Friday, January 29, 2016

China: Juveniles Biggest Winners in 2015 Special Pardon


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.”

Monday, December 21, 2015

China: State Security Indictments Hit Record High in 2014

Sources: Dui Hua; China Law Yearbook (various years)

China indicted more people for endangering state security (ESS) crimes in 2014 than in any year since China Law Yearbook began reporting the figure in 1999. The number of people indicted rose to 1,411, up 2 percent from 1,384 in 2013. These indictments spanned 663 cases, compared with 608 cases in the previous year.

With the uptick in indictments, the number of trials in the category that includes ESS jumped 20 percent. China Law Yearbook reports ESS trials in aggregate along with trials for dereliction of military duty and possibly other crimes. The number of trials in this category hit 1,074 in 2014, compared with 893 in 2013. Based on indictment statistics from previous years, Dui Hua has assumed that the number of trials attributed to dereliction of military duty and other crimes was negligible. Trial numbers are limited to trials of first instance that courts concluded during the year.

The ESS trial that received the most international attention in 2014 was that of Uyghur activist and scholar Ilham Tohti. He was convicted of splittism in September 2014 and sentenced to life in prison for operating a Uyghur news website. Including Ilham Tohti, Dui Hua’s Political Prisoner Database has information on 18 people tried for ESS in 2014, down from 32 in 2013 and 26 in 2012. Thus far in 2015, Dui Hua has information on nine people tried for endangering state security.

Chinese courts invariably convict and sentence those tried for ESS. Although acquittals are extremely rare, relatively light sentences are sometimes imposed. In 2014, at least three of those tried—Gu Yimin, Liang Haiyi, and Liu Benqi—were released by year end. All three were convicted of inciting subversion. Gu and Liu were tried for online posts that were critical of the Chinese government. Gu was sentenced to 1.5 years in prison and Liu to three years, but both were released due to time served in detention. Liang was likely tried for online posts and her involvement in public protests. Detained in 2011, Liang was released after a court sentenced her to a suspended sentence of two years.

ESS covers a range of political crimes including subversion, inciting subversion, splittism, inciting splittism, espionage, and state secrets violations. While it is considered the most serious category of political crimes—and is the only category that carries a mandatory supplemental sentence of deprivation of political rights—ESS crimes are not the only legal avenue used to punish activists. In recent years, authorities have also used “disturbing social order” crimes like “picking quarrels and provoking troubles” and economic crimes like fraud and operating an illegal business to put away critics.

“The number of individuals indicted for ESS crimes reached an all time high in 2014, a striking and troubling development,” said Dui Hua Executive Director John Kamm. “Given ongoing campaigns against protest and dissent, especially in the western region of Xinjiang, the number of ESS indictments and trials are unlikely to fall in 2015.”

Thursday, December 17, 2015

Chinese Court Amends Charges Against Guo Feixiong Before Conviction

Democracy activists Guo Feixiong (a.k.a., Yang Maodong, pictured left) and Sun Desheng (pictured right) were recently sentenced to prison terms. Credit: Weiquanwang

On November 27, Guangzhou’s Tianhe District People’s Court sentenced veteran democracy activists Guo Feixiong (a.k.a., Yang Maodong) and Sun Desheng to six years and two and a half years’ imprisonment, respectively. The court convicted Guo and Sun of public order offenses connected to street protests carried out in Guangzhou and other cities in the early days following Xi Jinping’s accession to power. The crackdown on the “Southern Street Movement,” along with the repression of the New Citizens’ Movement, signaled the new leadership’s resolve to curb grassroots activism, clamp down on criticism, and take control over the political agenda.

As in many other politically motivated criminal cases in China, the allegations appear to exaggerate the social harm caused by the defendants’ actions and ignore rights to free speech and association nominally protected under China’s constitution. Moreover, violations of due process plagued the prosecution of Guo and Sun. These violations include prolonged pre-trial detention, obstruction of defense counsel, and numerous irregularities at trial. There have been allegations of torture and mistreatment.

There are many grounds upon which to criticize and even condemn the convictions of Guo Feixiong and Sun Desheng. In this essay, we focus on a small, but significant, aspect of the trial process: the court’s modification of charges immediately before conviction. We explain court action and inaction with the aim of further understanding China’s criminal process and some of its many weaknesses and challenges.

What Did the Prosecution Allege?

In the indictment submitted to the court in June 2014, prosecutors from Tianhe District charged Guo and Sun with “gathering a crowd to disrupt order in a public place” under Article 291 of the Criminal Law. The allegation was based on two separate sets of material facts and associated evidence.

The first set concerned three days of protests held outside the offices of the newspaper Southern Weekly in January 2013. These demonstrations followed a decision to censor a closely watched “New Year’s Editorial” that supported constitutionalism. Authorities alleged that Guo Feixiong was a chief organizer of the protests, which included speeches, signs, and banners hailing press freedom, and which attracted hundreds of participants and onlookers.

The second set of allegations surrounded a series of “flash mob” protests purportedly initiated by Guo and Sun and carried out in eight cities across China in April and May 2013. Protesters held up signs and banners demanding that officials disclose their assets as part of the fight against corruption and that the government ratify the International Covenant on Civil and Political Rights. Images of these street protests were circulated online, leading prosecutors to claim that they “created false impressions.”

What Did the Court Do?

Many accounts report that, just before it sentenced the defendants, the Tianhe District People’s Court added a charge of “provoking a serious disturbance,” which carries a heavier penalty than those under Article 291. Perhaps more accurately, the court “modified” or “amended” the prosecution’s charges. No additional facts or evidence were introduced to support the addition of a new charge during the trial. The court did, however, take issue with the prosecution’s characterization of “flash mobs” as “gathering a crowd to disrupt order in a public space.”

The court found that, based on the facts and evidence presented at trial, the defendants’ actions should have been prosecuted under the offense of “provoking a serious disturbance” pursuant to Article 293(4) of the Criminal Law. Having identified this error, the court proceeded to amend the charges and issue its verdict accordingly.

Amending the charges meant that the court could impose separate penalties and calculate a combined sentence for the protests outside Southern Weekly (gathering a crowd to disrupt order) and the anti-corruption flash mobs (provoking a serious disturbance). While the maximum penalty under the charges in the prosecution’s original indictment would have been five years’ imprisonment, after modification, the court was able to impose a sentence of between five and ten years—based on a maximum penalty of five years for each charge.

Did the Court Violate Chinese Law?

There is no explicit provision in the Criminal Procedure Law (CPL) that authorizes courts to modify the prosecution’s charges in this way. Instead, this action seems to follow from the Supreme People’s Court (SPC) Interpretation on the Application of the CPL, Article 241(2):

When the facts alleged in the indictment are clear and the evidence is reliable and sufficient but there is a discrepancy between the crime alleged and the crime found in the course of the trial, [the court] shall issue a verdict based on the crime found in the course of the trial.

This provision implies, but does not expressly state, that the court may unilaterally modify the charges under these specified circumstances.

Of course, the question remains whether it is legitimate for the SPC to broaden its powers in this way. As a constitutional matter, the use of judicial interpretations to supplement and elaborate on existing law in a generalized manner appears to exceed the authority granted to the SPC to answer concrete applications of law. As a matter of practice, however, such legislation-through-interpretation is considered legitimate, and courts treat these interpretations as equivalent to law.

In short, while the legal basis for the court’s actions is not free from controversy, practically speaking, no appellate court is likely to accept a challenge on the grounds that the court acted contrary to law.

Did the Court’s Actions Amount to an Unfair Trial?

There is little question, however, that the effect of the court’s action deprived Guo and Sun of their right to a fair trial, which would make the decision illegitimate under Chinese and international human rights law.

By unilaterally modifying the charges just before sentencing, the court deprived the defendants of their right to a fair hearing by denying them adequate time and facilities to prepare a defense. Though much of the defense lawyers’ detailed statements to the court remained applicable, the lawyers could not have anticipated the court’s modification. Thus they were not prepared to present a thorough challenge to the applicability of Article 293(4). Lawyers were instead asked to deliver opinions on the spot and were interrupted by the court when they protested.

One of the principles underlying the idea of a fair judicial hearing is the “equality of arms” between prosecution and defense. Given that criminal defendants have the power of the state arrayed against them, adequate time and facilities to prepare is an essential part of guaranteeing some semblance of parity.

Article 227(3) of the CPL states that where the trial of first instance “deprives or restricts the statutory procedural rights (fading susong quanli) of a party to the case (dangshiren),” the appellate court should remand the case for retrial. Lawyers might try to make this argument when the case is appealed to the Guangzhou Intermediate People’s Court, but if the case is retried and the charges are modified in some other way, it seems highly unlikely that the court would reach a different result.

How to Modify Charges Fairly

There are many circumstances in which a charge might need to be re-characterized in the course of a trial. A charge of homicide might fall apart on the question of the defendant’s intention and need to be modified to intentional injury. There is often ambiguity about whether a defendant caught carrying drugs was trafficking or merely transporting.

Note that in both of these examples modifications would likely benefit the defendant, as the modified offenses are less serious than those originally applied. This is not what happened in the case of Guo Feixiong. Nonetheless, even when the defendant stands to benefit from amended charges, fair-trial principles should require the use of a more elaborate procedure with more of a role for both prosecution and defense.

This is the argument put forward recently by Shandong rights lawyer Xi Xiangdong. He notes that if the prosecution had wanted to modify its indictment, Supreme People’s Procuratorate rules would have required prosecutors to first seek approval from their superiors and submit the amended indictment to the court. Then, the court would notify the defendant, and a new trial hearing would have to be held—complete with investigation of evidence, debate, and final statements from both sides.

If the court identifies the need to modify the charges, Xi says, it can make this recommendation to the prosecution. If the prosecution agrees, the process would follow as described above. If the prosecution rejected the recommendation, then the court could proceed to amend the charges if it was in the interest of justice and proper application of the law. Xi rightly insists, however, that this ought to be the exception, rather than the rule. Finally, he notes that any such decision should only be made after giving due consideration to both prosecution and defense in the form of a hearing where both sides can confront each other’s opinion.

To be sure, such procedures would necessitate extra time and complication for all parties involved. Considering that the court let a year elapse between trial and verdict in the case of Guo Feixiong and Sun Desheng, there really is no excuse for not taking even this small step to provide a measure of protection to the fair-trial rights of the defendants.

Thursday, November 5, 2015

Guangdong High Court Asks Why So Few Are Found Innocent

A recently freed, wrongfully accused man becomes emotional during a 2014 interview. Credit:

Since 2012, Chinese legal authorities have overturned a series of high-profile convictions and taken steps to prevent miscarriages of justice, but one question is still being asked: why do Chinese courts acquit so few defendants? (In 2013, the acquittal rate rose for the first time since 2000, growing annually from six acquittals per 10,000 adjudications to seven.) Some argue that institutional support for conviction stands in the way of systemic change.

Researchers at Guangdong High People’s Court wanted to find out for themselves, conducting interviews, holding seminars, and analyzing court documents related to acquittals throughout the province. The results, which were published as a report last year, offer a fascinating view into how those within the judiciary interpret the institutional, legal, political, and social factors that shape the way Chinese courts operate.

The researchers report that, for the five years between 2008 and 2012, Guangdong courts acquitted only 198 individuals in 180 cases. This represents a mere 0.04 percent of all individuals subject to criminal decisions that took effect during the period. The great majority (86 percent) of acquittals were on grounds of insufficient evidence, with a handful of others issued for things like self-defense, mental incompetence, or defendants who were under the age of 16. Acquittals occurred in a wide variety of cases—though not in any involving state-security offenses—but were most frequent in cases of assault. The trial process typically took longer than average when it resulted in acquittal, extended in accordance with the law by both courts and prosecutors. The average length of a trial that ended in acquittal was 169 days, or about five months, with the longest stretching to 504 days and the shortest at 55.

These quantitative results are not the most interesting part of the report, in part because there are so few cases to study. Much more interesting are the authors’ observations on the factors contributing to the dearth of acquittals, the impact this has on the legal system and society at large, and what might be done to remedy the situation.

Acquittal Averse Strategies

The extremely low number of acquittals doesn’t mean that criminal prosecutions in Guangdong are rock-solid. The report points out that, when the facts of the case are unclear and evidence is insufficient, judges use a number of strategies other than acquittal. In relatively minor cases, for example, courts might work out an informal “plea bargain,” promising to hand down a non-custodial penalty (like a suspended sentence) in exchange for a defendant’s promise not to appeal. In death-penalty cases, on the other hand, a court might issue judgments “with room to maneuver” (liu you yudi caipan)—imposing a more lenient suspended death sentence that gets commuted to life imprisonment (and then, later, a fixed-term sentence) almost automatically. Appeals courts are in an even better position to shift responsibility, as they can always send cases back to a lower court for retrial rather than rule to acquit.

Another common way courts avoid acquittals is to allow the prosecution to withdraw its indictment, which it may do at any point before a verdict is announced. In some cases, this has the effect of ending the case against the defendant, but in others, the prosecution can decide to submit a new indictment or send the case back to police for additional investigation. This amounts to a waste of resources, the report says, and results in individuals being locked up for far longer than they ought to be.

The report argues that prosecutors, with the help of the courts, are abusing this provision of the Criminal Procedure Law (CPL) and that the practice needs to be more strictly regulated. For example, it recommends that prosecutors generally not be allowed to withdraw indictments for unclear facts or insufficient evidence. This is because the CPL already gives prosecutors two opportunities to request trial adjournment for additional investigation. If this is not enough, the report concludes, then the court should exercise its power to issue an acquittal. The report also suggests prohibiting prosecutors from withdrawing an indictment once investigation of the facts and evidence has begun at trial and, when withdrawal is approved, limiting prosecutors to one re-indictment.

Inside the Pressure Cooker

Why is it necessary to go through so much effort to avoid issuing acquittals? A recurring theme throughout the report is pressure. Stability-first governance campaigns and a whole system of associated performance measurements create pressures for conviction throughout the criminal justice system. Written and unwritten rules place a premium on rates of case-solving, arrest approval, and conviction as factors used to measure police or procuratorate effectiveness and can be tied to individual promotion or ranking. Since acquittals have the effect of lowering these statistics, police and prosecutors are incentivized to seek conviction and mobilize all manner of available resources to influence courts not to acquit.

As the final stop in the criminal process, courts bear the brunt of the pressure to convict that’s built into the system. As the report puts it: “The public security bureau is responsible for cooking the meal and the procuratorate for serving it. Last to come, the court has only two choices as it faces this meal—either eat up or reject all the work that the first two institutions have already put into the case.” Acquittal, in other words, puts courts in potential conflict with other local law-enforcement bodies that are expecting conviction.

In major cases, especially homicides, police often face considerable political and social pressure to bring a culprit to justice. When they do make arrests, it can lead to merit citations being publicly issued to the investigation team even before indictment, let alone conviction. If the court later acquits, not only must these citations be withdrawn, there will likely be compensation claims made against the police for wrongful detention. In some cases, the same individuals who had been rewarded for solving the case might end up facing investigation for misconduct or even criminal liability.

Prioritizing Public and Process

There are many negative consequences arising from courts’ failure to issue acquittals, according to the report. The most obvious effect is on the credibility of the courts. On this point, the report is particularly frank, warning: “the public is already deeply suspicious and dissatisfied with the [level of] fairness in our criminal justice system, and wrongful convictions are adding fuel to the fire.” They continue, stating: "Convictions based on protecting face and reducing pressure only bring momentary peace and tranquility. When and if the bomb will explode all becomes a matter of luck. But what’s certain is that, the moment the bomb goes off, the courts will suffer the heaviest casualties."

In order to prevent calamity, the report recognizes that courts must exercise their judicial powers more independently, but it provides little advice on how to do so, apart from improving awareness and understanding of the law and legal principles like the presumption of innocence. There is no mention of the "coordination” between police, procuratorates, and courts by the party’s politico-legal committees and little on the role of adjudication committees, where senior court officials get an opportunity to weigh in on how to rule in complex or important cases they have not personally heard.

In fact, the authors appear to believe that increased communication between investigators, prosecutors, and judges can help judicial authorities make their case about resolving problematic prosecutions through acquittal. They recommend, for example, having police and prosecutors sit in on adjudication committee meetings in cases where problems arise. The assumption is that this will enable the courts to exert influence over the other law-enforcement bodies as opposed to the other way around.

One thing that seems to be on the minds of the report’s authors is a responsibility system for wrongful convictions. They make the case that mistakes are inevitable within any legal system and that neither wrongful convictions nor acquittals should automatically be thought of as “mistakes” for which someone must be punished. That is what happens, they suggest, when too much emphasis is placed on outcomes without giving due weight to process.

This is especially important for judges, they argue, and requires transforming the way that judges are evaluated and how data is used. They believe that judicial statistics like conviction rates have no place in deciding promotion or professional ranking. They do, however, see value in continuing to collect statistics and conduct ongoing research in order to evaluate the performance of the criminal justice system as a whole and to boost its credibility with the public.

Thursday, September 17, 2015

China Adds Life Without Parole to Anti-Corruption Arsenal

The National People's Congress passes the ninth amendment to the Criminal Law in August. Credit:

Just before passing the ninth amendment to the Criminal Law late last month, the Standing Committee of China’s National People’s Congress inserted a new provision. Unlike many other new provisions, including those regarding defense lawyers and capital punishment, “cults,” and protestors, this provision was not subject to public consultation. In China’s non-democratic political system, public consultation is one of the few chances for citizens to provide input into the legislative and policymaking processes. It is intended, at least in part, to reinforce popular support for the outcome.

This last-minute provision altered Article 383, which covers the offenses of corruption and taking bribes. Effective November 1, the provision authorizes courts, in certain cases, to add a condition at the time of sentencing to require an individual to spend life in prison without possibility of sentence reduction or parole. The condition may only be applied in corruption cases where the defendant received a suspended death sentence and had that sentence commuted to life imprisonment after the two-year period of reprieve. If such a condition is imposed, the convicted individual will not be eligible for clemency that is ordinarily available under law—meaning that he or she will truly be required to spend the rest of his or her life in prison.

Paving the Way to Abolition

Chinese media has emphasized the significance of this provision as part of the sweeping anti-corruption campaign that has become a signature policy of Xi Jinping. Legal experts and commentators have widely praised the move for sending a strong signal that corruption will continue to be punished severely.

Others have noted that the introduction of life without possibility of release may have wider implications for abolishing the death penalty in China. Public attitudes toward the death penalty are complex and context-dependent, but continued popular support for capital punishment is one factor underlying the cautious and gradual approach that China’s leaders have adopted in reducing its use. Longstanding anger over rampant corruption has helped fuel public support and contributed to anxiety over efforts to strip the death penalty from many economic and non-violent offenses.

Part of this anxiety is rooted in the belief that the death penalty is the only punishment severe enough to deter the most serious crimes. However, in recent years, policies aimed at gradual abolition have led to fewer and fewer death sentences in corruption cases, making suspended death sentences the de facto maximum penalty. Through commutation and sentence reduction, individuals given suspended death sentences can potentially leave prison after serving terms not much longer than the maximum sentence of fixed-term imprisonment, or about 18 years. Some members of the public also worry that corrupt officials might be able to use connections or bribes to buy prison stays that are even shorter.

Given these factors, the introduction of life without parole in serious corruption cases has the potential to mitigate some of the public doubts about lenient punishment for corrupt officials. In so doing, it could also clear the way for China to eventually eliminate the death penalty for corruption. Advocates of death penalty reform anticipate that imprisoning corrupt officials for the rest of their lives would satisfy the public’s expectation of severe punishment. They also believe that in the future life without parole could be extended to other types of crime—including violent offenses.

Following a reform model often seen in China, legal reformers thus appear to have taken advantage of the current anti-corruption environment to experiment with a new kind of punishment and assess the prospects for further refinement and expansion based on practical experience.

A number of issues remain to be addressed. Zhuang Deshui, an anti-corruption expert at Peking University, points out that in order for the new measure to have its desired deterrent effect, courts must “dare” to use it. To this end, Professor Zhao Bingzhi of Beijing Normal University Law School notes that it is necessary for the Supreme People’s Court to issue a judicial interpretation setting clear guidelines for when to apply the new condition. How fairly the condition is applied will play an important role in whether the public can accept life without parole as a substitute for the death penalty.

Choosing Retribution over Rehabilitation

By choosing to deprive certain prisoners of any possibility for early release, China is giving more weight to the retributive and deterrent functions of criminal punishment than to its longstanding emphasis on rehabilitation and reform. If things continue to develop in this direction, what impact might this have on China’s criminal justice system?

Other than the United States, where in the 1980s an abrupt departure from reformative justice helped make life without possibility of commutation or parole a common sentence, very few other jurisdictions impose such categorical penalties. Elsewhere, in fact, it is more common to make possible some form of conditional release after ensuring that an individual has been imprisoned long enough to reflect the seriousness of his or her offense. This is in keeping with the United Nations Standard Minimum Rules for the Treatment of Prisoners. The rules state that the protection of society through imprisonment, and other deprivations of liberty, “can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.”

In an article published just last year, Professor Zhao Bingzhi criticized life imprisonment without the possibility of sentence reduction or parole as inhumane and a violation of human dignity comparable to the death penalty itself. In a forum on death penalty reform in 2008, Zhao and other Chinese legal experts presented arguments on why life without parole was unreasonable and ill suited to China’s justice system. Now, however, these same experts appear to be embracing more stringent penalties in the interest of making it possible to do more to reduce the death penalty. Life without the possibility of release for corrupt officials may be popular with the public, but the American experience ought to serve as a warning to China that failure to strike the right balance between punishment and reform can lead to many new and serious challenges to human rights.

Tuesday, August 18, 2015

Draft Criminal Law Amendment Takes Aim at Defense Lawyers in China

China's National People's Congress in session in Beijing. Credit: Xinhua

One of the more controversial parts of the current proposal to amend China’s Criminal Law concerns the possible expansion of Article 309, covering the offense of “disrupting courtroom order.” Lawmakers have argued that new measures are necessary to “ensure the ability of the people’s courts to implement their adjudicatory powers in an independent and impartial manner” by punishing those who might try to use courtroom disruptions to influence judicial decision-making. They are responding to worries about a worsening atmosphere inside China’s courtrooms—particularly the sense that growing antagonism between judges and defense lawyers is helping to undermine the dignity and credibility of the courts in the public eye. Critics, on the other hand, argue that the proposal unfairly targets lawyers and will have a chilling effect on their ability to pursue vigorous defense on behalf of clients.

Few would challenge the value to society of preserving a substantial degree of courtroom order. A courtroom should be a forum in which opposing sides of a contentious issue may argue in a reasonable, if sometimes heated, manner over important matters of truth and justice. It is thus reasonable to demand that all sides adhere to a set of fair and impartial rules and standards of decorum because respect for the outcome of the judicial process is linked to the respect that all participants demonstrate toward the process itself. If disorder in China’s courts is in fact contributing to a public crisis of confidence, then addressing the problem at its root is an essential step toward furthering the development of rule of law.

At the heart of the debate over the proposed amendment to Article 309 is disagreement over the root causes of tension in the courtroom. Who is to blame when conflict erupts between the various parties at trial, especially between lawyers and judges? Are unscrupulous lawyers showing brazen contempt for the law and the courts, or are judicial bias and procedural violations forcing some lawyers to adopt more confrontational tactics as a form of protest? Regulating lawyer behavior through the threat of criminal sanctions might lead to a more orderly courtroom, but if defense lawyers become meek participants in judicial proceedings that remain arbitrary and biased, then this is likely to do little to enhance the courts’ reputation for delivering justice. On the contrary, imposing further limits on the fragile rights of lawyers may actually erode public confidence in the Chinese judicial system even further.

Letter of the Law

The existing offense under Article 309 imposes a maximum sentence of three years in prison for “gathering people to stir up trouble or attack a courtroom” or “assaulting a judicial officer (sifa gongzuo renyuan),” when those acts “seriously disrupt courtroom order.” The draft amendment proposes to expand the assault clause to include “those participating in the proceedings.” It also adds two new offense categories: “insulting, defaming, or threatening a judicial officer or participant in the proceedings after being told by the court to stop” and “engaging in other acts that seriously disrupt the order of the court.”

The first of these changes is relatively unproblematic. Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences, has in fact been quick to point out that expanding the scope of protection against courtroom assaults is aimed at protecting the rights of lawyers. In particular, he believes that the change will help address attacks by victims’ family members against defense lawyers or defendants’ relatives. Such attacks are unfortunately frequent in China, particularly in cases involving the death penalty.

There is much less support for the two other proposed amendments to Article 309. Critics contend that “insulting,” “defaming,” and “threatening” are acts that can each be defined quite broadly. Professor Qu Xinjiu of China University of Political Science and Law notes that “insult” can include ordinary name-calling, damage to reputation that might be eligible for civil litigation, and a relatively rare degree of offense that might qualify for criminal prosecution. The proposed expansion of Article 309 does not make clear what degree of insult would qualify for criminal prosecution, or why the existing criminal statute covering insult and defamation is insufficient to handle the acts being targeted. Observers similarly note the ambiguous and subjective nature of the word “threaten” (weixie), which has no corresponding criminal offense. To remedy these problems, Professor Chen Xingliang of Peking University Law School has recommended scrapping the “insulting, defaming, or threatening” clause entirely and expanding the assault clause to cover the more menacing act of “intimidating” (konghe) judicial officers and other parties.

The prospect of sanctions against insult and defamation at trial is particularly troubling to lawyers, who feel unfairly singled out given the way the offense is written to presume the court’s authority. Many have argued that China should in fact adopt measures to give lawyers civil and penal immunity for statements made in connection to a case—a recommendation based on Article 20 of the UN Basic Principles on the Role of Lawyers. Otherwise, it is feared, lawyers who dread the consequences of their speech may become “obsequious and servile” and reluctant to express their defense opinions fully, thereby potentially harming the interests of the defendants they represent.

It is the final clause, known as the “pocket clause” for its ability to contain almost anything, which has generated the most opposition. Lawyers and legal scholars are frequently critical of such legal formulations, considering them to be sloppy, “unscientific,” and open to arbitrary and abusive interpretations. In this instance, critics argue, the inclusion of such a clause is particularly detrimental to lawyers. This is because, as Chen Xingliang explains, both the Supreme People’s Court and Supreme People’s Procuratorate have the power to issue legal interpretations that can shape how provisions like these are applied. In other words, of the three main participants in courtroom proceedings, only lawyers have no say over what “other acts” might be construed as serious disruptions to courtroom behavior—potentially putting them at a serious disadvantage.

Critics and Crackdowns

Stepping back from the issue of how the proposed offense would be worded, critics of the amendment also doubt whether an expanded criminal offense is even necessary. In addition to existing offenses covering insult and defamation, Article 194 of the Criminal Procedure Law empowers a presiding judge to forcibly remove a trial participant or spectator for continuing to violate courtroom order after being warned to stop. In serious cases, the judge may also impose a fine of up to 1000 yuan or a jail term of up to 15 days. With respect to lawyers, other disciplinary sanctions—such as formal warnings or suspensions from practice—can be applied to deal with the most serious cases.

Despite all of these arguments, which were amply presented to lawmakers when the first draft of the Criminal Law amendments was made public in late 2014, the proposed expansion of Article 309 remained essentially unchanged in the second draft presented to the National People’s Congress Standing Committee (NPSC) in late June. Drafters are expected to submit one final proposal for passage later this year.

Will lawmakers once again ignore the opposition of lawyers and legal scholars?

They may very well do so, if the recent crackdown on Chinese rights lawyers is any indication. Liang Jianbing, a law professor at Liaoning Normal University in Dalian, believes that there is a clear link between public opposition to the proposed changes to Article 309 and the sweeping detention of lawyers initiated on July 10. He suspects that many members of the NPCSC were swayed by the outpouring of criticism directed at the first draft by lawyers and legal scholars, putting the future of the proposed amendments in jeopardy. In response, law-enforcement institutions and others who want to see this legislation passed have carried out a highly public campaign against a group of rights lawyers, some of whom have been engaged in courtroom confrontations in the past. The media exposure of these lawyers as “criminals,” Liang argues, is a tactical move intended to overcome remaining skepticism and resistance and secure enough support to ensure that the amendment passes.

Even if the campaign against lawyers is not directly aimed at ensuring passage of an amended Article 309, both threaten to contribute to fragmentation and passivity among lawyers and accentuate divisions between lawyers and other legal professionals. Han Jiayi of the All-China Lawyers Association has warned of lawyers choosing to “stay away from the courts” and instead focusing their practice on matters that do not involve litigation. Those in power might not mind if more lawyers opt to stay out of the courtroom, or if the ones who go to trial are less willing to challenge authority. Nevertheless, these outcomes would create a version of “rule of law” unlikely to satisfy many Chinese citizens.