No Independent Judiciary In China Trials are a formality. The police decide who is guilty, well in advance of any formal judicial indictment

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WASHINGTON – Western media are covering rather extensively the broad anti-corruption campaign now under way in China. Most recently, The New york Times had a front page article that provides vivid details about the prosecution of corrupt local officials and business people in the Luliang coal-producing region. 

Plenty of corruption

Corruption dominated almost everything there. Public positions were routinely sold. Friends and relatives of the powerful went quickly from obscurity to prominent positions. A coal baron had made so much money through illicit practices that he could afford to pay US $ 11 million for his daughter’s wedding. (US $ 11 million for a wedding? This looks a bit outlandish, but let’s accept it).

No surprise

All in all, there is no reason to be surprised by this level of corruption. When power is totally concentrated within a small, unelected and unaccountable elite of career functionaries, promoted only on the basis of loyalty, it is quite obvious that those who have great power will use it to enrich themselves by selling favors and by gaining control over money-making enterprises.

No fair trial

However, the fact that Xi Jinping, China’s new President and General Secretary of the Communist Party, is now very publicly pursuing corrupt public officials and their business friends provides only mild comfort.

There may be a genuine interest in “cleaning” the party by getting rid of the most egregious bad apples. Still, this process is carried out by the same unelected and unaccountable officials who participate in the spoils system. Are all corrupt officials pursued? Or only those who are not political friends?

May be some prosecutors are truly impartial. Still they all follow secretive investigative procedures. Indeed, sometimes the accused are held with no trial. Others simply vanish.

And, in case you wonder, there is no such thing as an “independent judiciary” in China. Trials are usually pro forma. All the accused are routinely found guilty.

“Modernize” the system?

Interestingly enough, the Chinese magazine Caixin Online recently published an editorial dealing with the need to “modernize” China’s judiciary, (Why China Must Build a Modern Judicial System, December 25, 2014).

The editorial does not focus on impartial trials for those now accused of corruption. It begins with a couple of known cases in which people accused of murder were convicted and sentenced, while it turned out later on that they were innocent.

Still, the general overview of China’s judicial system provided by the editorial, from which we glean that law enforcement authorities determine in advance who is guilty way before any trial is held, is quite revealing.

“Trials are a formality”

Here is an excerpt from the Caixin piece:

“[In China] all aspects of criminal cases, including investigation, prosecution and defense, should be carried out in a professional and modern way. This would be a change from the country’s current approach, which sees the judicial system function more like a factory’s production line.

The constitution and criminal procedure law say that courts, prosecutor’s offices and the police have their own separate jurisdictions, which in theory requires them to cooperate with each other and ensure the public a certain amount [Bold added] of checks and balances are in place.

In practice, defense lawyers have little power and prosecutors are seen doing little more than colluding with police. [Bold added]. This means the whole process gives far too much weight to law enforcement.

That has led some academics to liken China’s judicial system to a cozy restaurant, where the police are the chefs, the prosecutor’s office is the waiter and the court is the diner. In this metaphor, defense lawyers can only sit outside and beg for scraps.

As a result, the system is often troubled by convictions gained through torture, extra-judicial detentions and grave disregard of defense lawyers. The courts have thus become a hotbed of miscarriages of justice and trials are a formality. [Bold and emphasis added]

The party would like to change this so that trials are based on evidence and a suspect’s defense plays a central role. It has also clearly said that court officials should be held accountable and the judicial system must be allowed to be more independent. It also stressed that both plaintiffs and defendants have the rights to information in a case.

The party has also set out guidelines that allow for illegally collected evidence to be thrown out and for the principle of presumption of innocence to play a central role in trials. It has also proposed a way to hold to officials who interfere in a trial accountable because this is another reason for the country’s many miscarriages of justice”.

Reform will accomplish little

I appreciate the magazine’s deference to the party and its new guidelines. However, either there is a truly independent judiciary or there isn’t one. Is the Chinese Communist Party going to create and protect an independent judiciary? I doubt it.

In a country in which all power is concentrated within a small elite of co-opted senior leaders, some judicial system reform may be possible. But an independent judiciary –the only way to provide a guarantee of a fair trial– is only a dream.

The accused are always guilty

For sure, since right now the Communist Party needs to create a better image for itself, we are going to see more senior officials charged with corruption and sentenced, as the NYT story explained. And may be most of them are indeed guilty.

However, China’s judicial system being what it is, forget about anybody getting a fair trial.

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