Short research on justice system in china

The Relationship between the Political and Justice System in China

“The Ministry of Justice was closed down in 1959, not to reopen until 1979, and the excesses of the Cultural Revolution wrought havoc on legal institutions and procedures. Efforts to reestablish a credible legal system resumed in 1977 (when there were no lawyers in China), as party moderates came to power. These efforts were accelerated in the early 1980s as China sought to provide the legal protection required by foreign investors.”

“The Law takes the Constitution as its basis. Article 28 of the Constitution stipulates that "The State maintains public order and suppresses treasonable and other counter-revolutionary activities; it penalizes acts that endanger public security and disrupt the socialist economy and other criminal activities, and punishes and reforms
Criminals.''”
The judiciary in China is independent; however it must follow the Communist's Party Guidance policy. The Judicial system tends to answer more to political leaders then the law, thus the judicial system is prone to interference by the Communist Party's leaders. In China's top-down political system, the Police, prosecutors and judges respond mostly to incentives from above. Maintaining the appearance of social order is important in gaining these incentives.

"As it rejects the notion of vertical separation of powers, the PRC also rejects the notion of horizontal separation of powers between different branches of government (for example, the traditional troika of legislative, executive, and judicial branches). A necessary separation of functions is acknowledged, but constitutionally speaking the National People's Congress (in form, a legislature) sits at the apex of China's political power structure. In reality, that position is occupied by the Standing Committee of the Politburo of the Chinese Communist Party, but both form and reality share the rejection of multiple power centers. Because the form of centralism, whether vertical or horizontal, does not match the reality of the need for delegation, the Chinese legal system does not deal well with the problem of defining the limits of the rule-making authority of subordinate bodies. To be sure, there are laws prescribing legislative hierarchies, but there are few institutional ways of making these rules meaningful.”

“According to the Chinese Constitution and relevant laws, the people's courts and people's procuratorates exercise judicial power and procuratorial power independently in accordance with the law, and are responsible to, and supervised by, the people's congresses. They are not subject to interference by any administrative organ, public organization or individual. The judicial organs carry out their duties independently within the limits as prescribed by the law, and any interference in their independent exercise of judicial power and procuratorial power in accordance with the law is a violation of the Constitution and the law. Based on this, China has established a system in which the courts independently exercise their judicial power to conduct civil, administrative and criminal trials in accordance with the law, and the procuratorates independently exercise their power to approve arrests, institute public prosecutions, lodge protests and supervise law enforcement in accordance with the law.”

“One obstacle is China's long history, in which criminal law was viewed as an extension of the power of the emperor rather than an objective code that applies to everyone. Confession amounted to a submission to authority, while a plea of innocence was viewed as a form of rebellion.” The justice system is confronting the tension between the demand for social and political liberalization and the demand for political stability.

It can be argued that the judicial system in China is set up to protect the authority of the government, by protecting the establishment of social order, thus no to undermine the legitimacy of the Chinese Communist Party. It can be argued that it is thus less interested in upholding and protecting the rights of suspects, as most criminal investigations in China end in guilty verdicts.

Ian Mitchell