On January 7, 2000, I left the United States for Beijing to begin three months of exchange with Chinese prosecutors about their criminal justice system and ours. As luck would have it, on the very day I left for China, the New York Times carried a front page headline about the Chinese criminal justice system entitled “In China’s Legal Evolution, It’s the Lawyers Who are Handcuffed.” The article described a Chinese defense attorney who, as a result of not much more than mounting a vigorous defense on behalf of his client, found himself in jail on criminal charges of obstruction of justice. The headline suggested that, despite its boasts of legal reform, China was still a repressive regime that punished vigorous advocacy by lawyers on behalf of their clients. Rather than taking the appearance of the article as some form of omen, I saw it as framing a question that would come back to me over and over again while I was in China. Are China’s efforts at legal reform real or are they illusory?
Looking at China’s criminal justice system through Western eyes, it is easy to see only its deficiencies. The system is marked by long periods of investigatory detention, a high rate of confessions, and administrative penalties that are tantamount to incarceration without trial. Criminal suspects have no right to refuse interrogation, enjoy no presumption of innocence, and have no right to confront their accusers or compel the presence of witnesses to testify in their defense. The right to counsel is extremely limited in the investigatory phase of a case and, although there is a right to counsel at trial, that right is circumscribed by the absence of pre-trial discovery and the limited ability of the defense to conduct its own investigation.
While these are major deficiencies in the system, it should also be noted that China’s current criminal justice system is only 20 years old and, during that relatively brief period, it has already undergone major reforms. In 1997, for example, reforms eliminated the practice of prosecution by analogy, by which a person could be charged with a crime if their conduct was analogous to other conduct specifically prohibited, even if the offense in question was not delineated in the criminal code. The 1997 reforms also abolished “shelter and investigation,” whereby police could hold a suspect indefinitely while investigating the person’s true identity. More certain time limits were also placed on the various forms of detention known as “compulsory measures.”
Additional significant reforms to the system can reasonably be expected in the next five to ten years. Many sophisticated legal experts both inside and outside the Chinese government are dedicated to reforming China’s criminal justice system to bring it closer to international standards of fairness. As in many areas of reform, China is looking to the West, and in particular to the United States, to gather information about reforms that may be appropriate.
In May 2000, I returned to China for a week of meetings with legal scholars and government officials. The topics included the presumption of innocence, the right to silence, the right to confront witnesses in person, pre-trial discovery, and other rights that most American law experts consider fundamental to our justice system.
My experiences in China this year, which included hundreds of interviews with Chinese prosecutors, judges, lawyers, and academics, convinced me that the sentiment in favor of reform is sincere and shared by a wide spectrum of legal experts both inside and outside the government. The obstacles to reform, however, are also very real, and the lack of political consensus is only one of them.
The purpose of this article is to provide some context for an ongoing discussion of legal reform in the Chinese criminal justice system and, of course, to give one person’s perspective on the issue. What follows is an overview of the Chinese system in the context of Chinese society today, a brief history, an analysis of the current criminal justice system, and the prospects for future reforms.
This article was originally published in the Washington Journal of Modern China, Fall 2000 Vol. 6, No. 2.
Ira Belkin is the Executive Director of the U.S.-Asia Law Institute.