First in an Expert Series Analyzing the Future of China’s Legal System
July 25, 2013
Unless political control of legal institutions is phased out, the role of independent lawyers is respected, and major improvements are made in criminal justice, it is difficult to see how the Chinese legal system can keep its promise to the country's increasingly dynamic and pluralistic society and economy. People with grievances need a judicial system responsive to their needs, but the courts and other dispute resolution mechanisms are largely failing, calling into question the entire legal reform process.
Sophie Richardson, China director

While people in China may have greater success than in the past asserting their rights with police, prosecutors, and judges, the Chinese Communist Party and government have failed to enact and implement critical reforms necessary for the fair administration of justice, Prof. Jerome Cohen writes in the first essay of a series on legal reform in China published today by Human Rights Watch.

“Unless political control of legal institutions is phased out, the role of independent lawyers is respected, and major improvements are made in criminal justice, it is difficult to see how the Chinese legal system can keep its promise to the country's increasingly dynamic and pluralistic society and economy,” said Sophie Richardson, China director at Human Rights Watch. “People with grievances need a judicial system responsive to their needs, but the courts and other dispute resolution mechanisms are largely failing, calling into question the entire legal reform process.”

In a 15-page essay, “Criminal Justice in China: From the Gang of Four to Bo Xilai,” Cohen, a law professor at the US Asia Law Institute and New York University, explores several decades of changes in the criminal justice system, from the trial of the Gang of Four in 1981 to the upcoming trial of deposed Politburo member Bo Xilai, the Chongqing city chief known for his populist campaign against corruption and organized crime. Bo was held for many months under a form of secret and extralegal detention reserved for disciplining party members known as shuanggui, until his case was transferred to the criminal justice system in late 2012.

The state media announced formal charges against Bo today. He will be tried for bribery, embezzlement, and abuse of power. It appears that he has not been charged for crimes related to the use of torture, arbitrary detention, and other abuses by the Chongqing government during his high-profile campaign.

Cohen assesses proposed reforms to the Reeducation-Through-Labor system and whether China’s future ratification of international human rights treaties such as the International Covenant on Civil and Political Rights would lead to compliance with the rule of law and human rights standards. Although he highlights numerous improvements in China’s administration of justice in recent years, Cohen concludes, “…it is sobering to note how little today's essentials have changed in comparison with the Gang of Four trial.”


Forthcoming essays in the series include:

  • Carl Minzner, Fordham University Law School, on the unclear prospects for change in China following the decision of central leaders to turn against late 20th century legal reforms;
  • Eva Pils, Chinese University of Hong Kong, on the human rights violations occurring in the context of forced evictions and land-grabs; and
  • Fu Hualing, Chinese University of Hong Kong, on the role of the courts and the Chinese Communist Party’s Political-Legal Affairs Committee in the administration of justice.

“These essays raise fundamental questions about the trajectory of legal reform and the prospect of justice in China,” Richardson said. “Chinese people have made clear their interest in the rule of law – the question is whether the new leadership will accommodate those demands.”

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