Why China Must Build a Modern Judicial System

The reform of the judicial system has gained greater urgency in recent years amid the eye-opening revelations of several miscarriages of justices.

Since the middle of December, two old court cases have resurfaced to grab the public's attention. The first involved a man named Nie Shubin, who the Hebei High People's Court sentenced to execution for rape and murder in 1995. Doubts about that case prompted the Supreme People's Court on December 12 to order a retrial be held in Shandong Province.

The other case involved a young man in Inner Mongolia named Qoysiletu, who has had his name cleared 18 years after he was executed for raping and killing a woman in 1996.

Both men were executed amid campaigns against crime in the mid-1990s. The legitimacy of the verdicts against them both was called into question because police later caught the real perpetrators, prompting their families to embark on arduous journeys of appeal.

The Nie case is still pending, but it has revived the painful memory of several other high-profile episodes in which people were wrongly convicted because of a flawed judicial system. Few people have been as fortunate as the families of Nie and Qoysiletu and gotten retrials. Fewer still are the number of people held responsible for the heinous crimes.

The president of the Supreme People's Court, Zhou Qiang, has said tackling "miscarriages of justice that happen from time to time, but gravely harm public trust in the judicial system" is a top priority.

We should remember those who have fallen victim to injustices because they can be reminders of the serious flaws in our courts and law enforcement. They can also help infuse our society with a sense of conscience and responsibility that obliges us to get to the bottom of these recurring problems and deal with the causes.

In October, the Communist Party decided at the fourth full meeting of its 18th Central Committee that it wanted to comprehensively advance the rule of law.

The party has called for a transformation from a judicial system centered on police to one that relies on trials to ensure investigations and evidence can withstand serious scrutiny. This is intended to be a remedy for a sick system that has been prone to abuse by police using torture to get confessions.

All aspects of criminal cases, including investigation, prosecution and defense, should be carried out in a professional and modern way. This would be a change from the country's current approach, which sees the judicial system function more like a factory's production line.

The constitution and criminal procedure law say that courts, prosecutor's offices and the police have their own separate jurisdictions, which in theory requires them to cooperate with each other and ensure the public a certain amount of checks and balances are in place.

In practice, defense lawyers have little power and prosecutors are seen doing little more than colluding with police. This means the whole process gives far too much weight to law enforcement.

That has led some academics to liken China's judicial system to a cozy restaurant, where the police are the chefs, the prosecutor's office is the waiter and the court is the diner. In this metaphor, defense lawyers can only sit outside and beg for scraps.

As a result, the system is often troubled by convictions gained through torture, extra-judicial detentions and grave disregard of defense lawyers. The courts have thus become a hotbed of miscarriages of justice and trials are a formality.

The party would like to change this so that trials are based on evidence and a suspect's defense plays a central role. It has also clearly said that court officials should be held accountable and the judicial system must be allowed to be more independent. It also stressed that both plaintiffs and defendants have the rights to information in a case.

The party has also set out guidelines that allow for illegally collected evidence to be thrown out and for the principle of presumption of innocence to play a central role in trials. It has also proposed a way to hold to officials who interfere in a trial accountable because this is another reason for the country's many miscarriages of justice.

The ruling party has also sought to redefine the role of its controversial Central Politics and Law Committee by shifting its role from one of oversight of specific cases toward a focus on cultivating political allegiance and coordination and team-building of court officials.

The party should carry out all these initiatives unswervingly, but letting defense lawyers play their proper role is crucial. Sadly, the common denominator in cases where incorrect verdicts were reached is the low status of defense lawyers.

Since the executions of Nie and Qoysiletu, China has made great progress in its judicial system, and the party has for the first time adopted the rule of law as a basic principle. An amendment to the constitution in 2004 embraced the concept of human rights, and the criminal code has undergone several amendments that allow it to restrain the power of government and protect human rights.

We are also happy that shortly after the fourth full meeting of the 18th Central Committee, the government said it would stop allowing organs to be taken from executed prisoners so they could be used in transplants.

The legal system has come a long way in 20 years, but obvious miscarriages of justice should prompt our society into a bit of soul- searching as to the root causes of the problem. If we fail in this, such tragedies will simply be repeated.

Facing up to the injustices suffered by people like Nie and Qoysiletu will help cultivate social cohesion, but we also need rules to uphold human rights. Ultimately, the public should support the building of a modern legal system because justice is not just the purview of legal professionals. It should be the goal of everyone.