Wednesday, December 16, 2009

Translation & Commentary: Eminent Legal Scholar Issues Strong Appeal for Release of Execution Data by China

An area in which China has recently made considerable progress in human rights is in its reduction of the use of capital punishment. Although China still executes more individuals each year than all other countries in the world combined, the number of people put to death is believed to have dropped substantially since reforms in 2007 returned the power of review over all death sentences to the Supreme People’s Court.

Yet one reason that China has not been given more credit for progress in this area is the secrecy with which it treats the subject of capital punishment. Nearly three years after this death penalty reform was put in place, much remains murky about the procedure by which the Supreme People’s Court reviews capital cases. And the total number of people executed remains a top-level state secret, one that is closely guarded by the few officials who are in a position to know.

This secrecy is the subject of a forceful commentary that appeared in the December 17 edition of Southern Weekend (南方周末), a Guangzhou-based newspaper with a reputation for its liberal views. The author of the piece (translated below) is Chen Guangzhong (陈光中), who at the age of 79 is one of China’s pre-eminent legal scholars and a recognized expert in the area of criminal procedure.

While not the first public call from inside China for the government to release data on the number of executions, what Professor Chen has written is one of the clearest arguments in support of the public’s right to know how its government’s policies on capital punishment are carried out and a forthright articulation of the role international opinion can play in shaping human rights reform.

Indeed, the international community has long urged China for greater transparency in the area of capital punishment—and, especially, annual figures for the number of executions. The recommendation was made again by a number of governments during China’s Universal Periodic Review session before the UN Human Rights Council in February, during which China once again balked at committing to provide the information requested.

This is why Professor Chen’s argument in favor of releasing information about the death penalty is so welcome, as it promises to spark further discussion within China about how the nation should pursue further legal reform and human rights progress in ways that strengthen transparency, public oversight, and rule of law. It is these discussions, rather than international pressure, that will have the most impact on China’s future development.

Making Public the Number of Executions:
Weighing the Advantages and Disadvantages

Chen Guangzhong
Southern Weekend, December 17, 2009

The death penalty is the most severe punishment, one that deprives a person of his life. Since the Second World War, abolition of the death penalty has become the global trend, and at present a majority of countries have already abolished the death penalty. On November 21, 2009, the Russian Constitutional Court announced it would extend a moratorium on executions until the Russian Federal Assembly ratifies abolition of the death penalty. This means that in a country like Russia, with its extremely complex national circumstances, the death penalty exists in name only. As one of the few countries that retain the death penalty, China has adopted a policy of “strict control and cautious use” when it comes to the death penalty, and, especially since the authority of final review over the death penalty was restored to the Supreme People’s Court in January 2007, the standards for application of the death penalty are stricter and more uniform.

Most of the public and members of the legal community basically accept and support China’s current policy toward the death penalty, but no one has any way of knowing how the policy is being carried out or exactly how many people are executed annually. This is because the number of executions has never been made public, on the grounds that it is top-secret information. Each year, when the president of the Supreme People’s Court makes his report to the National People’s Congress, he typically announces the number of people who have been sentenced to prison terms of five years or more, without mentioning the specific number of executions. For example: “(In the five years from 2003 to 2008) 760,000 people were sentenced to fixed-term imprisonment of five years or more, life imprisonment, or death, representing 18.18 percent of the total number convicted.” Announcing figures for criminal sentencing in this way is our consistent practice, but I believe that the advantages of making the number of executions public are greater than the disadvantages and that we should do so as soon as possible. This is because:

It is necessary in order to protect the right of citizens to information. The right to information is a fundamental right of citizens in democratic nations with rule of law, and citizens have a right to know how criminal cases are tried and sentences are carried out. According to Chinese law, citizens and the media not only have the right to observe trials; they also have the right to know the outcome of every trial. I think we need to build upon this foundation and further expand the scope of citizens’ right to information, allowing them to know the overall situation of death penalty cases and the total number of people executed.

It safeguards the right of the people to exercise oversight over the judicial organs. Given that the death penalty is the most severe sanction available to the courts, the number of people executed and the way that death penalty policies are implemented ought to be an important subject for public oversight. However, the right of oversight and the right to information are closely linked, and the right to monitor [use of] the death penalty is premised on the right to information, because only if you make public the precise number of people executed will the public be able to conduct an overall evaluation and effective oversight of the implementation of the death penalty.

It is a reflection of the international trend. Resolution 1989/64 of the United Nations Economic and Social Council urges member states to annually publish information about the categories of offenses eligible for the death penalty and the use of the death penalty, including “the number of persons sentenced to death, the number of executions actually carried out, the number of persons under sentence of death, the number of death sentences reversed or commuted on appeal and the number of instances in which clemency has been granted.” Although some countries that retain the death penalty still do not make public the number of executions, this is not a sufficient reason for China not to make [such information] public. China now ranks among the “political and economic powers” and is a “responsible power,” so it ought to respond to the proposal of the Economic and Social Council and serve as a model to other countries. This would be a concrete example of China’s political civilization.

The United Nations has made this proposal because there is a qualitative difference between secrecy about the number of executions and other “state secrets” relating to national security. Put another way, under most circumstances, publishing the number of executions will not cause any damage to society.

Those who are against making the number of executions public are mainly worried that the number of executions in China is too large and that this might provide an opening for international criticism. Actually, since 2006—and especially since review over death penalty cases was restored to the Supreme People’s Court in 2007—the number of executions has clearly decreased. Even if the number is still a bit large, when you consider China’s population and complex national circumstances, it will not create much of a negative impact internationally.

At the same time, death penalty cases in China are all handled in strict accordance with legal procedure and verdicts are announced publicly. For this reason, revealing the number of executions would better reveal the legal, open, and transparent manner in which these cases are handled in China. It would reflect China’s determination and confidence to firmly implement policies of “lenience combined with severity” and “strict control and cautious use of the death penalty.” It would also show the people of China and the world that we have made progress in controlling the death penalty. If, on the other hand, we do not make [the number] public, it might lead to all sorts of speculation that could be damaging to China’s international image.

Making the number of executions public is a practical and substantial step in the process of reducing the use of the death penalty in China. Not only can it encourage Chinese law enforcement agencies to better carry out capital punishment policies with oversight from society; it is also a good method of educating the public about the law, leading the public to gradually discard its old, traditional ideas about “an eye for an eye,” and promoting the construction of a harmonious society and long-term stability.

In sum, my conclusion is that publishing the number of executions has more advantages than disadvantages.

The author is a Lifetime Professor at China University of Political Science & Law.

Tuesday, December 15, 2009

Translation & Commentary: Petition Procedures in China Receive Official Treatment

China’s petitioning system is once again in the spotlight, both in the country and abroad. The modern incarnation of China’s centuries-old tradition of providing individuals with channels to voice complaints and seek redress for injustice—formally known as the “letters and visits” (信访) system—is officially viewed as an important element in promoting a “harmonious society” and combating official corruption and other malfeasance. At the same time it is widely seen as overburdened and ineffective, and some charge that it is contributing to the very social instability it is intended to address.

One area of focus lately has been the disturbing treatment of some petitioners at the hands of “interceptors,” agents hired by local officials to retrieve individuals who have traveled to Beijing in hopes of getting their grievances heard by the central government. Local officials, concerned that too many (or overly troublesome) petitioners from their home jurisdictions will reflect poorly on their job performance and chances for career advancement, have sanctioned the incarceration of such individuals in "black jails"—unauthorized, unregulated detention centers where petitioners are kept while being pressured to drop their cases and return home.

Significantly, concern over “black jails” and the treatment of petitioners has recently been expressed (English story links to original Chinese text) in Outlook Weekly (瞭望), a major state-sponsored magazine devoted to news and opinion. This sort of public acknowledgement of such a serious rights infringement is rare in China, and marks a clear departure from previous public denials that “black jails” even existed.

Indeed, there now appears to be spreading recognition that China’s petitioning system is in need of substantial reform if it is to play a role that is socially beneficial, rather than harmful. Some of these reform efforts were discussed recently in a front-page item (Chinese only, entitled “信访工作应在法律框架下运作,” published here and translated by Dui Hua below) from Legal Daily, a newspaper published in Beijing by the Ministry of Justice. In the piece, the author looks at a pair of developments in the southern city of Shenzhen, just across the border from Hong Kong.

On one hand, Shenzhen is attempting to facilitate petitioners’ activities by grouping the letters-and-visits offices of various city agencies under a single roof. On the other hand, Shenzhen also recently warned of possible serious punishments for “abnormal” petitioning behaviors—an announcement that elicited strong criticism from some online commentators and rights advocates.

The author’s call for a clearer legal framework to govern petitioning is not surprising, given the nature of the publication in which it appeared. However, his warning that better “hardware” (government infrastructure) should be accompanied by improvements in “software” (or petitioning procedures) should also serve as a reminder that a “legal framework” is only as good as its implementation and enforcement. If maintaining social stability and harmony is given priority over safeguarding individual rights—that is, if petitioners are viewed as “unruly people” and potential sources of instability—authorities may use the law to punish, rather than protect.

Letters and Visits Work Should Operate Under a Legal Framework
You Chunliang
Legal Daily, December 1, 2009

Recently, [letters and visits work] for Shenzhen, Guangdong Province, and each of its urban districts began operating out of a single letters and visits hall. This is the first time that the letters and visits personnel from 16 functional departments have been gathered to work from one location. [These departments] cover land resources and planning; science, technology, industry, and trade information; residential habitat; transportation; health and family planning; education; public security; supervision; civil affairs; justice; human resources and social security; culture, sports, and tourism; state-owned assets; housing construction; market regulation; and urban management.

Although this letters and visits hall is still in a trial phase, a spokesperson from the city’s letters and visits office indicated that the launch of the newly formed hall combining the city and district levels will help to break the traditional work mode of scattered resources and lack of coordination. Integrating resources will help to raise the petition resolution rate and the quality of case handling.

However, with the establishment of the Shenzhen Letters and Visits Hall, one cannot help but recall the recent attention paid to 14 types of “abnormal petitioning” activities. The Shenzhen Intermediate Peoples Court, Procuratorate, Public Security Bureau, and Justice Bureau recently issued a “Notice Regarding the Lawful Handling of Abnormal Petitioning Activity,” [which identified] 14 types of “abnormal petitioning,” such as wearing petition garments [i.e., clothing upon which the petitioner’s complaints have been written], engaging in sit-in protests, self-mutilation, suicide, causing unreasonable disturbances, blocking vehicles, or pestering employees of government organs, and [outlined] serious punishments such as administrative detention, pursuing criminal responsibility, or re-education through labor [for engaging in such behavior].

Release of the announcement led immediately to popular debate. Some took it as an effort by public authorities to suppress petitioners and something that would have a detrimental effect on the timely resolution of social grievances. Others viewed it as an effective, legal measure to stem unlawful petitioning behavior, one that would promote social harmony and stability.
In fact, the announcement released does not restrict the rights of Shenzhen residents to engage in normal petitioning, but rather encourages residents to exercise those rights properly. The announcement particularly addresses the issue of “how residents should properly exercise their petitioning rights,” pointing out that petitioners who choose to submit petitions in person should do so at the relevant government agency or locations specified for receiving petitions.

Construction of the Shenzhen Letters and Visits Hall shows us that the Shenzhen government is making progress in carrying out petitioning work. But “software” needs to keep up with this infrastructural “hardware”—for example, regulating the time needed to resolve a petition, standardizing the rights and obligations of personnel receiving petitions, and improving the quality of personnel receiving petitions. In practice, some locations view petitioning as “making trouble” and petitioners as “elements of instability.” They buy off petitioners, try to win over or deceive them, or even attack or harm them, making the situation even worse. The key to resolving the issue is to face the problems that exist with the petitioning process, improve work procedures, eliminate the popular concern that “nothing gets resolved without making a fuss,” and effectively protect people’s [right to make] reasonable and legitimate demands.

Work involving petitioning is not something that can be glossed over; it should operate under a legal framework and must not be placed above the law. This is the bottom line to which personnel and concerned functional departments [that handle] petitioning should adhere, and it is the most fundamental legal rule that petitioners should obey.

Tuesday, December 8, 2009

Premier’s Support for Rule of Law Prompts Candid Critique

December 4 is “National Legal Publicity Day” in China, an occasion for the Chinese government—especially those within the country’s legal system—to promote China’s successes in law enforcement and the administration of justice.

This year the Legal Daily, a newspaper published by the Ministry of Justice, gave a prominent position on its front page to a talk given by Premier Wen Jiabao in May 2008 at China University of Political Science and Law (CUPL), one of the nation’s premier law schools and an elite breeding ground for both law enforcement officials and legal practitioners. In his discussion with students, Wen gave strong backing to the promotion of rule of law in China, acknowledging that China faced big challenges in terms of enforcing existing laws and ensuring that justice is “not only done, but also seen to be done.”

While there’s nothing surprising about the publication of a senior leader’s views in a central government newspaper, publishing those views for the first time more than 18 months after being first articulated is rather unusual. This curious situation is alluded to in an editorial (translated below) published in the December 8 edition of Southern Daily (南方日报), the official newspaper of the Guangdong Province Branch of the Chinese Communist Party and part of a family of publications known for in-depth reporting and outspoken views.

The editorial, which was widely republished on official media websites throughout China, focuses on Wen’s explication of one of the mottoes of CUPL, “Governing by law” (法治天下), which he equates with the idea of “supremacy of the law” (法比天大)—literally, “the law is greater than heaven.” Bluntly acknowledging that abuses of power by officials have hindered the development of faith in China’s legal system, the editorial urges readers to reflect on this failure and stresses the importance of enforcement, transparency, and participation as keys to building a society under rule of law.

“Supremacy of the Law”: The Essence of Society Under Rule of Law
Southern Daily editorialist, December 8, 2009

Legal Daily recently featured the full transcript of a talk that Premier Wen Jiabao gave on May 4, 2008, to students at China University of Political Science and Law. Premier Wen said, “The importance of the law can simply not be overemphasized,” “ ‘Governing by law’ means ‘the law is supreme’” and “The difficulty of ruling lies not in making laws, but in making others follow the law. It is better to have no laws than laws that are not followed.”

It is unclear why, after a year and a half, Legal Daily was so late to publish the transcript of Premier Wen’s talk. Perhaps it is simply to re-emphasize the importance of the law. [As for] the law being “greater than heaven,” first one must be clear about what is meant by “heaven.” To some people, especially officials, “heaven” seems to be authority, either those people who allow them to have power or the myriad advantages that power brings. Within the jurisdictions of some people [whose ethos is] “I am number one” and “I am the law,” neither the law nor heaven is of any use; only they themselves are effective.

The more common this phenomenon, the more inevitably it causes people to develop many doubts about rule of law. If ordinary people have problems, the first thing they think of is not taking the matter to court, but rather going to Beijing to petition. The dramatic increase in the number of petitioners in recent years is not just a result of economic development bringing about more social conflict; we also need to look at the problem of insufficient development of rule of law. Over the years, more and more laws have been established, but what truly defines a society under rule of law is not how many laws there are but, rather, whether people act in accordance with legal norms, whether those with power respect the law, and whether the law rules supreme over authority. Unfortunately, the administration of justice continues to encounter pressure from all sorts of public power, as evidenced by the fact that lawsuits against the government rarely succeed, [because] judges sometimes do not decide cases on the basis of the law, but on the basis of official instructions. After years of this, why should ordinary people have faith in the law? Why shouldn’t officials see the legal system as their plaything? We often say that the administration of justice is the baseline for fairness, but then why are there judgments that pervert the law and interference in the administration of justice? Doesn’t this show that society still suffers from the stubborn disease of authority being above the law?

Such stubborn diseases must be eliminated, even if it means paying a high price. For if authority being above the law is allowed to spread further, [the idea of] “society under rule of law” will be reduced to nothing but a tattered fig leaf, and the resulting weakening of social restraint will be a cost far greater than that which accompanies curing a stubborn disease. In fact, “supremacy of the law” is only the essence of a society under rule of law, something that could not be more a matter of common sense. That it sounds so enlightening when uttered by the premier just shows how lacking we are in common sense. We should reflect on why a truly common faith in the law has not yet been established. Why is the administration of justice faced with all sorts of constraints? Why is the legal system itself designed in ways that do not fully adhere to legal common sense? In analyzing this question, we cannot simply look at external factors but must examine internal ones as well. More effective construction of rule of law, opening up the legislative process and oversight of the law, and promoting a democratic judicial system—all of these would be welcome measures.

The “supremacy of the law” of which Premier Wen spoke is one founded on the premise of a rule of law. Some intentionally twist the phrase to mean that the law is so supreme that it does not have to consider or care about anything else. This is clearly an unreliable interpretation. Premier Wen’s “supremacy of the law” is one in which laws must be observed, one in which there is respect for the law—and especially respect for good laws. This does not mean that all laws are legitimate and constitutional: the former system of “custody and repatriation” is a classic example of a bad law. In addition, recent years have witnessed the phenomenon of “departmental legislative guidance” in the legislative process, something that needs to be guarded against. Government ministries, commissions, and departments that are prevented from participating in the drafting of legislation concerning them have not only insisted on participating but have even played a leading role in guiding the legislative process, with the result that too many departmental interests are manifested in the laws themselves, to the detriment of the public interest. These kinds of laws are the result of a closed-door legislative process, one that ultimately leads to social injustice and hinders the establishment of judicial authority.

“Supremacy of the law” tells us that we must establish faith in the administration of justice in all sectors of society. In order to establish such faith and give the justice system the authority to oversee all matters, we must further reform the external and internal environment for the legal system, curb inappropriate interference in the administration of justice, and promote a democratic judicial process.