Friday, May 18, 2007

China's murky legal system easing up

For many decades now, the People's Republic of China is notorious when it comes to human rights violations and tortures. In most cases, complaints for these human rights abuses have reportedly not been addressed properly in accordance with the accepted norms set by the United Nations.

International political analysts viewed these abuses, normally perpetrated by the Chinese police, as a reflection of China's concentration of power in the communist party where legal decisions are made, rather in the local legal system. Flaws in the legal system are a common complaint among the victims who have to suffer the brunts of enduring it first in prison before any legal remedies are introduced.

In 2005, The China Daily reported the case of She Xianglin, 39, from the Central Hubei Province, who was arrested and tortured into confessing by the local police after he was suspected of killing his wife Zhang Zaiyu whose badly decomposed body was found near his home. For this, he was sentenced to death by the local court. However, the High People's Court of Hubei sensed some doubtful points in the case and instead ordered a retrial which changed the sentence to 15 years. However, the twist of even came when his wife, with the new husband and a son, surfaced since she went missing in 1994.

Chinese legal experts believe the case of a man who spent 11 years in prison for a murder highlights loopholes in the law which should be rectified so as not to jeopardize the human rights of the innocent suspects who are made to languish in jails for crimes they have not committed. In She's case, no DNA testing was made on the evidence before a criminal case was filed against the suspect.

Consequently, the victim has sought compensation as payment for the sufferings he endured during his 11 years stay in jail.

Li Guifang, deputy director of the Beijing-based Criminal Committee of the All-China Lawyers Association, said that She's case demonstrated the failure of the local legal system in that part of China.

"The police should bear the brunt of the responsibility, because they falsely identified the body, the major evidence in this case, and probably extorted a confession through torture," said Li.

Tortures to attain confessions from the suspects are a common practice used by the Chinese police, academics in China said. Even if they are forbidden by law, some police officers continue to do this illegal practice if only to solve crimes.

China's flawed legal system, like those in other neighboring Asian countries, dates back on September 23, 1821, when an American ship from Baltimore was loading cargo in Guangzhou Province.

"A woman on a nearby boat fell into the water and drowned. Her family accused a crewmember from the ship Emily, Francis Terranova, of hitting the woman with a tile jar, which caused her death," writes Weifang He, a professor of law at Peking University, in a paper 'The Judicial System and Governance in Traditional China.'

The Americans had insisted that the woman fell into the water and her death had nothing to do with Terranova. "The trial was conducted by the Panyu Magistrate, who heard the evidence for the prosecution, and refused to allow that evidence to be interpreted, refused to allow testimony or argument for the defense, and adjudged the accused guilty," the lawyer said.

From then on, the clash of legal systems and legal concepts between China and the West became a very difficult and ongoing problem that exist today. In short, China does not observe a separation of powers when addressing legal problems. Instead, the most distinctive powers rest on the county magistrate which exercises comprehensive responsibilities, the law professor noted.

"The three basic functions are enacting of rules (legislature), the execution of rules (administration) and the resolving of disputes (judiciary), which all rested with the magistrate alone," Prof. He said. "All other people working inside the government served as the magistrate's consultants or assistants and had no power at all to check the magistrate's execution of power."

As the famous consultant Wang Huitsu of the Qing Dynasty said:"Among the existing powers, except for that of the governors of provinces, the most important one is that of county magistrate."

"One of the essential functions of a legal system in transitional country like China is to provide and enforce rules to facilitate the emergence of private ordering in a market economy. Rules are to be set in advance and applied consistently, equally, transparently and uniformly by independent courts that serve as a backdrop to protect civil, property, political and human rights," says Deputy Director Jamie Horsley of the China Law Center at the Yale Law School.

Although, Horsley admitted that despite its being branded as a rule of law country, China has moved a long way from the rule of man governance approach of traditional China toward establishing a legal system that increasingly seeks to restrain the arbitrary exercise of state and private power, and does provide the promise, if not the guarantee, for Chinese citizens and other actors to assert their rights and interests in reliance of law.

However, the stumbling block to realizing this path is the Chinese Communist Party's rejection of the kind of liberal democratic government typically associated with the rule of law, Horsley added.

But a new wind is blowing in China's legal system. The Asian Development Bank, China's Legislative Affairs Commission of the National People's Congress, the Office of Legislative Affairs of the State Council and the Supreme People's Court, joined hands in an international legal symposium held in Beijing on May 14-15, 2007.

The symposium was meant to share the experiences and project the future prospects for the legal and judicial system reforms and developments in China. During the symposium, the ADB presented the results of the study were presented to Chinese and international legal experts. It covers the areas of legislation, making of economic laws, administration in accordance with law, and people's court system reforms.

ADB's General Counsel Arthur M. Mitchell said: "Such an exercise would help us deepen the understanding of the relationship between the economic reform and rule of law in China. China has become the fourth largest economy in the world, the third largest international trading partner, and one of the largest countries seeking resources for future development, and a source which may have most significant impacts on global environment."

Chinese officials' reactions on the results of the study could not immediately be taken on the ground that "it is extremely difficult to get the record of what was discussed during the event," Tsukasa Maekawa, ADB's principal media relations specialist, e-mailed this correspondent when contacted.

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