Wednesday, April 6, 2016

China State Security Trials Fell 50 Percent in 2015, Official Data Suggest


Pu Zhiqiang (pictured above) was arrested for "inciting splittism", but convicted of "inciting ethnic hatred" and "picking quarrels and provoking trouble". Source: CCTV, DW-TV

Chinese courts concluded 50 percent fewer endangering state security (ESS) trials in 2015, according to Dui Hua’s analysis of data released in the annual work report of China’s Supreme People’s Court (SPC). Dui Hua believes the decline represents an increase in the use of non-ESS charges to prosecute political and religious activism.

Dui Hua estimates that Chinese courts concluded more than 500 ESS trials of the first instance in 2015, compared with more than 1,000 ESS trials in 2014. Delivered to the National People’s Congress by SPC President Zhou Qiang on March 13, 2016, the annual work report includes ESS and endangering national defense (END) crimes in a category of “Other” trials. The category comprised 0.06 percent of first-instance criminal trials in 2015, compared with 0.13 percent in 2014. Based on an accounting of all of the crime categories in China’s Criminal Law and historical data on END trials, Dui Hua believes that the “Other” category is primarily populated by ESS cases—according to China Law Yearbook, only 243 END trials were concluded in 2014.

ESS crimes, which include subversion, inciting subversion, splittism, espionage, and state secrets violations, carry a mandatory supplemental sentence of deprivation of political rights (DPR). This sentence precludes individuals from writing articles, giving interviews, voting, standing for office, and working in a state-owned company.

The Xinjiang Uyghur Autonomous Region typically accounts for the largest percentage of ESS trials of any Chinese region. According to the annual work report of the Xinjiang High People's Court, courts in the autonomous region heard approximately 100 ESS trials in 2015, down from about 300 trials per year in 2014 and 2013. The same work report reveals that trials for the categories of crimes that cover "cults" and "terrorism" surged 35.5 percent and 25 percent respectively in 2015. Dui Hua believes that many of the trials for cult and terrorism crimes had previously been handled as ESS trials.

As previously reported by Dui Hua, ESS indictments by procuratorates in 2014 rose to a record level since the criminal category was introduced in 1997: 1,411 people were indicted in 663 cases. In light of the sharp drop in ESS trials in 2015, Dui Hua expects that ESS indictments also fell by a significant margin last year. The numbers are expected to be released later this year when the 2016 China Law Yearbook is published.

ESS “and Other” Trials

Pu Zhiqiang’s recent conviction is a prominent example of the uncertainty with which the justice system categorizes political activities as endangering state security. Police initially charged Pu with the ESS crime of “inciting splittism” for criticizing the Chinese Communist Party (CCP) on his microblog. However, his conviction at trial was ultimately for the non-ESS crimes of “inciting ethnic hatred” and “picking quarrels and provoking trouble.” Although Pu was given a suspended sentence, he is not a free man—he continues to serve a sentence through compulsory measures and will be subject to various regulations, the violation of which could result in his future detention.

Dui Hua’s Political Prisoner Database (PPDB) records the names of 19 people tried for ESS crimes in 2015. Mettursun Eziz was sentenced in May to four years in prison and three years deprivation of political rights (DPR) for inciting splittism. The Henan Nanyang Intermediate People’s Court found that he used voice-messaging apps like WeChat to download a large number of “extreme religious materials” produced by the East Turkestan Islamic Party (ETIP). Mettursun Eziz is scheduled for release on April 2, 2018.

In perhaps the most widely reported ESS trial of 2015, prominent journalist Gao Yu (高瑜) was sentenced to seven years in prison for leaking state secrets in April. Observers have attributed the charges to the leaking of “Document Number 9,” an internal CCP manifesto that rails against democracy, civil society, and universal values like human rights. In November, the Beijing High People’s Court reduced Gao’s sentence to a five-year term and allowed the 71-year-old to serve the remainder of her term outside prison.

In December, the Nanyang Intermediate People’s Court sentenced prominent religious figure Li Baocheng (李保成) to four years in prison for inciting subversion and fraud. Henan’s Dahe Daily accused the 77-year-old of extortion for charging “baptism fees.” Li was also found guilty of discussing plans to establish a new political party to challenge the CCP.

2015 First Instance Trials for ESS Cases in the Dui Hua PPDB
Name Sex Crime 1st instance Trial Date 1st Instance Verdict
Du X
杜某
M Inciting subversion 12/15/2015 10 Months, 1 Yr DPR
Gao Yu
高瑜
F Illegally procuring/trafficking in state secrets/intelligence for foreign entities 04/17/2015 7 Yrs, 1 Yr DPR
Han X
韩某
M Illegally procuring/trafficking in state secrets/intelligence for foreign entities 01/29/2015 8 Yrs, 4 Yrs DPR
Li Baocheng
李保成
M Inciting subversion 12/15/2015 4 Yrs, 2 Yrs DPR
Li X
李某
M Inciting subversion 12/15/2015 1 Yr, 1 Yr DPR
Liang Qinhui
梁勤辉
M Inciting subversion 11/13/2015 Unknown
Liu Chao
刘超
M Inciting subversion 01/27/2015 1 Yr (DPR Unknown)
Liu Jiacai
刘家财
M Inciting subversion 05/08/2015 5 Yrs, 3 Yrs DPR
Mettursun Eziz
麦提图尔荪·艾则孜
M Inciting splittism 03/17/2015 4 Yrs, 3 Yrs DPR
Paziniye
排孜妮耶
F Inciting splittism 12/21/2015 5 Yrs, 2 Yrs DPR
Qamber Amber
卡姆巴尔·阿穆巴尔
M Inciting splittism 03/21/2015 9 Yrs (DPR unknown)
Wang Mo
王默
M Inciting subversion 11/19/2015 Unkown
Xie Fengxia
谢丰夏
M Inciting subversion 11/19/2015 Unknown
Yang Mingyu
杨明玉
M Inciting subversion 09/23/2015 3 Yrs, 4 Yrs DPR
Yang X
杨某
M Inciting subversion 12/15/2015 1.5 Yrs, 1 Yr DPR
Yang X
杨某
M Inciting subversion 12/15/2015 10 Months, 1 Yr DPR
Zhang Rongping 张荣平 M Inciting subversion 11/13/2015 Unknown
Zhang X
张某
M Illegally procuring/trafficking in state secrets/intelligence for foreign entities 02/12/2015 6 Yrs, 1 Yr DPR
Zhao X
赵某
M Illegally procuring/trafficking in state secrets/intelligence for foreign entities 01/2015 7 Yrs, 2 Yrs DPR

Tuesday, March 22, 2016

China’s Acquittal Rate Rose in 2015, But Remains Low


People who were acquitted in 2015 (from left): July 21, 2015, Zeng Aiyun of Hunan (ynet.com); August 11, 2015, Yang Ming of Guizhou; December 21, 2015 (news.ifeng.com), Xian Renfeng of Yunnan (jinhua.cn).

The most important events on China's political calendar -- the annual sessions of the National People's Congress (NPC) and the Chinese People's Consultative Congress (CPPCC) -- concluded in Beijing on March 16, 2016.

The heads of the Supreme People’s Procuratorate and Supreme People’s Court (SPC) presented their work reports to the NPC. These reports, and the subsequent resolutions to accept them, represent one of the main ways in which the NPC performs its constitutional duty to oversee China’s two nominally independent legal institutions.

The reports typically include statistical data, including figures on arrests, convictions, and acquittals. Although not presented in detail, these data can be used to track the performance and priorities of China’s legal system, like trends in “endangering state security” crimes.

Many NPC delegates seem to pay close attention to these figures as measures of effectiveness in fighting serious crime. If the numbers are not to their liking, some will vote against the reports as a symbolic way of voicing dissatisfaction. An interesting take-away from the SPC report is that the number of acquittals rose from 778 in 2014 (a rate of 0.066 percent for all cases adjudicated) to 1039 in 2015 (a rate of 0.084 percent).

In the weeks preceding the national “two meetings,” courts and procuratorates at lower administrative levels also present work reports to people’s congresses at the provincial, prefecture, and county levels.

Recently, reporters at online news journal The Paper observed the low number of acquittals reported by provincial courts in 2015 and asked legal experts how to reconcile these figures with increased attention to wrongful convictions. The experts pointed to many of the same explanations raised in an analysis of acquittals done by researchers at the Guangdong High People’s Court—performance measures based on conviction rates, “coordination” between law-enforcement institutions, and resolution of problematic cases through means other than acquittal. Some expressed optimism that China’s acquittal rates would start to approach more “normal” levels as a result of recent legal reforms aimed at strengthening the judicial process and reducing the pressure that comes from distortionary performance metrics.

Percentage of Adjudications Resulting in Acquittal, 2000-2015

Source: Supreme People's Court Annual Work Report, 2000-2015

Wang Lin, a frequent commentator on legal issues and professor at Hainan University Law School, took up this issue in a recent column in the Beijing Times. He, too, thinks that recent reforms are likely to reverse the long-term decline in China’s acquittal rates. The title of Wang’s piece poses a provocative question: “Are You Ready for a Rise in the Acquittal Rate?”

This question is significant. Chinese leaders are concerned about the negative impact that miscarriages of justice and wrongful convictions have on popular assessments of the criminal justice system. For decades, however, the stress has mainly been on the effectiveness and efficiency of that system in fighting crime and promoting stability and security. It comes down to a need to make choices, as Professor Chen Ruihua put it in an interview last year, between “the risk of being unable to fight crime [and] the social damage caused by wrongful convictions.”

Professor Chen expressed optimism that public rights consciousness was helping to shift the balance in the direction of the procedural justice that would help protect against wrongful conviction. Professor Wang, who has closely observed the influence of China’s mercurial public opinion on criminal justice, appears a bit more ambivalent. Both would no doubt agree that if either Chinese law enforcement bodies or the Chinese public—or both—isn’t “ready” to see more criminal defendants proclaimed innocent by the country’s courts, then efforts to reform the judicial system may have limited impact.

*
Are You Ready for a Rise in the Acquittal Rate?

Wang Lin
Beijing Times, February 23, 2016

As we enter this year’s “two meetings” period, provincial courts and procuratorates have been presenting their work reports around the country. A report in the media added up figures from 14 provincial-high-court work reports to reveal that these courts convicted 721,000 individuals and acquitted 543 individuals, for an average acquittal rate of 0.075 percent.

According to past work reports from the Supreme People’s Court, China’s acquittal rate has been gradually declining over the recent decade, reaching 0.066 percent in 2014. Of the extremely limited number of acquittals each year, more than 80 percent occur in cases in which individuals brought prosecutions directly to the court. In cases brought to court by public prosecutors, the acquittal rate has fallen from 0.296 percent in 2001 to 0.018 percent in 2010.

One can generally expect that when prosecutors bring a criminal case to court, there will be a conviction. Otherwise, why would they prosecute the case? A high conviction rate in publicly prosecuted cases ought to be the norm. If there’s not enough reliable evidence to prove that these convictions were decided unjustly, we shouldn’t criticize the fact that the acquittal rate is extremely low. “Presumption of innocence” is a fundamental principle of criminal justice. If a criminal justice system has a low acquittal rate, one shouldn’t automatically conclude that the rate of wrongful convictions is high.

Therefore, even though the acquittal rate in common-law jurisdictions is around 25 percent, around 5 percent in civil law countries, and 3.7 percent in Taiwan, one cannot conclude that our extremely low acquittal rate in publicly prosecuted cases must be a problem. There are reasons to doubt the accuracy of a low acquittal rate, however, since it’s only after a miscarriage of justice is reversed that one can say, legally speaking, that a past conviction was made in error.

For a long time, court work reports at various levels rarely touched upon wrongful convictions. Over the past two years, there’s been a lot of effort to reopen cases and overturn wrongful convictions. The public has made widespread note of these efforts, and some courts have begun including information about remedying such cases in their reports. As far as the public is concerned, “justice delayed is better than justice denied,” and when justice is overturned it’s thought of as a bit of luck for the exoneree amid his or her great misfortune. Praising courts for the courage to remedy their mistakes also carries important significance, as it stirs up other “highly suspected wrongful convictions” that have run into so many obstacles on the road to justice.

For those 14 provincial jurisdictions, last year’s acquittal rate represents a slight increase over the national rate for 2014. There is reason to expect evidence of an even higher increase when the SPC and SPP present their data during the March “two meetings.” This is because the Central Politico-Legal Commission gave clear orders at the beginning of 2015 that central and local law enforcement institutions were to carry out a comprehensive inventory of all performance indicators and eliminate unreasonable indicators such as the number of criminal detentions, arrest approval rate, indictment rate, conviction rate, or case clearance rate. If high conviction rates (in other words, low acquittal rates) were considered “hard” targets in the past and if these performance indicators could “forcibly” turn what ought to be acquittals into convictions, then once you’ve gotten rid of these irrational performance indicators a rise in the acquittal rate should follow as a matter of course.

Once the policy has been set at the top, you have to wait and see how it’s implemented at the local level. First, though, we should ask both law enforcement bodies and the general public this question: “Are you prepared for a rise in the acquittal rate?”

Thursday, February 25, 2016

American Views of China Remain Negative


Less than six months after Chinese president Xi Jinping’s state visit to the United States—a visit intended to improve American perceptions of China—the percentage of Americans who hold an unfavorable view of China rose in 2016, according to the Gallup Organization. For the ninth year in a row, at least half of Americans hold an unfavorable view of China; 52 percent held that view in early February 2016, versus 44 percent who held a favorable view. In 2015 the percentages were 50 and 44, respectively. Gallup conducted its annual survey on American attitudes towards foreign countries earlier this month.

The percentage of Americans who consider China to be America’s greatest enemy remained steady at 12 percent.

Americans who see China’s economic power as a critical or important threat to the United States rose marginally from 84 percent of those polled in 2015 to 86 percent in 2016, while the percentage who see China’s military power to be a critical or important threat was 87 percent—the same percentage recorded the last time the question was asked in 2014.

Since 2011, at least 50 percent of Americans have viewed China as the world’s leading economic power, but this year the percentage dropped to exactly 50 percent, while the percentage holding the view that the US is the leading economic power rose to 37 percent from 31 percent in 2015. Perhaps the most surprising result of the poll is the response of Americans to the question “Who will be the leading economic power in 20 years?” In 2012, the last time the question was posed, 46 percent responded China and 38 percent responded the US. In 2016, 44 percent believe the US will be the leading power in 2026; only 34 percent predict China will then be the leading power.

Tuesday, February 23, 2016

Growing Number of Women in Prison in China


Women prisoners in China. Photo source: gucheng.com

China may soon surpass the United States in the number of women it puts behind bars. The Asian Pacific Conference of Correctional Administrators finds that by the middle of last year, China had more than 107,000 women in prison, up 3.2 percent from the previous year. By comparison, federal and state facilities in the US housed just over 110,000 women in prison at the beginning of 2015 (according to the US Bureau of Justice Statistics' analysis tool).

The number of women in Chinese prisons has now risen more than 50 percent since 2003. These figures exclude women held in detention centers or other facilities run by China’s public security bureaus (e.g., custody and education, mandatory drug rehabilitation, and legal education). If these facilities were included, the number of women China incarcerates would likely have already exceeded that of the United States.

Women now make up 6.5 percent of China’s general prison population, compared with 7.2 percent of total prisoners in the United States. Hong Kong and Macau—special administrative regions which are not included in China’s statistics—have the largest portions of incarcerated women in the world. As of mid-2014, the World Prison Brief noted that Hong Kong imprisoned the largest proportion of women (19.4 percent) within its total prison population than any other country with a population of at least 60,000. In the past year, however, Hong Kong was surpassed by Macau, whose prison population as of mid-2015 is comprised of 21 percent women.


Sources: Dui Hua, China Statistical Yearbook, APCCA

Promoting the Bangkok Rules

Worldwide, the number of women in prison has increased 50 percent since 2000, compared with 18 percent growth for men, according to the Institute for Criminal Policy Research. As more women enter the criminal justice system, the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules) become increasingly important as a framework for meeting the physical and psychological needs of women in penal systems built for men.

Aiming to improve legal outcomes for women in Chinese-speaking areas of the world, Dui Hua has just released a Chinese translation of an e-course on sections of the Bangkok Rules regarding non-custodial measures. Starting in 2016, Dui Hua began distributing the translation as a training guide for legal officials in China. The translation is based on Penal Reform International’s e-course “Women in Detention: Putting the UN Bangkok Rules into Practice,” already available in English, Arabic, and Russian.

Non-custodial measures help reduce the social and psychological repercussions of legal sanctions by keeping families together and reducing the risk of additional trauma for women who are survivors of gender-based violence.


Tuesday, February 9, 2016

China Issues Oversight Rules for “Non-residential” Residential Surveillance


The Supreme People's Procuratorate building in Beijing.

Not long after the draft of the amended Criminal Procedure Law (CPL) was released by China’s National People’s Congress (NPC) for public comment in August 2011, the United Nations Working Group on Enforced or Involuntary Disappearances expressed concern that the provisions relating to the coercive measure known as “designated-location residential surveillance” (zhiding jusuo jianshi juzhu) would legalize enforced disappearances. In late 2015, the United Nations Committee against Torture (CAT) went further and called on China to abolish the measure.

The Supreme People’s Procuratorate (SPP) subsequently issued trial rules for determining the necessity of detention and rules to govern oversight of “designated-location residential surveillance” (DLRS), which had leapt back into the headlines in 2015 as part of a police crackdown against Chinese rights lawyers that intensified in July.

A Coercive Measure

Custodial detention or arrest takes place in detention centers, ordinary residential surveillance in one’s residence. DLRS happens someplace else, perhaps in a hotel or guesthouse, where law enforcement agents hold criminal suspects or defendants for up to six months while they investigate alleged crimes or prepare a case for trial.

Authorities justify the lengthy six-month period by stating that residential surveillance is relatively lenient—not depriving people of their liberty, but merely restricting it. Nonetheless, individuals held under DLRS face an environment ripe with potential abuse and rights violations.

When law enforcement uses the practice against people charged with endangering state security (ESS), terrorist activity, or serious corruption, the outcome is hard to distinguish from enforced disappearance or incommunicado detention. In these types of cases, investigators may use the law to deny families the knowledge of where their loved ones are being held and to deny detainees’ access to a lawyer. Within 24 hours of carrying out DLRS, investigators are only required to provide families with notice of detention and of the alleged offense.

What a Difference Two Years Makes

Faced with public opposition to the practice, legislators granted oversight powers to the procuratorate, but it has taken nearly two years for the SPP to define its role. In the meantime, as predicted, DLRS has become a routine part of handling politically sensitive cases. Though its high costs of facilities and manpower are somewhat prohibitive, DLRS is unparalleled in its long duration, ability to isolate detainees, option to delay intervention by legal counsel, and general capacity to exert psychological (and, in some cases, physical) pressure on suspects.

Unfortunately, the new rules will do little to diminish these serious violations of due process. Procurators are concerned with whether DLRS is carried out lawfully, yet the most concerning aspects of the practice are themselves spelled out in the law.

Focus on Decisions, Implementation

The SPP has yet to publish their oversight regulations, but highly controlled media reporting sheds some light on their content. One thing is clear: the intention of the rules is bureaucratic oversight, not judicial oversight. Procurators will likely focus on examining paperwork, making the occasional inspection, and issuing instructions in case anything is out of the ordinary. People held under DLRS may initiate the oversight process by filing complaints independently or through their advocates. What appear to be missing are mechanisms for hearings to allow for the presentation of evidence or for appeals to challenge procuratorial decisions.

Monitoring by the procuratorate will focus on two areas: (1) whether the decision to impose DLRS was lawful and (2) whether DLRS has been lawfully implemented. The former chiefly concerns whether the case involves a person who either (a) lacks a fixed residence in the county or city where the criminal investigation is taking place, or (b) is suspected of ESS, terrorism-related offenses, or serious corruption. In case of (b), the law requires investigators to substantiate a claim that ordinary residential surveillance would impede their investigation and obtain approval for DLRS from their immediately superior law-enforcement unit.

The second area of focus involves ensuring that all paperwork is in order; necessary notices have been delivered; and the appropriate location, duration, and personnel are employed. Procurators would also ensure that detainees’ lawful rights are being protected, interrogations are held in separate locations, and no “physical punishment or abuse” is inflicted.

Adding Inspections

Oversight activities require procurators to make an on-scene inspection within 24 hours of receiving a copy of a decision to carry out DLRS. This inspection presumably enables inspectors to interview detainees and establish whether they have any allegations to make. It should also allow them to ascertain whether the designated location meets the lawful conditions for “ordinary living and rest” and to ensure that surveillance cameras and safety equipment are installed.

The rules also appear to require procurators to visit the location at least once a week for the duration of DLRS. Periodic inspections should offer minimal guarantees against physical torture or ill treatment. They are inadequate, however, in preventing mental suffering and the use of other cruel and degrading treatment.

Also troubling is the requirement that inspections be carried out in ways that do not interfere with investigations. This prioritizes the needs of investigators over the rights of detainees and may give investigators broad discretion to delay access to facilities.

Missing the Mark

This type of oversight, with its emphasis on ensuring adherence to applicable laws and regulations, will no doubt help to limit certain kinds of arbitrary and abusive behaviors. Other arbitrary practices and violations of due process will remain unaffected because they are legally sanctioned. For example, procurators are very unlikely to challenge investigators’ decisions to deny access to legal counsel to individuals charged with ESS or terrorism. The CPL empowers investigators to deny such access if they believe it might interfere with their investigation.

In their attention to the legality of decision and implementation, procurators may also fail to scrutinize the legitimacy of charges made against detainees. Investigators can use flimsy evidence to initiate ESS investigations—thereby justifying the use of DLRS and exclusion of legal counsel—only to modify the charges when requesting approval of formal arrest after expiry of the six-month time limit.

Ultimately, however well intentioned it might be, this kind of bureaucratic review cannot address the risks of DLRS. The measure grants law-enforcement investigators too much power over individuals, and the procuratorate lacks both power and incentive to challenge DLRS decisions, especially in the kinds of politically sensitive cases where abuse is most likely.

The best solution would be for China to abolish DLRS, or at the very least, to restore detainees’ rights to full access to legal counsel and to communicate with the outside world. Anything less, and China is sanctioning enforced disappearances.

Friday, January 29, 2016

China: Juveniles Biggest Winners in 2015 Special Pardon


Source: outlookchina.com

Just before last September’s 70th anniversary of the end of World War II, the Standing Committee of the National People’s Congress (NPC) passed a decision—subsequently issued by President Xi Jinping—to grant a special pardon (teshe) to selected prisoners. Xinhua reported last week that the government pardoned 31,527 people during 2015. The total number of pardons exceeded estimates by members of the NPC Legal Committee more than threefold.

Ninety-five percent of recipients were under age 18 at the time of their offense and either sentenced to fewer than three years in prison or had less than one year left to serve for a non-serious crime. Three other groups of prisoners also benefited following rigorous review. Fifty veterans of the War of Resistance Against Japan (World War II) and the War of Liberation (the Chinese Civil War) were pardoned, as were 1,428 veterans of foreign wars who were not convicted of serious crimes and 122 non-self-sufficient disabled elderly prisoners (over age 75).

2015 Special Pardon Recipients by Category


The 2015 special pardon was the first since 1975 and the first ever to include a more general prison population. Chairman Mao Zedong granted all previous special pardons to war criminals (zhanfan). China’s Constitution grants the authority to decide on special pardons to the NPC Standing Committee (Article 67), while reserving the authority to issue orders for special pardons to the president (Article 80).

Chinese Special Pardons, 1959-2015
Date Total Recipients Beneficiaries
Dec 4, 1959 12,115 Counterrevolutionaries & ordinary criminal offenders (12,082); war criminals (33), incl. Emperor Puyi
Nov 28, 1960 50 War criminals: Kuomintang (45), Manchukuo (4), Mengkukuo (1)
Dec 25, 1961 68 War criminals: Kuomintang (61), Manchukuo (7)
Apr 9, 1963 35 War criminals: Kuomintang (30), Manchukuo (4), Mengkukuo (1)
Dec 28, 1964 53 War criminals: Kuomintang (45), Manchukuo (7), Mengkukuo (1)
Apr 16, 1966 57 War criminals: Kuomintang (52), Manchukuo (4), Mengkukuo (1)
Mar 19, 1975 293 War criminals: all remaining
Aug 29, 2015 31,527 Juvenile offenders, veterans, disabled elders

Local government officials moved quickly to begin implementation shortly after the central government announced the special pardon. In Hebei, the provincial politico-legal committee held a teleconference days after the announcement to study the NPC decision and the implementation measures drafted by the Central Politico-Legal Committee. Representatives from provincial courts, procuratorates, and public security and justice agencies attended the meeting that led to the establishment of special teams and working groups. Provincial prisons, detention centers, and community corrections organizations specified the scope, conditions, and procedure of the special pardon in accordance with the NPC decision.

Although pardons are typically decided on a case-by-case basis, special pardons pave the way for many individuals to benefit at once. Different from an amnesty, a pardon amends a punishment without affecting a guilty verdict. Amnesties remove the offense from a person’s criminal record.

Public response to the 2015 pardon was lukewarm at best. Chinese legal scholars opined that too few would benefit, while the public took to Chinese social media to criticize the pardons for being too lenient. Dui Hua previously called on China to grant special pardons ahead of the 2008 Summer Olympics and the 60th anniversary of the founding of the People’s Republic of China in 2009.

Having worked closely on juvenile justice reforms with the Supreme People’s Court Office of Juvenile Courts, Dui Hua welcomes the special pardon as a pathway to justice for youth in conflict with the law.

“Having successfully carried out the largest special pardon in the history of the People’s Republic of China, the Standing Committee of the National People’s Congress should consider issuing special pardons to other groups of prisoners,” said John Kamm, executive director of The Dui Hua Foundation. “Prisoners serving sentences for crimes that no longer appear in the Criminal Law—like counterrevolution and hooliganism, which haven’t been on the books for nearly 20 years—should be prime candidates for clemency. Doing so would support China’s constitution, the International Covenant of Civil and Political Rights (Article 15, Paragraph One), and the rule of law.”

Tuesday, January 5, 2016

China Mulls Ranking System for Lawyers


The Chinese government appears poised to launch a ranking system for lawyers, which could limit lawyers with "limited experience or who lack dedication" from appearing before intermediate or higher courts, where many defendants lack legal representation. Photo: Southern Weekend

Rumors of a new central government policy to issue a system of professional ranks for lawyers have put Chinese legal professionals on the defensive. The system could be used to limit lawyers’ ability to represent defendants in trials heard by higher-level courts or in major or complex cases, such as those involving the death penalty.

Observers say that central authorities are promoting the system in part to increase professional standards. As a recent article (translated below) in Southern Weekly makes clear, however, lawyers, academics, and even judges have their doubts. Many worry that the policy may have a negative impact by limiting access to legal representation and hindering the professional development of new lawyers.

The recent crackdown against human rights lawyers like Pu Zhiqiang, Tang Jingling, and those at Fengrui Law Firm has re-focused attention on the role played by lawyers in a legal system dominated by the party-state. While emphasizing the need to restore the credibility and authority of the judicial process, central authorities have made sweeping statements about the importance of lawyers and protecting lawyers’ rights. At the same time, steps are being taken to regulate the behavior of lawyers, inside and outside the courtroom. The stepped-up use of criminal prosecution and other sanctions against lawyers for being “disruptive” or “challenging authority” sends a message that new lines are being drawn.

Perhaps, then, the greatest source of anxiety about a ranking system is that central authorities may intend for it to increase regulation of the legal profession. Some fear it would become a tool to penalize “disobedient” lawyers and create more possibilities for corruption. Chinese lawyers have struggled for decades to eke out the limited autonomy they currently enjoy, and many—even those disinclined to take on controversial cases or strategies—fear returning to a system in which they are considered “state legal workers.”

*

Lawyer Ranking System Provokes Fierce Debate
Ren Zhongyuan
Southern Weekly, December 5, 2015

Chen Weidong: Central Government Has No Concrete Plan Yet

Over the past couple of weeks, opinions have suddenly started to form regarding a ranking system that would limit the ability of certain lawyers to appear in court. This follows word that pilot trials of such a system are set to launch sometime next year.

On November 14, 2015, Professor Chen Weidong of China’s Renmin University Law School spoke on this development at the “Innovation Forum on Legal Services under the New Normal,” sponsored by the Guangzhou Lawyers Association and the Lawyers College at Guangzhou University Law School. His comments quickly sparked heated discussion.

The new policy could employ a ranking system to place restrictions on which lawyers can appear in court. Lawyers with limited experience or who lack dedication would not be able to represent clients in major or complex cases, such as those involving the death penalty, and they would not be able to appear before intermediate or higher courts.

Many lawyers have expressed firm opposition to such a plan. They say that there is no legal basis for a ranking system and that it would infringe upon the right of lawyers to practice freely and right of clients to make their own choices.

Chen Weidong has also become a target for criticism, about which he feels extremely aggrieved. “I didn’t recommend this policy,” he points out. “On the contrary, I have my reservations. When central authorities proposed this reform and initially began seeking comments, we told them all the arguments that [critics] are making. I saw that people hadn’t been paying enough attention to this issue, so I took the opportunity to explain what was going on.”

Back on August 20, the chairman of the Central Politico-Legal Commission, Meng Jianzhu, addressed the National Lawyers Work Conference. He said, “We can begin looking into a ranking system to govern court appearances for new lawyers who take up criminal defense cases.”

Chen Weidong told Southern Weekly that the “Opinion on Deepening Institutional Reform of Lawyers,” passed on September 15 by the Central Leading Group for Comprehensively Deepening Reforms, also made clear mention of a ranking system. The full text of that document has not been made public.

“Central authorities have two main goals in pushing this reform,” says Chen. “First is to regulate the legal services market and the other is to raise lawyers’ professional capabilities. There is a certain justification for this. However, it’s hard to say how to evaluate professional capability and who should do the evaluating. Since it’s a pilot scheme, it can be used as a test and the quality of the results can be used to decide whether or not to push the system forward.”

He noted that local Guangdong media had reported that many lawyers expressed support for a ranking system at the Guangdong Lawyers Work Conference held November 9–10. These supporters even said that Guangdong should take the lead in any pilot trials.

As far as Chen Weidong knows, however, central authorities currently have no specific locations in mind and, for the time being, have no concrete plan.

Two vice presidents of the All-China Lawyers Association (ACLA) confirmed to Southern Weekly that the organization had not yet settled on a specific view towards a lawyer ranking system due to major disagreements among lawyers and a lack of consensus. They said the issue was still rather sensitive and that it was inconvenient to comment further.

Tian Wenchang, chair of the ACLA Criminal Law Professional Committee, and Wang Cailiang, deputy chair of the Administrative Law Professional Committee, both said that none of the ACLA’s professional committees had even been made aware of this matter. The ACLA has not issued any notices on the subject and people had only heard about it individually.

In 2010, the Hainan Judicial Administration Department issued a consultation draft of “(Draft Revisions) to Regulations for the Legal Profession in the Hainan Special Economic Zone.” One provision in the document proposed a court-appearance system for lawyers based on ranking. Professional lawyers would be divided into junior, intermediate, and senior ranks. Apart from length of professional service, the ranking would also depend on “certain examinations and assessments.”

Due to vocal opposition, the proposed provisions were not ultimately passed. Aside from [Hainan], no other local governments have put forward similar provisions. Chen Weidong told Southern Weekly that Hainan came up with its regulations on its own initiative, not as part of any plan by central authorities.

In Hiring Lawyers, Don’t Defendants Have the Final Say?

One of the biggest reasons cited for opposing a court-appearance ranking system for lawyers is that it infringes upon defendants’ freedom to choose. Many lawyers and academics, including Chen Weidong, all believe that the state should exercise caution when it comes to interfering with individual choice.

Wang Cailiang argues: “According to the Administrative License Law, when it is possible to make adjustments through market mechanisms and professional organizations are capable of self-governance, there is no need for administrative licensing. Moreover, administrative licenses should only be used in situations in which licensing cannot be done through law, regulation, or other norms.”

Wang notes: “There’s the Lawyers Law, the three procedural laws, the Arbitration Law—none of these put any restrictions on lawyers’ ability to appear in court. So a trial scheme of this nature lacks any legal basis.”

Chen Weidong’s takes a more moderate position, believing that, for certain types of cases, there is something to placing restrictions on lawyers based on qualifications. The key is to pay attention to balance when setting up the system and give full consideration to the right of individuals to make their own choices.

“For example,” Chen says, “the death penalty is a life-or-death matter. If a young lawyer lacking criminal trial experience takes on a death penalty case and, because of his lack of experience, fails to ask necessary questions or remind the judge of certain things, once the death penalty is handed down it is a result that cannot be undone.”

Wang Zhaofeng, a member of the ACLA Criminal Law Professional Committee and one of the defense attorneys for Bo Xilai, holds a similar opinion. He told Southern Weekly that a lawyer’s professional abilities and experience matter a great deal. In major and complex cases, inexperienced lawyers can truly fail to grasp certain issues. Moreover, there is often a serious asymmetry of information between lawyers and the individuals who retain them. These things cannot be resolved through the market.

“A defendant can of course hire a lawyer without much experience, but when there are real interests at stake and some cases receive a lot of public attention it is hard to say whether the final result will be satisfactory,” Wang Zhaofeng warns. “If you set up a barrier to entry, you of course cannot eliminate the possibility of excluding some young lawyers who are extremely talented in favor of some older lawyers who are merely mediocre. It’s not completely satisfactory, but overall I think it should make things better.”

But in the view of people like Wang Cailiang, these are nothing but self-interested pretexts being put forward by older lawyers. Defendants will consider experience in choosing a lawyer, so there’s no reason to use administrative measures to totally exclude certain lawyers.

A judge who handles death penalty review cases for the Supreme People’s Court confirmed to Southern Weekly that very few junior lawyers actually handle death penalty review cases and that he has rarely encountered any during his nearly 10 years at the highest court. He says: “Even senior lawyers are uneven in their levels of ability. As far as the current quality of defense is concerned, basically junior and senior lawyers are equally effective.”

Another point is that current law allows ordinary citizens, such as a defendant’s friend or relative, to appear in court to handle civil or even criminal defense. Wang Cailiang believes that it is thus illogical to place restriction on lawyers alone.

“You might say that junior lawyers don’t have enough experience to appear before a high court. But at least they have passed the judicial examination and interned for a year, so they can practice law better than an ordinary person,” Wang reasons. “As long as the party to the case is willing, there’s no problem with an ordinary person appearing in court at any level on their behalf. So why place restrictions only on lawyers?”

Who Ranks on What Basis?

A rational ranking system is necessary as a prerequisite for restricting lawyers from appearing in court. But it is difficult to say who is capable and qualified to evaluate the professional abilities of China’s 270,000 lawyers in a way that ensures professionalism while at the same time remaining neutral and fair.

“Administrative bodies can’t do it, as it’s impossible for them to grasp the information necessary to make reasonable judgments,” says Professor Wang Jianxun, of the Law School at China University of Political Science and Law. “They are also prone to the corruption of power and undermined by arbitrary standards. It’s also dangerous to have fellow lawyers do the evaluations, because that can easily lead to infighting and become an excuse for some lawyers to suppress others.”

In his view, the attempt to match lawyers and courts through a ranking system raises the specter of central planning, under which the people in charge of the economy assumed that they could possess the necessary information to match supply and demand. But the universal failure of planned economies has already proven that no person is better than the market at accomplishing this.

“There are certainly discrepancies between lawyers in terms of their abilities,” admits Wang Jianxun. “But don’t judges and procurators also vary in ability despite having a ranking system? Are judges and procurators more capable just because they are in court or procuratorate at a higher level?”

Past experience supports this judgment. Beginning in 1987, the Ministry of Justice enacted Provisional Regulations for the Lawyer Profession and a set of other associated norms. Through this, lawyers were to be divided into five ranks, the lowest being “assistant lawyer” and the highest being “grade one lawyer.”

These rankings were largely a kind of honor and had no effect on a lawyer’s ability to appear in court. Now the market has largely replaced them.

Beijing Lawyers Association (BLA)—which includes more than 20,000 lawyers and covers the largest share of the market in the country—has not handed out professional ranks for more than a decade. “Nobody recognizes them,” explains Han Jiayi, secretary-general of the ACLA Criminal Law Professional Committee.

Wang Cailiang recalls that a group of Beijing lawyers once collectively boycotted the rankings, so the BLA stopped issuing them. Most of those lawyers had returned from living overseas. They were highly educated and after a few years were able to play important roles in the profession. But according to the standards then in place, they would have had to start from the lowest professional grade and work their way up one rank at a time. They couldn’t compete with the older lawyers, and it truly wasn’t very fair. By the time Wang got to Beijing, the BLA had already stopped reviewing lawyers and assigning professional ranks.

Wang Cailiang told Southern Weekly that his experience going through these ridiculous evaluations is the reason he’s now so firmly opposed to them. He doesn’t want to see young lawyers repeat this past experience. For example, it took him two tries before passing the second-grade lawyer examination. He satisfied all the other criteria, but English held him up. The English part was simpler the time he passed, with multiple-choice and true-false questions allowing him to concentrate on one answer and bluff his way through.

As Chen Weidong and Wang Zhaofeng see it, however, these are all issues of how the system is designed. Whether or not to test English, whether there should be different types of cases, or whether the requirement for number of years in practice should be uniform—all of these things can be studied and improved upon. For certain types of cases, it would be best to have some sort of a threshold, something depending on the nature of the case itself.

“After all, there are some objective standards there,” says Wang Zhaofeng. “How many times have you handled this type of case? Have there ever been any complaints or disciplinary sanctions? Once you’ve met the threshold, it shows that you’ve reached a decent standard. But there’s no point in turning these rankings into a kind of honor and making it seem like first-grade means you’re better than second-grade. This isn’t a contest to see which lawyer is better. That’s something on which opinions will differ, so there’s even less reason to use rankings in connection with what fees are charged.”

More than ranking, Wang Zhaofeng and Chen Weidong both prefer a kind of categorization or specialization. For example, you can divide lawyers between those who do litigation and those who don’t, according to their specific type of practice. This would be a more workable system and would facilitate lawyers’ ability to accumulate professional experience.

But there are some judges and lawyers who think that, considering the current stage of development of China’s legal profession, it’s not the right time to categorize them into specializations.

“In cities like Beijing and Shanghai, you might be able to see clear specialization within the professional space,” observes Han Jiayi. “Some lawyers have settled into doing only litigation, while others do non-litigation work or focus on one kind of case. But in the provinces—even in provincial capitals—many lawyers are still doing it all. How can you categorize them? It’s inappropriate to divide them up by years of experience, and case volume is probably no good either because of the differences between cases. For a Beijing lawyer to handle 20–30 cases a year might be considered quite a heavy load, but in the provinces you typically have lawyers handling 60–70 cases a year.”

In his view, a ranking system might actually make it more difficult for younger lawyers to get established and develop themselves. For the sake of making the grade, they will not only have to focus on their professional space but also pay attention to their case volume.

Liu Shibi, a former judge who worked in the courts for more than 20 years, also thinks: “Perhaps in 10 years’ time it’ll be more appropriate to talk about this kind of categorization.”

Once Ranked, Will Enough Defense Lawyers Remain?

Even if he doesn’t clearly oppose setting a threshold for lawyers to appear in court, Wang Zhaofeng still has concerns. He notes that only around 20 percent of defendants are represented by defense lawyers overall, and that in areas where this figure is relatively high, it barely surpasses 30 percent. If you add a ranking system and restrict some more inexperienced lawyers from appearing in intermediate or higher courts, there might be some cases that senior lawyers aren’t willing to take on. If junior lawyers are unable to take these cases, then the problem of low defense representation will become even more acute.

Chen Weidong does not believe this is likely to happen. “The low representation rate is primarily in trials of first instance. To my knowledge, the representation rate in second-instance trials can reach about 80 percent. A ranking system would mainly restrict lawyers to appear in basic-level courts. Courts at the intermediate level and above mainly handle trials of second instance.”

But in Han Jiayi’s view, the 80 percent representation rate in trials of second instance shouldn’t be considered high. Clear-cut cases basically don’t go beyond a trial of first instance. When a case reaches a court of second instance, it means that there remain relatively large disagreements and there is very much a need for lawyers to be involved.

“We should recognize that 20 percent of these cases are still are without any defense representation!” Han says. “What’s more, this is just the rate of representation at the trial stage. Individuals also need lawyers during the investigation and indictment stages, but the rate of representation in those stages of the case is even lower.”

Han says: “Things have been moving in a very bad direction, and as the legal environment worsens, many lawyers are unwilling to handle litigation. We should be thinking about how to attract lawyers to return to the courtroom, not forcing them out.”

Criminal court judges—especially those who handle death penalty cases—are also worried about the number of lawyers.

The aforementioned SPC judge who handles death penalty review told Southern Weekly that there is a serious problem with legal aid lawyers who provide formulaic defense opinions in death penalty cases. On the whole they are not able to have much of an impact. “Maybe it’s because legal aid lawyers lack a sense of responsibility, but I personally haven’t seen a case in which they’ve been able to help check the use of the death penalty,” he said. “Even though it’s a major responsibility to handle death penalty cases, they’re mainly being handled through legal aid. Even when defendants hire their own lawyers, these lawyers tend to be the less expensive lawyers.”

Liu Shibi, who spent 10 years hearing death penalty cases in second instance, agrees that ranking lawyers will not necessarily raise the quality of defense in death penalty cases. In his experience, the most effective lawyers in death penalty cases are those between the ages of 30 and 40. Older lawyers are not necessarily better or more responsible. And since death penalty cases generally don’t result in high fees, a large portion of older lawyers is not too willing to take them on.

“Society has been developing very rapidly, and the law has also undergone many changes,” notes Liu. “Some older lawyers can’t really keep up. Lawyers who are too young aren’t appropriate either, as they lack social experience. The vast majority of defendants in death penalty cases come from the lower strata of society, so a defense lawyer must be in touch with the masses and have a reverence and sympathy for human life. Young people might not yet understand this. But if older lawyers spend too much of their time doing high-end work, they, too, can lose touch with the lives and concerns of ordinary people.”

At the same time, Liu Shibi worries that if a ranking system restricts younger lawyers from handling death penalty cases, defendants won’t necessarily be able to fully take advantage of the services of older lawyers. Once cases start to be concentrated in the hands of older lawyers, the dilution of their energies may mean a decrease in their effectiveness.

“It’s quite likely that reading case files, case analysis, and preparation of defense statements will be handled by younger assistants and that the older lawyers will get involved in the case only just before trial,” Liu warns. “Some might even bring their assistants with them to trial, simply making an appearance at court and then leaving the trial to be handled by the assistant. On the other hand, younger lawyers who are trying to establish names for themselves might work a lot harder.”