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The "Human Rights" magazine of the China Society for Human Rights Studies published in its second issue of 2004 a signed article by Zhong Shikai, titled "Judicial Reform to Protect Human Rights." Full text of the article follows:
In performing its duties, the Chinese Government has always followed the principle of "governing the country in the interest of the people," and attached importance to respect for and protection of human rights to which the Chinese people are entitled. Social and economic conditions for protecting human rights have kept improving over the past two decades, in step with the constant growth of the national strength under the State policy of reform and opening up to the outside world. Moreover, the 15th Congress of the Chinese Communist Party established "rule of law" as the fundamental principle for governance of the country and called for judicial reform to better protect the legitimate rights and interests of the Chinese people. Judicial organs across the country have yielded positive results in implementing the principle and the reform.
Constant improvement
A scientifically designed legal system, a system complete in itself and good enough to embody the will of the people and the spirit of our times, constitutes the prerequisite and basis for a successful implementation of the judicial reform. Over the past two decades, organs of State power and judicial organs of the government have accelerated the building of such a legal system. Altogether, more than 500 laws and legislative decisions have been formulated, along with 3,100 rules and regulations, to this end. A socialist legal system is already in place, which is centred on the Constitution of the People's Republic of China, complete with laws governing each and every aspect of life in China.
What merits special mention are the laws of civil, criminal and administrative procedures and the PRC Criminal Law, which together provide an effective legal guarantee for protection of human rights.
Now may we say a few words about the PRC Administrative Procedure Law. Adoption of the law by the Second Session of the Seventh National People's Congress in 1989 shows that, for the first time in history, the Chinese people are empowered to sue the government when their legitimate rights and interests are infringed upon by administrative actions taken by the government. The law provides that in court proceedings, the litigants in a case of administrative dispute are equal in status, and that burden of proof shall rest on the defendant -- the administrative organ against whom the plaintiff laid a charge.
In 2002, people's courts across China concluded trials of 84,000 cases of administrative disputes, in which the defendants were governments or work units.
The PRC Civil Procedure Law was adopted at the Fourth Session of the Seventh NPC in April 1991, after trial implementation with approval of the NPC in March 1982. The law provides that all the litigants involved in a civil case are equal in application of the law. It gives citizens the right to request a people's court to protect, by exercising its power to adjudicate, their legitimate rights and interests, confirm or alter civil legal relationships in which they are involved, and penalize civil acts in violation of the law. In 2002, courts at all levels in China concluded trials of 4.39 million civil cases.
Back in July 1979, China's first Criminal Procedure Law was promulgated. The NPC made important revisions to the law in March 1996 by incorporating elements conducive to protection of human rights in criminal laws adopted in the West. The revised law revoked the old practice of detention for examination and has standardized the enforcement of coercive measures used in handling suspected criminals, so as to better protect the legitimate rights and interests of criminal suspects and the accused. The most important thing, however, is that the principle of presumption of innocence is adopted through the revision, the revised law stipulating that no person shall be held as a criminal before a verdict is passed by a people's court on the person. In addition, the revised law provides still more effective guarantee for the exercise by the accused of their right to defence in court proceedings.
The PRC Criminal Law currently in force was promulgated in 1979 and revised in 1997. The revised law follows the doctrine of conviction and penalty according to law, suggesting that the old practice of analogical conviction is gone. Under the revised law, all those involved in a criminal case are equal under the law, and none shall enjoy any extralegal privileges. The revised law also provides the principle of punishment commensurate with the crime, under which the punishment meted out to the convicted shall be commensurate with their crime and due criminal responsibilities.
These provisions are meant to ensure punishment of crimes in accordance with the law while protecting the legitimate rights of criminal suspects and the convicted, thus combining punishment of crimes with protection of human rights.
Measures standardized
Criminal coercive measures refer to those taken by judicial organs in accordance with the law to restrict the personal rights of a citizen or deny him or her of such rights. When a coercive measure is taken against a person, the person's honour, freedom and other rights are bound to be adversely affected.
China's judicial organs have published a whole range of rules and regulations designed to fight crimes while effectively preventing abuse of such measures. These include the Provisions on Some Matters Concerning Implementation of the Criminal Procedure Law, and Provisions on Some Matters Concerning Bail Pending Trial. There are also complete sets of rules and regulations on detention, arrest, surveillance of residence and extended custody. These provide in minute details for the scope of use for criminal coercive measures and the procedures of approval of it, as well as for supervision over implementation of such measures. The legitimate rights of criminal suspects and the accused are thus effectively protected when criminal coercive measures are taken against them.
In August 2003, the Ministry of Public Security published the Regulations on the Procedures for the Handling of Administrative Cases by Public Security Organs, specifying the objects to whom administrative coercive measures are applicable, and the conditions, time-limits and procedures for application of such measures. What merits special mention is that under these regulations, illegally collected evidence shall not be used as the basis in determining a case, and this has effectively curbed the use of torture to exact confession.
Proceedings improved
Judicial proceedings that are fair, open, democratic and efficient are crucial to upholding the authority of laws and protecting the legitimate rights and interests of citizens at large, in particular of the accused in criminal cases and litigants in civil and administrative cases.
People's courts across China are sparing no effort to push the reform of judicial proceedings. The reform aims at, first of all, separating placing of cases in file for trial from trial of the case, trial of the case from execution of the verdict, and trial of the case from supervision over the trial. This is meant to ensure effective supervision over the handling of the case in all stages to ensure justice and efficiency.
The organizational form of the court has also been changed, allowing head and sole judges to play an even greater role in court proceedings, with a view to improving the efficiency of trials.
For the same purpose, work has been done to promote the practice of letting the president and vice-president of the court and the chief and deputy presiding judges join the collegiate bench for trial of a specific case. Administrative proceedings have also been reformed, with a view to providing still better protection for the litigious and substantive rights of citizens and legal entities.
The Supreme People's Procuratorate has published a complete range of rules concerning prosecutorial protests in respect of criminal and civil cases. It has also published a set of rules for having the responsibility for errors in the prosecution process investigated and affixed.
More transparent
Transparency of judicial work is important to the protection of human rights. It is, in fact, a guiding principle for China's judicial work.
In recent years the Supreme People's Court has published a wide range of rules and regulations that oblige people's courts at all levels to conduct open trials of all cases except those otherwise stipulated in relevant laws. Citizens are free to hear court trials. The press is allowed the freedom to cover court trials provided these are open to the public, and such trial can be televised and broadcast live when this is deemed appropriate.
In October 1998 the Supreme People's Procuratorate made a decision on opening the entire process of prosecutorial work to the general public. According to the decision, litigants of civil cases and criminal suspects under prosecutorial investigation are timely informed of their legal rights, and public hearings are organized for the handling of nol pros cases (cases not to be prosecuted), criminal cases of appeal and administrative and civil cases of protest. The decision is meant to ensure public supervision over prosecutorial work and promote judicial protection of human rights.
On June 10, 1999, the Ministry of Public Security issued a circular ordering police departments across the country to enforce, in an all-round manner, transparency of police services. The circular is meant to invite public supervision over police activities in both civil and criminal law enforcement.
Organs of judicial administration have made it a rule to inform prison inmates and their relatives -- in fact society at large -- of the legal basis for prison administration and the relevant procedures and rules and regulations.
Supervision strengthened
People's procuratorates have strengthened their supervision in accordance with the law over legal actions taken by people's courts. Already in place is a work mechanism good enough to ensure effective supervision over investigation and examination of cases by allowing timely intervention by people's procuratorates.
Thanks to such supervision, more than 300,000 cases involving illegal extension of custody were corrected from 1998 to 2002. During the same period, people's procuratorates at all levels lodged protests against sentences and rulings passed by people's courts on 16,000 cases, testifying to their success in supervising over court proceedings.
Moreover, supervisors are chosen, on an experimental basis, from among citizens in 10 provinces, autonomous regions and municipalities to help ensure that approval of arrests, revocation of cases and making of nol pros decisions by people's procuratorates are in strict conformity to law.
People's courts, people's procuratorates and government organs of public security have all instituted mechanisms of internal supervision. A set of new rules is being enforced within people's courts, under which responsibilities will be investigated for any illegal instance in court proceedings. The Supreme People's Court has also published a code of conduct for judges and court workers across the country.
Moreover, deputies to national and local people's congresses are able to play a still more effective role of supervision over work of judicial organs and their staff members.
Legal services expanded
China had 100,000 lawyers at the end of 2002, who were working in some 10,000 law firms. The country had by then put in place a fairly complete system of laws, rules and regulations governing legal services rendered by lawyers.
China's judicial organs attach great importance to involvement of lawyers in criminal lawsuits. Lawyers, as a matter of fact, can be involved in all stages of the process, in order to effectively protect the legitimate rights of criminal suspects and the accused.
To be more precise, a criminal suspect is allowed to have a lawyer work in his or her defence or appeal for innocence on his or her behalf from the day the criminal suspect is subject to a coercive measure or is questioned by police for the first time. While in custody, the criminal suspect may ask his or her lawyer to apply, on his or her behalf, for bail pending trial.
During investigation and prosecution, lawyers are available to serve as the defence counsel for criminal suspects. During court trials, the accused will have a defence counsel either hired by themselves or appointed by courts. In 2002, lawyers were involved in 335,000 criminal lawsuits.
Lawyers' associations have been granted a greater role in upholding justice. Under China's legal system, lawyers are independent legal service providers. According to the Ministry of Justice, more than 200 government organs in eight provinces, municipalities and autonomous regions are experimenting with a new system of public defenders. A system of corporate lawyers is being tried out, involving 50 large-sized companies in 15 provinces, autonomous regions and municipalities.
For underprivileged groups
China's first juvenile bench was established in 1984 under the Changning District Court of Shanghai Municipality. Since then, more than 2,500 juvenile benches have been set up under courts across the country.
A complete set of rules and regulations has been instituted to effectively protect juveniles in accordance with the Law on Protection of Minors and the Law on Prevention of Juvenile Delinquency. Cases of juvenile delinquency are not subject to open trials. Education is incorporated with trials of juvenile cases, with the stress placed on psychological correction in the interest of the accused.
Establishment of a legal assistance system and rendering of legal assistance in the interest of underprivileged groups are included in China's social development plans.
Nearly 1 million people have received legal assistance in recent years, including women, juveniles, senior citizens and physically or mentally disabled people, as well as foreign nationals who have allegedly committed law-breaking acts while residing in China.
In 2001 and 2002, judicial assistance was provided to people involved in more than 400,000 lawsuits, and court fees amounting to 2 billion yuan (US$241 million) were cut, exempted or postponed. This has effectively ensured the litigious right of those with financial difficulties to pay such fees.
Prison reform
A reform of the prison system is being carried out in Heilongjiang, Hubei, Jiangxi and Shaanxi provinces and Shanghai and Chongqing municipalities, with a view to improving prison administration and better protecting the legitimate rights and interests of prison inmates. The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice jointly decided in July 2003 to experiment with community correction in the interests of those having received prison sentences for minor crimes and those on parole. Work in this regard is being done on a trial basis in Beijing, Shanghai and Tianjin municipalities and Jiangsu, Zhejiang and Shandong provinces.
Moreover, there are programmes launched by local governments to help former prison inmates gain a new lease on life, in order that they will not commit crimes again.
With help from government agencies, community workers and volunteers participating in such programmes, 73 per cent of those released from prison in 2001 found a proper living, and the figure shot up to 90 per cent for those released in 2002.
(China Daily April 16, 2004)
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