Legal reform can promote harmony
Perhaps China's leaders merely want to tune up the instruments of repression in anticipation of the increasing social instability brought on by the country's economic downturn. Or perhaps recent events have convinced them that their long-sought 'harmony' cannot be achieved without new measures to curb the widely resented arbitrary power of police, prosecutors and judges.
Whatever the reasons, the Politburo recently turned its attention to 'judicial reform'. On November 28, it adopted 'in principle' an 'opinion' from the Central Party Political-Legal Committee that controls all legal institutions. Consistent with the secrecy that too often shrouds the mainland's version of the 'socialist rule of law', the text has not been made public. Yet, as Communist Party and government officials seek to put flesh on its bare bones, its ripple effects are gradually coming into view.
One important change seems definitely in the offing. Responsibility for financing the expenses of the country's more than 3,000 local courts, which now rests with local governments on the same level, is to be elevated to the provincial and central levels. The hope is that this will restrain excessive spending for court buildings in the prosperous coastal areas while assuring adequate budgets for courts in underfunded central and western areas.
This overdue reform should also diminish, but not eliminate, the notorious 'local protectionism' that frequently biases judicial decisions in favour of powerful local political and economic interests. Budgets for police and prosecutors are also expected to be decided at higher levels in order to strengthen central rule.
A second improvement reportedly calls upon local procuratorial offices to prosecute fewer ordinary offenders while focusing on those who threaten the nation's security or commit other major crimes.
Too many people, it is said, are unnecessarily stigmatised as criminals and sent to prison or labour camp when more lenient measures would suffice. The current practice of indicting virtually all suspects whom investigators recommend for prosecution, which usually leads to conviction and incarceration, often turns essentially good people into hardened criminals and arouses popular resentment against the government.
Although details have yet to be agreed on, apparently a decision has been made to alter or abolish 're-education through labour'. Since 1957, when the party ended the brief 'let a hundred flowers bloom' period by wielding this weapon to detain hundreds of thousands of 'rightists', this supposedly 'non-criminal' administrative sanction has been an invaluable instrument of the police.
It is used at present to lock up each year, for as long as four years, roughly 300,000 people, including democratic activists, independent religious practitioners, protesters against economic and social injustices, labour organisers and obstinate litigators, as well as repeated petty offenders, drug users and prostitutes.
As large numbers of Falun Gong adherents have discovered, re-education through labour permits police to confine and punish anyone without asking either the procuracy to approve arrest and indictment or the courts to approve conviction and punishment. Its continuing existence, as a convenient alternative to prosecution, obviously undermines the significance of whatever protections the formal criminal process affords an accused. Re-education through labour also inflicts great harm to China's reputation abroad and constitutes a barrier to the ratification of the International Covenant on Civil and Political Rights.
But how will re-education through labour be modified? One report claims that some kind of court approval of all such decisions will be prescribed.
Informed mainland officials say it is likely that re-education through labour will be abolished, at least in name, and that its functions will be dispersed among three somewhat milder sanctioning systems of shorter duration. One will be for drug offenders, another for juvenile delinquents and a third for other offenders, including prostitutes.
These systems would presumably deal with misconduct more severe than that normally handled by the police pursuant to the Security Administration Punishment Law, which authorises maximum detention of 15 days per violation, and less severe than that ordinarily resulting in criminal prosecution. Such an arrangement would respond to the strongly felt need of many Chinese officials and scholars for a more rational, co-ordinated system of administrative and criminal punishment. Yet nothing has been finalised.
Further changes will undoubtedly be made in the administration of criminal justice. Published statements by relevant leaders and legal officials feature principles, slogans and cliches rather than specifics. It would be nice if, to reduce the many instances of torture and coerced confessions, police and prosecutors were ordered to surrender control of detention houses to the Ministry of Justice, but this seems unlikely.
Nor does there seem any basis for the prediction that prosecutors will have to yield their responsibility for investigating economic crime and official corruption to the police or other agencies. However, prosecutors may well be required to obtain the approval of the procuracy at the next level before issuing arrest warrants and indictments in such cases. This would subject them to a degree of supervision and control analogous to that which the procuracy exercises over police investigations of ordinary crimes.
It is still too early to assess the significance of this new round of 'judicial reform' for criminal justice. Thus far, change appears to be slow, uncertain and limited. Party leaders reportedly believe that the present economic crisis should become the driving force behind major structural changes in the economic system. A similar philosophy regarding the legal system might do much to promote stability and harmony.
Jerome A. Cohen is co-director of NYU's US-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations in New York