Saturday, March 14, 2015

Reforming Chinese Courts: A Fool’s Errand?

With Chinese courts revising more than 1,300 criminal decisions in 2014, the chief justice of the Supreme People’s Court, Zhou Qiang, told the national legislature in March 2015, “With regard to wrongful convictions, we feel a deep sense of self-blame and demand that courts at all levels draw a profound lesson.”[1] Six months earlier, President Xi Jinping had initiated legal reforms on the premise that the Communist Party needed a “better-functioning” legal system in order to be able to govern.[2] The question is whether this push will come to anything substantial.

According to The Wall Street Journal, political considerations are one reason why the courts have had so many wrongful convictions, including in capital crimes. “The police, prosecutors and the courts are often coordinated by the party based on interests other than determining the truth,” Joshua Rosenzweig, a human-rights researcher, explains.[3] This collusion is vulnerable to the human presumption of infallibility. The police or government officials presume that “they have their man,” and the prosecutors and even judges act as reinforcers (or enforcers). As a result, the defense attorneys can only put up defenses they know will not make any difference to the outcome of the cases.

In Western jurisprudence, the conventional wisdom is that only a judiciary independent from the government and police can resist “political considerations” and intimidation. Even when formally separate, a judiciary can still be subject to pressure, however. Chinese firewalls can fail when a power-gradient is sufficiently steep. A judge facing re-election, for example, may not want to “rock the boat” with “the powers that be” years before the election, lest other candidates be used to take the judge out.

Unfortunately for the Chinese people, President Xi continued the requirement that the legal system serve the interests of the Communist Party.[4] So for all the atoning for miscarriages of justice, the government’s efforts to reform the legal system in order to instill public confidence in it and thus in the party as well, the collusion—and thus the wrongful convictions—would likely continue. Put another way, without fundamentally altering the design of the system that includes the government, the Communist Party, the police, lawyers, and the courts, urging judges to be more careful can only be a fool’s errand.

[1] Josh Chin, “Top Judge Apologizes for Wrongful Convictions,” The Wall Street Journal, March 13, 2015.
[2] Ibid.
[3] Ibid.
[4] Ibid.