowledgement.
There are also human rights guarantees, which was a taboo subject until seven or eight years ago. Those who have not lived on the mainland might not fully appreciate how important human rights are. We have been very lucky and enjoy many freedoms in Hong Kong.
Xiao also established that everyone is equal before the law. This was not talked about before; communist parties have always thought of capitalists and petits bourgeois as enemies of the state.
Supremacy of the law and of the constitution was established. Official power was restrained and supervisory concepts were also established.
This, in effect, established the concept of separation of powers and spelled out the roles of the legislature, judiciary and the State Council. In theory, the legal supremacy concept enables citizens to take officials to court, even though it is still extremely difficult in practice. But at least it was a progressive concept.
Procedural justice was beginning to matter. This was a departure from the previous emphasis on substantive laws - specifying the offence and punishment only.
Xiao also established many law schools and encouraged scholars to study overseas. Students were trained to become lawyers, prosecutors and judges. Many judges have doctorate degrees. This was a system to guarantee that trials would be conducted properly. Judicial independence was beginning to take shape. Xiao encouraged it.
In 2008, Wang Shengjun , who has had no formal legal training, became president of the Supreme People's Court, replacing Xiao. He went to Zhuhai soon after his appointment and proposed a new policy on the death sentence to the Intermediate People's Court, saying: 'Court decisions need to be based on the feelings of the people and not necessarily according to the law'.
This was different from Xiao's proposal that the number of death sentences should be minimised and they should be handed out with great care. Wang's comments were seen as a step backwards.
In June 2008, Wang proposed the 'three supremes' as the foundation of his 'legal reform': supremacy of the party's interest, supremacy of the people's interest and supremacy of the constitution and law. The party's interests come first; constitution and law, last. This is in fact unlawful and unconstitutional. But Wang continued to promote his policy.
In 2009, he announced that courts should be more proactive in promoting 'judicial activism'. This is the core concept of his legal reform. In effect, judicial activism mixes up the separation of the executive and judicial arms of government and gives an administrative role to courts. Judicial activism often means the court plays a political role.
There has also been a revival of interest in the Ma Xiwu trial format - popularised in the 1930s in Yanan - of taking trials to the villages and to the people instead of trying cases in courts. In such a trial format, opinions of the masses would be sought; they often demanded death sentences by shooting.
Am I overstating things? Probably not. Why are we doing this today when we have courts, lawyers and legal systems?
Wang also advocated mediation. Not all cases benefit from mediation; often the cases are not settled even after mediation and justice is not done. The results are mistrials, unlawful detention and people disappearing for no reason. What is our country turning into? As a former judge, I feel distraught that these things are happening.
If such 'legal reform' continues, the effect would be disastrous for Hong Kong. Its electoral reform would probably stall, while its judicial system would also be affected. Hong Kong courts might be asked to play a more 'active role' in politics.
We wish for a better China and the first step must be implementing proper legal reform to rebuild and normalise the legal system. This way, Hong Kong's legal system would be retained and perhaps even extended to assist mainland reforms.
Ong Yew-kim is a professor at the China University of Political Science and Law. This is an edited version of a translation of his recent lecture in Chinese to the Hong Kong Democratic Foundation