Mainland leadership needs to deepen legal reform

Efforts at legal reform need to be intensified, otherwise the nation risks facing more international scandals in the coming year

PUBLISHED : Thursday, 03 January, 2013, 12:00am
UPDATED : Thursday, 03 January, 2013, 5:10am

The past year should have been a wake-up call for the authorities: either deepen reform to strengthen the rule of law, or risk more international scandals like those involving Wang Lijun and Chen Guangcheng.

The two men, one a powerful police chief fearing revenge from his boss and the other a rights activist under house arrest, could not have been more different in terms of their status and situation. But despite the very different causes of their flights to seek foreign sanctuary, at the root is the same problem: weak rule of law, compounded by weak checks on official powers.

One solution, if you ask legal reformers, is steering judicial reform in the right direction.

Making judicial officers more professional was the focus of judicial reform under former Supreme Court chief Xiao Yang - a period of reform that saw judges required to sit the same legal professional examination as lawyers and prosecutors.

However, to the dismay of many legal professionals, this reform focus has been pretty much abandoned since 2008, when the official slogan for judicial work became the "Three Supremes" - to serve the interests of the Communist Party, the people and the law, in that order.

With the Communist Party's new leadership now in place, some hold out hope for change and are cautiously welcoming recent positive signs. For example, Meng Jianzhu , the new secretary of the party's Political and Legal Affairs Commission, said in a speech last week that judges should "combine professionalism with populism", and there was no mention of the Three Supremes.

Others want to see more measures to enhance the independence of the judiciary, such as reducing the commission's control of the courts and the removal of party units from courts and law firms. Following new party general secretary Xi Jinping's recent speech on the importance of implementing the constitution, there have also been fresh calls for the courts to review government actions against the standards set out in the constitution - a function allowed by law but not in practice.

And many just want to see courts being allowed to hear cases as they should under the law, and not be forbidden from doing so when cases involve multiple plaintiffs or are deemed sensitive for other reasons. Show trials, like those of Bo's Xilai's wife, Gu Kailai , and Wang can also no longer convince the public that justice is done.

On the legislative front, several moves last year gave encouragement to rights advocates, including the passing of the long-awaited Mental Health Law, which will hopefully make the involuntary committal of mental health patients much harder, and amendments to the Criminal Procedure Law that will improve the rights of suspects and defendants to counsel and hopefully reduce use of torture.

Detailed implementation guidelines for the courts, prosecutors and the police were also issued late last month, although whether they will reduce abuses, especially in relation to secret detention, requires more study.

Meanwhile, in the process of negotiating the draft amendments to the Criminal Procedure Law, as well as amendments to the Civil Procedure Law also passed last year, legal reformers realised that official resistance to change was still strong, whether in relation to a citizen's rights versus the powers of the police, or allowing citizens to use the courts in public interest cases. In the end victories were gained, but substantial compromises were also made.

The past year should have been one in which the authorities realised that domestic problems - be they corruption or abuse of citizens' rights - can easily become international issues. The quest for rule of law is no doubt a long-term project, but the new leadership must show determination in deepening reform.

The mainland can no longer afford to have officials bound weakly by the law. There are two ways to address this: either wait forlornly for the officials to become more law-abiding, or enhance systemic checks on their power.

Judicial reform is one way to achieve the latter. Others include increasing public consultation during law-making and enhancing government transparency.

The new year wish list for reformers is pretty clear. The question is whether the new leadership shares those priorities.

Ng Tze-wei is a former South China Morning Post journalist