Watchdog will be free to bite hand that feeds
Zou Hanru China Daily  Updated: 2005-10-14 05:59

"If men were angels, no government would be necessary," said the fourth President of the United States of America, James Madison. No government can govern the people properly without the rule of law. This rule of law undergoes changes with changing times, and that is exactly what is happening at a rapid pace in China today, especially in the criminal justice system.

The public prosecution arm of the country's criminal justice system is in the midst of ground-breaking reforms initiated by the Supreme People's Procuratorate (SPP). One of the reform drive's primary goals is making China's public prosecution system financially independent of local governments.

That would allow for proper oversight in the administration of justice.

In China's criminal justice system, the State takes responsibility for prosecution in criminal cases. The People's Procuratorate, the country's public prosecution agency, is the legal party responsible for presenting the case against an individual suspected of breaking the law in a criminal trial.

The public prosecution system is hierarchically structured, with the top position held by the SPP, which operates under the authority of the National People's Congress and its standing committee. Below the SPP are procuratorates that correspond to lower levels of government and courts.

Besides prosecuting criminal cases, the procuratorate is also charged with ensuring that the government and the judiciary act according to the law.

While the Public Security Bureau - the police force - investigates most crimes, the procuratorate itself probes those committed by government officials, employees and agencies, with its anti-corruption unit investigating bribery, embezzlement and other public corruption cases.

The procuratorate also has a government employees' misconduct unit that investigates other crimes committed by government workers in their official capacity. Abuse of power, dereliction of duty, police brutality and similar cases are directly investigated by this unit of the procuratorate.

But the procuratorate's supervisory role of monitoring the performance of local governments and their employees has been hampered by its dependence on local government funding.

How can graft-busters act honestly and neutrally when the very people they are supposed to be watching sign their pay cheques?

The procuratorates' funding process has created a serious problem - local protectionism. Investigation and prosecution of corrupt government officials and other employees have become so difficult that many suspects have had to be handed over to procuratorates of other jurisdictions.

To reverse the trend, legal experts have been calling for changes in the way procuratorates are funded. In a positive response to the call, the SPP-led programme of reform seeks to separate the procuratorates' budgets from local government coffers in three years, and pass the funding responsibility on to the central and provincial governments.

More than 200,000 corrupt government officials and employees have been prosecuted in China since 2000. The figure could have been much higher or lower had the country's public prosecution system been financially independent - higher because the probes would have been more forceful and less fettered, or drastically lower because of the deterrent effect.

Apart from seeking financial independence for the public prosecution system, the SPP reforms will also aim to secure a bigger say in the appointment and promotion of prosecutors - a traditional power enjoyed by local governments.

Hiring and firing authority is to be passed to the next highest level of procuratorates to build a more competent and professional public prosecution team across the country.

On the technical front, the reform drive will focus on due process in criminal investigations, prosecutions and trials to ensure fairness in the administration of justice and protection of human rights.

The SPP has ordered the public prosecution system to keep a closer watch on irregular practices such as unlawful extension of investigatory detention and coerced confessions, and to rectify such problems as they arise.

To protect the lawful rights of the accused, the reform highlights the right to counsel and a meaningful pre-trial investigation.

It is true that China still needs to do a lot more for its criminal justice system to approach international standards in areas such as presumption of innocence and the right to silence during interrogation and trial. But the on-going reform drive is moving in the right direction.

(China Daily 10/14/2005 page4)