Some deputies to the ongoing 10th National People's Congress (NPC)
are urging the Supreme People's Court to create circuit courts to
improve the review procedure of death sentences and eradicate local
bias in judgments.
As
sweeping judicial reforms are not likely to take place in the short
term, circuit courts may prove a good interim measure to improve
the courts system, leading legal experts suggest.
"Circuit courts can greatly relieve the supreme court's work load,
considering its daunting task to explain laws and direct the work
of subordinate courts," said Zhao Shijie, president of the Higher
People's Court of the southwestern province of Yunnan.
Zhao, also an NPC deputy and a mover of the circuit court proposal,
which urges the supreme court to establish several such courts
nationwide to handle cases on its behalf, in particular the review
of death sentences.
China's criminal procedure requires that the Supreme People's Court
reviews every death sentence to help avoid wrongful executions
taking place.
But with limited numbers of presiding judges, the supreme court has
had to transfer the review of death sentences in some cases
concerning offences of violence, such as homicide and arson, to the
Higher People's Courts in the province concerned.
"Given that most death sentences are decided by the higher courts,
asking them to review themselves does not really make much sense,"
Zhao said.
Existing criminal procedure authorizes an intermediate court to
hear cases that could lead to the imposition of the death penalty,
and a higher court to hear a retrial following an appeal. The
second trial is conclusive.
Even if the Supreme People's Court conducts a review, the process
can sometimes be lengthy, resulting in the prolonged custody of the
accused, said Zhao.
"Clearly it is impossible for the Supreme People's Court to check
all death sentences," he said, adding: "I think handing the job to
circuit courts is a good alternative."
Zhao stressed that as representative agencies of the Supreme
People's Court, circuit courts do not need revision of the law to
legitimize them, although a lot of competent staff will be
needed.
In
addition to criminal cases, some experts argue that circuit courts
were an appropriately impartial tribunal for dealing with civil
disputes.
"When two parties in a civil case are from different places, a
court may tend to have a bias towards the home party," said Li
Daomin, an NPC deputy and president of the Higher People's Court of
Central China's Henan Province. He also filed a circuit court
motion.
Localism has become a big problem in the conduct of civil trials, a
fact which is widely criticized, but shows no sign of abating. Some
local governments have even been known to intervene in litigation
when local interests are involved.
"If trans-regional cases can be heard by the circuit courts, there
will be less localism and the results will be fairer," said Li.
Theoretically, only a limited number of cases have the right of
appeal to the circuit court after a hearing in the higher court,
but notwithstanding, argued Li, the fact of the right will
exemplify the independence of the judicature.
His proposal has won support from many legislative deputies and
legal professionals.
"I
think the establishment of circuit courts will be a valuable step
in the country's judicial reform," said Zhu Baocheng, a senior
judge with the Supreme People's Court.
He
said that a few local courts in remote regions already had some
circuit tribunals to deal with small civil disputes.
"But it will be much more difficult to create circuit courts under
the Supreme People's Court, given the high demand on money and
personnel," he said.
Many NPC deputies from business circles are also seeking the
establishment of more grassroots-level circuit courts to better
address the huge number of ordinary civil and business
disputes.
However, some pointed out that a circuit court system will be only
an "interim" measure until such time as the courts system is
renewed.
"Circuit courts embody the idea of pursuing an independent
judicature, but to make all the country's courts independent there
must be wider reform measures," said Chen Weidong, a law professor
at the Renmin University of China.
He
said the courts' ties with local interests are the biggest flaw in
the judicial system.
China's Constitution entitles local people's congresses to elect
local courts, which report to local congresses and are financed by
local governments.
"This methodology inevitably causes localization of judicial power,
which means judges' concern with local interests often comes before
that of justice," said Chen.
Henan Higher People's Court President Li agreed, saying that his
ultimate aim is to see a fully independent courts system.
"Circuit courts are an acceptable scenario to all sides under the
current circumstances, but they are by no means the end of judicial
reform," he said.
"Ideally, every court should be manned, funded, and controlled by
its superior court, and not swayed by any outside influences," Li
added.
That will require an amendment to the Constitution and a host of
other codes, and also a new financing network, independent of
legislative or government bodies.
Procuratorates, those responsible for supervising the courts,
should also be reformed accordingly.
Li
admitted that it will take a very long time for sweeping reforms to
come about and that some of the tasks are beyond the capabilities
of judges.
He
proposed that the NPC form a committee for national judicial reform
under its Standing Committee to guide changes in the law, personnel
reshuffles and appointments within the judicial system.
(China Daily March 18, 2003)