terça-feira, 21 de julho de 2009

Metade dos juizes chineses sem formação jurídica

Half of top judges lack legal training
Justices worked as bureaucrats: survey

Al Guo
South China Morning Post (*)
July 21, 2009

Nearly half of the chief judges at provincial level do not have solid judicial backgrounds or had never worked in the courts prior to their appointment - a finding that Xinhua hailed as it said the judges injected fresh ideas into the system.

A Xinhua survey said yesterday that 14 of the 30 provincial chief judges worked as administrative officials before taking their current job.

Another 14 were promoted from within the system, and two were law professors. The seat for Qinghai's chief judge has not been filled since Liu Xiaoyang died in April.

Xinhua praised provincial chief judges for instilling fresh ideas into the judicial system, using the experience of their previous administrative jobs to connect with people more closely in their new role.

But their appointment was harshly criticised by mainland law professionals who said having bureaucrats act as judges, especially in a judicial system as complicated as that on the mainland, was a huge obstacle to judicial reform.

He Weifang , a law professor at Peking University, said appointing "outsiders" to run courts reflected the bleak state of the mainland's judicial reform, which he called fragile.

"They run the court system the way they run the party or government branches," Professor He said. "There are no consolidated, respected practices that people can rely upon to deliver justice, only orders and instructions that judges think are best to maintain social stability."

From a group of newly appointed judges, Professor He listed Chief Justice Wang Shengjun as the best indication that the country was drifting away from the concept of the "rule of law".

Rule of law means the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. It is contrasted by "rule by law", under which the law is an instrument of the government, and the government is above the law. This is the situation, most scholars agree, in which the mainland currently finds itself.

Mr Wang, who was appointed as chief justice in March with only a bachelor's degree in history and little judicial background, proposed "three priorities" as guidelines for mainland judges.

He said judges must keep in mind the "three priorities" - namely the interests of the Communist Party, the interests of the people and respect for the constitution - when handling cases.

"If, as a judge, you consider the party's or whoever's interests before you even take a case, the spirit of the rule of law is gone," Professor He said.

One of the provincial chief judges that the Supreme Court considers a model is Zhang Liyong , of Henan , who had little judicial background but did have experience as the party's disciplinary official.

Mr Zhang promoted the "Ma Xiwu judicial model" in Henan, a practice that the Supreme Court praised. Simply put, the model asks judges to flexibly solve civil cases regardless of what laws say.

The model, popular in the Communist Party's revolutionary base in the early 1940s, was praised by former leader Mao Zedong as an ideal way to solve people's disputes.

But Professor He said the historical context was the Communist Party's reluctance to follow the laws set by the then ruling Kuomintang.

Yu An , a law professor at Tsinghua University, agreed that the court system needed more professionals.

"If most of a provincial chief judge's work is dealing with administrative duties, why don't they just put an official rather than a professional judge in that position?" he asked.

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