Tuesday, May 31, 2011
Rongjie Lan (Zhejiang University) has posted A False Promise of Fair Trials: A Case Study of China's Malleable Criminal Procedure Law (Pacific Basin Law Journal, Vol. 27, p. 101, 2010) on SSRN. Here is the abstract:
China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and granting remarkable procedural safeguards to the accused. Many have been tempted to conclude that this new law is capable of ensuring fair trials for criminal defendants and thus could improve China’s record of human rights protection.
This article will argue that, despite some progresses in formality, the new law has been poorly implemented and has failed to fulfill its promise of fair trials. This article will examine two high profile cases in detail to demonstrate how procedural safeguards prescribed by the new law are frequently manipulated by judges, either to pursue efficiency and convenience or to accommodate outside influences such as political concerns, public outrage, personal friendship, or even bribes. These manipulations have caused the essence of fair trials intended to be created by the 1996 law to be largely nonexistent in modern proceedings, while at the same time allowing interferers to freely produce wrongful verdicts and disproportionate sentences.
The reality is that many of these problems are caused by institutional flaws in China’s criminal justice system, particularly the absence of a responsible judiciary. However, instead of pinning hopes for reform on unrealistic constitutional changes, this article proposes a technical approach that focuses on restructuring the 1996 law to make criminal trials less vulnerable to manipulation and interference. This technical solution would help to ensure fair trials by relying on the procedure itself, rather than on unreliable judges.