Monday, December 19, 2011

The Right to Seek Pardon: From Constitution to Procedural Law

Professors and researchers from China University of Political Science and Law at a forum on Criminal Procedure Law revision and procedural control of the death penalty, September 2011. Photo credit:
A group of legal scholars from China University of Political Science and Law (CUPL) has recommended adding a provision to the Criminal Procedure Law to give people sentenced to death the right to seek pardons, according to a Legal Daily report. The recommendation was included in a submission made to the National People’s Congress during the period of public comment (August 30–September 30, 2011) on a draft revision of the law.

Supporters say the proposal would “mobilize” long-dormant constitutional provisions, help limit use of the death penalty, and put China’s criminal justice system more in line with the International Covenant on Civil and Political Rights (ICCPR). China signed the ICCPR in 1998 but has yet to ratify.

Dusting Off the Constitution

Mechanisms for the pardon of specific prisoners, as opposed to general amnesties, already exist in China’s constitution. They authorize the Standing Committee of the National People’s Congress to make pardon decisions that are then issued by the head of state. In 1959, tens of thousands of prisoners were released or had their sentences reduced in a pardon commemorating the 10th anniversary of the founding of the People’s Republic of China. Six more pardons were carried out between 1959 and 1975, but no Chinese leader has issued a pardon since the death of Mao Zedong.

There have been several proposals to initiate special pardons in recent years, for example to commemorate the 2008 Beijing Olympics and the 60th anniversary of the founding of the PRC. Though these proposals generated interest from legal scholars, legislators, and members of the general public, they did not succeed in reviving the practice.

Wu Hongyao, an assistant professor at CUPL and person responsible for the group advancing the proposal on pardons, recommends that a new provision to the Criminal Procedure Law put forth the following procedure: after authorizing a death sentence, the Supreme People’s Court should notify individuals of their right to apply to the Legal Committee of the National People’s Congress for pardons. If an individual decides to apply, then the president of the Supreme People’s Court should delay signing their execution warrant until a decision is made.

International Standard

Wu argues that instituting a pardon mechanism for death penalty cases is part of China’s obligation under the ICCPR. Article 6.4 of the covenant stipulates that “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.” Though China has not yet ratified the ICCPR, as a signatory it is required to take legislative steps to implement the rights provided therein. Wu contends that since China will eventually ratify, the question of pardons for death-row prisoners is one China must eventually face.

Pardons are a “political remedy that exists outside the judicial process,” says CUPL researcher Luo Haimin. They allow judicial outcomes to be adjusted in ways that realize political or diplomatic interests without directly manipulating the judicial process. Luo says that pardons might best be used in cases where the death penalty is indicated as a matter of law but that the interests of the state or society would be better served by not carrying out an execution. One example she gives is the case of Lai Changxing. The Canadian government delayed his extradition to China for more than a decade over concerns that he would face the death penalty if convicted of the corruption charges against him.

Pardons could also solve the problem of dubious convictions that present no legal basis for retrial, argues CUPL lecturer Fang Peng. To illustrate his point, Fang mentions the execution of Nie Shubin for a crime he didn’t commit and blanket clemency granted by former Illinois Governor George Ryan in 2003. Governor Ryan pardoned all 156 people on Illinois’ death row stating that it was impossible to guarantee that no innocent person would be put to death.

Though Fang considers the US system of executive pardons an effective means of restricting capital punishment, he is quick to point out that what’s being contemplated in China is “certainly different” and acknowledges that details remain unclear.

Overall, proponents of making pardons available see their proposal as part of a longer process of reform aimed at reducing China’s use of capital punishment—Dui Hua estimates that China will execute 4,000 people in 2011 alone. Though their proposal may not be embodied in the next draft of the Criminal Procedure Law, it represents a first step that could garner public support for future reform.

Monday, December 5, 2011

Can Beijing’s “Black Security” Crackdown Protect Petitioners?

Police in Beijing have launched a six-month campaign to crack down on illegal behavior of the city’s security companies. The campaign claims “zero tolerance” for security contractors involved in “petitioner interception” and “black jails;” however, this involvement is generally sanctioned by local governments keen to keep petitioners out of the capital.

Though long denied officially, the illegal detention of petitioners has been of increasing concern among the Chinese public since the end of 2009. At that time, an in-depth report revealed the role played by local government contractor Anyuanding in the detention, incarceration, and transport of petitioners, resulting in widespread condemnation and a criminal investigation. Partly to curb the abuse of petitioners, Beijing has taken steps to reduce the presence of local “liaison offices” in the capital, but pressure on local governments to “preserve stability” has made it difficult to protect petitioners’ rights.

On December 2 the lead editorial in The Beijing News (translated below) welcomed the announcement of the crackdown but warned that security firms must be held thoroughly accountable, with personnel at all levels punished for their involvement. The editorial also places special emphasis on the need for transparency, urging not only that details of the extent of illegal activity be made public but that police report fully on how they deal with offenders.

Transparency is important partly because, until recently, China’s security companies were monopolized as the revenue-generating ventures of local police. On January 1, 2010, however, new State Council regulations took effect to prohibit police from running security companies, while giving them administrative oversight of the industry.

Yet this Caijing article from April 2011 makes clear that police have had a hard time giving up their monopoly. Police in many areas have apparently been using oversight and registration controls to form patron-client relationships with security companies—some of which may be indistinguishable from companies once run by police. Under these circumstances, it seems natural for The Beijing News to highlight transparency as Beijing probes “black security.”

Rooting Out “Petitioner Interception” by Security Firms Requires Lawful Punishment
Editorial, The Beijing News
December 2, 2011

How to protect the bottom line that security firms must not participate in “petitioner interception”? Besides a concentrated clean-up and crackdown, it is also necessary to punish involved security companies and personnel in accordance with the law.

According to reports in The Beijing News, Beijing police announced on November 30 that they would be carrying out a six-month campaign to clean up and restore order to Beijing’s security industry, focusing on six types of illegal behavior by security guards. Among them, particular emphasis was placed on strictly prohibiting security service companies from involvement in “petitioner interception” and strictly prohibiting the illegal restriction of the personal liberty of others. Until February of next year, Beijing security guards must carry their security-personnel ID while on duty in an effort to achieve zero tolerance of “petitioner interception” and illegal acts by security service companies.

Now, the security industry certainly needs to be cleaned up and order restored. Targeting “petitioner interception” and other illegal acts by security guards and setting a zero tolerance goal for “petitioner interception” is in line with public opinion and deserves recognition.

Last year, it was revealed that the Anyuanding Security Company took deposits from some local governments to set up several “black jails” and intercept and lock up petitioners. Then in September of this year, Zhao Zhifei, a tourist who came to Beijing from Henan, was mistaken for a petitioner [resulting in] a dozen or so “black security guards” barging into his guesthouse in the middle of the night and escorting him the same night to a town government in Henan. The participation of these “black security guards” in “petitioner interception,” with its illegal detention and pummeling of citizens, not only infringes on the freedom of citizens but also sullies the image of the capital and ought to be punished severely in accordance with the law.

Before, Beijing police have also made many efforts to combat “black security.” For example in July of this year, they discovered and closed one “black jail” and rescued the people being held there illegally, the oldest of whom was 81 and the youngest of whom was still nursing!

This time, a person responsible said that the reason this campaign has set a zero tolerance goal for “petitioner interception” is to remind companies in the industry not to cross the line. How can this “bottom line” be adequately protected? Besides a concentrated clean-up and crackdown, it’s also necessary to punish involved security companies and personnel in accordance with the law.

First, security companies that violate the law should receive appropriate punishment and those that need to be shut down should be shut down. The Security Services Management Regulations issued by the State Council in 2009 stipulate that the security industry must strictly examine and approve entrants. Public security organs are only responsible for the examination and approval of security guards and companies, and management mechanisms have been rationalized. At the same time, the Measures for Implementation of Security Services Management Regulations for Public Security Organs contain explicit provisions for the daily management and punitive measures of security companies. For example, if security companies “instigate or condone security guards’ obstruction of law enforcement, participation in debt collection, or resolution of conflicts through violence or threats of violence,” they can be shut down. This is an important way to achieve “zero tolerance.”

Second, all personnel involved in a case should be punished in accordance with the law to intimidate other violators. When “black security guards” commit acts like intercept petitioners and take people into custody, they are suspected of a crime. Based on relevant judicial interpretations, when an illegal detention lasts for more than 24 hours there should be criminal liability. Clearly, the personnel in charge of the security company as well as guard, support, and other staff all fall under [the category of] accomplices to the crime of illegal detention and should all be investigated. When “black security guards” beat petitioners or steal property, it should be treated as intentional assault, robbery, and so on.

Moreover, fixing [the problem of] “black security” should be open and transparent, giving the public sufficient information. Some cases of “black security guards” intercepting petitioners have such a negative impact that providing the public with the circumstances and developments of the case will restore government credibility. For example, the police have already begun investigations into a group of “black security companies” including Anyuanding and relevant persons in charge have been detained. How the cases are currently progressing; what stage has been reached in the judicial process—the public is actually extremely interested to know this information. Revealing the details of the cases can also better show the resolve of police to combat “black security.” Through these cases, those black security companies that continue to illegally do wrong can be warned and supervision of the entire society can be reminded.

[We] hope, in the course of this six-month campaign, that some “black security” companies are shut down because of it and the relevant people responsible are held accountable in accordance with the law. Otherwise, it will not be enough to intimidate violators and it will not be enough to promote the righteousness of the capital.