terça-feira, 21 de julho de 2009

China ainda distante do estado de direito

Rule of law a way off, but legal system can be fairer

South China Morning Post (*)
July 21, 2009

The administration of justice on the mainland falls short of international standards in many respects. A recent example that has attracted international attention is the detention by state authorities of four employees of Anglo-Australian mining giant Rio Tinto without formal charges, a court appearance or representation, while they are apparently investigated for stealing state secrets and bribing steel industry officials. Another is the disclosure we report today that 14 of the 30 top judges of the provincial high courts - subordinate only to the Supreme People's Court - had no legal background when they were appointed.

That does nothing to ease concerns about legal process and judicial independence when cases do eventually reach court.

These examples are reminders that having a law is one thing, applying it another. That has long been a problem on the mainland. Investigative authorities, prosecutors and the courts all too often function opaquely as an instrument of political and bureaucratic control rather than transparently as independent, impartial adjudicators. That is not to say that mainland law has stood still while other reforms have improved the lives of hundreds of millions of people. Last year lawmakers hailed the completion of a "socialist legal system with Chinese characteristics" that covers every area of social, economic, political and cultural activity - no mean feat, since the legal system was devastated by the Cultural Revolution.

Efforts have also been made to give the courts a little more independence in applying the law. But gross unfairness and injustices, as well as corruption, still plague the system.

To be sure, no legal system is perfect, and Beijing has shown some awareness of the problems. For example, moves to strengthen legal protection of the lawyer-client relationship are a step in the right direction. And resumption by the Supreme People's Court of its power to review death sentences handed down by lower courts has resulted in many being overturned due to lack of evidence, miscarriages of justice or improper legal procedures. Administratively, central and provincial governments have increased spending on court buildings and services, especially in underfunded central and western areas, where dependence on local government funding exposes courts to political influence over decisions.

Only a supreme optimist, however, would expect the mainland to make quick progress towards the rule of law administered by independent judges. Meanwhile, the quality of the judiciary, if not its independence, is of key importance. If the Rio Tinto case results in charges and a trial, foreign governments and businessmen will be watching carefully to see how it is handled. It is in China's best interests to ensure that justice is seen to be done.

But the rule of law begins at home, for ordinary people. To be sure, the authorities are aware that legal qualifications and expertise, as well as party loyalty, are desirable attributes in a judge. The National Judges College has launched programmes to educate judges about overseas legal systems, including a master's programme at Hong Kong's City University.

Such an outward-looking approach bodes well for a modest measure of court reform. Better still, it should be extended so that officials identified as suitable for the bench get a rounded preparation in legal and judicial principles before they are appointed. That is no substitute for the rule of law and judicial independence. But it would help bring a fair and effective legal system a little closer.

(*) Os destaques são da minha responsabilidade.

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