Although the independence of the judiciary is constitutionally enshrined in China, the government and the Chinese Communist Party continue to interfere in the judicial process, directing judgments in many instances.
A series of reforms to improve judicial professionalism, independence and effectiveness have taken place since January 2002.
The June 2001 reform of the Judges’ Law of the People’s Republic of China (1995) seeking to guarantee the independent exercise of judicial authority became effective in January 2002.
To raise professional standards, all judicial actors are now required to obtain a Certificate of Legal Profession Qualification by taking a unified annual State Judicial Exam, first held in March 2002, with only seven per cent of candidates passing.
In December 2004, China introduced significant reforms to the eligibility and training process of peoples’ jurors: as of May 2005, jurors are expected to have power equal to those of a judge. New disciplinary measures issued by the Supreme People’s Court in September 2002 and June 2003 seek to ensure judicial transparency and effectiveness, and to guarantee a fair and strict application of the Judges’ Law. New disciplinary punishment rules for prosecutors were also put in place in August 2004 by the Supreme People’s Procuratorate.
Cases of judicial corruption are still of concern. Under Article 306 of the Criminal Law, defence lawyers can be held accountable if their clients commit perjury, the definition of which leaves a wide margin of discretion to judges and prosecutors. Lawyers continue to face harassment, intimidation and abuse by police and prosecutors, threats of disbarment and imprisonment for defending their clients’ rights too actively.
Lack of fair trial, due process, and equality of arms are of concern and administrative detention without judicial process is still common. In July 2003, the Chinese Executive State Council issued a set of national Legal Aid Regulations to guarantee free legal assistance to the poor, but demand for legal aid remains far higher than supply.
People’s Republic of China-Attacks on Justice 2005-Publications-2008 (full text, PDF)Attacks on Justice 2005Publications