CHINESE LEGAL EXPERTS CALL FOR REFORM

C O N F I D E N T I A L SECTION 01 OF 02 SHANGHAI 006861 SIPDIS SIPDIS DEPT FOR EAP/CM, INR/B, INR/EAP, AND DRL E.O. 12958: DECL: 10/25/2016 TAGS: PGOV PHUM SOCI KJUS CH SUBJECT: CHINESE LEGAL EXPERTS CALL FOR REFORM REF: SHANGHAI 3767 CLASSIFIED BY: Mary Tarnowka, Section Chief, Political/Economic Section , US Consulate Shanghai. REASON: 1.4 (b),(d) ¶1. (C) Summary: Chinese Prosecutors, judges and legal scholars attending the 2006 China Litigation Law National Conference in Hangzhou from September 27-28 urged that amendments to the Criminal Procedure Law include provisions to protect human rights and constrain governmental power through due process. Participants also raised concerns about political intervention in judicial cases and one scholar noted that the Letters and Visit system had diminished the judicial authority of the court. A representative from the Supreme People Court (SPC) acknowledged that the main goal of the government was to maintain stability and even the SPC had to balance various interests in deciding cases. End Summary. ¶2. (C) Consulate FSN Rule of Law Coordinator (ROLC) attended the 2006 China Litigation Law National Conference in Hangzhou, Zhejiang Province on September 27-28. The conference, which occurs annually, was sponsored by the China Litigation Law Society and Zhejiang Province High Court. There were over 300 legal professionals from throughout China that attended the conference, including SPC Vice President Shen Deyong, SPC Vice President Huang Songyou, and SPC Procuratorate Vice Prosecutor General Jiang Jianchu. The conference was intended for PRC participants only and ROLC attended as a guest of a conference participant and not as an official participant. -------------- -------------- Criminal Law Amendments Goals: Human Rights Protection and Criminal Enforcement -------------- -------------- ¶3. (C) In his opening speech, SPC Vice President Shen Deyong noted that the Chinese Criminal Procedure Law would be amended and said human rights protection and criminal enforcement should be the two basic goals of the amendment. He admitted that the current Criminal Procedure Law was inadequate and did not allow the government to fulfill its obligation to protect human rights as set forth in the Chinese constitution. Shen added that any litigation system that did not protect human rights should be reformed. He also said that modern criminal procedure laws should have provisions to regulate governmental power and protect the constitutional human rights of suspects, defendants, and victims through due process, which was an important way to constrain governmental powers. He also said China was considering ratifying the International Convention on Civil and Political Rights (ICCPR). He added that amendments to the Criminal Procedure Law should be consistent with the ICCPR and China should adopt the international criminal law standard in the convention. -------------- Political Intervention in Judicial Cases -------------- ¶4. (C) During a roundtable on group litigation cases such as housing disputes, Fudan University Professor Zhang Wusheng said that the Letters and Visit (Xingfang) system was playing a more important role in settling housing dispute cases and, consequently, was diminishing the judicial authority of the courts. He said that political intervention on these cases had infringed on a judge's power to make his own decisions. A judge from Guangdong province agreed and added that, currently, judges must follow the instructions of the local CCP when handling these cases. SHANGHAI 00006861 002 OF 002 ¶5. (C) In response, SPC Vice President Huang said that political stability was the chief goal of the government. Even the SPC must compromise and balance various interests. He noted that during one trial, two CCP representatives from different provinces had threatened that if the SPC did not rule in favor of the local government, then they would cast a vote of no confidence against the SPC in the next National People Congress (NPC) meeting. SPC chief judges had to meet for several sessions to find a balanced solution in the case. Huang noted that the new Supervision Law did not allow the NPC to intervene in specific cases. Supreme People Procuratorate Vice Prosecutor General Jiang Jianchu stressed in a separate session that it was the prosecutors' responsibility to ensure judicial impartiality. -------------- U.S. Influence -------------- ¶6. (C) Conference participants often quoted U.S. legal theory and used U.S. cases to illustrate their points during their speeches. Some participants used what they called the "U.S. experience" to rebuff other participants' viewpoints. For example, one professor urged that China develop its arbitration system because in the United States the use of arbitration in commercial cases had improved the investment climate and led to economic growth. Another professor declared that China's judicial system should adopt the U.S. practice of allowing the Supreme Court to pick its own cases and to set judicial precedent. -------------- An Arranged Election -------------- ¶7. (C) The conference also elected members for the new National Civil Litigation Law Commission and Criminal Litigation Law Commission. Zhang, who was elected as Vice Chairman of the Civil Litigation Law Commission, told ROLC that participants were just going through the motions during the elections and that all of the members of the commissions were selected long before the conference began. -------------- Comment: All Talk, No Action ? -------------- ¶8. (C) The open and frank discussions about the need for reform of China's Criminal Procedure law, including frequent references to U.S. and international legal practices, was noteworthy. However, it was also clear that local government and party officials frequently intervened and SPC's overriding objective was to maintain political stability. JARRETT