The US oligarchy’s media continues its irrational, racist hysterical attacks on every aspect of Chinese life. Part of this American State orchestrated campaign of lies is that China lacks “the rule of law”. Below we provide a short commentary of the progress China has made in strengthening and modernizing the rule of law in relation to the environment. Most of this sort of information is censored and hidden by the Western media – readers are urged to follow the Chinese and other non-Western “mainstream” media for factual information.
Below we have also re-printed some excellent comments by Grenville Cross, the first Director of Public Prosecution for the Hong Kong SAR, countering those “eager to malign the Chinese mainland’s legal system”and pointing out its increasing alignment with international criminal procedures which “cannot forever be disregarded.”
China’s new Environmental Protection Law
China’s new Environmental Protection Law, which took effect in 2015, was a major breakthrough in environmental governance. It stipulated that the public should have access to information and be able to participate in decision making, and that NGOs should be able to litigate on behalf of the public interest. Premier Li Keqiang clearly emphasised that the new environmental protection law would be the ultimate weapon in the war against pollution.
Incredible progress has been made in environmental rule of law since 2015, and the system of public interest litigation has quickly taken shape. Over 300 environmental public interest cases have been brought by NGOs. And in 2017, a new system was introduced for environmental public interest litigation by prosecutors. Since then, China’s prosecutors have brought over 100,000 legal challenges in response to environmental problems, many of them against local government departments that failed to exercise their duties. Over 95% have been resolved successfully at the pre-litigation stage, where the government takes corrective actions upon receiving procuratorial recommendations. Only those in which local governments fail to do so are taken to court.
These legal reforms have been bolstered by a top-level political commitment. High-quality economic growth and modernised governance are also top priorities for the 14th Five Year Plan (2021-2025).
More specifically, the Communist Party’s 19th Central Committee 4th Plenary Session proposed to “further expand the scope of public interest litigation”, and “implement the most stringent ecological protection system and promote harmony between man and nature”. The session emphasised prevention of environmental problems, and that “the system of environmental public interest litigation must be improved”.
Source: China Dialogue, February 10, 2020
China must build a modern legal system: Deng Xiaoping
Grenville Cross writes:
“Although some people are always eager to malign the mainland’s legal system, its increasing alignment with our own, in terms of better criminal procedures and the quest for justice, cannot forever be disregarded.
“Ever since the former paramount leader, Deng Xiaoping, famously declared in the 1980s that “we must build a modern legal system for China”, progressive academics and jurists have taken him at his word, and worked tirelessly, often in the face of great resistance, to improve the criminal justice system.
Critics know little about mainland criminal justice
“I have been privileged to meet many of those reformers, and to discuss with them the improvements that have been made, although they readily admit that the legal system is still a work in progress.
“Most of the critics, unfortunately, actually know very little about recent improvements to mainland criminal justice, and, what is worse, many are simply not interested, presumably because they interfere with their preconceived views of China’s legal system.
“In March, however, when the chief justice of the Supreme People’s Court, Zhou Qiang, delivered his work report for 2018, he said that the judiciary had sought last year to uphold two principles in criminal cases, namely, no punishment where doubt exists, and evidence obtained illegally cannot be allowed.
“This, of course, resonates with Western approaches to criminal justice, but it is certainly not coincidental, because the mainland has sought to modernize its legal arrangements by studying other legal systems, including our own.
“There have been some significant reforms of late, perhaps most notably in relation to involuntary admissions. Whereas, previously, the courts were only concerned with whether an admission of guilt was true, without regard to the circumstances in which it was made, this has now changed, at the urging of reformers.
“In 2012, the National People’s Congress overhauled the Criminal Procedure Law, as a result of which the courts must now exclude coerced confessions, even if true.
“What is interesting, moreover, is that, whereas in Hong Kong an accused person can be convicted solely on the basis of a confession, in the mainland the courts, in addition to the confession, also look for corroborating evidence, which provides the accused with an additional safeguard.
“As regards the standard of proof, mainland judges when asked say they must be “sure” of guilt before they can convict, which is not light years away from our own standard of ‘beyond reasonable doubt’.
“Also, mainland law enforcers are now encouraged to video-record the confession taking process in the more serious cases, so that the judges at trial can see how an admission came into existence.
“This technique, of course, was originally pioneered by Hong Kong’s Independent Commission Against Corruption, then adopted by the Hong Kong Police Force, and has now spread into the mainland and Macao.
“At trials, which are now generally held in public, recent changes have seen witnesses appearing far more often than previously, so that their evidence can be tested, and there is less reliance on witness statements which are simply read into the record.
Judicial democracy
“Another fascinating development concerns people’s assessors, who are not dissimilar to Hong Kong’s own jurors. Although they were originally introduced in the 1950s, to give the public a voice in the judicial process, the People’s Assessors Law, enacted in 2018, gives them equal rights with judges in trials, unless the law specifically provides otherwise.
“The idea is “to achieve judicial democracy”, and, although they normally sit on three-person collegiate benches, they are also eligible, in graver cases, to participate in seven-person panels, usually comprising three judges and four assessors.
“Although assessors cannot vote on legal questions, they can still discuss them, but they vote jointly with the judges on factual issues, which are decided by the “principle of majority rule”.
“As an aside, when one asks critics of the Security Bureau’s proposals if they are any way reassured by the increased role for people’s assessors in criminal trials, their faces invariably glaze over, and it is a pity that ignorance of how the mainland’s criminal justice system is actually developing informs so much of the debate.
“There has, moreover, been a significant improvement in judicial standards in recent times. Although, until about 20 years ago, judges had little legal training, this has now changed, and anyone who aspires to be a judge (or a prosecutor or a lawyer) must pass the difficult National Unified Legal Professional Qualification, together with the separate judge’s test, and this has raised judicial standards enormously.
“Many of this new breed of judges, prosecutors and lawyers have also studied law elsewhere, often in the UK, Germany or the US, but also in Hong Kong, and they are familiar with Western notions of criminal justice, and this has undoubtedly impacted upon their work.”
Author: Grenville Cross was previously the Director of Public Prosecutions of the Hong Kong SAR. He is a senior counsel (QC, SC), eminent criminal justice analyst, and holds Professor of Law appointments with the China University of Political Science and Law (Beijing), The University of Hong Kong, Zhongnan University of Economics and Law (Wuhan) and The Chinese University of Hong Kong.
Further reading:
China established special environmental courts
http://www.xinhuanet.com/english/2019-03/01/c_137860351.htm
Further reading:
Major public interest cases:
Further reading:
White Paper on Judicial Reform of Chinese Courts from 2013 to 2018 (issued by the Supreme People’s Court)
http://english.court.gov.cn/specials/ChineseCourtJudicialReform2013-2018.pdf
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