Tuesday, February 21, 2012

Universal Human Rights Should Trump the Politics of “the People”

How much difference can two Chinese characters make to the impact of legislation? Considerable difference, according to recent commentary by Han Dayuan (韩大元), dean of Renmin University of China Law School, that looks at proposed changes to the Criminal Procedure Law (CPL).

Ever since the full text of a draft CPL revision was made public in August 2011, its content has been examined closely and debated vociferously within China. Supporters herald the legislation as a major improvement in the protection of rights, pointing to things like facilitating the work of criminal defense lawyers, formalizing procedures aimed at excluding evidence obtained illegally, and establishing new procedures for juvenile offenders. Critics, on the other hand, have raised concerns that the revision would greatly expand the power of investigators to abuse secret surveillance and to detain people without notifying their family.

More than 80,000 recommendations regarding the draft amended CPL were submitted to the National People’s Congress (NPC) Standing Committee during a one-month period of public consultation that ended September 30. At least some of these suggestions made their way into a second draft that was reviewed by the NPC Standing Committee in late December. Now, a final draft of the legislation is slated for review by the nearly 3,000-member NPC when it meets for its annual session, scheduled to open in less than two weeks.

Thus far, most of the discussion surrounding CPL revision has concerned specific changes to procedures or measures added to the legislation. But there are also many concerns about changes that haven’t been made.

For example, the drafts reviewed by the NPC Standing Committee do not change Article 1, the statement of the legislation’s purpose: “保护人民” [to protect the people]. In commentary published in Legal Daily last week, Han Dayuan recommends changing that purpose to “保障人权” [to protect human rights]. This change was included in each of the major revision proposals prepared by Chinese legal scholars after CPL revision was first placed on the legislative agenda back in 2003.

Professor & Dean Han Dayuan. Photo credit:
Renmin University of China Law Shool
Han believes the change would better reflect the spirit of China’s constitution—which was amended in 2004 to affirm the state’s role in respecting and safeguarding human rights—and highlight both domestically and internationally China’s existing achievements and future goals with regard to rights protection and rule-of-law development.

The change is also significant because in the Marxist-Leninist-Maoist political culture of China, all references to “the people” are implicitly exclusive of particular groups, e.g., the exploiting classes, counterrevolutionaries, and “enemies of the people.” Removing this political category from the CPL would imply that the rights and protections granted therein are universal, rather than selective.

Making the protection of human rights the explicit aim of the CPL would thus strike a symbolic blow against the kind of “dual track” criminal justice system that is being fostered in China, one in which procedural protections are extended in the majority of criminal cases but withheld in cases deemed threatening to sociopolitical order.

At this stage in the legislative process, a symbolic victory like an amendment to Article 1 may be more achievable than substantial changes to procedural provisions over which China’s law-enforcement stakeholders have already reached consensus. And for those who have been working to more firmly establish constitutionalism, rule of law, and human rights protection, a symbolic victory could set new standards for future legal reform.

Ultimately, however, the immediate impact of such a change would likely be only symbolic. What matters more as far as the protection of human rights is concerned is not the CPL’s programmatic principles but, rather, the concrete procedures and measures set out therein and the extent to which these measures are implemented. In evaluating China’s human rights situation, actions still speak louder than words.


Clarify Subject in CPL Draft Amendment, Article 1
Recommend Changing “Protect the People” to “Protect Human Rights”
Han Dayuan, Legal Daily
February 15, 2012

The 5th plenary session of the 11th National People’s Congress (NPC) will open on March 5, 2012, at which time the Draft Criminal Procedure Law (CPL) Amendments will be deliberated. This revision of the CPL adds many important items, including a prohibition on compulsory self-incrimination, and emphasizes the basic principle of protecting human rights. The number of articles that the draft adds or revises makes up around half of the total number of articles in the current CPL.

As a basic law of the state, revision of the CPL has always received widespread attention from all sectors of society, including legal scholars. Among the issues discussed most often is how to properly understand and handle the relationships between the CPL and the constitution and between punishing crime and protecting human rights. The basic idea behind the CPL should be adequate protection of human rights and effective crime-fighting. The content of the CPL should sufficiently embody the constitutional principles of protecting human rights, [developing] rule of law, and “dividing [the] functions [of the courts, procuratorates, and public security organs], each taking responsibility for its own work, and coordinating their efforts and checking each other.”

Generally speaking, the first article of a law expresses the purpose of that law, reflects its central values, and serves as a kind of summary of its essential points. Article 1 of the CPL draft revision states: “This law is enacted in accordance with the constitution for the purpose of ensuring correct enforcement of the Criminal Law, punishing crimes, protecting the people, safeguarding state- and public security and maintaining socialist public order.” In light of the relationship between the constitution and the CPL and based on the legislative purpose, I recommend that “protecting the people” in Article 1 be changed to “protecting human rights.”

Protecting Human Rights Embodies Constitutional Principles

The constitution is the founding law of the state. It carries supreme legal force and occupies the “leading” position in the socialist legal system wherein all laws and regulations should remain in accord with the constitution. This is why the majority of laws all say in their first articles: “This law is enacted in accordance with the constitution.” In his 2004 speech in Beijing commemorating the 50th anniversary of the establishment of the NPC, General Secretary Hu Jintao emphasized that to rule the country in accordance with the law means first ruling the country in accordance with the constitution and that to govern in accordance with the law means first governing in accordance with the constitution.

In 2004, China’s constitution was revised and “the state respects and safeguards human rights” was solemnly added to establish a national value system and set a basic standard for all acts of public authority. As a basic law meting out the specifics of the constitution, the CPL must obey the values of the constitution and give expression in its conception of values to the principles and spirit of the constitution, as well as establish institutions that respect and implement the provisions of the constitution. The relationship between the CPL and human rights is especially close, with the CPL having been called the “defendant’s charter of rights.” It should embody the requirements of the constitution and clearly provide for “protecting human rights.”

After the constitution was revised in 2004, the enactment and revision of laws must fully reflect the principle of protecting human rights. If the CPL were to announce “to protect human rights” as its legislative purpose, then it would be not only a major step forward for criminal legislation and the administration of criminal justice but also a concrete implementation of constitutional principles.

Though the phrase “to protect the people” that is stipulated in the current draft is premised on expressing the law’s affinity with the people, it is neither scientific legal terminology nor is it appropriate. “The people” is a political concept, not a legal concept. During different periods, the specific meaning of “the people” has varied depending on the historical period of the nation’s development. What human rights protects are “human beings.” Even defendants, criminal suspects, or criminal offenders—even offenders who have been sentenced to death—all enjoy certain human rights and there are some human rights that cannot be stripped away. When the constitution says that the state protects human rights, it means that the constitution protects not only the people but protects the legitimate rights and interests of criminal offenders, suspects, and defendants as well.

An important function of the CPL is to use procedural [norms] to safeguard the basic rights of specific groups. If we only write “to protect the people,” then it’s possible that other groups outside of the people will be left out, resulting in an incomplete level of protection by the state. Generally speaking, in the procedures of the CPL, those who are being prosecuted are clearly in the weaker category. Their human rights are easily infringed upon by the mighty power of state organs, and so they rightly ought to receive fuller protection under the CPL in order to realize the principle of all being equal before the law.

Protecting Human Rights Embodies the Spirit of International Covenants

A clear CPL provision “to protect human rights” would also help to express the spirit of international human rights covenants. China has already acceded to several international treaties related to criminal justice and has signed the International Covenant on Civil and Political Rights (ICCPR). A clear statement “to protect human rights” in Article 1 of the CPL would help link the legislation with human rights treaties, help the NPC Standing Committee to ratify the ICCPR, to reduce the legal and technical problems that might be faced at the time of ratification, to display China’s progress in rule of law, to avoid attacks by hostile forces against our human rights situation, and to effectively uphold China’s international image.

At the same time that we firmly establish “to protect human rights” as the legislative purpose of the CPL, I recommend that we also change the expression “to punish crime [and] to protect the people” to “to protect human rights [and] to punishing crime.” Punishing crime and protecting human rights are both of important significance, and both are goals for the CPL to realize. But protection of human rights is fundamental, and the goal of punishing crime is to protect human rights.

The phrase “to punish crime [and] to protect the people” carries the logic that the people are protected by punishing crime. Once “to protect the people” is changed to “to protect human rights,” the CPL will protect the rights of all people as human beings, not just protect the rights of the people from being infringed upon by criminal elements. The innocent must also be protected from prosecution and, even more, the lawful rights and interests of criminal suspects, defendants, and criminal offenders must be protected.

In sum, changing “to protect the people” to “to protect human rights” will help to embody the spirit of the constitution, to correctly reflect the positive achievements of CPL reform, and to highlight the progress of China’s human rights development and future goal of the development of rule of law.

Wednesday, February 8, 2012

State Security Stats Highlight Ethnic Unrest, Lack of Names

Growth in the number of “endangering state security” (ESS) trials concluded in the Xinjiang Autonomous Region (Xinjiang) provides evidence of a widespread crackdown on ethnic Uyghurs. The number of trials for the category of crimes often used to suppress speech, association, and assembly increased 10.11 percent year-on-year in 2011, up from 376 trials in 2010, according to the annual work report of courts in the region. (Note: There is not a one-to-one ratio of trials to defendants. Court data from 1998 through 2003 show that, for ESS crimes, there was an average of more than three defendants per trial in Xinjiang.)

In 2009, ethnic riots in Urumqi—during which the Chinese government says 197 people were killed—coincided with a more than 60 percent jump in the number of ESS trials concluded in Xinjiang. In 2011, tensions between Uyghurs, a Turkic-speaking Muslim ethnic group, and Han Chinese, China’s ethnic majority, continued to precipitate smaller scale protests and culminated in a regional “Religious Strike Hard Campaign” beginning on November 20. The campaign will continue until February 22, 2012, and local authorities intend to recruit 8,000 police officers to join “the auxiliary police and militia” in, among other things, “cracking down on illegal religious activities.”

The increase in ESS trials in Xinjiang also suggests that nationwide figures grew during the period. In 2009 and 2010, the change in the number of ESS trials in Xinjiang was indicative of nationwide trends (see chart below) because so many ESS trials occur in the region. Official statistics show that more than half of ESS trials (of first instance) took place in Xinjiang from 1998 through 2003.

Note: *For nationwide data, the number of trials includes both ESS and dereliction of duty, which is believed to account for less than 1 percent of the total figure. 
Source: National statistics are trials of first instance compiled from China Law Yearbooks (中国法律年鉴). Xinjiang statistics are not disaggregated by trials of first and second instance and are from annual court work reports and Xinjiang High People’s Court President Rozi Ismail.

Court work reports come out during regional and provincial people’s congresses in January, but not all of them are made public. Those that are tend not to include ESS data but instead state generally that fighting ESS is a key aspect in achieving the goal of stability. Xinjiang and Sichuan were the only regions found to have stand-alone ESS data in their most recent reports. National figures for 2011 are expected to be reported to the National People’s Congress in March, including the number of indictments and arrests, and in China Law Yearbook in September, including the number of trials.

Uyghur Activism

It bears repeating that Xinjiang has been known to account for over 50 percent of China’s ESS trials yet makes up less than 2 percent of China’s population. The obvious question is: Why? The answer, suggested by regional government policies and anecdotal evidence, is Uyghur activism in response to government restrictions on religious and cultural activities and state-sponsored inward migration of Han Chinese. While Han Chinese account for more than 91 percent of China’s population, Uyghurs make up about 40 percent of Xinjiang’s.

In 2010, RFA reported on five Uyghurs convicted of ESS in Xinjiang, with sentences ranging from three years’ to life imprisonment. All were Uyghurs involved in non-violent online activism or speaking to foreign media.

The Chinese government confirmed two of the cases. Gheyret Niyaz was sentenced to 15 years’ imprisonment for “inciting splittism.” RFA reported that Niyaz was persecuted for giving interviews to the foreign media about the Urumqi riots. According to the Ministry of Foreign Affairs, Niyaz was still awaiting the verdict of his appeal 16 months after the announcement of his original sentence.

Dilshat Parhat was also convicted of inciting splittism. He was sentenced to five years’ imprisonment. RFA reported that he maintained a Uyghur website and was detained on suspicion of online activism.

“Splittism” and “inciting splittism” are believed to account for many, if not most, of the ESS cases in Xinjiang. In 2011, Dui Hua uncovered no information on individuals confirmed to be convicted on ESS charges in the region. One possible individual, however, is 25-year-old Musa Muhamad, who according to an RFA report, was sentenced to 17 years’ imprisonment in a closed trial in October. The charges against him are unclear, but Muhamad is one of 20 Uyghur asylum-seekers who fled to Cambodia following the Urumqi riots in July 2009 and was deported back to China in December 2009 before a Cambodian visit by Chinese Vice President Xi Jinping. Although the circumstances of Muhamad’s case are unknown, if he was involved in the riots, even just by talking about them to the wrong people, he may well have faced charges of splittism.

Sichuan: Self-Immolation as Murder

Sichuan Province is home to two Tibetan autonomous prefectures, Aba (Ngaba) and Ganzi (Kardze), in which ethnic Tibetans account for about 55 and 78 percent of the populations, respectively. Tibetan areas of Sichuan have seen widespread unrest since August 2007, and government repression of ethnic Tibetans has heightened since the Lhasa riots left at least 19 people dead (according to a Chinese government tally) in the Tibetan Autonomous Region in March 2008. In 2011, ethnic unrest continued and 12 Tibetan self-immolations were reported, 11 of which occurred in Sichuan.

Unlike Xinjiang, however, ethnic unrest has not necessarily resulted in a high number of ESS trials in Sichuan. According to the annual work report of the Sichuan High People’s Court, there were 11 ESS trials concluded in the province in 2011. Moreover, cases relating to the immolations may not be among them. According to the report, three people detained in connection with the March 16 immolation of Phuntsog, a monk in his early 20s, were not charged with ESS, but with murder.

As is the case in Xinjiang, information on individual cases is limited. For 2011, the only two people known to be convicted of ESS in Sichuan are Han Chinese dissidents Liu Xianbin (刘贤斌) and Chen Wei (陈卫). They were convicted of inciting subversion and are serving 10 and 9 year sentences, respectively, for writing articles critical of the Chinese government. Unofficial media reports have named a dozen Tibetans whose actions put them at risk of ESS conviction last year, but as indicated by the self-immolation cases mentioned above, they may not be included in ESS tallies and may instead face other criminal charges or administrative punishments like reeducation through labor. One of these question-mark cases is Jolep Dawa, a teacher and editor of a monthly Tibetan-language magazine reportedly sentenced to three years’ imprisonment for unknown charges.

The identities of the people convicted in the nine remaining cases of endangering state security in Sichuan and all 414 cases in Xinjiang, to most of us, remain a mystery. What is clear, however, is the need for greater transparency in the criminal justice system in general and trials that involve fundamental freedoms of speech, association, and assembly in particular.