Closing The Graft Gap

Over the past decade, more than 100 provincial and ministry-level officials across China have been investigated -- and sometimes convicted. The number of department directors, bureau chiefs and county leaders charged with corruption has been even higher.

As China's anti-corruption campaign gathers force day by day, occasionally punctuated by news of senior officials falling from grace, the public has been given a general impression of a nation infected with more graft than ever before.

Thus, a gap between the intensity of the campaign and the expectations of the public has opened – and should not be ignored. So as one who's been on the front lines of the fight against corruption for many years, I feel an urgent need to explain what's going on.

At the same time, I feel compelled to advocate two paths for improving the judicial system's ability to battle corruption: setting up a system for protecting informants and stained witnesses, and reviewing the procuratorate work quota process.

Protecting Informants

Statistics detailing the corruption and bribery caseload handled by the nation's procuratorates in recent years have shown that 80 percent of all case leads originated with reports filed by citizens. Indeed, reports filed by individuals far outstrip those generated by institutions where crimes may have been committed.

Twenty years ago, leads from work units, or employers, accounted for more than 40 percent of the cases. But in 2009, they accounted for less than 5 percent of the leads for cases handled by the Second Branch of the Beijing Municipal People's Procuratorate, including leads from the municipal Commission for Discipline Inspection and municipal State-owned Assets Supervision and Administration Commission.

But the decline in work unit reports has led to a decline in the quality of the information. That's because each work unit report is filed with the Anti-Corruption Bureau only after undergoing an intitial screening, which makes the bureau's work easier by providing information that forms a solid basis for investigation.

In contrast, reports made by individuals are less workable. One problem is that informants often use aliases when signing reports, seldom using their real names. Why? To a large extent, it's because informants fear retaliation and can't receive proper protection. So they try to hide behind an alias.

This sort of fear could be addressed by ensuring protection for informants, or at least making sure they can defend themselves if targeted by vengeance-seeking attackers.

China's criminal law and related judicial interpretations should be refined. Currently, harassment and retaliatory acts are subjects of only two articles: Article 254, which concerns state agency workers who abuse their authority by retaliating against or framing accusers, petitioners, critics or informants in the name of official business; and Article 255, which concerns leaders of companies, enterprises, institutions, offices, or other organizations who harass or seek to retaliate against those accountants or statisticians who simply perform their duties according to law.

These articles fail to qualify behavior that constitutes harassment and revenge. And regarding Article 254, the Supreme People's Court has set stringent standards for initiating such trials or investigations: The behavior must have led to serious consequences such as "suicide, self-mutilation, serious injury, death, or mental harm to an accuser, petitioner, critics, informant, or close relatives."

In reality, the most common manifestationas of harassment and retaliation may be quite vague. But the law has set serious consequence of damage for informants as a precondition for initiating prosecution based on criminal liabilities.

Thus, it seems China's informant protection program exists on paper only.

A few years ago, the Supreme People's Procuratorate launched a pilot program aimed at protecting informants in several parts of the country. Under one measure, when an informant's personal safety or rights were endangered, 24-hour protection could be provided. But this was only a temporary measure, rendering it inadequate. And it was not institutionalized.

Hu Kehui, a former deputy prosecutor-general of the Supreme People's Procuratorate, has called for institutionalizing protection programs and has raised the issue with national legislators, but apparently to no avail.

In some countries, the judicial system provides protection for witnesses and informants before, during and after the whole legal process. If necessary, witnesses can be given a fresh start in life including a new identity or new job so they need not worry about revenge. But in China, that would be a complicated job that procuratorates could not do alone.

Exoneration for Witnesses

Cases involving bribery have increased rapidly in recent years. Bribery is usually secret, so testimony from a briber who agrees to be a key witness can be vital to building a case and winning a conviction. A suspect that turns prosecution witness is sometimes called a stained witness. But getting a briber to testify as a stained witness is difficult, since that testimony can be used against him or her.

Justice system reform in China should consider providing a system for exonerating stained witnesses. Such a mechanism would be conducive to breaking the alliance between bribers and bribees, which would encourage more bribers to testify.

Such a mechanism would have to follow a clarification of legal provisions. Under current procedures, stained witnesses are not covered by law, so there is no legal basis for witness exoneration. However, establishing legal status for tainted witnesses is a pre-requisite for encouraging bribers to actively cooperate with judicial officials during criminal investigations.
 
Recognizing the uniqueness of bribery as a crime is important. To increase chances that bribers will testify -- and help guarantee justice – China needs a system of exoneration that frees bribers from punishment if they take the initiative to testify for a bribery investigation or indictment.
 
Quota Issue

The procuratorate's Anti-Corruption Bureau operates under a numerical work quota process that's now a subject of calls for change. For example, proposals to eliminate quotas have been discussed during the National People's Congress by critics who call the system unreasonable as well as illegal.

But for now, our and similar bureaus without exception must function with clear-cut quantative requirements. These cover ratios of investigations to trials, indictments, closed cases, etc.

Work targets can play a suitable role in our work. But some numerical goals are set without proper deliberation.

For example, when some decision-making authorities learned that the ratio of cases indicted by prosecutors had declined, they demanded measures to improve the ratio.
 
Too great a focus on figures gets us nowhere. Moreover, a stiff quota system clashes with general policies that are designed to steer the system toward handling criminal cases with moderation.