Monday, December 13, 2010

Translation & Commentary: “Can Having a Lawyer Present for Interrogations Eliminate Torture?”

In its “National Human Rights Action Plan” for 2009–2010, China asserted its commitment to eliminate torture in its criminal justice system, something UN Special Rapporteur on Torture Manfred Nowak had described as “widespread” in an interview with Dui Hua following his visit to the country in 2005.

Over the past year, China took a significant step forward in the direction of combating torture by issuing two sets of detailed rules governing the exclusion in criminal trials of evidence obtained through illegal methods. While these rules provide further proof of China’s commitment to protecting the rights of criminal suspects, observers have pointed out that thorough implementation and further steps are needed before this commitment can be turned into action.

Ensuring a suspect’s right to legal counsel at all stages of the criminal investigation process is one such further step that experts cite. So, it was welcome news to see last week that prosecutors in Beijing have launched a pilot program to allow certain criminal suspects to request a lawyer’s presence during questioning carried out by investigators. The move marks another small sign of progress along China’s path towards procedural justice.

However, as legal commentator Xu Mingxuan notes in a Beijing News opinion column (translated below), the narrow application of these new measures in Beijing makes it unlikely that they will have much of a direct impact on preventing torture. For one, the rules only apply to suspects not being held in custody, a small group in a country where bail is not widely used.

Moreover, it is the initial stage of police investigation (rather than the secondary stage of investigation by prosecutors), where the danger of torture is perhaps greatest. And this danger is not limited to the interrogation room, since most criminal suspects are detained in police-run detention centers, where they appear to be most vulnerable to torture.

As Xu rightly points out, it is the “confession-centric” mentality in China’s criminal justice system that needs to change. Only then are we likely to see measures designed to protect suspects’ procedural rights truly take hold.


Can Having a Lawyer Present for Interrogations Eliminate Torture?
Xu Mingxuan
Beijing News
December 7, 2010

     Recently, the Beijing Municipality Procuratorate Second Division issued [a set of] “(Provisional) Rules for Lawyers to be Present During Interrogations.” According to reports, criminal suspects in cases in which the suspect is not being held in custody may request the presence of a lawyer at the time of interrogation. This is understood to be the first such initiative by a Beijing procuratorate, one that will gradually be expanded to include cases involving offenses by juveniles, foreigners, and individuals from Hong Kong, Macau, and Taiwan.

     Even if you’re still unfamiliar with the phrase “lawyers being present during interrogations,” surely everyone must be familiar with lines like “I have nothing to say without an attorney present” from European and American movies. This is the “right to have a lawyer present,” one of a criminal suspect’s procedural rights. The right to a lawyer’s defense and presence is, in essence, an extension of citizens’ private rights, a [way of] monitoring public authority and an effective way to prevent extraction of confessions through torture and miscarriages of justice.

     For various historical reasons, the Criminal Procedure Law that China established 14 years ago has no provision for the right to have a lawyer present. On the contrary, there is actually a provision for a “right to have law enforcement organs present.” ([According to Article 96,] “When a lawyer meets with a criminal suspect in custody, the investigation organ may, in light of the seriousness of the crime and when it is deemed necessary, send personnel to be present at the meeting.”) Many miscarriages of justice have been caused by the absence of various procedural rights in [China’s] criminal procedure system. If he had had a lawyer present, would She Xianglin [link] have been tortured and beaten until he confessed? Or take the case of Xiao Chuanguo’s hiring of thugs to attack Fang Zhouzi [link]. The facts in this case were quite clear, with a clear distinction between right and wrong. But foreign media reports deliberately emphasized that Xiao Chuanguo had made his confession of guilt without having a lawyer present. This shows that having a lawyer present during interrogations by law enforcement bodies is something that all countries recognize as a part of rule of law. Without such a system in place, no matter whether substantive justice is achieved one will be unable to avoid criticisms about procedural injustice.

     In fact, even though China’s criminal procedure legislation is relatively lagging, it doesn’t mean that nothing can be done in law enforcement practice. Several years ago, the Procedural Law Research Institution at China University of Political Science and Law received funding from the United Nations to launch a pilot program at the Haidian Branch of the Beijing Public Security Bureau in which police in selected cases were required to notify a lawyer to appear during initial questioning of a suspect. This pilot program had a positive social impact. The Beijing Municipality Procuratorate Second Division’s current launch of a system for lawyers to be present during interrogations is [an example] of China’s gradual, one-step-at-a-time progress in rule of law.

     The real reason that it has been so difficult to realize the right to have a lawyer present is the question of whether the investigating organs (public security bureaus or procuratorates) dare to accept monitoring by lawyers and shine a light on the way that cases are handled. Only by establishing the right to have a lawyer present can we abandon the longstanding “confession-centrism” of China’s law enforcement system. Shifting investigators’ focus to physical evidence and other technical evidence will destroy the institutional space in which coerced confessions and the use of violence to extract confessions can exist.

     Though this pilot effort by the Beijing Municipality Procuratorate Second Division is worthy of praise, one should recognize that the limited scope of this program means that the impact of lawyers being able to sit in on interrogations is not great. The pilot project only covers the phase in which procuratorates are carrying out their investigation [in preparation for] indictment, and lawyers cannot sit in on interrogations of suspects carried out by the police. There remains a considerable distance from standard international practice. As far as application is concerned, [the rules] are only to be used for suspects who are not being held in custody. In law-enforcement practice, most cases in which suspects are not being held in custody involve those with a good attitude toward acknowledging guilt, those facing relatively light charges, or cases involving little disagreement [over the charges]. Even if lawyers [are allowed to] sit in on interrogations [in such cases], it would be extremely difficult for lawyers to play their role in protecting human rights and eliminating confessions extracted by torture or inducement.

Wednesday, December 8, 2010

Translation & Commentary: More Than A Decade After “Hooliganism” is Abolished, One Hooligan’s Re-incarceration Sparks Debate

On December 1, the Legal Evening News published a profile of the prisoner Niu Yuqiang under the title For a Hat, He Becomes China’s Last “Hooligan.The paper reports that Niu, a Beijing native, was arrested in 1983 for stealing a cap and engaging in a brawl, convicted of hooliganism, and sentenced to death with two-year reprieve. The sentence was eventually commuted to a fixed term of 18 years, and Niu was sent to prison in the Xinjiang Uyghur Autonomous Region—a destination roughly analogous to Siberia in Soviet Russia—to serve his sentence.  After six years in the Xinjiang desert, Niu developed tuberculosis and was returned to Beijing on medical parole for treatment. 

Niu quickly recovered enough to return to prison, but owing to a bureaucratic miscommunication, he was not taken into custody. So, for the next 14 years, Niu continued to reside in Beijing and dutifully fulfilled the terms of his parole, checking in with his probation officer every month and refraining from seeking employment. In 1997, the Criminal Law was revised, and the charge of hooliganism was abolished. Nonetheless, in 2004 the slow wheels of bureaucracy turned once again, and the Xinjiang authorities came to re-incarcerate their absentee charge.  At the time, Niu was informed that his sentence would expire in 2008, but after he was returned to custody, authorities declined to credit him the time served on medical parole and modified his sentence expiration date to 2020, which would reportedly make him China’s last remaining hooligan.

Since it was first published in the Legal Evening News, Niu’s plight has been spotlighted in the Yangcheng Evening Post and other papers. The Global Times, an English-language paper under the People’s Daily, has since run a story claiming that Niu received several sentence reductions that were not reported in the original Chinese coverage. An editorial  by Yu Ge (translated by Dui Hua below) appeared on the opinion page of the Xinkuai newspaper on December 4. It gives a succinct overview of the case and touches on many of the talking points that grip discussion of the criminal justice system in contemporary China.

Instances of perverted justice in China that have lately drawn the loudest public outcry typically involve official abuses of power—such as the case of Deng Yujiao, a 21-year-old hotel waitress who stabbed a Party member to death as he allegedly tried to sexually assault her—or laughable government prevarications—like the recent claim by the Public Security Bureau in Maoming, Guangdong Province that a prisoner died of suffocation under his quilt (“death by quilt” is only the latest addition to a macabre catalogue of “unnatural deaths” in detention).

Niu’s case is noteworthy in that the official account involves neither charges of corruption nor cover-up. The issues at hand are actually quite dry: bureaucratic miscommunication and procedural questions about the law. In his editorial, however, Yu Ge can’t resist trying to portray Niu as a foil to Lin Jiaxiang, a licentious official who made headlines after a video was released in which he attempted to molest an 11-year-old girl in a restaurant and then, when challenged by the girl’s parents, admitted to the charges and attempted to bribe and threaten the family. 

Many commentators worry that the focus on individual cases—and the Internet mob justice that often accompanies it—has a deleterious effect on efforts to promote rule of law in China. It is heartening to see, then, that Yu Ge’s editorial weighs seriously the importance of legal procedure and makes an appeal for Niu’s release that is grounded in jurisprudence. Yu’s argument is two-fold: First, because Niu reported to his parole officer during his medical parole, he was in fact fulfilling the legal obligations of his sentence and should not be penalized for the ineptitudes of prison officials. Second, although hooliganism is a criminal charge, it is rooted in a moral authoritarianism and incompatible with modern rule of law. To make the point, Yu references two notorious cases in which individuals were charged for hooliganism for dancing and watching banned movies.

While Yu emphasizes moral authoritarianism, he glosses over the degree to which the charge of hooliganism has traditionally also been a catch-all used to silence political dissent.  Dui Hua has records of dozens of prisoners who were charged with hooliganism in connection with June Fourth, many for their involvement with labor disputes in the spring of 1989. The longest-serving June Fourth hooligan on record, Liu Zhihua, was released only last year. 

Like hooliganism, the other charge most often applied to June Fourth dissidents—counterrevolution—was also replaced during revision of the Criminal Law in 1997. However, a new crime—endangering state security—that covered most of the offenses previously considered to be counterrevolutionary was legislated at the same time. So while the excesses of the strike hard campaigns have unquestionably given way to a more just legal system in China, laws that stifle dissent remain very much an acute problem. Or, as Yu Ge comments in his closing, “Under the long arm of the law, the Niu Yuqiangs of the world have merely put on a new face, a new criminal name.”


The Abolished Crime of Hooliganism and the Liberation of the Hooligan
Yu Ge
December 4, 2010

        Today, the crime of “hooliganism” and its associated cases seem like black humor from the dimly-lit past. Who knows how many unlucky bastards have been reduced to tragicomedy [by it]. This joke, cooked up by a government authority both imperious and hypocritical, has yet to come to an end. The latest protagonist in this drama is a man from Beijing named Niu Yuqiang, who in his youth became entangled with the crime of hooliganism, from which he has suffered a string of misfortunes. Even years after the crime of hooliganism has been abolished, he is still paying the price for that absurd period in history.
Internet discussion

Waste of prison resources

Netizen: Hooliganism is no longer a crime. What educational use can there be in jailing this so-called “hooligan” Niu Yuqiang?  How does this prevent crime? It merely wastes prison resources and deprives one more person of his liberty.

How can one have faith in a law without mercy?

Netizen: We should not forget Aquinas’s dictum: the reason people have faith in the law lies not in its severity and impressiveness, but in its mercy. Shouldn’t the mercy of the law shine on Niu Yuqiang? Regardless, to have individuals serving heavy sentences for a crime that has long since been eliminated leads to doubt about the principle of statutorily prescribed punishment for specific crimes [a core concept of civil law systems].


When hooliganism encountered “strike hard”

      Niu Yuqiang’s sad history has two key terms, like indelible scarlet letters: hooliganism and “strike hard.” First, for the second term: Born at the wrong time, Niu Yuqiang came up against the 1983 “strike hard” [campaign]. According to the criminal verdict of the Beijing Intermediate Court, one day in May (the exact day was not written, showing the degree of omission) Niu Yuqiang and some friends stole a passerby’s hat in Beijing. Niu Yuqiang and his buddies also got into a fight with another group, injuring the other party, though the verdict provides no medical verification of this. Based on the facts of these two crimes, Niu Yuqiang was convicted of hooliganism and sentenced to death with two-year reprieve.
      Heavy sentence aside, everyone knows that during the “strike hard” period, so-called statutory punishments were just cheap window-dressing. Times of chaos call for harsh punishment, and penalties have a way of snowballing: better to kill a thousand innocents than to spare one guilty man. This causes one to puzzle about the crime: how do Niu Yuqiang’s actions relate to hooliganism? Seen from the perspective of contemporary law, even if you twist the law and treat it as an assault, it would be more in accord with legal logic.

        Returning to the crime of hooliganism: According to the research of the eminent scholar Zhu Dake, “hooligan” [literally, “wandering commoner” in Chinese] originally referred to people who had lost their physical or spiritual home. Its connotations gradually narrowed over time until it finally came to take on a morally negative [overtone], [as] those rejected by the home state, and became a criminal charge and entered the law. In 1979, New China’s first Criminal Law was born, with Article 160 specifying the crime of hooliganism: “Where an assembled crowd engages in brawls, creates disturbances, humiliates women or engages in other hooligan activities that undermine public order, if the circumstances are flagrant, the offenders shall be sentenced to fixed-term imprisonment of not more than seven years, criminal detention or public surveillance.”

        From reading the law you can clearly see why Niu Yuqiang was charged with hooliganism: He stole a hat, which falls under the category of creating a disturbance, and engaged in a gang fight, which falls under the category of brawling.

        At that time, hooliganism was an ill-defined, catch-all crime. It didn’t matter whether it was carrots and cabbage or rotten melons and messy dates, everything fit [into it]. Looking at cases from the time, one finds a guy who was convicted of hooliganism for drinking too much and taking a leak on the side of the road and a kid deemed a hooligan after a friend dared him to kiss a girl on the lips.

        There were two well-known hooligans at that time: one was a woman from Xi’an named Ma Yanqin who was considered to be a loose woman because she loved to dance and the other was the “cheek-to-cheek dancing, banned-movie-watching” singer, Chi Zhiqiang. The crimes of these two, judged today, would not only not be criminal, but wouldn’t even merit a moral dressing down by the average person on the street. These things are no longer considered out of the ordinary. Judged by the standard used for Chi Zhiqiang, then those like Edison Chen [the Hong Kong pop star who made sex tapes with many celebrities] should be executed ten times over.
        At that time Chi Zhiqiang received four years in prison, and that was because he was shown mercy; Ma Yanqin was sentenced to death.
        If “strike hard” was political authoritarianism, then hooliganism was moral authoritarianism. The two poisons ran together, scorching the earth. Mao Yanqin’s wronged ghost and Chi Zhiqiang’s lost freedom are heaped on the graves of the innocent.
China’s last “hooligan”

        Niu Yuqiang’s sorrows need not be repeated. He was lucky in that he was not sentenced to death and immediately executed but was granted a two-year reprieve, thereby saving his life. At the end of 1984, Niu Yuqiang, not yet 20, was sent to Xinjiang’s Shihezi Prison to serve his sentence. After this, his suspended death sentence was converted to a life sentence, this was again reduced to a fixed-term sentence of 18 years, and then he was released on medical parole. Niu Yuqiang’s fate gradually became more tranquil.
        Bizarrely, in November 1990 Niu Yuqiang was sent to Beijing for medical treatment because he was suffering from tuberculosis. The next summer, the Xinjiang prison sent a team of inspectors, who assessed [Niu’s] condition and decided that his [medical] parole should continue for another year. However, for several years afterward, the prison never bothered about him again.

        In 1997, Niu Yuqiang got married and started a family. As it happened, that same year the Criminal Law was revised and the crime of hooliganism that had been haunting him was finally eliminated. One might say [Niu] was doubly blessed.

        But in the summer of 2004, fate took a turn for the worse and Niu Yuqiang was forced to return to prison for a second time. It turns out that during his medical parole period the prison had sent multiple letters and contacted Beijing police requesting that [Niu] return to prison. They even posted two warrants for Niu Yuqiang’s arrest online, classifying him as a fugitive. After his arrest, the police said that Niu Yuqiang’s original sentence would expire in April 2008. Soon after, they changed their tune: since Niu Yuqiang had not returned from medical parole in a timely fashion, they determined that his prison term would be extended from his original release date of April 28, 2008, to April 28, 2020.

        Now, Niu Yuqiang is still serving his prison sentence for the crime of hooliganism 13 years after that crime had been abolished. He can thus be called China’s last “hooligan.”

        From this disputes arise: Should Niu Yuqiang serve his sentence, and what crime is he serving a sentence for?

        First, according to Article 12 of the Criminal Law, any judgment that was made and became effective before [the 1997] law took effect shall remain valid according to the laws in force at the time. So, even though to a contemporary viewer hooliganism is like the binding of women’s feet, something long since cast into the dustbin of history, bad law is still law and the absurd verdict against Niu Yuqiang remains valid. Hooliganism is a political relic, and Niu Yuqiang and the law have intertwined fates, dogmatic and cruel [as that may be].

        Second, how was Niu Yuqiang’s sentence calculated? I believe this is actually the crux [of the issue]. Here it should also be said that when we say that bad law is still law, we are referring to the form of the rule of law, not its substance.  We must be at our most conservative in our attitude of defending the form of the rule of law, but we must be at our most radical in daring to pursue its substance.

        As I see it, the 14 years that Niu Yuqiang was on medical parole from 1990 to 2004 should be factored into his sentence.  This is because, for one thing, although Niu Yuqiang does bear responsibility for not returning to finish his sentence, the responsibility borne by the police is even greater. For another thing, during the period of his medical parole, he carried the obligations of his crime: such as going with his father to the police station at the beginning of every month to report his thoughts and activities. By law, a criminal may not engage in activities other than medical treatment while on medical parole, so he did not go out and seek employment. If this is the case, I agree with the original police assessment that Niu Yuqiang’s sentence expired in April 2008.

        After May 2008, every day that Niu Yuqiang is imprisoned is another mark of shame for Chinese law, and for each of these days government authority must foot the bill for a new crime. We look forward to Niu Yuqiang’s early return to freedom and also the compensation he can seek from the State Compensation Law for the freedom he lost.
Hooliganism abolished, hooligans freed

        In 1997, the crime of hooliganism was eliminated, and distributed among the crimes of engaging in a crowd brawl (Article 292) and causing a serious disturbance (Article 293). But although hooliganism was abolished, the philosophy of criminal law is unable to set aside the lens of morality. Criminalizing morality, like criminalizing speech, has not ended. Under the long arm of the law, the Niu Yuqiangs of the world have merely put on a new face, a new criminal name. Those being wronged are still being wronged, and those who act with impunity still do so. The latter is represented in Lin Jiaxiang [A senior government official who was caught on tape after allegedly attempting to molest an 11-year-old girl in 2008].

        So, it is premature to declare that Niu Yuqiang is China’s last hooligan. Hooliganism is not like the mythical dragon, slain once, but like the hydra which will not be killed. When one punishment dies, another grows in its place.