Access to Justice

The South China Morning Post reports that mainland Chinese activist Lu Min is preparing to file a lawsuit against state police for illegally detaining him after the death of ousted leader Zhao Ziyang. According to the SCMP, Lin said police abducted him and his wife on a street near his home in Xian on January 18, the day after Zhao died, and held them against their will until January 31, two days after he was cremated.

In a December 2004 article published in China’s Law and Life Magazine, reporter Chen Jiren discusses the establishment of a Constitution and Human Rights Committee by the All China Lawyer’s Association and ties it to a series of rule of law developments in China since 2002. According to a Beijing lawyer cited in the article, "constitutional litigation and human rights issues are not only sensitive topics in Chinese political life, but also a field that lawyers did not dare to touch." Consequently, although the Beijing Lawyers Association established a constitution and human rights committee in 2002, "some worried that establishing a similar committee in ACLA might be a political mistake."

As Chen reports, however, a series of events over the past three years has encouraged ACLA to establish a similar committee and to push more aggressively for the protection of constitutional rights.

Several Chinese media sources have carried reports and commentary on the State Council's January decision to approve revised Xinfang Regulations. The revised regulations are designed to address recent criticism and discussion of the "letters and visits" system.

A recent Legal Daily article illustrates how the practice of "individual case supervision" offers litigants an extralegal method of influencing how courts decide cases. Individual case supervision permits local people’s congresses (LPCs) to intervene in and review court cases.

According to the article, a contract dispute between an electrical tools factory in Zhejiang province and an import company in Jiangsu province erupted into a series of lawsuits over product quality. Each party filed cases in their home jurisdiction. An effort by the factory owner to negotiate a settlement in person resulted in his arrest. A Jiangsu court subsequently sentenced him to a prison term for selling inferior products.

A Shaanxi provincial court has sentenced 27 farmers to prison terms for charges related to their participation in local land protests, according to New York Times, Agence France-Presse, and Voice of America reports. The farmers had spent almost two years protesting, holding sit-ins, and petitioning national authorities over the seizure of their land in Sanchawan village, arguing that the seizure was unlawful and that the compensation paid was unfair. The protests erupted into violence in October 2004, when 1,600 riot police sent to break up the protest reportedly opened fire on the protesters. According to the reports, the court sentenced protest leader Gao Lading to 15 years in prison. Five others were given long sentences. The remaining 21 farmers reportedly received prison terms of three years or less.

In November 2004, the Ministry of Justice Web site published a series of suggestions made by the Criminal Law Committee of the All China Lawyers Association to improve the work environment for criminal defense attorneys. According to the article, ACLA has recommended reforms related to the following issues:

· Investigative rights of lawyers. Lawyers should have the opportunity to collect evidence during the investigation phase of the criminal process, to verify that law enforcement agencies are following procedures, to monitor the detention of their clients, and to interview victims.
· Right of lawyers to review case files. According to the article, this right is often ignored and needs to be guaranteed in practice.

In an article originally published in December 2004, the Procuratorial Daily examines the chronic absence of witnesses at Chinese trials and an experiment underway in Shenzhen to address the problem. According to the article, the percentage of witnesses who appear in court for criminal, civil, and administrative cases combined is less than 10 percent, with even lower percentages for criminal trials. In Beijing and Shanghai, two of China’s most advanced legal locales, the percentage of witnesses appearing at criminal trials is reportedly only five percent. The authors also cite the shocking example of Nanning, Guangxi province, where the rates of witness attendance at criminal trials were 0.33 percent, 0.7 percent, and 1.27 percent for the years 2000, 2001, and 2002, respectively.

According to the Hong Kong newspaper Cheng Ming, an internal circular issued by China’s Central Commission for Comprehensive Management of Public Security reported that more than 2 million peasants in 122 counties took part in a total of 705 demonstrations and other forms of protest in October 2004. The list of protests reportedly includes incidents involving 50,000 in Heilongjiang, 100,000 in Anhui, 150,000 in Chongqing. Eighty-two of the demonstrations are described as involving damage, injuries, or death, with more than 320 people were killed or injured.