Some deputies to the ongoing 10th National People's Congress (NPC) are urging the Supreme People's Court to create circuit courts to improve the review procedure of death sentences and eradicate local bias in judgments.
As sweeping judicial reforms are not likely to take place in the short term, circuit courts may prove a good interim measure to improve the courts system, leading legal experts suggest.
"Circuit courts can greatly relieve the supreme court's work load, considering its daunting task to explain laws and direct the work of subordinate courts," said Zhao Shijie, president of the Higher People's Court of the southwestern province of Yunnan.
Zhao, also an NPC deputy and a mover of the circuit court proposal, which urges the supreme court to establish several such courts nationwide to handle cases on its behalf, in particular the review of death sentences.
China's criminal procedure requires that the Supreme People's Court reviews every death sentence to help avoid wrongful executions taking place.
But with limited numbers of presiding judges, the supreme court has had to transfer the review of death sentences in some cases concerning offences of violence, such as homicide and arson, to the Higher People's Courts in the province concerned.
"Given that most death sentences are decided by the higher courts, asking them to review themselves does not really make much sense," Zhao said.
Existing criminal procedure authorizes an intermediate court to hear cases that could lead to the imposition of the death penalty, and a higher court to hear a retrial following an appeal. The second trial is conclusive.
Even if the Supreme People's Court conducts a review, the process can sometimes be lengthy, resulting in the prolonged custody of the accused, said Zhao.
"Clearly it is impossible for the Supreme People's Court to check all death sentences," he said, adding: "I think handing the job to circuit courts is a good alternative."
Zhao stressed that as representative agencies of the Supreme People's Court, circuit courts do not need revision of the law to legitimize them, although a lot of competent staff will be needed.
In addition to criminal cases, some experts argue that circuit courts were an appropriately impartial tribunal for dealing with civil disputes.
"When two parties in a civil case are from different places, a court may tend to have a bias towards the home party," said Li Daomin, an NPC deputy and president of the Higher People's Court of Central China's Henan Province. He also filed a circuit court motion.
Localism has become a big problem in the conduct of civil trials, a fact which is widely criticized, but shows no sign of abating. Some local governments have even been known to intervene in litigation when local interests are involved.
"If trans-regional cases can be heard by the circuit courts, there will be less localism and the results will be fairer," said Li.
Theoretically, only a limited number of cases have the right of appeal to the circuit court after a hearing in the higher court, but notwithstanding, argued Li, the fact of the right will exemplify the independence of the judicature.
His proposal has won support from many legislative deputies and legal professionals.
"I think the establishment of circuit courts will be a valuable step in the country's judicial reform," said Zhu Baocheng, a senior judge with the Supreme People's Court.
He said that a few local courts in remote regions already had some circuit tribunals to deal with small civil disputes.
"But it will be much more difficult to create circuit courts under the Supreme People's Court, given the high demand on money and personnel," he said.
Many NPC deputies from business circles are also seeking the establishment of more grassroots-level circuit courts to better address the huge number of ordinary civil and business disputes.
However, some pointed out that a circuit court system will be only an "interim" measure until such time as the courts system is renewed.
"Circuit courts embody the idea of pursuing an independent judicature, but to make all the country's courts independent there must be wider reform measures," said Chen Weidong, a law professor at the Renmin University of China.
He said the courts' ties with local interests are the biggest flaw in the judicial system.
China's Constitution entitles local people's congresses to elect local courts, which report to local congresses and are financed by local governments.
"This methodology inevitably causes localization of judicial power, which means judges' concern with local interests often comes before that of justice," said Chen.
Henan Higher People's Court President Li agreed, saying that his ultimate aim is to see a fully independent courts system.
"Circuit courts are an acceptable scenario to all sides under the current circumstances, but they are by no means the end of judicial reform," he said.
"Ideally, every court should be manned, funded, and controlled by its superior court, and not swayed by any outside influences," Li added.
That will require an amendment to the Constitution and a host of other codes, and also a new financing network, independent of legislative or government bodies.
Procuratorates, those responsible for supervising the courts, should also be reformed accordingly.
Li admitted that it will take a very long time for sweeping reforms to come about and that some of the tasks are beyond the capabilities of judges.
He proposed that the NPC form a committee for national judicial reform under its Standing Committee to guide changes in the law, personnel reshuffles and appointments within the judicial system.
(China Daily March 18, 2003)