China amends law, but public justice still not guaranteed

China amends law, but public justice still not guaranteed

Chinese courts are bracing themselves for an increase in cases following a recent amendment to a law that will make it easier for citizens to sue the government.

But experts believe a judiciary system still seen as partial and hefty legal costs will deter some commoners from taking their cases to court.

The amendment, passed by the country's top legislature last Saturday, comes amid President Xi Jinping's emphasis on "rule of law". The authorities are anxious to ease social stress as rampant land grabs and officials' abuse of power have led to an increasingly frustrated population.

The courts expect the number of people-versus-government lawsuits filed to increase after the revised law kicks in next May.

Administrative cases made up less than 2 per cent of all cases over the past 20 years with plaintiffs winning only about 10 per cent of such cases, down from 30 per cent 10 years ago, according to local media reports.

Experts noted that while a person may be able to sue the government over a wider range of issues under the revised law, there is still no guarantee of a fair trial.

"Structural features and political pressures that have made the Administrative Procedure Law a disappointing one since its passage in 1989 are not going to disappear overnight with this change," said Professor Jacques deLisle at the University of Pennsylvania Law School.

"Local governments remain powerful, and courts remain vulnerable to influence in some cases and wary of issuing judgments that will be flouted," he told The Straits Times.

Zhejiang-based prominent human rights lawyer Yuan Yulai also said the latest amendment was "not substantive".

"Some people might get their hopes up and think they can win a case against the government, but they will be disappointed because local government interference is too strong and is not something the amendment can tackle," he told The Straits Times.

"Even if the number of suits against the government increases in the short run, they will soon quieten down because the local government funds the local courts and the courts do not want to cause any trouble."

Under the revised law, courts will be able to launch cases against the government on matters such as violation of agreements related to land or demolition compensation.

The amendment also stipulates that courts are to accept additional cases related to the infringement of citizen rights, with claimants able to appeal to higher courts if local ones reject the cases without proper reason.

Currently, courts review specific administrative actions involved in a case before deciding whether a suit can be filed, with the review process often an excuse to throw out cases. The amendment renders the review unnecessary if a case is litigable.

The latest move is meant to take petitioners - there were some six million of them in the first 10 months of last year alone - off the streets and into the courtrooms.

But legal costs are another factor that may deter the typically less-than-well-off petitioners from taking their grievances to court.

"Legal aid for the many people who cannot afford lawyers must be expanded," Hong Kong-based legal scholar Susan Finder told The Straits Times.

She said that while the amendment is "a step in the right direction and has potential in the long run", it must be strengthened by other legal reforms that are under way but have yet to be fully implemented, such as changing the way judges are selected.

This will help ensure the impartiality of the courts as many judges now are party members without proper legal training, experts said.

Still, Ms Finder noted, patience is key.

"It's a complicated process. We'll have to wait and see what the eventual impact of the amended law is," she said.

esthert@sph.com.sg


This article was first published on Nov 6, 2014.
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