New for China's Courts: Trained Judges, Standard Rules ; Change Begins for a Legal System That Even China's President Has Criticized
Robert Marquand writer of The Christian Science Monitor, The Christian Science Monitor
A favorite opera character for ordinary Chinese is the black- faced Bao Gong (Justice Bao), an ancient, saintly arbiter so incorruptible that he even punishes the emperor's son-in-law.
Few of today's Chinese judges, who are poorly paid and widely perceived as inept or corrupt, command the same respect.
But as China undergoes a massive transition to a market economy - something that may bring social unrest - Chinese leaders are moving to reform the feudal and Soviet-era-style justice system in the hope that this will provide an important "safety valve" for popular grievances. It is a vast and difficult undertaking.
Experiments are under way in local and state courts with relatively new rules, like the presumption of innocence for those accused. Legal aid centers are being set up in every county. And three weeks ago, a highly touted new mandate from the National Party Congress ordered all judges to have legal training.
For years, China's judges have been drawn from a pool of retired military officers with no legal background or students fresh from law school who "do what they are told," according to one expert who did not wish to be identified.
Chinese courts do not have an independent judiciary that can make decisions separate from Communist Party influence. There are no rules of evidence or US-style due-process laws - as Chinese- American scholars recently held on spy charges here can attest.
Yet in official Beijing, "rule of law" is the fashionable reform phrase. Using terms like "modernization," "professionalization," and "international standards," Chinese officials are willing to entertain changes in the legal arena, even at a time of political stolidity and curbs on free expression. Unlike politics, judicial reform is viewed as a "safe area" of social criticism, experts say.
When President Jiang Zemin met last week with a visiting US delegation, Sen. Arlen Specter, (R) of Pennsylvania, complained that the Chinese-American scholars were "arrested without proper charge, without counsel, had no public trial, and with no basic conditions of fairness."
"He [Mr. Jiang] told us that the Chinese judicial system left much to be desired," Senator Specter said to reporters later. "And he said words to the effect, 'Be patient, we are working on the rule of law.' "
So far, the main change is a gradual regularization of commercial law. Chinese leaders like economic reformer Premier Zhu Rongji continue to assert publicly that a healthy market economy and overseas investment depends on a fair adjudication of rights, and reliable courts that can honor and enforce contracts made by foreigners.
But the dimension of reform, at least discussed inside China, goes further. In journals like China Legal Daily and among a small but broadening group of scholars and senior judges, one can read such revolutionary sentiments as calls for an independent judiciary, or questioning of the ways in which police gather evidence. Ideas like giving power to judges to compel witnesses to appear, and to allow cross-examination of those witnesses, are topics of lively debate.
Last year, for the first time, a lawyer was appointed chief justice of the Chinese Supreme People's Court, China's highest court. The same year, the court ordered all members of the legal profession to receive legal training. Revelations at the People's Congress in March that the new rule had not been enforced set off fierce diatribes - resulting in last month's decision on legal training for judges, lawyers, and prosecutors.
"The judiciary is under attack from the leadership and from the Party Congress," says Robert Reinstein, dean of the Temple University School of Law in Philadelphia, which conducts a joint program with the Tsinghua School of Law in Beijing. "The leaders understand the need for an educated judiciary. …