The “Hidden Rules” of China’s Criminal Justice System

Rule of Law was a centerpiece of the Fourth Plenum meeting of the Central Committee of the CCP in October 2014. Image Credit: Getty Images.

Xi Jinping made judicial reform a priority item on his agenda after fully taking power in 2013. He promised to “construct a rule-of-law country” and repeatedly emphasized the need for governing with respect to Chinese law and the constitution. Legal institutions were the focus of the “Fourth Plenum” meeting of the Central Committee of the Chinese Communist Party in October 2014, which pledged to “strive to let the popular masses feel justice in every court case.” Since then, efforts have been undertaken to “deepen” reform of the country’s legal institutions and officials have been served notice to achieve their reform targets before the upcoming 19th Party Congress later this year.

In the run up to the 19th Party Congress, we should expect to hear more talk of the great achievements and successful reforms of China’s judicial system. In February, the Supreme People’s Court released a white paper on judicial reform describing its progress in improving the efficiency, accountability, and transparency of the judicial system and declaring that 63 of the 65 reform goals it had set for itself to achieve by 2018 had already been basically accomplished by the end of 2016.

The reform of China’s law-enforcement and judicial institutions has certainly made some progress in recent years, but are there problems in the country’s legal system that remain untouched by these reforms and continue to undermine the ability of those institutions to deliver justice?

According to Professor Chen Ruihua, an expert on criminal procedure law at Peking University Law School, the answer is a resounding yes. In a recent blog post, widely circulated online, Chen observes that there are 17 “hidden rules” that govern how the Chinese criminal justice system “really” operates. These rules describe a system of collusion between institutions intended to check each other’s powers, courts that are fundamentally biased against defendants, and a coordinated effort to limit the impact of defense lawyers.

A list like this is clearly not meant to be analytical, though Chen has spoken and written quite frankly and at length on the flaws he observes in China’s criminal justice system. At a time of renewed ideological attacks against judicial independence and separation of powers, it takes courage to even raise the possibility that the progress of Chinese legal reform is not everything it’s made out to be.

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17 “Hidden Rules” of China’s Criminal Justice System

In the Chinese criminal justice system, the “gong-jian-fa” institutions (public security, procuratorate, and courts) follow a set of “hidden rules” outside of the formal legal system. These “hidden rules” have great vitality and have operated over a long period of time, making it difficult to change them despite revisions to the criminal procedure law or even judicial reforms. Professor Chen Ruihua sums up these “hidden rules” as follows:

1. The investigative organs will only file a case for investigation when that case has already been solved.
2. Most of the public security organ’s criminal investigation activity is completed before issuing the decision to arrest.
3. The vast majority of cases are only solved after obtaining a confession of guilt by the suspect.
4. If it were not for the purposeful restriction of the rights of defense lawyers and the extralegal detention measures against suspects, solving criminal cases would be extremely difficult for the majority of investigative organs.
5. Compared to plaintiffs in civil trials, the public prosecutor in a criminal trial has a far stronger appetite for “winning”.
6. When a case lacks clear facts or evidence, the procuratorate would rather withdraw the prosecution than allow the court to acquit the defendant.
7. Almost all police and procurators treat defense lawyers with a certain degree of hostility.
8. When a case lacks clear facts or evidence, courts will generally issue decisions that “give lenient punishment when there is doubt” or “remand for retrial;” the “presumption of innocence” is an extremely rare exception.
9. Nearly all first-instance trials proceed by reading the record of criminal investigation aloud.
10. In cases where the defendant hasn’t put forward enough exculpatory evidence, the court’s judgement is basically a kind of process to affirm the conclusions of the investigators and prosecutors.
11. The vast majority of criminal judges lean toward the side of prosecution and will do everything they can to avoid allowing a “guilty” defendant to escape justice.
12. Judgments in the vast majority of cases are reached outside of the trial process.
13. The vast majority of judges turn a blind eye to procedural violations of law made by police, procurators, and first-instance trial judges.
14. When a defendant refuses to admit guilt during the investigation or trial phases, it becomes a significant basis for the court to impose a more severe punishment.
15. In the vast majority of cases it is a “responsible” judge that makes the judgement decision.
16. Judges would rather write extremely detailed “trial conclusion reports” than provide detailed reasoning for their judgments.
17. Whether it is the individual police, procurator, judge, or the “gong-jian-fa” organs, each has a direct interest in how criminal cases are decided.