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Q&A: Legal Adviser Looks Forward to Revamping of China's Courts

VOA’s Bill Ide spoke with legal scholar He Jiahong in Beijing about the upcoming Fourth Plenum and the Communist Party’s decision to make “rule of the law” the focus of this year’s political meetings in Beijing. He Jiahong is a professor at Renmin University and special adviser to China's Supreme Peoples’ Procuratorate.

Ide: "What should we expect to happen during this week’s meetings?"

He Jiahong: "I think that for Chinese people, there are a lot of things we are expecting to happen during the meetings, because in China we have a lot of problems such as corruption.

Also in our criminal justice system we have seen quite a few wrongful convictions discovered in the past few years. And those wrongful convictions make us think about the problems in our criminal justice system.

Without wrongful convictions, some people might think that even though our system is not the best, it’s still OK. But with those terrible things that have happened, the cases of those who were wrongfully executed or people who have been behind bars for 10 years and then people discovered it was a mistake of justice. So we need to make some changes."

Ide: "What kind of changes are you referring to?"

He Jiahong: "In China, the court system is basically controlled by local governments. So I am talking about judicial independence at the local level. Although personally, I think that judicial independence is very important for the rule of law. But in China, to be realistic, we cannot reach that goal at the central government level. So, we want to do it from the bottom up, at the county level, city level, then provincial level."

So, for the judicial reform this time I think we will see the results maybe in one or two years. To have a more centralized judicial system, including the court system, and the system of the people’s procuratorate, at least at the provincial level."

Under the current system, while we say the court system in China is kind of centralized under the central Supreme People’s Court, but in fact the courts are all basically controlled by local party leaders because their money comes from the local government. Their appointments were made by the local party leaders, and because of that the judiciary can not make decisions independent from the interference of local leaders."

Ide: "Could you give some examples that would help illustrate that?"

He Jiahong: "In China there are several well known cases of wrongful convictions such as She Xiangling in 2005 and also Zhao Zuohai’s case in Hennan Province discovered in 2010. In those cases, we can see the role of the party committee of political and legal work at the local level, at the city level or sometimes the county level.

For the local party leaders, they will consider the most important thing is how to maintain stability and how to get the security job done. That’s mainly the police’s job. With those terrible criminal cases, with the person who is convicted, they want to send them to jail or give them the death penalty or something. But sometimes the court may have different opinions.

In those [wrongful sentencing] cases I mentioned. Originally the court did not think that the evidence was sufficient, and they said that to convict the defendant they need more proof or evidence, but there was not. And so the party committee would step in and hold a meeting with the so-called 'three chiefs', the police chief, prosecutors chief and the chief judge, and then make a decision even before the court set the real session for the trial.

And also sometimes for those cases that may involve local interests, local enterprises and some other things, so the local leaders would like to see the result of the trial and the court cannot resist this given the fact that they are under the leadership of the local leaders."

Ide: "And that is why you have been pushing for a more centralized judiciary and people’s procuratorate at the provincial level?"

He Jiahong: "Their monies should come directly from the provincial government, not from the city or the county and the appointments of the leaders of the courts of the people’s procuratorate be made at a higher level."

Ide: "But if you raise it up a level, isn’t there still another official there, isn’t there the risk that this problem would continue?"

He Jiahong: "Yes, that could still happen, but I think the chances are getting less because the power would be at the provincial level, not at the city and county level where there are so many local leaders who could try to get involved in the decision making process of the court. Of course we could have absolute judicial independence, that would be good, but that is not realistic now. We need to move step by step so now they are controlled by the provincial leaders. I think generally speaking provincial leaders may not be so involved with interests at the county level or the city level. So the situation should be better."

Ide: "Do we have a sense of what the scope of the problem is like with wrongful convictions? Do we know how many cases are being reviewed?"

He Jiahong: "We don’t have the statistics for wrongful cases. Since 2006, I led a group of young researchers to conduct an empirical study of wrongful convictions in China. We collected more than 130 cases, which were reported by the media, where wrongful convictions were officially discovered. But there must be more wrongful convictions hidden somewhere and I think that is true in countries all around the world. We don’t know how many wrongful convictions have happened, we know only those that have been discovered or exposed. But now I think more and more people in China especially the common people understand how terrible the wrongful convictions could be."

Ide: "What kind of a role is the media playing in helping to push these reforms forward? We now have up to the minute updates of trials on Weibo (China’s Twitter-like social media platform), what kind of an impact is that having in helping promote reforms?"

He Jiahong: "One thing about judicial reform is to have more transparency of decision making, and one thing the Supreme People’s Court did last year was to ask that all of the court’s judgments be published on the Internet. So the public can openly review and check the rulings. So this is one step forward.

Also some courts are using the direct broadcast of the so-called Weibo including the case of Bo Xilai. Although the Weibo broadcasting is not very objective because there has been some editing of what is put online but it is still good for people to see what happened in the court.

Talking about corruption and the Bo Xilai corruption case. Now, corruption is a big problem in China now. It is a challenge for the leadership and I think they absolutely realize the importance of fighting corruption and it will be one theme in the upcoming meeting of the party’s Central Committee."

Ide: "What we are hearing is that there will be some sort of rearrangement of the anti-corruption system?"

He Jiahong: "This is also part of the judicial reform. In China when we talk about judicial reform it includes reform of the people’s procuratorate, not just the court system. For the people’s procuratorate, as I mentioned, now they are quite heavily controlled by local leaders at the county level and city level. So one step is to have a more centralized people’s procuratorate, at least at the provincial level.

Another thing is for the anti-corruption effort. Currently there are three departments within the people’s procuratorate at each level to share the function of investigating corruption and preventing corruption. So that first there is the bureau of anti-embezzlement and bribery, so this is the main part of the anti-corruption agency. The second one is called the department of anti-dereliction of duty and infringement on human rights. This is another department within the people’s procuratorate to investigate the crimes conducted by public officials. Such as dereliction of duty and also abuse of power and torture by police officers.

Another department is the department of preventing occupational crimes by public officials. So currently there are three departments and also as I mentioned it is quite de-centralized and not very effective for fighting corruption now.

So the reform, in fact it has been discussed for several years and has been put on a trial basis in some places and I think it will be that by next year or so. So that is to have a more centralized anti-corruption agency. The first change is the merging of these three departments to work as one under the Supreme People’s Court’s Procuratorate. So it will be quite a big department.

In China, you know, the ranking is very important, ranking for officials. This department will be at the level of vice minister level. So, those three departments will work as one.

And the next step and it is also my personal proposal for the Supreme People’s procuratorate because I am also an expert adviser for the Supreme People’s Court procuratorate to have more vertical leadership that is a more centralized system for fighting corruption within the people’s procuratorate. One step is that probably at the bottom level, at the county level those anti-embezzlement and anti-bribery departments should be abolished. And all the establishment of those departments should be handled at a higher level of government.

Because when you are working on corruption cases. If you are working at the same level it would be very easy of the locality to interfere with it. So the investigation should be conducted from a level higher. That would be more effective.

So during the meeting decision will be made about how to merge these government departments, how to make them more centralized and a more vertically subordinate system for fighting corruption."

Ide: "But what we won’t see is the party’s involvement in the investigations of itself?"

He Jiahong: "I have been calling for the investigation of corrupt officials within the legal framework, but fortunately or unfortunately it is now basically done by the party’s disciplinary inspection officers. This is the current situation in China. Because one thing, the people’s procuratorate cannot conduct very effective investigations of those especially high-ranking officials. That’s the problem.

The party’s disciplinary inspection commission officers have more power. So they will have a more effective investigations. But they are working outside of the legal framework. They are not criminal investigators according to our criminal procedure law. So I would say that this is not the right way, but just the things that we can do for the moment. Because establishing the rule of law is the main theme for the meeting. For next week, we should put things back in the legal framework. But it takes time.

Also, currently the problem of corruption is so serious central leaders will have to use a kind of campaign to fight corruption. You know, to hit tigers and so on. We have seen since the 18th party congress more than 50 high-ranking public officials who were charged. So that is quite impressive, but for fighting corruption we cannot use campaigns for the long-term.

For the long-term we have to put the [focus] back on the groundwork for the legal system."