Wednesday, October 26, 2011

As Execution Reports Decline, Law Expert Challenges "Secret" Status

In 2010 Dui Hua recorded 700 Chinese executions in a systematic review of open-source materials for the year ended September 30. This year the same research methodology showed a 35 percent decline in reported executions. Neither figure comes close to the actual number of executions in China, which is a closely guarded state secret.

Does this mean that China has curbed its use of the death penalty?

Not necessarily. Amnesty International estimates that China put “thousands” to death in 2010, and there is little reason to expect a change of more than 10 percent from Dui Hua’s 2009 estimate of about 5,000 executions, a number that the government has neither confirmed nor denied. (A source in China’s judiciary recently advised a Dui Hua staff member that the number of executions had in fact decreased in 2011. The source, who is believed to have access to the actual number of executions, declined to give a percentage for the decrease.)

A public sentencing in Chengdu in 2010. Some were sentenced to death.
Photo credit: Beijing Morning Post

Given this and strict media controls in China, the 452 executions recorded during the past year serve as a minimum number for comparison and a bleak reminder of how little is known about the death penalty in China.

Open Secret

Chinese media reported fewer executions over the past year but published no shortage of articles on the death penalty itself. Controversies surrounding several notorious cases and the decision to reduce the number of capital offenses contributed to an ongoing public discussion about the death penalty and its place in the criminal justice system.

Capital punishment is rather unique among controversial criminal justice issues in that it has garnered relatively wide-ranging and sustained public debate involving a diversity of viewpoints. One subject that has been raised periodically is whether China is justified in its policy of refusing the public’s right to know how many people it puts to death.

Although the Chinese public is often described as favoring capital punishment, they don’t necessarily favor the secrecy that surrounds it. According to a general survey of Chinese attitudes towards the death penalty conducted in 2007 and 2008, 64 percent of respondents thought the government ought to reveal execution numbers.

After much debate, Li Changkui was sentenced to death by the
intermediate court. Photo credit: Yunnan Intermediate People's Court
Writing in support of this view in a commentary recently published by Guangzhou’s Southern Metropolis Daily, Peking University law professor Zhang Qianfan rejects the government’s legal basis for classifying execution statistics as state secrets. Noting heated debate sparked this year by the capital cases of Yao Jiaxin and Li Changkui, Zhang argues that the public cannot speak rationally about abolition, or other topics, with little access to anything but sensational reports. Zhang calls for increased transparency in the number and nature of China’s death sentences.


Death Penalty Numbers Are Not “State Secrets”
Zhang Qianfan, Southern Metropolis Daily
September 9, 2011

Recently, the Yao Jiaxin and Li Changkui cases have generated heated debate over abolition of the death penalty and put the ongoing reform of death penalty sentencing in a difficult position. Actually, both cases involve extremely heinous circumstances that gave rise to considerable public anger. So in terms of a general discussion of whether to abolish capital punishment, they are not representative, and thus not sufficient to stop the general reform of the death penalty.

With these two extreme cases as a backdrop, people have at most been discussing the question of “whether extremely heinous murderers should be spared the death penalty.” But each year there are only a handful of cases like these that become the subject of widespread public attention—what about other death sentences? Even people who support the death penalty for Yao Jiaxin and Li Changkui won’t necessarily oppose sparing the lives of offenders [if] the circumstances of their crimes are not as horrifying, and not to mention, of course, those who have been wrongly convicted. This raises the question: just how many death sentences do we have every year? What kinds of cases are they? When the criminal law currently requires the death penalty with immediate execution for so many cases, can the public accept a decision to forego immediate execution? Without knowing so many of these basic facts, any so-called “discussion” about abolition of the death penalty can be little more than an emotional reaction.

But not only do we not open death penalty sentencing to the public—even the number of death sentences is a closely guarded secret. Everywhere the number and nature of executions are spoken about only vaguely, even to the point that the number of death sentences is called a “state secret.” What is the so-called “state secret”? To answer this, I purposefully read the Law on the Protection of State Secrets that was just amended last year, in which Article 9 sets the following condition for protecting secrets: “Any matter concerning state security or interests that, if leaked, might damage the security or interests of the state in areas such as politics, economics, defense, or foreign relations shall be classified as a state secret.” What sorts of things, specifically? Poring over the six items [enumerated under Article 9], the only things I found of any relevance were Item 1, “secret matters of major policies related to national affairs,” and Item 6, “secret matters related to activities for the protection of state security and the investigation of criminal offenses.” But can such a small thing as the number of death sentences amount to “major policies related to national affairs”? Can revealing this number, the result of proper court adjudication, be a “secret matter related to the protection of state security and the investigation of criminal offenses”? Even if these two [provisions] are themselves more than a little “flexible,” to use them to determine that the number of death sentences amounts to a “state secret” is clearly a “stretch” of the imagination.

Of course, no Chinese law would be complete without a “pocket clause.” Besides the six items mentioned above, there is a last item: “other secret matters that have been classified by the state secrets administration agency.” This “state secrets administration agency” must mean the State Bureau for the Protection of Secrets and not any other central offices or local agencies for the protection of secrets. For the time being, let’s not say whether the State Bureau for the Protection of Secrets has officially classified the number of death sentences as a “state secret”; even if it had it would not be etched in stone and beyond question. Clearly no office or individual can unilaterally say what constitutes a “state secret”; it must meet legal conditions, the least of which is the precondition in Article 9 of the Law on the Protection of State Secrets: [namely, that] “if [the matter is] leaked, [it] might damage the security or interests of the state in areas such as politics, economics, defense, or foreign relations.” Can “leaking” the number of death sentences really damage the political, economic, or diplomatic “security or interests” of China? Will it give others a way to attack our “human rights situation”? This kind of “pretext” might, in certain people’s eyes, “damage China’s image,” but, in fact, as far as China’s “security and interests” are concerned, there is no harm and many benefits. When you come right down to it, human rights are our own, our lives are our own. If making the number of executions public can provide a factual basis upon which to have a rational discussion about the abolition of capital punishment and reduce the number of unnecessary death sentences, the Chinese people themselves should be happy—what’s the point in worrying about what others think or say?

Although the Regulations on Disclosure of Government Information have been in force for nearly five years and the Law on the Protection of State Secrets has narrowed the scope of “state secrets,” there has been no fundamental change in the reality that “state secrets are everywhere you look.” Officials at all levels can easily put a “state secrets” stamp on any information they are unwilling to make public, causing the public discussion of serious issues to lose basic, factual foundations. The number of death sentences and executions is a classic example. Even though judicial information is not necessarily subject to information disclosure regulations, it is information that the public has a right to know since it does not qualify as a “state secret” under the Law on the Protection of State Secrets, and no agency has the right to refuse to reveal this number. Only when the number of executions is made public can China’s rational debate on abolition of the death penalty begin.

The author is a professor of constitutional law at Peking University.