Thursday, March 20, 2014

Progress for China’s Criminal Justice System?

In a country with a 99.9 percent conviction rate in 2012, and where party interference with judicial proceedings is routine, a comparativist must look deep for signs of progress in the balance between the right to due process, fair and efficient proceedings, and crime control.    After all, the most well known wrongful conviction in China involved the case of a man convicted of killing his wife based on a coerced and false confession, in which the wife reappeared many years later while he was serving his sentence.  A book, Back From The Dead: A Landmark Ruling of Wrongful Conviction in China, has recently been released about the case, and new light has focused on the routine coercion of confessions by the police. 

At the moment, though, China is making all of the right noises, and reporting that great strides are being taken to address flaws within its criminal justice system. Chinese news reports have also indicated that over 800 convictions were vacated last year by the Supreme People's Court due to findings of actual innocence. Notably, however, the Nation’s movement towards reforming its system has not been met with any material substantive changes to the rule of law. Likewise, the reports relating to the Court’s overturning of a few hundred convictions is hardly conducive of everlasting change, considering that the judiciary is not an independent body and has accounted for more than 5 million convictions between the years of 2008 to 2012 alone.

Zhou Qiang, the head of the Supreme People’s court recently acknowledged that in some of the criminal cases that resulted in conviction…“the rulings…were not fair…which harmed the interests of the litigants and undermined the credibility of the law.”  Last year, he called for changes to prevent wrongful convictions. And Shen Deyong, the executive vice-president of the Supreme People’s Court articulated last year the basic value that it is better to acquit a guilty person than convict an innocent one.  Meanwhile, there has apparently been some reform in curtailing the power of the community party’s Political and Legal Committee, which in the past has overtly interfered in legal cases. 

Nevertheless, lawyers for the jailed New Citizens Movement members have become outspoken about the restraints being placed upon their ability to effectively represent their clients. Zhang Qingfang noted that his clients, whom are accused of mounting an amorphous civic campaign to compel reform in the way China deals with corruption and the rule of law, have been denied basic legal precepts, and have not received a fair trial. Notably, the defense lawyers were advised that they will not be allowed to either cross-examine the prosecution’s witnesses, or call witnesses as part of their defense.

Jerome A. Cohen, an expert on Chinese law at New York University, has noted that the implementation of better practices within China’s criminal justice system was simply being fettered by Chinese authorities. Cohen, citing the recent barring of the public and the news media from trials, contended that the authorities were undermining the promises of Mr. Xi and his newly appointed Supreme Court chief, Zhou Qiang, to curtail wrongful convictions. Mr. Cohn stated that “There doesn’t seem to be any connection to what they are preaching and what is being practiced.”

Other critics, have also noted that "[b]ecause the judicial system is tied to the political system, if there is no real political reform, the reforms to the judicial system cannot be fully realized.” Eva Pils, a law professor at the Chinese University of Hong Kong, stated that  "the biggest concern about the judiciary remains that it is a weak institution compared to the Party-State security apparatus.”

Political interference is not something the United States routinely faces in its wrongful conviction cases, although politics is clearly the cause of so few grants of executive clemency.  Clearly, though, the problem of false confessions is real, not simply due to police coercion but to more subtle suggestion by the police which result in confessions by innocent people that contain what appear to be corroborative details.  The practice of recording statements, used widely in England and beginning to be used in the United States, certainly will prevent both subtle and unsubtle causes of false confessions.  Hopefully, the Chinese will watch and learn from these steps.

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