Dui Hua Human Rights Journal

State Security Stats Highlight Ethnic Unrest, Lack of Names

2012-02-08T10:53:00.000-08:00

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.

Do Work-Study Schools Reduce Juvenile Crime?

2012-01-30T13:22:00.000-08:00


Kang Shuhua (康树华), a professor at Peking University Law School and expert on juvenile crime in China. Photo credit: Peking University Law School

Juvenile crime may be on the rise in China, but the country’s juvenile recidivism rate is half that of the US, according to a Legal Evening News interview with Kang Shuhua (康树华), a professor at Peking University Law School and expert on juvenile crime. In the interview (translated below), Kang discusses the “success” of juvenile justice reform in China, emphasizing the fruits of correctional work-study schools, the importance of preventing crime, and the need for separate juvenile laws embodying the principle of “education first, punishment second.”

In particular, Kang believes that correctional work-study schools (工读学校) have contributed to China’s relatively low juvenile recidivism rate. In 2008, a Supreme People’s Court judge likened the schools to US “boot camps,” citing management by retired officers of the People’s Liberation Army and strict routines of marching and legal education. In 2011, China had 77 correctional work-study schools enrolling 10,735 students, 18 percent of whom were young women, according to Ministry of Education statistics. In 2009, these schools enrolled 9,213 students, compared with 20,662 minors (between the ages of 14 and 18) incarcerated in juvenile reformatories nationwide.

Dating back to the 1950s, correctional work-study schools are alternative schools for middle and high school students who commit minor criminal offenses that do not merit criminal or administrative punishment or whose behavior puts them at odds with the conventional school environment. Since 1999, enrollment in correctional work-study schools has not been compulsory but determined by a student’s parent or guardian, the school, and the public security bureau. In this way the concept seems in line with the principle of “education first, punishment second”; however, militaristic management and the reluctance of many parents to enroll their children may be indicative of the inverse. The number of correctional work-study schools has dropped sharply from a peak of at least 150 schools and fallen by 21 percent since 1985.

Regardless of the decline, Kang Shuhua and Xiong Wei, a lecturer at Zhongnan University of Economics and Law, believe that correctional work-study schools are necessary to prevent juvenile crime and believe that a renaissance of these institutions is possible with a new name and more robust coursework.

The reform function of youth courts and other correctional institutions is evident, founder of criminilogical studies Kang Shuhua notes China’s—

Juvenile Recidivism Rate Lower than in the US

Legal Evening News

December 11, 2011

Youth courts and other juvenile correctional institutions with Chinese characteristics have led China’s juvenile recidivism rate to be half that of the United States.

Faced with the current decline of the special crime prevention system known as work-study schools, the father of criminology [in China] and juvenile crime expert Kang Shuhua recommends that the words “work-study” be eliminated in order to reduce the aversion and negative response felt by children and parents.

Kang Shuhua notes that when conditions are ripe, [China] should establish a criminal law and criminal procedure law explicitly for juveniles to truly realize the principle of “education first, punishment second” for juvenile offenders.

Talking about History

In the first three years of the 1980s, teen crime accounted for 70 to 80 percent of criminal cases.

Legal Evening News (LEN): When did criminological research begin in China? The film In the Heat of the Sun portrays youth life during the Cultural Revolution and shows children daring to drive a truck to engage in a brawl. Did the study of teen crime in China arise from the chaos of those years?

Kang Shuhua (KS): Criminological research in the People’s Republic of China (PRC) did actually begin with the study of teen crime. Before the Cultural Revolution, teen crime was not a serious social problem in China. In 1956, teen crime only accounted for 20 to 25 percent of all criminal cases. Afterwards there was a bit of an increase, and it accounted for 30 to 35 percent of all criminal cases.

With the prevalence of extreme “leftism” during the “ten years of chaos,” teens were pushed to the fore as “revolutionary young generals.” Many clueless teens committed crimes with impunity under the slogan of “it is right to rebel,” and teen criminal cases accounted for 50 to 60 percent of all criminal cases, even reaching 70 to 80 percent in some places.

After the downfall of the “Gang of Four,” it was difficult for the “internal damage” done to people’s hearts to recover in such a short period, and there were a whole host of accumulated problems in society and people’s lives. Add to that the recently implemented policies of opening up to the world and spurring economic activity, which made the social environment of that time the most complex of any period since the establishment of the PRC. It was inevitable that these major turning points would bring some new circumstances and new problems, and the problem of teen delinquency and crime was revealed in a very concentrated way.

In the first three years of the 1980s, the rate of teen crime in relation to all criminal cases maintained around 70 to 80 percent. Such a major teen-crime problem attracted the serious attention of the party, the government, and all segments [of society]. In 1985, the Central Committee clearly raised the issue of “urgently drafting laws to protect adolescents.” From that point, subjects like teen criminology, teen legal study, and [adolescent] criminal psychology were born.

Talking about the Present

Work-study schools should eliminate “work-study” and strengthen vocational and technical training.

LEN: As theory has developed, what changes has it brought to practice?

KS: At the same time that China has strengthened its research into teen crime, it has revived and improved specialized youth justice facilities such as juvenile correctional facilities and work-study schools, established youth courts, and drafted a Juvenile Protection Law and Juvenile Crime Prevention Law.

LEN: One always heard about work-study schools in the 1980s, but we’ve heard much less about them over the past decade or so. What’s the reason for this?

KS: I know of two or three work-study schools in Beijing. Work-study schools are an important part of preventing teen crime. They evince Chinese characteristics and take special responsibility for accepting children who engage in minor delinquency that has not yet reached the level of crime.

LEN: Then why is it that we almost never hear this phrase anymore?

KS: These days work-study schools are in decline. Children [there] are far fewer than before, and [the schools] are incompatible with China’s current situation. Work-study schools initially played a very important role in preventing crime. But gradually, the public came to feel that once a child had been to a work-study school, he or she was labeled as a bad child. One of the main reasons for the decline is that many parents are unwilling to send their children to work-study schools because they are damaging to the reputation.

LEN: Since work-study schools are beneficial to preventing teen crime, how do you think they should be reformed?

KS: Personally, I feel that we can change the name, get rid of the words “work-study,” and leave the nature of the school alone. This way, perhaps many parents will be able to accept them. As far as I know, some work-study schools in several different locations have already changed names. Modern work-study schools all offer vocational school diplomas, but I think that the schools should not only offer diplomas but should also truly improve their vocational and technical training.

Juvenile Recidivism Rate Half of that of US

LEN: Just now, you mentioned youth courts. In daily reporting I’ve discovered that today’s youth courts commonly give light punishments to youth offenders. There are those in the public who express doubts, saying that uniform light punishments mean [offenders] won’t learn serious lessons and will have “short memories.” Once while covering a case of a youth who committed murder after having been given a suspended sentence, a reporter raised these doubts with a youth court judge, and the judge remained silent.

KS: I think that ultimately juveniles are in the process of growing up and their cognitive abilities are relatively low. The vast majority of children who undergo education and reform will correct their ways. As for those who don’t change after repeated education, they should not be punished leniently.

LEN: Trials in youth courts all have a court education component. As I understand it, many youths burst into tears when receiving correctional education. But there are others who simply ignore it or even laugh indifferently.

KS: Usually the judges are much older than these children, and there may be a generation gap in thinking caused by the difference in age. Before carrying out education, these judges really ought to make more of an effort to understand the true thinking of these youths. But education and reform really is very important. Many perpetrators in major [criminal] cases began committing crimes as youth.

Most of those born in the 1980s and 1990s do not have brothers or sisters and are commonly very selfish. [Those with] this type of personality can relatively easily pursue the path of crime. On the other hand, (judges) also ought to strengthen the education of [these young people’s] parents.

LEN: Do you think that China has been successful in the reform of juvenile offenders? What is the current recidivism rate among juveniles?

KS: I think it has been successful. Juvenile crime truly is increasing in China, but the rate of juvenile recidivism is just over 20 percent, half of the 40 percent rate in the United States. This success owes to China’s special teen crime prevention work, the sort of institutions I previously described.

Putting “Strike Hard” Above Prevention Means Failure of Criminal-Law Effectiveness

LEN: According to reports, between January and November 2010 more than 5.34 million criminal cases were filed by public security organs nationwide, an increase of 7.5 percent year-on-year. Criminal cases are on the rise, and, looking at individual cases, a number of teenagers have committed many serious, awful crimes in recent years. Given that law enforcement agencies have made so much effort, why have these problems emerged?

KS: This is actually a consequence of emphasizing punishment over prevention. The facts show that over more than 30 years, the pursuit of “heavy, fast, and severe” policies in the criminal justice process has led to a clear failure in the effectiveness of the criminal law.

Criminology aside, current theories about controlling crime only focus on “punishment,” with little or no [attention to] “prevention.” Current criminal legislation and its study all look at what do after a crime has been committed, and there is little research on patterns of change, causes, and prevention of the phenomenon of crime before it has been committed.

One must say that this is an extremely large deficiency. Punishment of crime is a negative way of fixing damage that has already occurred. And it’s a bit like harvesting chives: as soon as you cut one, another sprouts up.

The core legal practice of criminology is crime prevention. Yet in recent years there has been a decline in the development of the field of criminology. Nationally, some universities have already changed criminology from a required course into an elective, or even eliminated it.

At its most fundamental, this is an ideological problem. Believing that rampant crime must be met with severe penalties, too much emphasis is placed on the role of the criminal law and the study of the causes of crime is ignored and little attention is paid to crime-prevention work.

Talking about the Future

Provisions of the 8th Amendment [to the Criminal Law] promote the improvement of the juvenile justice system.

LEN: The 8th Criminal Law Amendments that took effect on May 1, 2011, contain three provisions concerning juvenile crime. First, criminal offenses committed before the age of 18 will not count in determining repeat offenses. Second, offenders below the age of 18 should be given suspended sentences as long as they meet the relevant criteria. Third, those who were sentenced to fixed-term sentences or less before reaching the age of 18 are exempt from reporting their criminal history. How do you view these new provisions?

KS: These provisions reflect the policy of “education, reform, and rehabilitation” and the principle of “education first, punishment second” where juvenile offenders are concerned. This is a big highlight of the 8th Criminal Law Amendments. It is a legislative manifestation of the criminal justice policy of combining lenience and severity, and the result of many years of continued calls by insightful people from all segments of society.

It breaks through the oversimplified thinking about juvenile crime that has existed in the Criminal Law for many years—the age of criminal responsibility, rules for the age of criminal responsibility were only discussed in the four paragraphs of Article 17 of the Criminal Law. It is a milepost that will only further promote improvement in the juvenile justice system.

When Time is Ripe, Criminal and Other Laws Should Be Enacted for Juveniles

LEN: In some western countries, there is an independent juvenile legal system established outside of the criminal legal code. Will this also be China’s development trend?

KS: Yes, this should be the trend.

For the conviction and sentencing of juvenile offenders, both the 1979 Criminal Law and the current Criminal Law only have a single article, and law-enforcement personnel have no choice but to make use of the law for adults in handling criminal cases involving juveniles. This is regretful and something about which many people have been urgently campaigning.

LEN: How should a juvenile justice system be established?

KS: When the conditions are ripe, a juvenile criminal law and juvenile criminal procedure law should be enacted to aggregate today’s individual laws and regulations.

In recent years, the Supreme People’s Court has engaged in many valuable experiments in respect to substantive and procedural aspects of the adjudication of juvenile cases. This is something that should be acknowledged.

Unfortunately, though, the aforementioned regulations still lie outside of legal statutes and haven’t brought the principle of “education first, punishment second” and the policy of “education, reform, and rehabilitation” clearly within the scope of the Criminal Law as far as the adjudication of juvenile criminal cases is concerned.

Kang Shuhua’s Views

Work-study schools have played a very important role in preventing crime. But work-study schools should further reform and develop. They should get rid of the words “work-study” and conscientiously strengthen vocational and technical training.

Over more than 30 years, the pursuit of “heavy, fast, and severe” policies in the criminal justice process has led to a clear failure in the effectiveness of the criminal law. Punishment of crime is a negative way of fixing damage that has already occurred. The core legal practice of criminology is crime prevention.

When conditions are ripe, [China] should enact a juvenile criminal law and juvenile criminal procedure law to truly realize the principle of “education first, punishment second” and the policy of “education, reform, and rehabilitation” in trying juvenile criminal cases.

Reported by Fu Zhong

Design by Li Ming

Personal Profile

Kang Shuhua, the father of the field of criminology [in China], is a professor in the Peking University Law School, Honorary Chairman of the China Criminological Research Association, member of the Working Group on Youth Issues of the National People’s Congress Internal and Judicial Affairs Committee, and youth legislation consultant for the Central Committee of the Communist Youth League.

Remaining Vigilant about Criminal Procedure Law Reform

2012-01-10T12:21:00.000-08:00

Late last month, proposed revisions to China’s Criminal Procedure Law (CPL) got a second review by the National People’s Congress Standing Committee. Days later, it was announced that the CPL revision was being submitted to the National People’s Congress, which is widely expected to pass the legislation during its annual session in early March.

Enforced Disappearance

In contrast to the first draft, which was put forward for public comment at the end of August, the present draft of the CPL has not been published in full. Instead several revisions have been reported by the Chinese press. Among them is a revision purported to address one of the most widely criticized proposals in the earlier draft, that enabling investigators to hold suspects in certain types of cases without notifying their family of their whereabouts or the charges against them.

As it turns out, headlines hailing the “elimination of ‘secret arrest’” (取消“秘密拘捕”) were misleading, pertaining only to people placed under formal arrest (逮捕). Drafters deleted a clause that would have exempted investigators from notifying the relatives of people who had been placed under formal arrest “in cases involving serious crimes such as endangering state security or terrorist activity” when it was deemed that doing so might have “the potential to impede the investigation.” Under the terms of the current draft, then, investigators would be required to notify the relatives of all suspects within 24 hours of a formal arrest, “except when notification is impossible.”

What the headlines obscured (but later revealed in a handful of reports) was that similar exceptions for state security or terrorism suspects had not been eliminated from provisions covering other “coercive measures” such as detention (拘留) or “residential surveillance” (监视居住). Since authorities can use “residential surveillance” to hold a suspect for up to six months in any location they choose, giving authorities the legal basis not to notify the suspect’s family has been strongly condemned as secret detention or enforced disappearance by critics both inside and outside China—including United Nations human rights experts and Dui Hua’s Executive Director John Kamm in his Congressional testimony (PDF).

Public Attention

Compared to the flood of public comment and criticism that followed the publication of the earlier draft, there has been relatively little discussion of the current CPL proposal. In part, this is likely a function of the decision not to make the full draft available for public scrutiny. There may also be a certain amount of resignation—a sense that the public has had its say, a few concessions have been made, and passage is all but a foregone conclusion.

However, the debate may not be completely over. A recent editorial in the Guangzhou newspaper Southern Metropolis Daily urged members of the public to keep up the pressure, warning that reform of the CPL was “a serious matter about which the slightest laxity cannot be tolerated.” In an opinion piece (translated below) published in another Guangzhou daily, the Yangcheng Evening News, regular legal commentator Yang Tao urges China’s legislators to take full consideration of public concerns about the legislation and address remaining provisions that fail to meet the standards of fairness and justice.

The discrepancy between the headlines and the latest draft is notable. The persistence of measures that would legitimate enforced disappearance, the failure to protect a suspect’s right to remain silent, and the lack of strong checks on investigators’ ability to employ covert and technical surveillance measures have, in fact, furthered concerns that CPL revision strengthens law-enforcement powers at the expense of individual rights.

It remains to be seen whether China’s legislators will use their last review of the CPL draft to address these concerns. But only by doing so, Yang warns, can China pass a CPL that will “withstand the scrutiny of history.”

Respect Public Opinion to Eliminate Regrets over Criminal Procedure Law

Yang Tao, Yangcheng Evening News

December 27, 2011

On December 26, the draft revision to the Criminal Procedure Law (CPL) was again submitted to the National People’s Congress Standing Committee for review. This was the second reading for this draft legislation, and, compared to the draft in the first reading, there are many highlights in the second draft that deserve public attention.

The CPL is a basic law that regulates the activities of public security, procuratorates, courts, lawyers, and citizens to participate in criminal litigation. Criminal litigation frequently involves depriving citizens of their life, liberty, or property, and a law of criminal procedure must put public authority inside a cage, protect citizens’ legal rights, and enable public authority to prosecute crime in accordance with the law. In this respect, the CPL is a Magna Carta for defendants, as well as for each and every citizen. Whether a CPL is well-drafted is directly related to whether citizens’ rights receive fair treatment. For this reason, revision of the CPL must take ample consideration of public opinion in order to correct any injustice contained in the law.

The current CPL was enacted in 1979 and amended in 1996. The reason why revision of this law has been placed on the agenda after 15 years is because it no longer meets the needs of a new era in which people make ever-increasing demands for the protection of human rights. Whether it’s coercion of confessions through torture, the difficulties lawyers face in meeting [with detained clients], or secret detentions, the appearance of all of these problems is related to major flaws in this law.

Additional CPL reform arises from precisely this background and faces up squarely to public response to the situation. We were glad to see so many highlights in the first draft, such as the provision that suspects must not be compelled to self-incriminate, which is a major step towards reducing and eliminating coercion of confessions through torture. The draft also sets out standards for covert and technical investigations, formally bringing measures within the confines of the law that in practice have long been used outside the law. The draft proposes that close relatives [of a defendant] have the option of not testifying in court, taking a step toward the international practice of a “relative’s privilege against testifying” and preserving family ethics. And the draft also proposes that lawyers be allowed to meet suspects freely and without interference, helping to eliminate the conflict between the CPL and the Lawyers Law and giving effective protection to lawyers’ legitimate professional rights.

But the first draft of the legislation also left behind many regrets, such as the problem of lawyers being detained by investigative bodies without cause or the problem of secret detention. Thus, after the first draft was made public, there was still a strong reaction from all segments of society, with one voice after another demanding further revision. The second draft, after [lawmakers] listened to public opinion and the arguments of experts and scholars, [included] several major changes on the basis of the first draft. For example, the second draft stipulates that after criminal suspects are [formally] arrested, their relatives must be notified within 24 hours in all cases except when such notification is impossible, and that the investigation of defense lawyers suspected of crimes should be handled by an investigative body other than the body handling the cases in which the defense lawyer is representing a client. These new provisions have especially great significance for the protection of human rights.

As a matter of principle, however, revision of the CPL entails competition between protecting human rights and fighting crime. On a practical level, this involves competitions over power within the public authorities of public security, procuratorates, and courts; between public authority and lawyers and citizens; and even between different levels of society. Therefore, each time the law is amended, there will always be debate and [expressions of] regret. Taking the second draft [of the CPL] as an example, even though after a suspect is [formally] arrested “relatives must be notified within 24 hours in all cases except when such notification is impossible,” [the provisions for criminal] detention still allow for no notification “when it would impede the investigation.” Even though covert and technical investigations have been brought within the law, investigative bodies still approve their own investigations without any judicial review. Prohibiting compulsion of suspects to self-incrimination has been included, but [the clause that] “suspects shall truthfully answer investigators’ questions” has not been deleted, leaving a “tail” for torture. Legislators should thus take a neutral position and listen to mainstream public opinion to the greatest extent possible; weigh the positions taken by each side; and, in the course of revising the draft, continue to revise unjust provisions so that this legislation may, after it has been amended, withstand the scrutiny of history.

The Right to Seek Pardon: From Constitution to Procedural Law

2011-12-19T13:36:00.000-08:00

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: CUPL.edu.cn

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.

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

2011-12-05T15:45:00.001-08:00

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.

Taming Police Influence in Politico-Legal Committees

2011-11-29T10:41:00.001-08:00

The overlap of administrative and Communist Party bureaucracies and party control over bureaucratic appointments mean that Chinese officials often wear many hats. Giving a single official simultaneous leadership posts cements party interest in the administration of government and allows various bureaucratic interests to be represented in policymaking. One way to judge an official’s political clout is to look at how many leadership posts he or she occupies at once.

Since 2002, concurrent appointments in powerful party and government leadership groups (领导班子) have indicated an increase in the amount of power granted to China’s police chiefs. One common arrangement at the provincial, prefectural, and especially county levels has been to name the same person as head of the public security organ and the “politico-legal committee” (政法委) within the local party organization. Due to a 2010 party directive discussed in a recent article by Guangzhou’s Southern Weekly, this arrangement may be coming to an end, but the change won’t necessarily mean any diminution of police power.

Entering the Inner Circle

The politico-legal committee is one of the least-understood components of the Chinese criminal justice system. This is largely because the Communist Party has not provided many details on its structure, internal rules, and day-to-day operations. Established at each level of the party’s leadership bureaucracy, from the central government down through China’s counties and urban districts, these committees are responsible for overseeing, coordinating, and managing the work of police, procuratorates, courts, and judicial administration organs.

Particularly at and below the provincial level, politico-legal committees frequently play an active role in the process of administering justice. Represented by high-ranking officials from public security, procuratorates, courts, and judicial administration institutions, the committee serves as a channel through which the interests of these institutions can be coordinated in pursuit of broader policy goals, such as fighting crime or preserving social and political stability.

In 2002, when Zhou Yongkang (then Minister of Public Security) was named to the Politburo and the State Council, it marked a clear elevation in the status of the public security system within the party-state organization. Throughout the country, heads of local public security bureaus joined their respective party and government “leadership groups,” often as members of the standing committee of the local party committee and as secretary of that committee’s politico-legal committee.

Politburo member and Politico-Legal Committee Chairman Zhou Yangkang presides over a plenary
meeting of the Central Politico-Legal Committee in Beijing, October 19, 2011.
Photo credit: Zhang Duo, Xinhua

In practice, this has tended to give police the greatest say in decision-making among China’s various legal institutions. Welcoming public security chiefs into the leadership group has generally increased the political clout of the police, giving them better access to personnel and budget allocations and facilitating the mobilization of political support for security interests.

Honorary Chief of Police

The arrangement, however, carries a significant downside. Instead of giving a sitting police chief a spot within the local leadership group, the more common practice has been to appoint an official who is already part of the leadership group as head of the public security bureau. As a result, many police chiefs have little to no experience in law enforcement and spend much of their time in administrative and party meetings with no direct relation to police work.

Having the same person head both the public security organ and the politico-legal committee also tends to create imbalance between the various institutions charged with enforcing and administering the law. With the head of police managing a committee responsible for “coordinating” the interests of public security, procuratorates, and courts, conflicts are bound to be resolved in favor of police interests—as, for example, when the committee intervenes in a criminal case in which the procuratorate refused to grant police approval for arrest.

Yang Haiyun, who until earlier this year headed the public security bureau and politico-legal committee in Huangzhong County, Qinghai Province, acknowledged that this arrangement tends to have a detrimental effect on the ability of procuratorates and courts to exert proper oversight. In 2010, National People’s Congress Deputy Wu Xiaoling urged an end to the practice of “putting the monitored in charge of the monitors.” Soon thereafter, according to Southern Weekly, the Central Organization Department of the Communist Party issued a directive that would prevent the heads of provincial-level public security departments from simultaneously heading provincial politico-legal committees. As of late October 2011, 22 of China’s 31 provincial-level politico-legal committees had complied.

This is not likely, however, to mean that the overall authority of China’s public security apparatus will diminish. The same 2010 directive still calls for public security chiefs to be members of the leadership group or party organization within the same level of government. So while the directive seeks to address the imbalance of power between public security, procuratorates, and courts that became institutionalized in the politico-legal committee, it also preserves a policymaking role for public security so as to maintain its preeminence in preserving public order and socio-political stability.

Protect Youth, Rights, Clarify Custody and Rehabilitation

2011-11-16T14:30:00.001-08:00

The 15-year-old son of Li Shuangjiang, a retired People’s Liberation Army general known for singing patriotic songs, became the subject of scandal in September after reports emerged that he had assaulted a couple in a traffic incident and then warned bystanders not to notify police. The incident fueled intense online criticism from a public fed up with bad behavior and assertions of privilege by children of the rich and powerful.

News that Li’s son would serve one year in “custody and rehabilitation” may have satisfied some of these critics, but it prompted legal scholar Liu Renwen to reflect on shortcomings of the system of custody and rehabilitation—a system intended to protect juveniles who have not yet reached the age of criminal responsibility but that in fact resulted in consequences for Li’s son that in Liu’s opinion were too harsh. In commentary published by The Beijing News, Liu proposes reforms to better protect the rights of young people and improve China’s compliance with its obligations under international human rights law. He argues for greater restrictions on the use of custody and rehabilitation and the transfer of decision-making power from the police to the courts. (Liu is the Criminal Law Department director at Chinese Academy of Social Sciences’ Institute of Law; he also frequently comments on issues related to capital punishment.)

Custody and Rehabilitation System Needs Improvement

Liu Renwen, The Beijing News

October 8, 2011

Recently, Li Shuangjiang’s son Li X was sentenced by Beijing police to one year of custody and rehabilitation because he created a serious disturbance while under the age of criminal responsibility. This incident has turned the public’s attention to the system of custody and rehabilitation.

The legal basis for the system of custody and rehabilitation originates in Article 17(4) of the Criminal Law: “If [an individual] is not given criminal punishment because he/she has not reached the age of 16, the head of his/her family or his/her guardian shall be ordered to discipline [the individual]. When necessary, the government may take [the individual] into custody for rehabilitation.”

Looking at the original intent of the legislation, this provision was meant to resolve the following problem: Individuals who commit socially harmful acts but have not reached the age of criminal responsibility can neither be labeled criminals nor be simply ignored. So, the system of custody and rehabilitation was created as something akin to a security disciplinary measure.

However, practice shows that this provision has some areas that need to be improved. Specifically, this can be seen in, first of all, the vagueness in the standard for application. What, ultimately, is meant by “when necessary”?

I believe that we should establish the following basic criteria:

First, if the family has the ability to discipline, there is no need for the government to take [the juvenile] into custody for rehabilitation. Only for a juvenile that does not have family or whose family is unable to discipline should the government take [the juvenile] into custody for rehabilitation.

Second, if there is a family and a parent or guardian willing to carry out discipline, as a matter of principle, the family should carry out discipline for a first offense. If there is a second offense, however, custody and rehabilitation should be considered.

Third, in some vicious cases, even if [the juvenile] has a family and a parent or guardian willing to carry out discipline, if, out of overall consideration of the harmful consequences to society of the [juvenile’s] actions and the dangerous nature of the [juvenile’s] character, it is felt that there is need to send [the juvenile] to a custody and rehabilitation facility to carry out the necessary correction and behavioral intervention, custody and rehabilitation may be used even for a first offense.

In sum, [we] cannot regulate as vaguely as we do now with words like “when necessary.” This is too flexible and does not benefit the seriousness of law enforcement. In the case of Li Shuangjiang’s son, many believe that Li Shuangjiang’s notoriety led Li X to be treated unfairly, as custody and rehabilitation would not generally be used under these circumstances. Instead, a parent or guardian would [normally] be ordered to do the disciplining.

Next, there are flaws in the procedure used [for custody and rehabilitation]. [Although the law stipulates that] “the government may take into custody for rehabilitation,” in practice, the public security organ carries out custody and rehabilitation on behalf of the government. According to relevant regulations of the Ministry of Public Security, the duration of custody and rehabilitation generally ranges from one to three years. Deprivations of liberty for such a long period of time, without first conducting a court trial, are unreasonable.

China has already signed the International Covenant on Civil and Political Rights, which holds that all deprivations of liberty, regardless of whether in criminal or other proceedings, must be determined by a “competent, independent, and impartial tribunal established by law.”

With this spirit as a starting point, [we] should reform the procedure used for the system of custody and rehabilitation to transfer the decision-making power from its current holder, the public security organ, to the courts and to give individuals subjected to custody and rehabilitation and their parents or guardians the right to an open-trial hearing, the right to appoint a defense lawyer, and the right to appeal.

Otherwise, this awkward phenomenon will occur in practice: Legislation that was originally intended to protect juveniles results in an individual who has reached the age of criminal responsibility having the right to an open-trial hearing, the right to obtain a defense lawyer, and the right to appeal, while an individual in the same case who has not reached the age of criminal responsibility loses all of these procedural protections. This is clearly unfair.

Some may say that custody and rehabilitation does not involve labeling a [juvenile] as a criminal, and thus, relatively speaking, it still protects [the juvenile’s] interests. The problem is that this kind of protection cannot be at the expense of proper procedure, since this kind of protection can in fact be fully realized through a court decision.

Finally, the duration and implementation of custody and rehabilitation also have room for improvement. The current term of one to three years of custody and rehabilitation is too long and should be shortened. Also, there are currently no standards for the management of custody and rehabilitation facilities, and the methods of custody and rehabilitation used are too homogenous. We need to think seriously about how to truly come up with effective methods of education, reform, and rehabilitation that are based on juveniles’ physical and psychological characteristics, rather than simply locking them up in what even turns into [a kind of] disguised criminal punishment.

Liu Renwen, Researcher and Criminal Law Department Director, Institute of Law, Chinese Academy of Social Sciences

In Chinese Lawmaking, Draft Disclosure Fosters Democracy

2011-11-10T10:42:00.001-08:00

In China’s legislative process, public consultation is a relatively new phenomenon that is neither formalized nor routine. The handling of two recent pieces of important legislation suggests, however, that members of the public may begin to get more of a say in how their laws are written.

This would be a welcome turn of events for law professor Wang Lin. In commentary published by the Economic Observer (translated below), Wang recently wrote about the importance of public access to legislative drafts, in particular the criminal and civil procedure laws, as a means to democratize the legislative process.

The 11th NPC Standing Committee reviewing proposed drafts.
Photo credit: npc.gov.cn

Though not nearly as devoid of debate as implied by the caricature of “rubber-stamp parliament,” the National People’s Congress (NPC) nevertheless remains some distance from being a democratic institution. Much of the process of drafting and deliberating legislation takes place behind closed doors. Because NPC deputies are not chosen through broad-based popular election, the national legislative body is a poor reflection of the increasingly complex and fragmented interests in Chinese society.

In the absence of electoral democracy, one way to give citizens more influence over policymaking is to establish institutions for public consultation and a greater role for public opinion. Public debate and discussion over legislation, Wang argues, will contribute to laws that are more easily accepted by society than laws passed without public comment. Citizen input in the drafting of procedural legislation is particularly important, given that these laws have direct relevance to the ways in which citizens’ rights may be exercised.

Wang’s essay was apparently written between the first release of information about proposed changes to the Civil Procedure Law on October 24 and the time the full text of the amended draft was published by the NPC Standing Committee on October 29. Similarly, official release of the draft of the amended Criminal Procedure Law followed initial media reports by a few days. For both pieces of legislation, the days preceding publication of the drafts were filled with a mixture of government propaganda and critical commentary, much of which was based on uncertainties about the specific wording of certain provisions.

In the case of the Criminal Procedure Law, Wang writes that the ultimate decision to publish the full text was a response to criticism of the proposed amendments. However, the gradual release could also be interpreted as a deliberate means for officials to control the grounds of debate and adapt publicity strategies to the public’s initial response. In fact, the gradual release of the less controversial amendments to the Civil Procedure Law demonstrates that delays are not necessarily indicative of strong public pressure.

Wang notes that in 2008 the NPC Standing Committee made a general commitment to publish draft legislation and seek public comment, but this process has yet to be firmly institutionalized. A possible reason is that China’s limited experience with public consultation has not always been easy. After being first published in 2002, a historic and controversial Property Law was forced by public scrutiny to undergo numerous revisions and withdrawn from consideration by the NPC before finally passing in 2007.

The general messiness democracy typically creates poses a challenge to the Chinese government, which has conventionally prized flexibility and efficiency as drivers of development. Wang maintains, however, that the benefits of a more democratic legislative process ultimately outweigh the short-term costs, and thus he advocates the full integration of public consultation into the legislative process.

Publicize Legislative Drafts to Promote a Democratic Legislative Process

Wang Lin, Economic Observer

October 30, 2011

On October 24, the 23rd meeting of the Standing Committee of the 11th National People’s Congress reviewed the Draft Amendment of the Civil Procedure Law. According to reports, the draft will relax [restrictions on] public-interest litigation, and “relevant organs and mass organizations” will be allowed to act as plaintiffs in public-interest lawsuits filed with people’s courts.

These reports led to much public discussion, but without additional sources of information, reporters and commentators have been left to play guessing games. Besides China’s ever-elusive “relevant organs,” [the term] mass organizations has also been subject to many different interpretations. In particular, use of the traditional phrase “mass organization” instead of the more broadly defined “social organization” has led the media to worry that the draft excludes the up-and-coming [sector of] non-governmental and nonprofit organizations from [the category of] possible plaintiffs in public-interest litigation.

It is precisely because of the dearth of publicly available legislative information that public opinion has resorted to so much speculation and the legislative debate cannot properly begin. Two months ago the Draft Amendment to the Criminal Procedure Law was also the subject of heated debate after scholars first revealed [its content], and only after widespread calls from public opinion did the legislative organ publish the draft. In the August 26 edition of the Economic Observer, I called for a “public debate platform for the revision of the Criminal Procedure Law.” Of course, this “platform” is not only for the revision of the Criminal Procedure Law; it should be used for all NPC legislation. Specifically, [the entire process] from legislative planning to drafting, to first reading, final review, and passage should all be made public. Not only should the progress of legislation be made public; the drafts under review and the proposed changes should all be announced promptly.

Legislative drafts concern the public interest and are a prerequisite for legislative debate. There is absolutely no reason why they should be hidden in black boxes. Law is the art of compromise, a reflection of the opinion of the majority. Article 5 of the Legislation Law stipulates clearly: “Lawmaking shall reflect the will of the people, promote socialist democracy, and ensure that people are able to participate in legislative activities through various channels.” Ensuring citizens’ participation in the legislative process is a responsibility that the legislative organ cannot evade.

Confined by the limitations of legal statute, the constitution and Legislation Law only set forth a few principles of democratic lawmaking. Saying “ensure that people are able to participate in legislative activities through various channels” still requires the legislative organ to establish detailed regulations to put this into practice. Mere principled provisions without institutional protections mean that, after many years, “various channels” really means “no channels.”

At a time when it has become almost routine not to publicize legislative drafts, citizens have no room for timely participation in the legislative process. They take no interest in lawmaking, which results in passed legislation that lacks legitimacy. When the legislative organ itself is passive in its implementation of the constitution and the law, how can one expect the government, legal entities, and individual citizens to observe the law in an active way?

Lenin once said: “It would be absurd to speak of democracy without publicity.” Compared to “democratic lawmaking,” a “draft” inside a black box or “made public within a small circle” also looks rather “absurd.”

It should be admitted that, in the last few years, the legislative organ has been opening the door wider and wider to accepting public participation in the legislative process. Back in April 2008 the Chairmen’s Council of the NPC Standing Committee decided that legislative drafts being reviewed by the NPC Standing Committee would thenceforth generally be made public, and opinions broadly sought from the public. Based on that decision, on April 20 [of that year], the General Office of the NPC Standing Committee published the full text of the Draft Food Safety Law.

Without a doubt, the decision by the Chairman’s Council to generally make legislative drafts public has greatly strengthened democratic lawmaking and benefited the legislative debate. In fact, every legislative draft that has been made public and for which opinions have been sought in recent years has attracted positive response and participation from the public. Of course, the deepening of legislative debate means that more legislative resources are needed to collect, balance, and accommodate public opinion. Objectively speaking, it increases the workload of the legislative organ and, in reality, makes it more difficult for drafts to gain passage. The fragmentation of society means that different interest groups will have different expectations with respect to legislation. These conflicts of interest must be discovered and resolved during the legislative stage—this is actually the lowest-cost way to resolve [such] conflicts. If you wait until after a law has been unveiled, [people] don’t accept the new law because they did not participate in the lawmaking [process]. This leads directly to opposition and passive violations, both of which come at much greater cost.

While the draft revision of the Civil Procedure Law is generating public attention, work is underway on revision of the Administrative Procedure Law. [The policy of] “generally” making drafts public should [instead become] publicity as a matter of principle. Revision of the three major procedural laws does not involve state secrets, and the legislative organ should take the initiative to make [the drafts] public. There is no need to wait for the media to begin exposing [aspects of] the drafts before being forced to act. Public speculation because of the non-disclosure of information is actually a waste of valuable social resources, and the longer legislative debate is put off, the more acute the mutual lack of trust between different interest groups becomes. The earlier you make things public, the earlier you can reap the benefits. I look forward to the day that the publication of legislative drafts becomes institutionalized and hope that two months from now I won’t be writing an article calling for the release of the Draft Amendment to the Administrative Procedure Law.

The author is an assistant professor at the Law School of Hainan University.

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

2011-10-26T13:17:00.000-07:00

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.

Increased Use of Bail a Double-Edged Sword

2011-10-10T13:29:00.000-07:00

China’s detention centers are bursting at the seams. Overuse of pre-trial detention is a big part of the problem, and researchers have been seeking new ways to reduce unnecessary confinement. Now, following on the heels of a major study conducted by the Supreme People’s Procuratorate (SPP), a proposed amendment to the Criminal Procedure Law (CPL) raises the use of bail* as a means to reduce excessive detention—but the cost may be stronger public surveillance.

Status Quo

Originally built to hold 160 detainees, the Fei County Detention Center in Shandong Province held 348 criminal suspects and defendants in April 2011. Such overcrowding, however, is neither an isolated occurrence nor necessarily symptomatic of high rates of serious crime. In this largely rural county of just under one million, more than 65 percent of detainees are likely to be given suspended or otherwise non-custodial sentences (indicating relatively minor offenses), while in many places, around 60 percent of criminal-court verdicts result in light sentences of three years’ imprisonment or less, including non-custodial punishments.

Despite this, SPP data for the last 10 years indicate that, on average, arrest is approved for more than 85 percent of criminal suspects, and the vast majority remain behind bars through trial.

Police reading conditions of bail to a detainee in Guiyang. Photo credit: www.gog.com.cn

There are complex reasons behind China’s tendency to detain suspects for the entire pre-trial period. First, as Hunan National People’s Congress (NPC) Deputy Qin Xiyan has noted, China’s criminal investigators tend to use incarceration as a substitute for investigation, a practice that both derives from and reinforces the emphasis given to obtaining confessions. Such reliance on incarceration and confession not only promotes torture, but hinders the development of better investigatory methods and limits the development of a more professionalized investigatory force.

Second, police performance is partially measured by the rate at which arrests are approved, meaning, as explained by Dan Wei, a researcher at the SPP’s Institute for Procuratorial Theory, that there is a tendency to seek arrest solely on the basis of whether there is evidence of a crime and ignore other legally mandated criteria like the prospect of a fixed-term sentence and the necessity of arrest. Even though the CPL gives suspects, their family members, and their legal representatives the right to request pre-trial release on bail or into residential surveillance, these requests are handled by the same institutions that make the initial decisions to arrest, without independent review, and are not subject to appeal. (Rough, anecdotal data suggest that about 15-20 percent of suspects were released on bail in 2010 and that the figure will increase by only a few percentage points in 2011.)

Finally, sensational and politicized notions of crime-fighting and stability put pressure on authorities to keep criminal suspects in custody, even when alleged offenses are relatively minor. Thus the fear of a public outcry or the possibility of escape or additional offense, no matter how unlikely, promote the overuse of pre-trial detention and ultimately drain scarce resources that could be used to improve social services or, often cited for poor sanitation and torture, detention centers.

Pilots, Prospects …

Given current abuse of pre-trial detention, there is reason to be cautiously optimistic about a new provision that has been added to the draft CPL revision announced by the NPC in late August. The provision would explicitly empower the procuratorate to review the necessity of continued detention of individuals who have been formally arrested and to recommend release via other measures when the criteria for further incarceration are no longer met.

This provision stems from a three-year study conducted by the Supreme People’s Procuratorate that explored ways of reducing high rates of pre-trial detention. Led by SPP researcher Dan Wei, the investigation involved visits to more than 200 detention centers, interviews with more than 5,000 criminal suspects, and a pilot study involving detention centers in 20 locales nationwide. In a March interview with Legal Daily, Dan noted that procuratorates already have the authority to monitor detention centers but that this authority has rarely been accompanied by specific mechanisms that enable implementation sufficient to safeguard detainee rights. He thus developed an 11-point scheme as part of the study to help procuratorate officers normally resident in detention centers evaluate the necessity of continuing to hold arrested suspects.

The pilot project appears to have yielded some positive results. In the abovementioned Fei County, 183 detainees were evaluated between October 2009 and April 2011.The procuratorate found that 46 of these individuals met the requirements for release, and, of these, the public security organ released 37. During the same period, 433 detainees were evaluated in 10 detention centers in the city of Yichang, Hubei Province. All of the 35 individuals found to be unnecessarily detained were released, with no negative impact on the legal process reported in any of the cases.

… and Politics

These results are promising, if somewhat limited. Given that these measures do nothing to lower high rates of arrest, reducing reliance on pre-trial detention means expanding use of non-custodial measures, including bail and “residential surveillance,” that may have negative consequences, especially in political cases.

Bail has generally been granted infrequently for political prisoners, though there has been an increase in its use over the past year. A case in point is the release on bail of Ai Weiwei in June, following 81 days of secret detention in a case ostensibly about tax evasion. Several others detained this year for alleged offenses connected with the so-called Jasmine Revolution were also later released on bail—many on the condition that they not speak publicly about their detentions.


Left: Beijing legal lecturer and activist Xu Zhiyong was arrested for "tax evasion" on July 29, 2009. He received bail on August 23, 2009. Nearly one year later, on August 21, 2010, the charge against him was dropped. Photo credit: Beijing lawyer Peng Jian Right: Artist and activist Ai Weiwei was arrested for "tax evasion" on April 3, 2011. On June 22, 2011, it was announced that Ai had been released on bail. The investigation is still pending. Photo credit: Reuters

Professor Jerome Cohen of the US-Asia Law Institute at New York University has noted the way in which release on bail has frequently been used as a “face-saving” measure whereby detainees in sensitive cases may be released without authorities having to acknowledge wrongdoing or lack of evidence. In many of these recent cases, bail also appears to be a way of using legal means to wrap up detentions that were intended as punishment or intimidation, rather than as part of an investigation intended for further prosecution.

Similarly, rights activists, lawyers, and the media have raised serious concerns about provisions in the draft CPL revision for another non-custodial measure—residential surveillance. As with bail, expansion of the use of residential surveillance could significantly help to decrease the rate of pre-trial detention in China. But the proposal would also authorize placing an individual suspected of endangering state security (ESS), terrorist activity, or serious cases of bribery under “residence surveillance” in a designated location other than the suspect’s residence without requiring that a family member be notified, if it were felt that notification had the potential to impede investigation. If enacted, this would effectively legitimize the kind of long-term, enforced disappearance that has been increasingly used against dissidents and activists—most notably Nobel laureate Liu Xiaobo—who are often charged with ESS crimes like inciting subversion.

In other words, expanding the use of non-custodial measures is potentially double-edged. Procuratorial oversight is welcome as a means to reduce excessive rates of detention and better protect suspects’ legal rights. But suspects’ rights must also be protected outside of detention centers. Further guarantees are necessary to ensure that the expansion of bail and residential surveillance does not facilitate the intimidation and punishment of critical voices through legal formalities lacking proper legal process.

Note: *When discussing the Chinese system, “bail” refers to 取保候审 (qubao houshen), which we translate as “obtaining a guarantee pending further investigation or trial.” The Criminal Procedure Law allows for the imposition of this procedure at any stage of a criminal investigation or prosecution. Professor Jerome Cohen of the US-Asia Law Institute explains that, pursuant to qubao houshen, investigations can go on for up to one year, during which suspects are generally restricted to their city of residence.

State Security Indictments Remain at Historic Highs

2011-10-03T14:25:00.000-07:00

Criminal justice statistics published in the 2011 China Law Yearbook (中国法律年鉴) offer more evidence of the heavy security crackdown that has been underway in China since 2008.

According to included Supreme People’s Court data, Chinese courts tried approximately 670 cases involving “endangering state security” (ESS) charges in trials of the first instance in 2010, down only slightly from the previous year’s high of nearly 698. (As in previous years, court statistics published in the yearbook combine the number of ESS trials with trials for “dereliction of duty by military personnel” in a category simply labeled “other.” Based on consideration of additional data, however, Dui Hua can say with a high degree of confidence that 99 percent of trials covered in this “other” category are ESS cases.)

During the decade from 1998—the first full year after ESS crimes were included in the criminal code—through 2007, courts averaged only 289, or 132 percent fewer, ESS trials per year.

Concluded Endangering State Security Trials, 1998‒2010

Note: Limited to trials of first instance. Source: China Law Yearbooks, Dui Hua

Chinese authorities use ESS crimes in their effort to suppress political dissent in the name of protecting national security. Provincial statistics and Dui Hua’s database of political prisoners indicate that subversion, “splittism,” and incitement are the chief offenses for which individuals are charged with ESS.

Meanwhile, statistics from the Supreme People’s Procuratorate (SPP) continue to show that authorities arrested and prosecuted individuals on ESS charges at historically high levels, with 1,045 arrests approved for ESS in 2010, and 1,223 individuals indicted. Both figures slightly exceed estimates Dui Hua produced earlier this year using incomplete data that the SPP included in its report to the National People’s Congress.

Individuals Indicted for Endangering State Security, 1998‒2010

Note: Limited to trials of first instance. Source: China Law Yearbooks, Dui Hua

Trends in yearbook data clearly show that endangering state security has become a major focus of China’s law enforcement system since 2008, a period that has seen a marked emphasis on stability due to the Beijing Olympics; high-profile commemorations such as the 60th anniversary of the founding of the People’s Republic of China; and increased levels of ethnic unrest, exemplified in part by the violence that broke out in Lhasa in 2008 and Urumchi in 2009.

In January 2011, the president of the Xinjiang Uyghur Autonomous Region (Xinjiang) High People’s Court announced that courts there concluded 376 trials for ESS offenses in 2010. If this figure is limited to first-instance trials, Xinjiang would account for more than half of all ESS trials reported in China for that year. While the scope of this data remains unclear, other evidence indicates that the majority of ESS trials are brought against ethnic minorities, many of whom with roots in Xinjiang and Tibet.

For example, of the 36 ESS cases recorded in Dui Hua’s prisoner database for 2010, only three involve Han Chinese. Though stark, this data point also clearly demonstrates the scarcity of reliable information available on ESS cases.

While providing information on the number of trials, the 2011 yearbook does not include the number of individuals convicted of endangering state security. SPP data show that, on average, ESS cases involve more individuals than criminal cases taken as a whole—the overall ratio of individuals per criminal indictment has remained consistent at around 1.5 since 1998 versus roughly 2.5 individuals per ESS indictment during the same period and nearly 3.0 individuals per ESS indictment between 2008 and 2010, but there is too much variation in the data to produce meaningful estimates of the number of people convicted.

Although the exact number of ESS convictions remains a mystery, it seems evident that heightened state security concerns are here to stay. China’s recent white paper on peaceful development included the political system as one of its “core interests,” a measure that reinforces the close identity between Communist Party rule and Chinese national security. Given that popular uprisings have toppled authoritarian rulers in Tunisia, Egypt, and Libya, and the heightened anxiety surrounding the leadership transition expected during China’s 18th Party Congress in 2012, there is little to suggest any imminent political reform of the decades-old policy of ensuring “stability above all else.”

Sealing Juvenile Records: From Pilot to Practice?

2011-09-26T17:37:00.000-07:00

After years of study, China is starting to take important steps to reform its juvenile criminal justice system. Balancing leniency and severity as a means to prevent recidivism, Chinese law enforcement officials have been exploring measures like delayed prosecution, non-custodial punishment, and community corrections.

Earlier this year, China’s Criminal Law was amended to exempt individuals from reporting light, juvenile criminal records when seeking employment or military enlistment. Now it is no longer necessary to disclose sentences of five years’ imprisonment or less (including suspended sentences and other non-custodial penalties) for crimes committed before the age of 18. Meanwhile, a draft revision of the Criminal Procedure Law (CPL) currently under consideration would require that judicial organs and other government bureaus strictly limit the release of such records.

Sealing Juvenile Records.
Image Credit: Southern Daily

The sealing of juvenile criminal records can have a significant impact on an individual’s future, as even relatively light criminal offenses can limit opportunities for education and employment. According to a study by the Tianning District People’s Court in Changzhou, Jiangsu Province, 16 of 98 juvenile offenders given non-custodial sentences over a five-year period were unable to obtain employment because of their prior criminal records. Proposed CPL revisions come as several locations throughout the country are still experimenting with new ways of dealing with the juvenile records.

Typical are regulations that took effect in Changzhou on August 1. These regulations allow juvenile offenders, their guardians, or their relatives to petition courts to seal records of first offenses punished by no more than five years’ imprisonment. Before sealing, courts must scrutinize an individual’s post-conviction behavior and sincerity of remorse; after sealing, records can be unsealed upon further offense.

The new draft CPL does not appear to require courts to take offenders’ behavior or attitude into consideration when sealing records nor to provide for unsealing records after an additional offense. The variations between proposal and pilot demonstrate the importance of implementation, which will depend on concrete measures established by the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security.

Once drafted, these measures may also clarify whether individuals who commit certain offenses will be excluded. Under current regulations in Changzhou and other locales, individuals convicted of endangering state security, terrorism, or organized criminal activity are not eligible to have their records sealed. Such limitation seems to go against the spirit of the law, given that neither the amended Criminal Law nor the proposed CPL provisions make any mention of offense categories in connection with juvenile criminal records.

Several legislators and legal practitioners attending a recent conference—hosted by the All-China Lawyers Association Professional Committee for the Protection of Juveniles and the Beijing Juvenile Law Research Association—on the proposed provisions expressed concern that sealing criminal records was insufficient. Instead, they advocated expunging records fully after a specified period of time.

Despite having one of the worst juvenile crime rates in the country, Guangdong Province recently announced a plan to test expunging as a means of expanding efforts to help juvenile offenders re-enter society. From 2004 to 2009, Guangdong courts heard the criminal cases of more than 43,000 juveniles, accounting for 10 percent of all criminal trials in the province. Since 2009, Guangdong's procuratorates have prosecuted more than 23,000 juvenile offenders, 70 to 80 percent of whom are the children of migrant workers drawn to the Pearl River Delta's export manufacturing center.

Guangdong intends to expunge the criminal records of those sentenced to non-custodial punishment and to limit the release of any record of arrest or criminal investigation that did not lead to prosecution. (On experiments already underway in Beijing, please see this earlier report.)

Inevitably, given the overall concern with social stability in China, some have raised concerns that measures like delayed prosecution and record sealing will send the wrong message and limit the deterrent effect of criminal punishment. Commenting on the new measures in Guangdong, a recent editorial in Southern Daily, the Guangdong Province Communist Party Committee's official paper, urged caution:

未成年人心理发育不成熟，不能因其一次失足就否定其终生的可塑性，否则是对他们的极端不公平；但同样，对未成年人犯罪不能一味强调“宽”，不适当的宽就是放纵，反而变相鼓励未成年人再次犯罪。[Juveniles are psychologically immature, and it would be extremely unfair if we blocked their ability to mold themselves because of a single slip-up. But at the same time, we shouldn’t simply emphasize “lenience” in handling juvenile crime, because improper lenience is equivalent to indulgence that could, on the contrary, implicitly encourage juveniles to re-offend.]

Such concern reflects anxiety about how legislators should balance the rights of individuals and the rights of society. With juvenile justice reforms still undergoing experimentation in a relatively small number of locations, the prospect of extending lenience to juvenile offenders appears risky to some. National People’s Congress Deputy Yao Xiaoying also voiced concern during the initial reading of the revised CPL draft in August:

如果对五年以下的免予起诉，也不向社会公布，虽然对一个孩子今后走上社会是一个重要的保护，但在这个保护当中，我们对另外一部分人的生命、财产、成长的安全如何保护？这个社会承载的将是放任他继续犯错误的成本，这个成本巨大。[If juvenile offenders] are exempt from prosecution for [punishments of five years or less] and this cannot be publicly reported, though it would be an important protection for a child’s future entry into society, how can we concurrently protect the safety of others’ lives, property, and security? Society must bear the burden of allowing [an individual] to continue to make mistakes. This is a huge burden.]

If the proposed additions to the CPL are passed, it would represent an important step in the evolution of juvenile justice reform in China. It remains to be seen, however, whether the practical impact of such legislation will be blunted by restrictive rules for implementation and whether current willingness to pursue even more progressive practices like expunging might recede amongst waves of concern over moving too fast, too soon.

Translation: Amendments to the Criminal Procedure Law of the People’s Republic of China (Draft) [Excerpt]

2011-09-02T10:46:00.000-07:00

There has been much comment on the draft of China's amended Criminal Procedure Law, now open for public comment on the National People's Congress webpage. Virtually all comment to date has been on the negative implications of the mooted enhancement of police powers to secretly detain suspects in endangering state security cases. While Dui Hua shares the concerns of many inside and outside of China over the proposed changes to the section on residential surveillance, it notes positive changes set out in the draft law.

Among the most significant of the proposed changes is the addition of a section on juvenile cases. (China defines juveniles as individuals between the ages of 14 and 18, exclusive.) Reflecting years of inquiry into both domestic experiments and international practice, the proposed amendments represent the biggest improvement in the treatment of juvenile offenders within China’s criminal justice system since the founding of the People’s Republic in 1949. The text and Dui Hua’s complete translation of the juvenile cases section can be found below. Dui Hua's press statement can be read in Dui Hua News.

刑事诉讼法修正案（草案）条文及草案说明 [摘选]

九十五、增加一章，作为第五编第一章：

“第一章未成年人犯罪案件诉讼程序

“第二百六十三条对犯罪的未成年人，实行教育、感化、挽救的方针，坚持教育为主、惩罚为辅的原则。

“人民法院、人民检察院和公安机关办理未成年人犯罪案件，应当保障未成年人行使其诉讼权利，保障未成年人得到法律帮助，并由熟悉未成年人身心特点的审判人员、检察人员、侦查人员进行。

“第二百六十四条未成年犯罪嫌疑人、被告人没有委托辩护人的，人民法院、人民检察院、公安机关应当通知法律援助机构指派律师为其提供辩护。

“第二百六十五条对于未成年犯罪嫌疑人、被告人，应当严格限制适用逮捕措施。人民法院决定逮捕和人民检察院审查批准逮捕，应当讯问未成年犯罪嫌疑人、被告人。

“对被拘留、逮捕和执行刑罚的未成年人与成年人应当分别关押、分别管理、分别教育。

“第二百六十六条对于未成年人犯罪案件，在讯问和审判时，应当通知犯罪嫌疑人、被告人的法定代理人到场。无法通知、法定代理人不能到场或者法定代理人是共犯的，也可以通知犯罪嫌疑人、被告人的其他成年近亲属，所在学校、单位或者居住地的村民委员会、居民委员会、未成年人保护组织的代表到场，并将有关情况在讯问笔录中注明。到场的法定代理人可以代为行使犯罪嫌疑人、被告人的诉讼权利。

“到场的法定代理人或者其他人员认为办案人员在讯问、审判中侵犯未成年人合法权益的，可以提出意见。讯问笔录、法庭笔录应当交给到场的法定代理人或者其他人员阅读或者向他宣读。

“讯问女性未成年犯罪嫌疑人，应当有女工作人员在场。

“审判未成年人犯罪案件，未成年被告人最后陈述后，其法定代理人可以进行补充陈述。

“询问未成年被害人、证人，适用第一款、第二款、第三款的规定。

“第二百六十七条对于未成年人涉嫌刑法分则第四章、第五章、第六章规定的犯罪，可能判处一年有期徒刑以下刑罚，符合起诉条件，但有悔罪表现的，人民检察院可以作出附条件不起诉的决定。人民检察院在作出附条件不起诉的决定以前，应当听取公安机关、被害人的意见。

“未成年犯罪嫌疑人及其法定代理人对人民检察院决定附条件不起诉有异议的，人民检察院应当作出起诉的决定。

“第二百六十八条在附条件不起诉的考验期内，由人民检察院对被附条件不起诉的犯罪嫌疑人进行监督考察。犯罪嫌疑人的监护人，应当对犯罪嫌疑人加强管教，配合人民检察院做好监督考察工作。

“附条件不起诉的考验期为六个月以上一年以下，从人民检察院作出附条件不起诉的决定之日起计算。

“被附条件不起诉的犯罪嫌疑人，应当遵守下列规定：

“（一）遵守法律、行政法规，服从监督；

“（二）按照考察机关的规定报告自己的活动情况；

“（三）离开所居住的市、县或者迁居，应当报经考察机关批准；

“（四）按照考察机关的要求接受教育矫治。

“第二百六十九条被附条件不起诉的犯罪嫌疑人，在考验期内发现有下列情形之一的，人民检察院应当撤销附条件不起诉的决定，提起公诉：

“（一）实施新的犯罪或者发现决定附条件不起诉以前还有其他罪需要追诉的；

“（二）违反治安管理规定或者考察机关有关附条件不起诉的监督管理规定，情节严重的。

“被附条件不起诉的犯罪嫌疑人，在考验期内没有上述情形，考验期满的，人民检察院应当作出不起诉的决定。

“第二百七十条审判的时候被告人不满十八岁的案件，不公开审理。

“第二百七十一条在法庭调查中，人民法院应当对未成年被告人的成长经历、犯罪原因、教育改造条件进行了解。

“第二百七十二条犯罪的时候不满十八岁，被判处五年有期徒刑以下刑罚的，司法机关和有关部门应当对相关犯罪记录予以封存。

“犯罪记录被封存的，不得向任何单位和个人提供，但司法机关为办案需要或者有关单位根据法律法规规定进行查询的除外。依法进行查询的单位，应当对被封存的犯罪记录的情况予以保密。

“第二百七十三条办理未成年人犯罪案件，除本章已有规定的以外，按照本法的其他规定进行。”

Amendments to the Criminal Procedure Law of the People’s Republic of China (Draft) [Excerpt]

95. Addition of Article 5 Section 1:

“Section 1: Procedure for Juvenile Criminal Cases

“263. Implement educational, reformative, and redemptive guiding principles for juvenile offenders, upholding the principle of education first, punishment second.

“People’s courts, people’s procuratorates, and public security organs handling juvenile criminal cases shall ensure that juveniles exercise their procedural rights, ensure juveniles receive legal aid, and see that the cases are handled by judges, procurators, and investigators who are familiar with the special physical and emotional needs of juveniles.

“264. For juvenile criminal suspects or defendants without defense counsel, people’s courts, people’s procuratorates, and public security organs shall notify legal aid organizations to appoint a lawyer to serve in their defense.

265. Arrest measures shall be strictly limited for juvenile criminal suspects or defendants. People’s courts deciding to arrest and people’s procuratorates investigating and approving arrest shall interrogate the juvenile criminal suspect or defendant.

“Juveniles who have been detained, arrested, and are serving their sentence shall [each] be held separately, managed separately, and educated separately from adults.

“266. During the interrogation and trial of juvenile criminal cases, legal representatives of juvenile criminal suspects or defendants shall be notified to be present. [In instances where] such notification cannot be made, legal representatives cannot be present, or legal representatives are accomplices, notification may also be given to another close adult relative of the criminal suspect or defendant; a representative of his or her school or work unit; or a representative of the village committee, residential committee, or juvenile protection organizations in his or her place of residence, and a note made of this in the interrogation record. Present legal representatives may exercise procedural rights on behalf of the criminal suspect or defendant.

“A present legal representative or other member of personnel that believes personnel handling the case violated the lawful rights and interests of the juvenile during interrogation or trial may submit an opinion. Interrogation records and court records shall be provided to the present legal representative or other member of personnel to read or to be read aloud to him/her.

“Interrogation of female juvenile criminal suspects shall be done in the presence of female staff.

“In the trial of a juvenile criminal case, after the final statement of the juvenile defendant, his/her legal representative may make an additional statement.

“The regulations in Clauses 1, 2, and 3 apply to the questioning of juvenile victims and witnesses.

“267. [For] juveniles suspected of crimes in Sections 4, 5, and 6 of the enumerated offenses of the Criminal Law [i.e., crimes against a person’s individual or civil rights, crimes against property, and crimes of disturbing social order] who face fixed-term imprisonment of one year or less and meet the criteria for prosecution but have expressed regret, the people’s procuratorate may issue a decision of conditional non-prosecution. Before issuing a decision of conditional non-prosecution, the people’s procuratorate shall hear the opinions of public security organs and victims.

“[When] juvenile criminal suspects and legal representatives object to the people’s procuratorate’s conditional non-prosecution decision, the people’s procuratorate shall issue a decision to prosecute.

“268. During the probation period of conditional non-prosecution, the people’s procuratorate is to conduct monitoring and evaluation of the criminal suspect. The criminal suspect’s guardian shall strengthen discipline, cooperating with the people’s procuratorate to accomplish monitoring and evaluation work.

“The probation period of conditional non-prosecution shall be between six months and one year, starting from the day the people’s procuratorate issues its decision of conditional non-prosecution.

“Criminal suspects under conditional non-prosecution shall adhere to the following regulations:

“1. Respect the law and administrative regulations and submit to monitoring;
“2. Report his/her activities according to regulations stipulated by the probation organ;
“3. Report to and seek approval from the probation organ [when] leaving his/her city or county of residence or changing his/her place of residence;
“4. Accept correctional education according to the requirements of the probation organ.

“269. [If] the following circumstances are discovered for criminal suspects under conditional non-prosecution during the probation period, the people’s procuratorate shall vacate the conditional non-prosecution decision and prosecute:

“1. Commits another crime or is found to have had other prosecutable [offenses] prior to the decision of conditional non-prosecution;
“2. Commits in a serious manner a violation of either public order regulations or the probation organ’s monitoring-management regulations relating to conditional non-prosecution.

“[For] criminal suspects who complete the probation period of conditional non-prosecution without either of the aforementioned circumstances occurring, the people’s procuratorate shall issue a decision not to prosecute.

“270. Hearings shall not be public where defendants are younger than 18 years old at the time of trial.

“271. During court investigation, the people’s court shall [seek to] understand the juvenile defendant’s experience growing up, reasons for committing the crime, and conditions of education and reform.

“272. For those younger than 18 years old at the time of the offense who have been given a sentence of less than five years of fixed-term imprisonment, the judicial organs and relevant departments shall seal relevant criminal records.

“Sealed criminal records must not be provided to any work unit or individual, except [in situations where] judicial organs need them to conduct case work or relevant work units are conducting an inquiry in accordance with laws and regulations. Work units conducting an inquiry according to the law shall treat the situation of sealed criminal records with confidence.

“273. [Other aspects of the] handling of juvenile criminal cases, unless covered by the regulations of this section, shall be in accordance with other regulations of this law.”

Moving the Mountain: China’s Struggle for Death Penalty Reform

2011-09-01T00:04:00.000-07:00

The Li Changkui (李昌奎) case demonstrates the negative effect of public opinion and official interference on death penalty reform in China. The Zhaotong Intermediate People’s Court sentenced Li to death for one count of rape and two counts of murder in July 2010. Li appealed, and the Yunnan High People’s Court revised the sentence in March 2011 to death with two-year reprieve—a uniquely Chinese sentence that is virtually always reduced to either a life or fixed-term sentence.

By several accounts, these two trials were not marred by procedural error, and according to a 2008 op-ed by Hu Yunteng, vice-director of the Research Office of the Supreme People’s Court, a suspended death sentence is not out of the ordinary for a homicide case involving personal disputes. (Xinhua reported that Li proposed to one of his victims before the murders but was rejected by her family; the other was the first victim’s little brother.) In the op-ed published by Legal Daily in March 2008, Hu said:

In the past, when homicide cases arose from contradictions among people and neighborhood disputes, a large number of defendants were sentenced to death with immediate execution; now, however, the death penalty with immediate execution is nearly unknown in such cases.

There was little media attention to Li’s case until about three months after the high court’s verdict. In June 2011, in Xi’an, Shaanxi Province, Yao Jiaxin (药家鑫) was executed for intentionally killing a woman after accidentally hitting her with his car. Media attention to the Yao Jiaxin case started before Yao went to trial in Xi’an and mostly served to decry the heinous nature of his crime. Although Yao was executed in Shaanxi, his high-profile case spurred an onslaught of comparative media reports and forum posts on the perceived leniency that Li had received in Yunnan.

The brother of Li’s victims holds up a sign protesting Li’s reduced sentence of death with two-year reprieve. Photo credit: Huang Xiuli, Southern Weekly

Responding to popular appeals for harsher sentencing, the Yunnan High People’s Court held a press conference on July 6, 2011. Judges Zhao Jiansheng and Tian Cheng, the court spokesman, emphasized the need to change the traditional concept of retributive justice. The judges explained that Li was eligible for a lighter sentence because he committed a crime of passion, turned himself in to authorities, and offered to compensate the victims’ family. Judge Zhao asserted that “the Supreme People’s Court requires that the death penalty be extremely carefully applied in cases that are caused by civil disputes and conflicts between married couples, families, and neighbors.”

The July press conference indicated that the Yunnan High People’s Court was prepared to withstand public pressure and stick to its verdict of death with two-year reprieve. But the court, citing Articles 204 and 205 of the Criminal Procedure Law, announced a retrial only a week later. Then on August 22 it reversed its decision and put Li back on death row.

The reversal led to demands for retrial from another victim’s family. Sai Rui (赛锐) was 21 when he stabbed a woman to death for refusing his romantic advances. Like Li, he turned himself in to authorities, was sentenced to death by the Zhaotong Intermediate People’s Court, and ultimately sentenced to death with two-year reprieve by the Yunnan High People’s Court. The media did not report heavily on the case before July 2011, and the appeal verdict, issued in November 2009, was upheld.

Timeline of Li, Sai, Yao Cases

Date	Event
6/18/2008	Sai Rui murders a young woman at a café in Zhaotong, Yunnan, and flees the scene.
5/2009	Zhaotong Intermediate People’s Court sentences Sai to death.
11/2009	Yunnan High People’s Court (YHPC) revises sentence to death with two-year reprieve, citing 1) Sai turned himself in; 2) it was a crime of passion; and 3) first trial sentencing was inappropriate.
5/16/2009	Li Changkui rapes and murders a young woman and her brother in Zhaotong and flees the scene.
5/20/2009	Li turns himself in.
7/15/2010	Zhaotong Intermediate People’s Court sentences Li to death, rejecting the defense's argument that it was a crime of passion.
10/20/2010	Yao Jiaxin hits a woman with his car and stabs her to death in Xi’an, Shaanxi.
3/4/2011	YHPC revises Li’s sentence to death with two-year reprieve.
4/22/2011	Xi’an Intermediate People’s Court sentences Yao Jiaxin to death.
5/20/2011	Shaanxi High People’s Court upholds Yao’s sentence on appeal, sends to SPC for review.
6/7/2011	Yao is executed.
7/6/2011	YHPC holds a press conference regarding its decision, emphasizing 1) reform of retributive killing; 2) Li turned himself in; 3) lesser social impact of murder cases resulting from personal disputes; and 4) SPC policy of “killing less, killing carefully.”
7/10-13/2011	YHPC announces trial review procedure, and provincial procuratorate suggests retrial.
8/2011	Victim’s family calls for a retrial for Sai.
8/22/2011	YHPC holds retrial in Zhaotong and sentences Li to death, ruling that the trial of second instance was correct in procedure but inappropriate in sentencing.

Due to its location along the Burmese border, Yunnan deals with a disproportionate amount of drug cases that carry the death penalty. (In 2006 Dui Hua uncovered the only complete timeline giving the number of executions in a Chinese administrative unit, Maguan County in Yunnan. In a county of 400,000 people, six were executed in 1999, the latest year for which statistics are available.) Partly because drug cases are at the intersection of capital punishment and HIV, and partly because of its high number of executions, Yunnan was an early adopter of death penalty reform. In 1997 its provincial capital, Kunming, was the first Chinese city to start using lethal injection. (HIV concerns were pivotal because traditional gunshot executions caused blood spattering that could lead to infection.)

The cases of Li, Yao, and Sai demonstrate that Yunnan continued its commitment to death penalty reform through judicial activism that was not occurring in other provinces. In 2008 the Supreme People’s Court (SPC) approved 92.5 percent of death penalty cases submitted by the Yunnan High People’s Court, three percentage points higher than the national average, according to court President Xu Qianfei. Pressure from vocal retributive-justice supporters did cause the court to explain its actions. But the quickness of the court to reverse its stance and hold a retrial seems more characteristic of orders from above than criticism from below.

In 2007 the SPC regained the sole authority to review capital cases, after which the number of death sentences with immediate execution fell below the number of death sentences with reprieve. According to Regulations Governing Issues in the Review of Death Penalty Cases by the Supreme People’s Court, issued on February 27, 2007, the lower court’s decision to execute should be approved during SPC review if “the determination of facts and application of the law … are deemed to have been correct, the penalty appropriate, and the legal proceedings in accordance with the law” (emphasis added).

“Inappropriate penalty” is the reason both the Yunnan People’s Procuratorate and Yunnan High People’s Court gave for recommending and ultimately conducting a retrial. Both stated that the facts, evidence, and procedures were clear and correct. The language and current judicial hierarchy suggest that intervention may have occurred on the level of the Supreme People’s Court. That said, there is conflicting information on whether death with two-year reprieve falls under the scope of SPC review. In the case of Li Changkui, media reports do not mention that the Yunnan High People’s Court had submitted its initial verdict for review. In an August 22 report on the retrial, however, Xinhua states prominently that the reinstated death sentence is pending SPC approval.

“Abolishing the death penalty … is a good legal ideal that needs to be determined at the national level, it cannot be determined by a court verdict,” Deng Zibin, Deputy Director of the Criminal Law Department of the China Academy of Social Sciences’ Legal Studies Center, told Southern Weekly.

Deng implies that wider-reaching national directives could come on the coattails of this case, but obstacles exist. Writing about the problems faced by SPC review in 2008, the vice-director of the Research Office of the Supreme People’s Court highlighted that 1) “there are strong demands by relevant bodies and personnel to intervene in death penalty review procedures,” and 2) “if there is a rise in extremely violent crime and public calls for more frequent use of the death penalty strengthen, there will be tremendous pressure that will affect whether restriction of the death penalty can be maintained.”

What’s clear is that both the Supreme People’s Court and the Yunnan High People’s Court are advocates for death penalty reform, but that popular opinion and a desire for national uniformity are standing in the way of both transparency and the right to life.

Surging Numbers of Women in Prison Present Unique Challenges

2011-08-28T17:48:00.000-07:00

Retired businesswoman-cum-rights activist Wang Lihong (王荔蕻) was tried on charges of creating a serious disturbance on August 12. She was previously detained for celebrating Liu Xiaobo’s Nobel Peace Prize. Former lawyer and housing activist Ni Yulan (倪玉兰) was detained for creating a serious disturbance in April and issued a new indictment for fraud in July. She was allegedly beaten by police during a previous detention and visited by Jon Huntsman, the former US ambassador to China, in February 2011.

Given the high rate of conviction in criminal trials, it is likely that both Wang and Ni will join the swelling ranks of China’s women prisoners.

Inmates marching in Guangdong Women’s Prison, May 2004. With a capacity of 5,000 inmates, this prison is thought to be the largest women’s prison in the world. Photo credit: Liu Hongqun, Guangdong Department of Justice

As of late August, Dui Hua had almost 5,700 women recorded in its database of more than 25,000 political and religious prisoners who have been detained in China since 1980. Most have been released. Well-known female political prisoners have included: the Tibetan leader of the singing nuns of Drapchi Ngawang Sangdrol (阿旺桑珍), released on medical parole in 2002 after spending 10 years in prison; award-winning journalist Gao Yu (高瑜), released in 1999 after completing the majority of a six-year sentence; and Uyghur businesswoman and activist Rebiya Kadeer (热比亚•卡德尔), released on medical parole in 2005 after five years’ imprisonment. Ngawang Sangdrol and Rebiya Kadeer are living in exile in the United States.

Dui Hua currently knows of nearly 1,300 women political prisoners confirmed or reported to be in detention centers, prisons, or reeducation-through-labor camps. These include Gulmire Imin (古丽美拉), serving a life sentence for administering a Uyghur website that called for a demonstration in Xinjiang in July 2009; Yeshe Choedron (益西曲珍), serving a 15-year sentence for providing information to the Tibetan Youth Congress; and Ding Shuyin (丁树银), serving a 12-and-a-half year sentence for protesting against railway construction in Tianjin. Many religious prisoners are Falun Gong practitioners. Two of those currently incarcerated for “cult offenses” are former university lecturer Liang Bo (梁波), serving a three-and-a-half year sentence, and Yao Yue (姚悦), a Qinggua University researcher serving a 12-year sentence. As with the political prisoner population as a whole, Dui Hua knows the names of only a small fraction, probably under 10 percent, of all women political prisoners. Several of those rounded up as part of the recent campaign to stifle calls for a Jasmine Revolution—including Liang Haiyi (梁海怡), still detained in Heilongjiang, and Lui Guohui (刘国慧), under residential surveillance in Shandong—have been women.

A Global Issue: Soaring Rates of Women in Prison

Women are the world’s fastest growing prisoner demographic, estimated to account for between 2 and 10 percent of national prison populations. In China, more than 5 percent of inmates in prisons run by the Ministry of Justice are women, a figure that has been growing since the 1990s. According to China News Service, between 1997 and 2002 the number of women in Chinese prisons increased at an average annual rate of 13 percent. Although the annual rate of growth has slowed somewhat since 2002, it is still faster than the rate of increase for male prisoners. If the rate of growth registered in 2009 is maintained, China’s prisons will hold nearly 100,000 female prisoners by the middle of 2012.

Women in Prison

Year	Number	Percent of Total Prisoners
2003	71,286	4.61%
2004	75,870	4.85%
2005	77,279	4.96%
2006	77,771	4.97%
2007	78,334	5.00%
2008	80,951	5.09%
2009	85,167	5.25%

Source: National Bureau of Statistics, China

These numbers do not include women held in detention centers awaiting trial. Nor do they include women in reeducation-through-labor camps and other forms of “administrative detention” like custody-and-education centers, which hold sex workers and their clients, and mandatory drug rehabilitation centers. Based on limited statistics and anecdotal evidence, a significant number of the roughly 200,000 prisoners in China’s reeducation camps are female Falun Gong practitioners. (Practitioners who fail to be reeducated are sometimes incarcerated in so-called “legal education centers.”)

Aside from the nationwide crackdown on Falun Gong practitioners that began in 1999, increasing urbanization is also a factor in the rise of China’s women prisoner population. Urbanization has exacerbated the income disparities between rural and urban dwellers and contributed to a rise in domestic abuse (and resultant self-defense), property crimes, child trafficking, and sex work—those organizing and facilitating sex work are handled in the criminal justice system, while sex workers and their clients are handled in the administrative punishment system.

In China, as elsewhere, administering female prisoner populations presents unique challenges. Unless female prisoners are segregated from male prisoners and supervised by female guards, the risk of male-on-female violence is high. Chinese laws and regulations dictate that women and men be held in separate detention facilities, but examples of men abusing female inmates are not uncommon. In 2000, China’s Justice Minister Gao Changli was removed from office due to unspecified economic and political problems. It was widely rumored that he had incurred the wrath of then President Jiang Zemin for allowing sex workers, many of them female prisoners, into prisons to service well-heeled inmates. On his visit to the all-male Tilanqiao Prison in Shanghai in December 2000, Dui Hua Executive Director John Kamm was shown a pre-fab cell block used to house female prisoners assigned to the prison’s “artistic performance troupe.”

An inmate looks on as prisoners practice Taichi, October 2009. Photo credit: Sichuan News Agency

Another area of concern is the handling of pregnant inmates and procedures surrounding childbirth in prison. China’s record in this area seems considerably better than that of the United States, where in a majority of the 50 states prison guards are allowed to shackle women during childbirth and where in many states, including California, babies are separated from their mothers 48 hours after birth. Chinese regulations permit pregnant and nursing women to serve their sentences outside of prison, though it is not known how common it is for this enlightened policy to be observed.

Perhaps the biggest problem facing administrators charged with managing China’s women prisoners is overcrowding. Most Chinese provinces have only one dedicated women’s prison, and design capacities have not kept pace with the growth in inmate populations. In Shandong, for example, officials recommended in May 2004 that a new women’s prison be constructed with a capacity of 3,000 inmates. At that time, the number of women detained in the provincial women’s prison was 147 percent of its 1,500-inmate capacity. By 2010 Shandong was still reviewing bids to relocate the prison.

Conditions in China’s custodial facilities are largely unknown because of a lack of updated information and access. Foreign visits are rarely allowed. Dui Hua is aware of only two foreign visits to women’s prisons and reeducation camps in recent years. In November 2003, participants in the EU-China Human Rights Dialogue were shown the Daxing Women’s Reeducation-through-Labor Camp south of Beijing. The visitors were told that 70 percent of inmates were Falun Gong practitioners. In 2009, Melanie Tai, a senior officer with New South Wales Correctional Services, was taken on a tour of a women’s prison but no details of her visit have been released.

The UN’s adoption of the Bangkok Rules (also known as the Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders) in December 2010 portends more attention to the plight of women in prison worldwide. This will hopefully also lead to greater openness among China’s penal authorities in discussing problems associated with the country’s growing population of women prisoners. A first step is to engage in dialogue with international bodies and countries, like the United States, that are also challenged by the surge in the number of women in custody. Dui Hua’s research indicates that no two countries have ever held a formal exchange dedicated exclusively to women in prison.

Xu Zerong: With American Attention … All Prisoners Benefit

2011-08-11T14:34:00.000-07:00

John Kamm with Ministry of Justice and prison administration bureau officials at Dongguan Prison, November 11, 2002.

In recent years, visits to Chinese prisons made by representatives of foreign governments and non-governmental organizations have been reduced to a trickle. This is due in part to the reduction of Sino-Western bilateral rights dialogues and the elimination of visits to custodial centers that these dialogues once fostered. Consular visits to individual prisoners aside, the International Center for Prison Studies visited prisons in Anhui and Hubei in March 2009; Dui Hua visited the Beijing Juvenile Detention Center in May 2010; and an international humanitarian organization visited two Chongqing prisons in the spring of 2011. No United Nations officials have been allowed into Chinese prisons since Manfred Nowak, the special rapporteur on torture, returned from a visit in late 2005 to condemn its palpable “climate of fear.”

Though dwindling, visits by foreigners to Chinese prisons play an important role in ensuring the humane treatment of prisoners. In a recent interview with Hong Kong’s Open Magazine, Xu Zerong discussed how he ended up serving 11 years in prison and how overseas intervention improved his life in custody.

In November 2002, Dui Hua Executive Director John Kamm visited Dongguan Prison in Guangdong Province. A few months later, Xu was transferred there to serve his sentence for “trafficking in state secrets.” The following is an excerpt from the Open Magazine interview detailing prison conditions and the impact of international concern on the treatment Xu received.

•

Writing Got Him Through the Prison Years
Cai Yongmei
Open Magazine
August 6, 2011

[Translated Excerpt]

問：與花相比如何？

Open Magazine: How was [Dongguan Prison] compared to Huadu [National Security Detention Center]*?

徐澤榮：好多了，在花都關在只有一兩個人的牢房中，現在一間牢房有十至十二人，有人說話。東莞監獄是廣東的模範監獄，管理比較文明。這也有美國人的功勞。中美對話基金會的康原（John Kamm），於一九九九年十一月來參觀過，由司法部外事處的人陪同，監獄小報有報導。有了美國人的關注，監獄環境得到改善，犯人都是受益者。

Xu Zerong: Much better. At Huadu I was held in a cell with just one or two people. [At Dongguan] each cell had 10 to 12 people, so there were people to talk to. Dongguan Prison is a model prison in Guangdong Province. Management is relatively civilized. This is also to the Americans’ credit. The Dui Hua Foundation’s John Kamm visited [Dongguan Prison] in November 1999 [sic] along with officials from the Ministry of Justice foreign affairs bureau; this was reported in the prison newspaper. With American attention, prison conditions improved, and all prisoners benefited.

問：康原對你的案子一直很關注。

OM: Kamm remained very concerned about your case.

徐澤榮：是的，這年十一月我從東莞監獄調到環境更好的廣州西村監獄，我認為是康原幫的忙。廣州西川與東莞這兩個監獄都被評為廣東部級文明監獄，由於西村是廣東勞改局直接領導，生活上對犯人更要文明一些，加班也沒有東莞厲害。在東莞由於勞動時間長，沒有時間寫東西，我要半夜起來寫。西村監獄十五個監區，一個關香港人，一個關澳門台灣人，還有一個關外國人，但沒有西方人。我是關在大陸人的監區內。牢房中都有衛生間。一個緬甸人說感覺很好，好像是住賓館。○五年二月還把我與老弱犯人關在一起，免於勞動，使我有時間寫東西，都是康原與當局交涉的結果。他還給我寄了五本書，是關於美國外交和國際關係這類，還收到他一封短信。

XZR: Yes. In November of that year I was transferred from Dongguan Prison to Guangzhou Xicun Prison, which had even better conditions. I believe this was [due to] his help. Both the Guangzhou Xichuan [sic] and Dongguan prisons are considered Guangdong’s most civilized prisons. Because Guangdong’s prison administration bureau directly supervises Xicun [Prison], prisoners’ living conditions were even more civilized [there], and [mandatory] overtime labor was not as severe as in Dongguan. Because work hours were long in Dongguan, there was no time to write—I had to wake up in the middle of the night to write.

Xicun Prison has 15 cell blocks, one for Hong Kong people, one for Macanese and Taiwanese people, and one for foreigners, but there weren’t any Westerners. I was detained in the cell block for mainland Chinese. There were bathrooms in the cells. One Burmese said it felt nice, like staying in a guesthouse. In February 2005 I was even put together with weak and elderly** prisoners and waived from doing labor, giving me time to write. All of this was the result of Kamm’s negotiations with the authorities. He even sent me five books about things like US diplomacy and international relations. I also received a short letter from him.

問：你坐牢期間，海外對你的救援是否知道？

OM: When you were in prison, were you aware of the support you had overseas?

徐澤榮：我聽律師講到海外有人聲援我，聯署簽名。也有後來入獄的犯人說在香港電視上看過報導。我最為驚訝的是在廣州監獄收到美國硅谷寄給我的一張卡，有八個人簽名，其中一位叫周鋒鎖，我覺得名字很熟悉，我查官方出的六四書《新中國大波瀾》，發現他是北京天安門學生領袖，心裡很震動。還收到國際筆會從美國寄來的四封聖誕卡，也感到意外。你們獨立中文筆會頒獎給我，姪女也告訴我了，還把獎盃的照片交給了監獄方面。這些對我都是很大的鼓勵，知道在這個世界上有很多人不認為我是犯罪的。我真的是很感謝大家。

XZR: [My] lawyer told me that there were people overseas who were supporting me and signing a petition [on my behalf], and prisoners incarcerated afterward said they saw reports [on my case] on Hong Kong TV. The most surprising thing for me was when I was in Guangzhou Prison and received a card from Silicon Valley signed by eight people including someone named Zhou Fengsuo. The name sounded familiar so I looked in an official book on the June 4th incident, New China Review, and discovered that he was a student leader at Beijing’s Tiananmen. I was extremely moved.

I also received four Christmas cards sent from the United States by International PEN, which were unexpected. When your Independent Chinese PEN Center gave me an award, my niece told me and even gave the prison a photo of the trophy. All of this was of great encouragement to me, knowing that there are many people in this world who don’t think that I committed a crime. I am really very grateful to everyone.

*In the interview, Xu says Huadu National Security Detention Center was established in 1995 to house special operatives, political prisoners, and Guangzhou municipal officials ranking at or above deputy level. He said conditions at Huadu are better than at other detention centers, noting en suite air conditioners and televisions and good food.

**Prisoners age 55 and older are classified as elderly.

Of Spies and Dissidents

2011-07-18T10:40:00.000-07:00

Could it be that individuals convicted of espionage have higher rates of clemency than people convicted of non-violent speech and association?

A recent communication from a Chinese government source indicates that the alleged leader of a group of British spies operating in Hong Kong in the 1990s, Wei Pingyuan (魏平原), has had his life sentence commuted and prison sentence reduced. After two sentence reductions totaling two-and-a-half years, he is now due for release on February 20, 2025.

Wei worked on Taiwan affairs for Xinhua in the 1990s before resigning and becoming a naturalized Briton. He was detained while on a business trip to Guangdong Province in late 2003. At a closed trial in Guangzhou in November 2004, Wei was convicted of receiving hundreds of thousands of dollars from British intelligence for confidential communications between Chinese officials in Beijing and Hong Kong.

One of the most senior Chinese officials based in Hong Kong before the territory’s reversion to China in 1997, Cai Xiaohong (蔡小洪), was convicted along with Wei and sentenced to 15 years in prison. Cai Xiaohong is the former secretary general of China’s Central Liaison Office and the son of former Justice Minister Cai Cheng (蔡诚). Cai Xiaohong received a 20-month sentence reduction in 2007 and was under consideration for medical parole when he was transferred to a Beijing prison in early 2009 to be closer to his ailing father. (On September 2, 2009, at the age of 82, Cai Cheng died proclaiming his son’s innocence.)

Wei allegedly recruited Cai Xiaohong, leading to his harsher sentence. Sources also claim that he refused to cooperate with interrogators, but recent acts of clemency may indicate that he has since acknowledged the court’s verdict.

Clemency for Guangdong, Fujian Agents

Wei Pingyuan’s treatment is among the latest examples of clemency granted by Guangdong courts to individuals convicted of espionage and trafficking in state secrets. Chen Yulin (陈瑜琳), another British citizen and former Xinhua Foreign Affairs Department employee, was convicted of espionage and sentenced to life imprisonment in March 2004. His sentence was commuted to a fixed term in August 2007 and reduced by 18 months in June 2009. Sun Yuren (孙郁人), detained on suspicion of spying for Taiwan, was released from Guangdong’s Meizhou Prison on January 4, 2011. After three reductions, Sun served about two thirds of his initial 10-year sentence. High-profile sentence reductions for alleged American spy David Dong Wei and recently released Hong Kong scholar Xu Zerong also occurred in 2010 and 2011.

In a 2005 response to a list of cases of concern submitted by Dui Hua, 17 of 28 endangering state security (ESS) prisoners who received clemency were convicted of espionage or providing intelligence outside of the country. A majority of these prisoners were from Fujian Province. Follow-up communication in late 2010 revealed that several of these prisoners have received additional sentence reductions, including six given sentences of seven years or more for spying for Taiwan.

Among the most important acts of clemency for a state secrets trafficker in recent years is the early release of Jin Zhangqin (金章嵚). After retiring as an archivist for the Fujian provincial government, Jin served as a book agent for the University Services Center of the Chinese University of Hong Kong. Jin was detained on suspicion of trafficking state secrets in May 2003 and sentenced to 10 years’ imprisonment and three years’ deprivation of political rights in January 2004. He was released early in September 2010 after a 22-month sentence reduction for good behavior in 2007 and a one-year sentence reduction in 2010.

Soft on “Spies,” Tough on Dissidents

The number of sentence reductions for prisoners convicted of espionage and supplying foreign entities with state secrets contrasts sharply with that of prisoners convicted of speech and association offenses (subversion, splittism, and their incitement). A review of records in Dui Hua’s prisoner database—which catalogues about 24,000 cases—and available official statistics suggests that, in recent years, the majority of ESS arrests and trials have been for speech and association offenses. Despite making up the bulk of known ESS cases, speech and association prisoners are rarely granted clemency. There has not been a single known act of clemency for this group of prisoners since September 2009, when Jiangsu-based Internet essayist and political organizer Huang Jinqiu (黄金秋) and Sichuan labor activist Wang Sen (王森) were given 23-month and 10-month reductions, respectively.

Dui Hua research indicates that prisoners convicted of ESS have lower rates of sentence reduction and parole than the general prison population, for which the rate is about 30 percent. Within the ESS category, it seems that clemency is more common for individuals convicted of espionage—a crime most countries consider the greatest threat to national security—than for those convicted of non-violent speech and association. A number of factors may be involved here: discrepancies in information disclosure, differences in average lengths of sentences, official clout, admission of guilt, or individual circumstances.

What may also be at play is systemic prejudice. One official with whom Dui Hua has worked for many years acknowledged Dui Hua’s concern that “spies” had better access to clemency than dissidents by noting that only prisoners considered not to be a “threat to society” are eligible for parole. He stated that once out of jail spies can’t go on spying, while dissidents can continue stirring dissent. One wonders if that means that, for the sake of stability, citizens are better off selling out their country than trying to change it.

Official Fear: Inside a Shuanggui Investigation Facility

2011-07-05T13:58:00.001-07:00

There is a strong sense among many Chinese that corrupt officials must die. Recently, there were reports of public cheering for the death sentences of the deputy mayors of Suzhou and Hangzhou, and the executions of the head of the State Food and Drug Administration and the director of the Chongqing Municipal Justice Bureau. News of the number of corrupt high officials spared the death penalty also garnered much attention.

Translated below, a recent post by Chinese blogger Chu Zhaoxian (储昭贤) reveals a lesser-known, and arguably equally ruthless, tactic primarily used for dealing with Party members accused of corruption: shuanggui (双规). People facing shuanggui, which can be translated as “dual designation” and refers to a designated time and place of inquiry, are usually apprehended at their places of work or summoned for “voluntary visits” with investigators. They are then held in an undisclosed location, often a specially designed hotel or office building. There have been reports of psychological manipulation and physical torture during detention and interrogation, such as sleep deprivation, simulated drowning, burning the detainee’s skin with cigarettes, and beating. Since shuanggui is rooted in Party regulations instead of formal legislation, it is a form of extra-legal detention. Because such regulations lack the transparency afforded by a legal system, the extent to which human rights violations are committed during shuanggui is not well documented.

Despite its susceptibility to human rights violations, shuanggui gained the unashamed support of Chu, who assumes the same disposition of his readers. In the post, Chu describes his rare visit to a shuanggui investigation facility. The circumstances that led to the visit are unexplained; however, the trip does result in the publication of what Dui Hua believes to be the first photographic exposé of the inside of a shuanggui investigation facility.

Throughout his cold description of the rooms and instruments used for detention and interrogation, Chu drops menacing words of caution for the corrupt. He states that corrupt officials tremble with fear at the mention of shuanggui and do not make it three days before confessing. Chu ends the post with another warning: “Do not be invited here. If you come here, your days will seem like years. There is no rank before the law.”

Chu may be correct that “days will seem like years.” Shuanggui usually lasts several months and can extend to more than one year. Some shuanggui cases, particularly high-profile ones, are converted into criminal cases and adjudicated through the formal judicial process. The typical sentence is death or life imprisonment, with all property confiscated and official positions revoked. The following table summarizes some recent cases:

Name	Position held prior to shuanggui	Alleged offenses	Start of shuanggui	Criminal sentence, date of sentence
Chen Shaoji	Chairman, Chinese People’s Political Consultative Conference, Guangdong Province	Accepting bribes, embezzlement	Apr 2009	Death sentence, suspended two years, Jul 2010
Huang Yao	Chairperson, Chinese People’s Political Consultative Conference, Guizhou Province	Accepting bribes, facilitating an illegal mining enterprise	Oct 2009	Death sentence, suspended two years, Dec 2010
Kang Rixin	Party Secretary and General Manager, China National Nuclear Corporation; former member, Committee for Discipline Inspection	Accepting bribes, embezzling shareholder equity	Aug 2009	Life imprisonment, Nov 2010
Li Tangtang	Vice Chairman, Ningxia Hui Autonomous Region	Accepting bribes	Oct 2010	Life imprisonment, Apr 2011
Liu Zhijun	Party Secretary, National Railway Ministry	“Severe violations of discipline,” manipulating competitive bidding	Feb 2011	Pending
Lü Jiangbo	Village Director, Keren Village, Jinjiang City, Fujian Province	“Obstructing official business” (organizing village protests of land seizure)	Feb 2010	11 years’ imprisonment, Oct 2010
Pi Qiansheng	Director, Special Economic Zone, Tianjin Municipality	Illegal receipt of property, “seeking and facilitating benefits for others”	Jun 2009	Death sentence, suspended two years, Dec 2010
Song Yong	Deputy Director, Liaoning Provincial People’s Congress	Accepting bribes, embezzlement	Oct 2009	Death sentence, suspended two years, Jan 2011
Wang Huayuan	Member, Party Committee for Discipline Inspection, Zhejiang Province	Accepting bribes	Apr 2009	Death sentence, suspended two years, Sep 2010
Xu Zhongheng	Mayor, Shenzhen	Accepting bribes	Jun 2009	Death sentence, suspended two years, May 2011
Zhang Meifang	Deputy Director, Department of Finance, Jiangsu Province	Accepting bribes	Nov 2010	Pending
Zheng Shaodong	Assistant Department Head, Ministry of Public Security; member, Party Committee	Accepting bribes	Jan 2009	Death sentence, suspended two years, Sep 2010
Zhu Zhigang	Director, Commission for Budget Affairs of the Standing Committee of the National People’s Congress	Accepting bribes, abusing position to advantage others financially, manipulating real estate prices	Oct 2008	Life imprisonment, May 2010

Despite possible human rights abuses, or perhaps because of them, shuanggui is likely to remain a common anti-corruption measure for years to come. As the number of officials found guilty of corruption rises, it stands to reason that shuanggui, which can often be a path to harsh criminal sentences, would have some popular support. (As an indication of interest, Chu’s article spread virally with numerous re-postings by various blogs and news media.) Two reasons likely contribute to such support. First, shuanggui detainees are commonly accused of unpopular acts of corruption and graft. Second, shuanggui is almost exclusively used against Party members, who are part of an elevated socioeconomic group that comprises only 6 percent of Chinese citizens.

Sadly, acceptance of shuanggui seems to have seeped into international human rights circles and resulted in a dearth of relevant research and advocacy. While stamping out corruption is a worthy cause, it by no means warrants extra-legal detention, torture, or lack of transparency and rule of law.

Endnote: Days after publication, Chu’s article was deleted along with all but one of its re-postings. The remaining post contained none of the original photos and has since been deleted.

Where Corrupt Officials Fear Most: Exploring a Shuanggui Investigation Facility
Chu Zhaoxian
April 28, 2011

A popular saying among Chinese government officials goes: “Fear not the heavens or the earth, but fear the summons of the Central Commission for Discipline Inspection’s Anti-Corruption Office.”

I had a rare opportunity to visit a shuanggui anti-corruption investigation facility. There was no advance notice that I would be brought to this place. When the car reached the highway exit of another city, a police car appeared in front of us and led the way. We were driven through rugged and muddy mountain roads, until we were well within remote mountains. Getting out of the car, I looked around and saw nothing but the desolate mountains. We entered an ordinary-looking courtyard and stopped before a small building, where People’s Armed Police were standing guard.

On the other side, a leader led us into the building and through the security check machines. Not until we passed the security check could we start to move about normally.

Shuanggui stems from Article 28, Section 3 of the Investigations Regulations of the Ministry of Supervision of the Communist Party of China, which “demands a person relevant to a case to appear at a designated time and place to provide explanations regarding all aspects of the case.”

This is the hallway of the investigation facility.

Behind this door is the interrogation room of the facility, where investigators interrogate corrupt officials. Please note the term “interrogation room.” When a person enters this room, it is evident that the [Party] organization has already obtained conclusive evidence that the person is a corrupt official.

These are the investigators’ seats in the interrogation room. Note the presence of video cameras.

The lower podium across [from the investigators’ seats] is the seat for the corrupt official. Regardless of your past brilliance or elevated status, once you are invited to this place, your height [in the lower podium] is the same.

The walls are made of special materials. They are soft to touch, soundproof, and prevent accidents.

Protective fences are installed on the windows. Outside, there are only mountains, remote and uninhabited, leaving one with a desolate feeling.

The Central Committee for Discipline Inspection’s shuanggui system makes all problem officials tremble with fear. It is also known as “the sharp sword for punishing corrupt officials.”

This is the inquiry room, which is substantially different from the interrogation room.

The inquiry room also has installed a series of equipment [capable of performing] synchronous audio recording, synchronous video recording, synchronous broadcast, and synchronous backup [so that] the entire process of investigation and inquiry is simultaneously supervised. Note the arrangement of the table and chairs, which differs from that of the interrogation room.

This is the psychological examination room.

The psychological examination room has many advanced instruments. Lies are immediately detected. [The instruments] are very sensitive.

[This is the] investigations command room.

I am especially fascinated by this big monitor, which I had only heard of but never seen before. This is the investigations command room’s monitor of the investigation status in every room. Using [a big monitor to provide] a clear picture at a glance is very appropriate.

I heard that all corrupt officials who are summoned to the investigation facility have their contemptuous behavior exposed. Living under shuanggui is what they fear most. Within three days, they will confess.

Due to special reasons, some photographs and descriptions have been left out. [Here is] a warning for government officials to bear in mind: The power in your hands is given by the people for seeking the benefit of the people. Do not betray the people’s trust. Be a good official with both competence and integrity. Do not be invited here. If you come here, your days will seem like years. There is no rank before the law.

Signs of Movement toward Long-Awaited Procedural Reforms

2011-06-22T10:20:00.000-07:00

Proposals for revision of China’s Criminal Procedure Law (CPL) have been circulating for years, but there are signs that new legislation may be on the way. Earlier this month, Zhou Yongkang, the member of the Politburo Standing Committee responsible for coordinating security and law enforcement, called for revision of the CPL in order to strike a better balance between fighting crime and protecting human rights.

Following Zhou’s remarks, Chinese media gave much attention to CPL revision, highlighting many of the serious issues in urgent need of reform. These issues will be familiar to readers of the Human Rights Journal—for example, the need to protect suspects against extraction of confessions through torture and reduce the obstacles defense lawyers face in trying to meet with detainees. Experts familiar with the process have said that immunity from self-incrimination through a “right to remain silent” and conditional exemption from indictment—similar to that already being experimented with in juvenile cases—are some of the proposals being discussed.

A June 14 editorial in the Guangzhou-based Southern Metropolis Daily (translated below) joined the chorus welcoming revision of the CPL but makes clear that a more fundamental change of mindset is also needed. The article advocates placing as much, if not more, value on procedural justice as on substantive justice. A day later, it was followed by a letter to the editor (also translated in this post) arguing that legislative reform may not be enough and that the fight against torture requires institutional changes that guarantee judicial independence from political control.

Use Criminal Procedure Law Revision to Establish the Principles of Procedural Rule of Law
Southern Metropolis Daily editorial
June 14, 2011

　　
Enacted in 1979, the CPL underwent its first major revision by the National People’s Congress (NPC) in 1996. But, in recent years, a series of revelations involving cases of torture and false confession have led members of the legal community to increase calls for another major revision. According to information from a recent plenary meeting of the Central Politico-Legal Committee, the NPC has already begun work on a revision of the CPL, a revision that promises to exclude evidence extracted through torture.

She Xianglin, Zhao Zuohai, “blind man’s bluff”—behind this series of terrible incidents is the impact of an abnormal evaluation system for administrative performance and, even more, the absence of legal checks against due process violations by organs of public power. Taken as procedural law, the CPL causes increasing worry each time its defects are implicated in one awful incident after another. Even the 1979 CPL did not authorize the use of torture, but because the relevant laws lack provisions to impose legal consequences, it has meant that inherently illegal evidence such as coerced confessions could actually be used as the basis for conviction. Under these circumstances, it is clearly not enough to rely solely on the intrinsic qualifications, morality, and self-restraint of public servants. One might say that this is precisely the reason why it is so difficult to root out the coercion of confession through torture.

Now that revision of the CPL has been placed on the legislative agenda, there is hope that the law can be used to eliminate the space in which illegally obtained evidence can survive. This is naturally a major event along the path of rule-of-law development in China. To be sure, the Supreme People’s Court, Supreme People’s Procuratorate, and three other bodies were forced by events to issue Rules Concerning Questions about Exclusion of Illegal Evidence in Handling Criminal Cases in July 2010. The rules clearly define “the category of illegal oral evidence [to] include statements by criminal suspects of defendants obtained through illegal means such as coerced confession, as well as witness testimony or victim statements obtained through illegal means such as use of violence or threats.” They further provide that “oral evidence that has been determined to be illegal in accordance with the law shall be excluded and may not serve as the basis for conviction.” But both with respect to legal efficacy and significance, the issuance of these rules clearly cannot compare to revision of the CPL.
　　
There is ample reason why so much of the public’s attention on revision of the CPL has been focused on the issue of coercion of confessions through torture. We must not forget, however, that exclusion of illegally obtained evidence is just one aspect of the “right to remain silent” that criminal suspects ought to enjoy. Under a civilized, humane CPL, criminal suspects would not only have the right to remain silent under questioning by law-enforcement personnel without suffering legal repercussions, namely, the right against self-incrimination. They would also enjoy the right to full assistance by an attorney and, for those criminal suspects who because of economic difficulty or other reasons have not obtained a lawyer, the right to complete legal aid. In this regard, then, we should no doubt undertake a somewhat more comprehensive review of the CPL. For example, with respect to meeting [with detained suspects], accessing [the prosecution’s] case files, and carrying out investigations and collecting evidence, the differences between the provisions of the CPL and the later Law on Lawyers have made it impossible for the well-intentioned Law on Lawyers to be implemented fully and effectively. There is also widespread grumbling among lawyers about these “three difficulties.” Perhaps revision of the CPL offers a good opportunity to resolve the conflicts between these two different laws and preserve the authority of the law.

Whether it is giving criminal suspects the right to remain silent or the right to legal counsel, superficially, it all seems to be to the benefit of criminal suspects. Actually, this is not so. Logically, any citizen has the potential to suddenly become a criminal suspect or defendant, so protecting the legal rights of criminal suspects is also protecting citizens from illegal harm. In a country with rule of law, all laws have the double value of protecting human rights and fighting illegal crime. As procedural law, the CPL should place greater emphasis on the former because the whole reason we need procedural law in addition to substantive law is to check abuses of power. The CPL is the umbrella protecting the due-process rights of defendants. If you take away the legal protection of the CPL, defendants lose the ability to defend themselves in the face of the powerful investigative and prosecutorial organs. The so-called litigation process will no longer be a contest between prosecution and defense and will be in danger of being transformed into a one-sided punishment operation carried out by the organs of [state] power.

Criminal litigation is a classic arena for the exercise of state power, one in which it is easy for power to be abused or used without control. During the late Qing period of legal reform, the celebrated legal expert Shen Jiaben exclaimed: “An unsatisfactory criminal law will not harm the law-abiding, but an imperfect criminal procedure law will bring harm even to law-abiding people.” Faced with this painfully obvious experience, we should completely do away with all thinking that emphasizes substantive law over procedural law. In order to avoid making the same mistakes again, we should cherish this opportunity to revise the CPL, firmly establish the principle of procedural rule of law, promote the idea of procedural justice, increase procedural limits on power, make the consequences of procedural violations clearer, and enrich the measures available for procedural sanctions and remedies. This is an opportunity that must not be missed—not by the public, the media, or the legislature.

Key to Curbing Torture Not in Criminal Procedure Law
Yang Tao
Southern Metropolis Daily
June 15, 2011

In fact, even without clear provisions in the CPL to exclude illegally obtained evidence, there are already clear measures to do so at the level of judicial interpretation. Unless everyone has already forgotten, after the Zhao Zuohai case, on May 30, 2010, the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice jointly issued Rules Concerning Questions about the Examination and Judgment of Evidence in Death Penalty Cases and Rules Concerning Questions about the Exclusion of Illegal Evidence in Handling Criminal Cases. [These measures] clearly state that evidence obtained through illegal means such as coercion of confession through torture cannot serve as the basis for conviction, and they set out processes for investigating and excluding illegal evidence, proving responsibility, and questioning people in court.

Given this, I think that even if you provide for a right to remain silent and clarify the provisions for excluding illegally obtained evidence, it will not be enough. Unless there are effective checks on the abuse of state power and guarantees of an independent judicial process, torture will definitely not disappear.

Think about it. Even if we clarify legal provisions regarding the exclusion of illegally obtained evidence, detention centers will still be under the control of public security and there will be no separation between [the functions of] investigation and detention. So, we have no way to prevent public security organs intent on solving a case from taking advantage of their detention centers and torturing criminal suspects, either after taking them out of the detention centers or within the centers themselves. Moreover, if lawyers are unable to be present during questioning, it will be difficult to prevent investigators from torturing criminal suspects, since some of the harm caused by torture will disappear afterwards and some will come in the form of soft torture that cannot be accounted for. Without effective checks on state power, the so-called simultaneous audio- or video-recording [of interrogations] can be manipulated or even “disappear” at key moments.
　　
On another point, provisions for excluding illegally obtained evidence must also have measures for proving responsibility and the standard of proof. We presently have no provisions regarding the standard of proof that are workable and beneficial to defendants. At most, a police officer is invited to testify in court that he did not commit torture and that’s that. Unless it is extremely clear that major harm was inflicted, how are defendants supposed to prove they were tortured? How then, can illegally obtained evidence be excluded?

What’s more, given the lack of independence in the judicial process, courts can choose to “go deaf” and not apply the rules on exclusion of illegally obtained evidence. Take the case of Zhao Zuohai as an example. After the police sent the case to the procuratorate, the procuratorate returned the case twice, making clear that it could not indict. But, in the end, the Shangqiu Politico-Legal Committee stepped in to coordinate. They called the tune, making clear that an indictment and decision should be rendered in the case. So, the Shangqiu Procuratorate was ultimately forced to issue an indictment, and finally, the court also followed the politico-legal committee’s tune and rendered a verdict. The injustice done to She Xianglin shares many similarities to the case of Zhao Zuohai, where a stalemate between three law-enforcement bodies was ultimately “coordinated away” by the politico-legal committee, setting the stage for the case to proceed smoothly through indictment and conviction. Imagine what would happen in any case that the local government treats as major. If the politico-legal committee steps in to coordinate, can we really expect illegally obtained evidence to be excluded as a way of preventing torture?

Translation: The Machinery of Stability Preservation

2011-06-08T15:51:00.000-07:00

There is widespread agreement in China, from high officials to ordinary people, about the importance of maintaining social stability. There is rather less consensus, though, about how best to ensure and promote stability. Considering the costs, both fiscal and human, of continued pursuit of the policy of "stability above all else," some have begun to question whether, perhaps, the effort might actually be counterproductive.

In a recent article (translated below) posted on the website of Caijing magazine, two reporters who have been covering China's social stability problem offer an excellent introduction to the organizational structure behind China's stability management effort. Their detailed portrait of this structure as it exists at both the central and local levels leads into a trenchant analysis of China's paradoxical pursuit of stability and a look at how that structure actually undermines that effort. Their conclusion—that the only escape from this paradox is to accelerate the pace of political and judicial reform—is a clear articulation of an aspiration that is gathering momentum in China but that will still have to overcome much resistance if it is to be realized.

The Machinery of Stability Preservation
By Caijing reporters Xu Kai & Li Weiao
June 6, 2011

It was five o’clock in the morning, and the sky had just begun to turn light. After driving 17 hours non-stop on the Beijing-Zhuhai Expressway, a beige, medium-sized passenger bus with Beijing license plate “AF1217” had just entered Chibi, Hubei Province.

Liu Hua, who was on the bus, recalls that there were 28 other passengers on that 19-seater bus, which had no operating license. Besides 11 petitioners from Changsha, there was one driver, three petitioning officials from Changsha, and 14 security guards from Beijing. All the way from Beijing to Hunan, the bus drove along at speeds above 100 km/h.

After passing through the Chibi toll booth, there was a loud crash as the bus rammed into a truck from behind at almost 60 km/h. The driver went into shock and eight others suffered serious injuries.

This was March 8, 2011, the time when the national “two meetings” were being held. Before the accident, Liu Hua had gone to Beijing to petition for a fourth time. He and the more than 10 other Changsha petitioners had visited the petitioning office of the Central Discipline Inspection Commission to report on illegal activities by local government. They were told their issues would be resolved appropriately but that they could not stay in Beijing during the “two meetings” period. That day, personnel from the Changsha Capital Liaison Office took them to a location in the south of Beijing and a young man who said he was from the “Beijing Security Unit” escorted the petitioners onto the rented bus.

After the accident, those who could continued home on their own. The eight who suffered serious injuries received short-term treatment at the Chibi People’s Hospital and then were escorted away by government officials from their localities. After Liu Hua returned to Changsha, the deputy head of the Xueyuan Subdistrict Office where he lived in Tianxin District came accompanied by patrol squad officers to take him to a place called the “Carefree Mountain Villa” until the conclusion of the “two meetings.” These patrol squad officers, who belong to the subdistrict office’s comprehensive social order management unit, are the most basic-level personnel [responsible for] stability preservation.

In their four round-trips of petitioning between Beijing and Changsha, Liu Hua and the other petitioners came into contact with each level of the national stability-maintenance system. At the central level, they were looked after by the National Office of Letters and Petitions and the Central Discipline Inspection Commission’s Office of Letters and Petitions. At the local level, they were looked after by the Changsha and Tianxin District governments, as well as the Xueyuan Subdistrict Office and its comprehensive social order management unit. In between, they were transported by the Capital Liaison Office and security companies.

In the summer of 2010, Liu Hua became acquainted with Shen Youbin, who was petitioning the Changsha government because he did not accept a court decision. If Shen Youbin’s story offers a glimpse at the financial structure of the stability-preservation system, then Liu Hua’s story offers a view of that system at each level.

The Central Hub

Ever since the idea of “preserving social stability” was put forth, there has been a steady expansion of the relevant government agencies concerned with this work. This can be clearly seen in the history of the vertical system of politico-legal committees.

The Politico-Legal Committee of the Central Committee of the Chinese Communist Party (hereafter, CPLC) is a functional department through which the Central Committee leads and manages law-enforcement work. Its primary tasks are to preserve social stability and guide, coordinate, supervise, and inspect the work of public security, the procuratorate, the courts, judicial administration organs, and state security. Committees are established at the central, provincial, prefectural, and county levels, but generally they do not exist at the grassroots township level or within [other] institutions.

Maintaining stability is one of the most important functions of the CPLC. In 1980, when the Central Committee first established the CPLC, Peng Zhen was its first secretary. It was briefly abolished in at the beginning of the 1990s.

In April 1991, the Central Committee issued a “Circular on Strengthening Law Enforcement Work for Maintaining Social Stability” (hereafter “Circular”), making clear that preserving stability is a political task of utmost importance to the entire Party and to all people of the nation and that strengthening law-enforcement work plays an important role. The “Circular” announced the re-establishment of the CPLC and made appropriate adjustments to its responsibilities and tasks. Law-enforcement leadership organs under each local party committee were enhanced and given the uniform name of politico-legal committee.

At that time, stability preservation was primarily seen in the coordinated “strike hard” effort of public security, the procuratorates, and the courts. Each of the three large-scale “strike hard” campaigns from 1983 to 1987, from 1996 to 1997, and from 2001 to 2002, were all led by the CPLC.

In July 1999, party committees added a “610 Office,” operating under the same roof as the politico-legal committees. From that time on, preventing and dealing with cults became a focus of stability-preservation work.

Thereafter, in order to preserve social stability, the Central Committee also set up a Central Leadership Small Group for Stability Preservation. This is one of the coordinating bodies of the Central Committee and operates within the CPLC. There is also the Central Comprehensive Management Committee, which also operates within the CPLC and is primarily responsible for domestic public order.

Ever since the CPLC announced its “Three Key Tasks” (social conflicts resolution, social management innovation, and clean and fair law enforcement) in 2008, central-level stability preservation work has turned towards the construction of a stability-preservation network and the search for new modes of stability preservation.

Some of the things that have been explored include: mechanisms to manage and provide social services to migrant populations through “[temporary residence] permits, rental agreements, and workplaces”; a risk-assessment system for social stability; new grid-based models of [population] management and social-service provision; placement, help, and education provided to those released from prison and re-education through labor; cracking the “two new organizations” (new economic organizations and new social organizations); and management of virtual online communities. By the end of 2010, 35 prefectural cities and counties (including county-level cities and districts) had been selected by the central government for national pilot studies in comprehensive social-management innovation.

In summary, at the central level the CPLC is the leading organization for stability preservation, with supreme authority given to the Central Leadership Small Group for Stability Preservation. Through attached bodies such as the Central Comprehensive Management Committee, it exerts unified management over law-enforcement organs such as public security, the courts, the procuratorates, and state security.

Organizations for the Preservation of Social Stability in China (Chart)

Click on the image to enlarge

The Local Network

Compared to the central level, local governments are on the front lines facing social conflicts and thus [their stability preservation system] exhibits a more complex structure. In the subdistrict office in Tianxin District, Changsha, where Liu Hua lives, there is a comprehensive management unit for social stability that is specifically in charge of these matters. There are similar institutions at the grassroots level of government throughout the nation, not just in Hunan. Take as an example Yun’an County in Guangdong Province, which has a comprehensive stability preservation network featuring “three levels of defense” at the “county, town, and village” [levels].

In Yun’an County, this comprehensive stability preservation network specifically consists of: a county-level office for comprehensive management of petitioning and stability that handles “difficult issues”; town-level offices for comprehensive management of petitioning and stability in eight towns that handle “major issues”; and village-level centers for comprehensive management of petitioning and stability in 121 villages and neighborhoods that handle “minor issues.”

Yun’an County has more than 6700 individuals, including village cadres, who receive budget allocations; more than 1800 of them are involved with stability preservation. There are around 20 fixed employees at the county office, as well as a 200-plus-strong emergency response team to coordinate the response to mass incidents or emergencies. There are more than 10 persons at each of the eight town stability-preservation offices. Wang Shuxiong, deputy secretary of the county party committee, concurrently heads the county stability-preservation office.

Personnel numbers for each village stability-preservation center are determined according to population. For instance, in Yalou Village, Qianfeng Town, which has 1380 people in 345 households, there are four people responsible for [stability-preservation] work. One is village committee member Kang Mulin, who heads the center.

“Development is the top priority, and stability is the top responsibility,” explains Wang Shuxiong. Development is a strategy, and stability is a tactic, but as far as the actual operations of the party committee and government, stability has actually already become the number one task.

In Yun’an County, they rely on external fiscal allocations to run the government. This agricultural county in western Guangdong has a population of 317,000, of whom about 80,000 are not involved in agriculture). In 2009, GDP in Yun’an was 4.03 billion yuan, with local general budget revenue of 199 million yuan and 80 million yuan in annual fiscal allocations from higher levels of government. Even so, each year there is dedicated funding for stability preservation: in 2010, the county office received 600,000 yuan, the town offices received around 288,000 yuan, and the village centers received more than 30,000 yuan. There is also investment in fixed-capital: in 2009, there was a one-time investment of 1 million yuan, which went toward the purchase of vans, motorcycles, computers, and office furniture for the eight town offices.

In addition, Yun’an employs a rewards incentive policy used widely by local governments. When the village office successfully handles an incident, it will be awarded 50 to 100 yuan; for the town office, the reward is 200 to 300 yuan. If there is no destabilizing incident in the whole year, the rewards grow larger. Wang Shuxiong says that this incentive system is a good way of generating enthusiasm among village and town cadres.

In 2010, Yun’an County issued around 20,000 yuan in rewards. On the surface, it would seem as if this was an extra expense for the local government, but in reality, it saves money. “It costs at least 20,000 yuan to deal with a single petitioning case in Beijing,” says Wang Shuxiong. “Sometimes much more.”

The Gray Market

As Wang Shuxiong, deputy party secretary of Yun’an County, says, as soon as someone goes petitioning in Beijing, the costs start to increase.

In response, local governments have at least three ways to “spend for stability.” The first is to dispatch personnel to Beijing to intercept petitioners. For a long time, this work has been centered in the capital liaison offices, where the funds and personnel of local governments and courts go to support stationing people for this purpose. On three of Liu Hua’s four trips to Beijing to petition, he was escorted home by personnel from the [local] capital liaison office.

The head of a basic-level court told Caijing that all young, male judges in his court have to take turns being stationed in the capital, where their primary task is intercepting petitioners at the petitioning office of the Supreme People’s Court.

But capital liaison offices created management and administrative headaches in Beijing, leading the central government to abolish them. As of today, besides the 50 connected to provincial-level and special-economic-zone governments and 296 connected to prefectural-level governments, another 625 local and institutional capital liaison offices have already been closed.

The abolition of capital liaison offices has obviously made it more expensive for local governments to send personnel to intercept petitioners, leading them to pursue a second method: contracting out petitioner interception to security companies. For example, the Anyuanding Company once had petitioner-interception contracts with the relevant departments of 19 provincial-level governments.

Security companies set out clear and detailed fees for intercepting, detaining, and transporting petitioners on behalf of local governments: 200 to 400 yuan per person for stability control and 200 to 400 yuan per person for restraining measures. Fees for transport vary according to the method of transport, the number of individuals to be transported, and the distance involved.

And if interception is unsuccessful and the petitioner manages to register [a complaint] with the relevant authorities, local governments need to pursue a third path: “payoffs.”

When a petitioner registers a petition with higher-level agencies, the petitioning office will establish a file record that can be tallied. According to public records, in 2009 Hebei had the most petitioners go to Beijing of any province (15,700 petitions), followed by Henan (5,700) and Liaoning. But since 2009, the relevant authorities changed their rules and no longer report [statistics for] ordinary petitioning. Instead, they report figures for “abnormal petitioning” and deliver national rankings to provincial party committees and governments.

These rankings are closely connected to assessment of local government performance, but their impact on political evaluations can be taken care of if the right payments are made.

On March 14, 2007, the politico-legal committee secretary of Song County, Henan, said in a work conference on stability-preservation: “From now on, you must pay for any petitioning. Payoffs are only an economic expense, but failing to make payments will damage one’s political future.” Correspondingly, [he continued]: “From January to March of 2007, there were 25 incidents involving 65 petitioners going to Beijing. One of these managed to register [a complaint], placing us ninth in the ranking of all counties and districts in the prefecture. There were 41 incidents involving 55 petitioners going to the provincial capital to petition. Seven of these were registered, placing us third (actually, first) in the ranking. There were also 30 incidents involving 111 petitioners at the prefectural level and 216 incidents involving 1180 petitioners at the county level.”

Local governments’ fear of petitioning has led to a huge stability-preservation “market” that includes capital liaison offices, security contracts, and “payoffs” and results in all types of rent-seekers, brokers, and thugs out foraging for themselves. Appetites whetted by the favors that can be had in this rent-seeking arena, the capital liaison offices, security companies, and petitioning officials all [seek ways to] protect and expand the “stability-preservation pie.” As this “market” continues to grow, even things that have nothing to do with “stability preservation” can be categorized as “stability preservation” in order to “collect more rents.”

The Petitioning Paradox

The stability-preservation system is itself largely to blame for this gray market of petitioner-interception, security contracts, and payoffs. For example, if we look at the way that petitioning is actually conducted, its original purpose of reporting information up through the government gets canceled out, whether through “interception” or “payoffs.” However, if we look to the way the system is set up, we see that the system is in a paradoxical position because of the delicate relationship between the central and local governments.

According to the analysis of Ying Xing, chair of the Department of Sociology at the Chinese University of Political Science and Law, the (Draft) Provisional Regulations for Letters and Visits Work in Party and Government Organs passed in 1982 marked a transition in the petitioning system. Unlike during the era of Mao Zedong, when the petitioning system was in service to mass mobilization and class conflict, the purpose of the petitioning system in the new era was to serve the overall goal of economic development, peace, and unity.

In Ying Xing’s view, the problem of “stability preservation” inevitably surfaced as [society] transformed from [one focused on] mass mobilization and class conflict to [one focused on] economic development, peace, and unity. Since many local governments are driven by economic development, when it comes to the burden on farmers, land disputes, laid-off state employees, or compensation for housing demolition and relocation they pursue their own interests rather than acting as representatives of public interest. For this reason, they inevitably come into direct conflict with the interests of affected parties.

At the same time, as the communes were dismantled and state-owned enterprises underwent reform, the ability of grassroots work-units to control people began to weaken and both urban and rural residents increasingly had the ability and space to articulate their personal interests. Even more important, as reform and opening has progressed, citizens have become more cognizant of their rights, and the administrative measures of the past seem to have lost their effectiveness.

Ying Xing believes that, on the one hand, petitioning highlights the need for stability, unity, and order and demands that conflicts remain at the grassroots level. On the other hand, as a way for the central government to check [the activity] of local grassroots government, petitioning also encourages the “rightful resistance” of petitioners under certain circumstances. These two conflicting goals put petitioning in a paradoxical situation in which it is difficult to justify itself: on the one hand the central government retains the petitioning system because it wants a path whereby the masses can oversee local [government]; on the other hand, it calls on local governments to strictly control petitioning and “nip sources of instability in the bud” at the local level so as not to negatively impact the work of the central government. With “obstruction” foremost and no effort made to open up new paths to resolve conflicts, whenever there are destabilizing incidents like collective petitioning, local governments are forced to resort to extraordinary measures.

Yu Jianrong believes that the petitioning system’s lack of procedure and legal force make it difficult for it to end conflicts and disputes effectively, but the deeper reason lurking in the background is the arbitrary nature of political power. At the same time, the conflict resolution mechanism of the judicial system is weak and ineffective because it is controlled by political power.

The “stability-preservation” system has adapted to the problems faced by China in transition, expanding in response to the intensification of social conflict. In order to escape the vicious cycle of “stability preservation leading to more instability,” we must do as Tsinghua University Professor Sun Liping suggests: transform the function of government to establish a limited government, improve rule of law mechanisms to resolve conflicts and disputes in society, establish mechanisms to balance interests under the conditions of a market economy, and promote the development of civic organizations.

The most essential of these is rule of law. Ruling by law and creation of a socialist rule-of-law nation were part of the political reform agenda set out in the report of the 15th Central Committee of the Chinese Communist Party. On March 10, 2011, National People’s Congress Standing Committee Chairman Wu Bangguo announced that the socialist system of laws with Chinese characteristics had been established.

But the pace of political reform—especially reform of the judicial system—needs to speed up. If you want society to be truly stable, you must first promote reform of the judicial system. Society’s “pressure valve” is a judicial system that is just, highly effective, publicly trusted, and able to check public power. If we promote reform of the judicial system and enable courts to truly carry out their role independently in accordance with the law, social conflict can come within the orbit of the law.

Second, we should gradually expand democracy. Democracy means that citizens are in charge. Matters as great as the changing of administrations and as small as the price of water all get decided at the ballot box or through participation in public hearings. With the right to vote and channels for expression, the great majority of sources of instability can be eliminated naturally.

Finally, the ruling party ought to change its thinking and enhance its abilities as far as governing is concerned. Based on the experiences of the countries of the world, social conflict in today’s society is not only difficult to avoid but also a natural phenomenon of a healthy functioning society. On the one hand, the government should make a personal commitment not to exceed its bounds, violate the law, or create elements of instability. On the other hand, civic organizations should be set free and civil society fostered so that, when there are conflicts, there are courts to adjudicate independently and non-governmental organizations to mediate independently. This will naturally lead to peace and unity and long-term social stability.

With the establishment of a socialist system of laws with Chinese characteristics, we have reason to hope that the law will not only become a “shield” for people but can also turn into a symbolic representation of a peaceful, stable society.

Translation: Appointment with an SPC Death Penalty Judge

2011-05-03T18:29:00.000-07:00

What role do criminal defense lawyers play in the final review over death penalties in China? This is a question many, including lawyers themselves, have been asking ever since authority over death-penalty review was restored to the Supreme People’s Court (SPC) on January 1, 2007. There is much that remains hazy about how the process works, in fact, even though measures have been adopted in an attempt to give it some structure.

Liu Xiaoyuan (above left) and Li Fangping (above right)
are representing convicted murderer
He Shengkai (bottom) during his
death-penalty review proceeding.

In an April 27 blog post, Beijing-based criminal defense lawyer Liu Xiaoyuan offers a glimpse at his experience representing death-row prisoners. As in previous accounts of his experiences with China’s criminal justice system, Liu describes that system’s bureaucracy in considerable detail, in this case recounting his visit to the SPC’s office for handling complaints by petitioners—known as the “Visitor Reception Center”—in order to make an appointment to meet with the judge handling the review in the case of He Shengkai, a 29-year-old Guizhou man convicted of killing a court police officer in a knife attack at the Zunyi Intermediate People’s Court.

Liu and another defense lawyer, Li Fangping, sought the meeting with the court—as allowed under SPC regulations—in order to convey their opinion that evidence of He’s possible mental illness had never been properly investigated and that the results of such an investigation might limit criminal liability in the case. Liu describes the atmosphere as cordial, but cool and distant. Throughout the day’s events, Liu senses that he is being treated as a nuisance, rather than an integral part of a formal legal process, a sense that is constantly reinforced by being forced to submit to procedures intended to manage those other “visitors” to the court—ordinary petitioners, whose precarious rights are symbolized by the dozens of provincial police vehicles that wait for them outside the reception center every day.

Liu Xiaoyuan and Li Fangping have been in the news lately, part of the continuing offensive being waged against activist defense lawyers in China over recent months. In mid-April, Liu was detained for five days under circumstances that remain unclear. Last Friday, Li similarly disappeared after phoning his wife to say he was in the custody of security agents. And, as it happens, Wen Tao, a journalist who wrote an early account of the travails of petitioners to the SPC, has been missing for a month, as of this writing, apparently in police custody in connection with the ongoing disappearance/criminal investigation of artist Ai Weiwei.

Appointment with a SPC Death Penalty Judge

April 27, 2011

At 7:30 a.m. on April 26, I went to the Supreme People’s Court (SPC) “Visitor Reception Center” in Hongsicun, Chaoyang District (where one goes to petition the court to accept a case) in order to make an appointment with the SPC judge responsible for reviewing He Shengkai’s death sentence.

According to SPC regulations, defendants in death penalty cases and their relatives have a right to engage a defense lawyer when the case reaches the death penalty review stage. Once the lawyer receives the authorization [letter], he or she may submit a defense opinion or legal opinion to the SPC and also may schedule a meeting with the judge [responsible for] the case in order to convey his or her views and opinions on the case in person. However, in order for the lawyer to schedule a meeting with the judge, he or she must follow the “petitioner” route and queue up and register at the “Visitor Reception Center” like [any other] petitioner. The “Visitor Reception Center” will then make the arrangements. It’s really strange to treat a meeting between a lawyer and a judge as you treat a petitioning relative!

At 8 a.m., I entered the main entrance of the “Visitor Reception Center,” its steel entry gate guarded by a dozen or so court police officers who inspected the documents and identification of everyone who entered. If you don’t have a copy of the provincial high court decision, they won’t let you enter.

I walked through the courtyard and entered the office building, which has separate doors for entry and exit. I went in through the exit and [thus] didn’t have to go through the security screening, though a police officer checked my license to practice as a lawyer. There were many petitioners filling out registration forms in the hall, as well as a number of people queued up to obtain registration forms. There were 12 service windows in the hall, but two of them were not open. I asked the police officer whether there was a window for lawyers handling case-related matters, and he explained that lawyers had to queue up like the petitioners because there was no special window for lawyers. I queued up at Window #12, and when it came time for me to get a registration form I explained that I was there not to petition but to handle a case. The person behind the counter didn’t appear to understand me and asked me how many times I had been there before. I said I had never been there before and had only mailed my authorization documents and defense opinions to the judge handling the case. I was given a “First-Time Visitor Registration Form” to fill out. I was there to meet a judge as He Shengkai’s defense lawyer, but still the SPC was treating me like a petitioner.

I completed the registration form, and the police officer had me hand it in at Window #1. The person behind the counter looked over the first-instance trial verdict, the second-instance decision, and my license to practice as a lawyer. As he was entering the information from my registration form into his computer, he said that He Shengkai’s sister had previously come to petition, so my meeting to discuss the case with the judge was a “repeat visit,” not a “first-time visit.” “Repeat visitors” were only [allowed to] register once every two months.

After the decision was announced in the second-instance proceeding against He Shengkai, his sister He Shengxian had come to the SPC to petition, but I wasn’t sure about the specific date. I explained to the person behind the counter that this was the first time I had personally come to meet with the judge and that, though He Shengkai’s sister had come earlier to raise issues [regarding the case], the family’s issues were not the same as the lawyer’s. The person behind the counter said it was all the same and had me go back to Window #12. While waiting in the queue, I said to the police officer, “If you can only register once every two months, it’s quite possible that when you come again after the two months are up that the execution will have taken place!”

I returned the “First-Time Visitor Registration Form” to Window #12, which the person behind the counter took from me and shredded. But he wouldn’t give me a “Repeat Visitor Registration Form.” I left the counter and tried to call the SPC’s 4th Criminal Division [in charge of death penalty review], but the line was constantly busy. The police officer I’d spoken to earlier came over and pointed to a female officer who was on the telephone and told me to explain the situation to her.

After the female officer finished with her call, I explained things to her. She said that rules were rules but indicated that she’d help me sort things out. She led me to Window #1, where the person behind the counter continued to insist that I was a “repeat visitor.” He said that He Shengkai’s sister, He Shengxian, had come to petition on February 21 and that since two months had already passed I could register as a “repeat visitor” this time. The female officer asked him to give me a “Repeat Visitor Registration Form,” but he said he didn’t have any. With the female officer’s help, I was able to get a registration form from one of the other windows. After again completing the form, I submitted it at Window #1, and the person behind the counter told me to wait outside. At 9:30 a.m., I inquired at Window #1 and the person behind the counter said that they had contacted the 4th Criminal Division and that I should go to that office for a meeting later that afternoon.

I left the SPC “Visitor Reception Center” and was met by Lawyer Li Fangping. We rode a bus and took the roundabout way to the Number 9 Building at Beihuashi, in Dongcheng District, which is where the offices of the SPC Criminal Courts are located.

That morning when I went to the SPC “Visitor Reception Center,” I noticed many police vehicles parked on the side of the road. When I left, those police vehicles were still parked there. I did a rough tally and counted more than 20 vehicles, all with provincial license plates. In recent years, when the SPC “Visitor Reception Center” was located near the Beijing South Railway Station, you could see this same scene every day.

At 1 p.m., we arrived to wait outside the offices of the SPC Criminal Court. At 2 p.m., I asked the police officer posted outside the office building courtyard how we could enter, and he said we first needed to contact the person handling the case. I dialed the number, but no one answered at the 4th Criminal Division. At 2:15, I finally reached an employee, who told me that the “Reception Center” had told them the meeting was scheduled for 2:30 p.m. and told me to wait a while longer. When the time came, the judge and a court clerk came out to meet us. Because there was an armed police guard on duty at the gate, we had to register. The guard asked the judge what we were there for, and the judge replied that we were there to petition. I forced a smile and explained that we were lawyers who had come to discuss a case, not petitioners with a petition. The judge said that they had read all of the documents I had sent and that there was actually no need to meet in person. I said that even though our documents were complete, there was still a need to discuss the case in person. [I reminded him that] SPC regulations say that the defendant may hire a lawyer during the death-penalty review process and that the lawyer may schedule a meeting with the judge [responsible for] the case in order to convey his or her views and opinions on the case. The judge acknowledged that this was true.

The judge brought us to the first floor of the office building, and we went through a basic security check upon entry. In a meeting room, the judge and court clerk listened as we discussed our opinions on the He Shengkai case. Even though the court clerk was there, she did not make any notes. Perhaps they thought we had [fully] expressed our opinions in detail in the written documents? The judge said that they had visited He Shengkai in the Zunyi Number Two Detention Center.

The main issue we conveyed to the judge was that He Shengkai might suffer from mental illness and that a judicial evaluation of mental illness should be carried out in order to make an accurate determination of his criminal responsibility. We did not launch into a detailed discussion, because we had written about this in great detail in our defense opinion. The judge listened to us speak for half an hour, during which he never once rejected our opinions. In the end, I noted that [the murder in] this case had taken place inside the court system and urged the SPC to be objective and rational in its review of the death penalty and review the case according to the facts and the law without any external interference.

I’ve handled four death penalty review cases, and this is the second time I’ve met with the judge in the criminal court [building]. The other times, we met in the “Visitor Reception Center.” The first meeting in the criminal court concerned the case of Yang Jia. That time, I was received by the presiding judge and two judicial officers handling the death penalty review in Yang’s case. However, they refused to allow me to act as [Yang’s] lawyer because Yang objected to his father’s choice of [me as] lawyer. What’s interesting is that even though they rejected me as lawyer, the three judges still listened to my opinions and allowed me to submit a legal opinion as an ordinary citizen.

Ever since the SPC reclaimed the authority over death penalty review, lawyers have been allowed to participate in the death penalty review process and provide defendants with legal service. Given that lawyers are able to play a role in defense during the death-penalty review process, I believe that their meetings with judges shouldn’t be treated like “petitions” from relatives. Even though relatives who petition to express opinions about a case and lawyers meeting with judges to discuss a case are both concerned with the same case, the opinions being discussed differ because the two roles are different. I therefore hope that the SPC can issue clearer regulations regarding the participation of lawyers in the death-penalty review process and establish a dedicated service window for lawyers participating in judicial petitions or the death-penalty review process so that lawyers will no longer have to be treated as petitioners.

Translation: The Most Important Politics for Lawyers is Pursuing Rule of Law

2011-04-27T15:02:00.000-07:00

One of thefundamental dilemmas facing Chinese leaders today involves the relationshipbetween political control and social stability. On the one hand are those whotry to pursue stability through policing, propaganda, and maintaining tightpolitical control over social institutions. On the other hand are those who seethis emphasison "rigid stability" as counterproductive and insteadcounsel allowing freer range to a variety of social forces, including themedia, public opinion, and civil society organizations.

Debate overthe role of lawyers and the nature of the Chinese legal system as a whole isone area in which this dynamic between control and stability has becomeespecially relevant. Where there was once visible momentum towards developingprofessionalization and autonomy among legal professionals, recent years haveseen a turn towards increased politicization of the legal sector under thedoctrine of the "ThreeSupremes," with greater emphasis placed on the Communist Party'sguiding role and the importance of popular opinion in determining legaloutcomes.

In thisenvironment, lawyers whose solitary efforts to protect the rights ofindividuals come into conflict with the prevailing sensibilities can findthemselves confronted with numerous obstacles and sometimes physicaldanger. There is even a fear that lawyers have been detained anddisappeared over recent weeks as part of a larger effort to cultivate a morecompliant cadre of lawyers in China, one made up of individuals less likely toopenly confront the rich and powerful and more willing to accept decisionsmediated by political considerations.

Furtherevidence of this can be seen in recently announced plans in Shanxi Province toscreen applicants for lawyers' licenses based in part on political considerations.In an item inthe latest issue of New Century Weekly (republished in avariety of other mainland media outlets in recent days), Hong Kong Universitylaw professor Zheng Ge (George Zheng) argues that measures like this threatento erase more than two decades of progress from the days when all criminaldefense lawyers were employees of the state.

Withoutdenying China the opportunity to pursue its own "socialist system of lawswith Chinese characteristics," Zheng contends that that pursuit would bebetter served by allowing lawyers to help people pursue their contentiousdemands in a rational, systematic manner that treats the rights of all partiesequally before the law. Otherwise, he suggests, China faces being trapped in avicious cycle of injustice and violence that is far from the "harmonioussociety" the nation's leaders envisage.

The Most Important Politics for Lawyers is Pursuing Rule of Law

Zheng Ge

New Century Weekly

April 25, 2011

Recently, theShanxi Judicial Administration Department unveiled new policy guidelines aimedat promoting a province-wide system to evaluate the conduct of those applyingfor a license to practice as a lawyer. It would require all law firms in theprovince to collect information from public security, education, personnel, andother relevant departments and, on the basis of a comprehensive review, produceconduct evaluations to “ensure the quality of those entering the lawyerprofession from the beginning.”

What is meanthere by “conduct” is not only personal character and professional ethics butalso an emphasis on “political behavior.” This is an implementation of the “Opinion on Further Strengthening and Improving the Work of Lawyers”issued by the Ministry of Justice (MOJ) in November 2010, whose “FourAdherings”—namely, adhering to holding high the banner of socialism, adheringto using the theory of scientific development to guide the work of lawyers,adhering to the essential character of lawyers as workers in the socialist[system of] laws with Chinese characteristics, and adhering to the party’sleadership over the work of lawyers—form the index against which theaforementioned “political behavior” will be measured. This Opinion specificallymentions improving the mechanism for admittance into legal practice and barringthose people with poor “political character, professional ability, andprofessional ethics” from joining the ranks of lawyers.

The reversionof lawyers under the politico-legal system undermines the accomplishments ofthe past two decades of reform. Ever since 1993, when the State Councilapproved the MOJ’s “Plan to Further Intensify Reform of the Work ofLawyers”—and especially since 1996, when the Lawyer’s Law defined lawyers as“professionals serving the legal needs of society”—the legal profession hasdistanced itself from the former system of “state legal workers,” allyingitself with society in conflicts between state and society and with rights in conflicts between power and rights. This development path is in line with the general direction pointed to in the ruling party’s “Resolution on Certain Questions in the History of the Party Since the Founding of the PRC”: “[We must] improve ourConstitution and laws and turn them into a powerful and inviolable [instrument]that all persons must strictly observe. . . . The kind of chaotic situation seen in the ‘Cultural Revolution’ must never be allowed to happen againin any sphere.”

Ensuring thatthe common people strictly observe the law is the role of government, whereasensuring that the government itself strictly observes the law is the functionof society, which includes lawyers. If the power structure absorbs all socialelites, thereby monopolizing the legal discourse, the result is [a situation inwhich those in power can say] “I’ll be the judge of what’s legal and illegal”and spokespersons for power can plainly say to certain members of the public:“Don’t use law as a shield; the law cannot protect you.”

Anothermatter whose connection to the recent trend towards “political” lawyers is greater than it first appears is the Beijing Lawyers’ Association’s“local registration” requirement. According to personnel policies in Beijing,individuals from outside of Beijing cannot register [as lawyers] in their ownnames and can only register collectively in the name of their work unit. Inreality, this is a crafty way of using administrative measures to restrictout-of-town lawyers from practicing in Beijing. The backdrop for this policy isprobably a fear that out-of-towners like LiZhuang will continue to present themselves as “Beijing lawyers” andcause trouble in the provinces; so, under pressure from all sides, the BeijingLawyers’ Association has to adopt measures to raise the threshold foradmittance as a “Beijing lawyer.” Political considerations are one of thedeciding factors.

Allowinglawyers or even all legal professionals a certain amount of independence willnot cause China to “change color.” On the contrary, it would be fundamentallybeneficial to China’s political stability and economic development, as well ashelpful to improving the ethics and living standards of Chinese people.

In otherwords, lawyers should absolutely be concerned with politics, but the mostimportant politics for lawyers is pursuing rule of law and using legal channelsto help citizens express their legal demands and protect their legal rights. Iflawyers’ “political character” is measured purely on whether they assist thegovernment in maintaining stability or defending economic development and“rights-defending lawyers” are viewed as displaying poor political behavior, thenthe legal profession will lose its need for existence.

As for whatrole lawyers should play in a country with socialist rule of law, here are somefactors worth considering:

First,citizens’ moral reasoning and moral judgment should not be stuck at the levelof black versus white. When lawyers go head to head in the courtroom withprosecutors or other lawyers, [the way they] present evidence or engage indebate allows people to see the complexity of truth and legal principles. Inthe recent cases of Li Gang’sson, Yao Jiaxin, and other cases that inflamed popular anger, we see how popular opinion is mostly one-sided, involving groundless accusations and crude, simplistic judgment. This kind of real-life “ideographic expression” is connected to the institutional lack of mechanisms whereby different positions and viewpoints may confront and debate each other.

Second, theindependent, professional legal service that lawyers provide to clients couldfundamentally enable the authority of the law to contribute to stability. Youcannot stand on one leg alone. If all the participants in the legal processpursue the same objective, then that legal process will be unable to resolvedisputes, balance interests, or establish the law’s authority. Differentinterest demands need to be expressed through systematic channels and in acalm, rational manner. Otherwise, we will fall into a vicious cycle of violenceleading to repression, leading in turn to greater violence and again to evengreater repression.

Third, in thecourse of providing legal services to a client, a lawyer’s speech andactivities ought to be protected by law to a certain degree. If a defendant canturn in a lawyer for “suborning perjury” and, acknowledged as having performedmeritorious service by the prosecution, avoid the death penalty by bringing thelawyer to justice, this sort of “conspiracy” completely undermines the ethicaland legal protections that lawyers—at least criminal defense lawyers—need inorder to do their work. Turning this around, will those “political” lawyers nowbe able to report their clients in order to render meritorious service?

Fourth,meaningful participation by lawyers can exercise oversight over theadministration of judicial power. To be sure, lawyers are complicit in manyjudicial corruption cases, but the blame for this is not simply a matter oflawyers’ “inattention to politics” or “poor standards.” The institutional causeis precisely the low status of lawyers, which allows judges to give lessconsideration to lawyers’ opinions in the trial or adjudication processes.Therefore, [monetary] advantage replaces [legal] principle and lawyers canonly employ cash and other benefit to “persuade judges.”

Fifth,lawyers’ ethical and professional standards cannot be improved throughpolitics; they are formed through routinized, institutional incentivemechanisms. Emphasizing political quality can only drive lawyers away from“rights defense” and gradually force them to serve capital and power. This willcause an already-unbalanced legal services market to distance itself furtheraway from the weakest [members of society].

Death Penalty Trends in Asia Have Possible Implications for China

2011-04-13T17:47:00.000-07:00

In Asia, the latest controversy over the use of the death penaltyerupted not in mainland China but across the strait in Taiwan. InJanuary, the defense ministry there was forced to issue a publicapology for a wrongful execution in 1997, followed in earlyMarch bythe execution of five prisoners without notifying their families.

Advocacy groups decried the executions, the European Union expressedits revulsion, and protests broke out. Taiwan’s leadership hasresponded defiantly. In late March, President Ma Ying-jeou announcedthat Taiwan would keep carrying out executions of death row inmates asits laws mandate but that the government, which has reduced the use ofthe death penalty, maintains a policy to phase it out through existinglaws and regulations—as in the recent replacement of mandated deathsentences with discretionary sentencing.

Taiwan'sformer justice minister Wang Ching-feng (L)
was replaced by former prosecutor Tseng Yung-fu (R)
after she refused to carry out executions.

An informal four-year moratorium on executions in Taiwan—no one hadbeen put to death since 2005—came to a swift but somewhat anticipatedend last year. In April 2010, Taiwan executed five inmates just daysafter swearing in new Minister of Justice Tseng Yung-fu, a formerprosecutor whose strong support for capital punishment stood in sharpcontrast to his pro-abolitionist predecessor, Wang Ching-feng, a formerhuman rights lawyer who had been forced to resign when conservativesfrom ruling Kuomintang objected to her refusal to consent toexecutions.

While executions in Taiwan have sharply decreased since the early1990s, the handling of capital crimes there has not always met basicstandards of human rights and criminal justice. For one, Taiwan doesnot routinely inform family members of the condemned in advance of anexecution. Taiwan also lacks procedures for those under sentence ofdeath to seek a pardon or commutation—a right recognized under theInternational Covenant on Civil and Political Rights, which Taiwan haslegally agreed to implement.

Death Penalty Politics, Opinions & Laws

The global trend against capital punishment appears to be havinglimited impact in Taiwan, Japan, and South Korea—the threeindustrialized Asian democracies with death penalty laws—where theissue has generally been left to the discretion of a few officials.

Polls show that the public in all three places overwhelmingly wants toretain the death penalty. Polling in Taiwan and South Korea hasrevealed over 70 percent support for capital punishment, and results ofa 2010 survey show more than 85 percent of respondents in Japan favorkeeping it. In contrast, only small minorities support full abolition.Although Korea has a state-issued moratorium and has had no executionssince 1997, a 2009 poll showed less than 20 percent in favor ofabolition. And the numbers are positively miniscule in Taiwan, whereonly about 2 percent in a 2010 poll supported abolition.

Though considered “abolitionist in practice,” Korea still has astaggering 110 crimes subject to the death penalty, or twice the numberas in China. In early 2010, Korea’s Constitutional Court deliberatedover capital punishment for the second time, ruling by a narrow 5-4majority that the death penalty is constitutional. The previous ruling,in 1996, upheld the legality by a wider margin of 7 to 2, so lastyear’s decision may signify that Korea is moving closer towardabolition.

There’s substantial political will in all three places to find a middleground that would effectively ban the death penalty without legallyabolishing it. Korea’s Ministry of Justice is thinking to replace thedeath sentence with life without parole, and in late 2010, a justiceministry task force in Taiwan made the same suggestion. Called a“special life sentence” in Taiwan, it is as popular with the publicthere as retaining the capital option. This past January, Japan’s newjustice minister, a long-time opponent of capital punishment, orderedhis staff to consider getting rid of the death penalty.

Some Common Ground with China

The death penalty, like any punishment, is subject to errors thatundermine its legitimacy. In Taiwan and Japan, prisoners on death rowhave been exonerated and freed. Torture has been used to extractconfessions from innocent people who have later been executed, as seenwith the presidential apology in Taiwan. In such instances, it’spossible to draw parallels between China and its neighbors. China hasalso set death row prisoners free, admitted that innocent people havebeen executed, and reassessed its death penalty practices; China hasmade much of its increasingly “careful” use of capital punishment, and the Supreme People’s Court's more stringent final review of death sentences has been credited in helping to reduce executions. (Read moreabout wrongful convictions and executions in the US and ChinainDialogue Issue 42.)

Even lawmakers in China and Korea—two countries at opposite extremes ofthe spectrum of death penalty use—share a common problem: how todecrease the huge number of crimes eligible for the death penalty. Evenif its efforts are more symbolic than substantive, China is actuallyahead of Korea in this regard. In February, China’s National People’sCongress Standing Committee approved changes to the Criminal Law thatremoved 13 crimes (among a total of 68) from death penalty eligibility.Meanwhile, cutting down on capital offenses in Korea is only at adiscussion stage. Of the 110 crimes punishable by death, only 12 areserious violent offenses. Many of the rest are political, economic,ideological, and administrative crimes, and their status as offensespunishable by death stands as a relic of Korea’s authoritarian past.

Besides some widely criticized executions in China, none in recenttimes in that part of the world have been condemned as much as those inTaiwan, where the current political environment holds little promisefor the 40 prisoners who remain on its death row. At least thecontested political process in Taiwan is likely to ensure that ahealthy public debate continues, a debate that will influence the fateof capital punishment there and in Asia more broadly.

Stage Set for Filipino Executions, Legal Basis for Delay Still Unclear

2011-03-28T05:43:00.000-07:00

On March 23, the Department of Foreign Affairs of the Philippinesannounced that it had been notified that three Filipinossentenced to death in China on drug smuggling charges would be executedon March 30.

The notice, formally communicated by the Fujian High People's Court andGuangdong High People's Court to the Philippine consulates general inXiamen and Guangzhou, clarified the status of the three, identified asRamon Credo, Elizabeth Batain, and Sally Villanueva.

The three death row prisoners, convicted of trying to smuggle severalkilograms of heroin to China, had originally been scheduled forexecution in late February but won a temporary reprieve when theSupreme People's Court (SPC) reportedly agreed to postpone theexecutions after Philippine Vice President Jejomar Binay traveled toBeijing to plead on their behalf.

Earlier this month, China's ambassador to the Philippines, Liu Jianchao, madeclear that the verdicts were final and the executions would take place"sooner or later."

A presidential spokesman described the decision to stay the executionsas "unprecedented" and acknowledged that officials in Manila understoodfrom the beginning that the executions were only to be postponed.

Just how "unprecedented" was the decision? That depends in part onthe justification behind it, which remains opaque. To the extent thatnews about the cases has been reported in theChinese media (here, for example), it has been on the basis of reports from the Phillipineside. To date, neither the Supreme People's Court nor the provincialhigh courts in Fujian or Guangdong have offered any officialexplanation regarding the legal basis for the delay.

According to Article 211 of the Criminal Procedure Law, executionsapproved by the Supreme People's Court are supposed to be carried outwithin seven days. The law sets out three circumstances under which anexecution may be halted, once the SPC order has been issued: discoveryof an error in the court's judgment, revelation of major crimes orother meritorious behavior that could affect sentencing, or pregnancy.It is unclear which of these conditions applied in this instance.

Temporary stays of execution are not routinely reported in the Chinesemedia, but they are not unheard of. A few weeks ago, it was reportedthat the Zhuhai Intermediate People's Court in Guangdong had halted theexecution of a man in January 2010 after he made a final claim that hehad not committed the fatal robbery for which he had been convicted.The court empaneled judges to investigate the man's claims and, afterfinding them not credible, finally carried out the execution on March16.

Some have speculated that China's decision to delay execution of the Filipinos was aresponse to various "gestures" made by the Philippine government, suchas the decision not to send a representative to last December's NobelPeace Prize ceremony in Oslo and the extradition of Taiwanese criminalsuspects to China.

If the executions were halted for diplomatic or humanitarian, ratherthan legal reasons, this is not necessarily a bad thing. It would,however, be out of keeping with the way Chinese courts normally professto operate "in strict accordance with the law." For that reason it would be enlighteningto have the SPC itself come forward to explain the unusualcircumstances surrounding this case in order and inject sometransparency into the proceedings.

Broad Changes to China's Criminal Law Enacted

2011-03-01T21:39:00.000-08:00

Last Friday, China’s National People’s Congress Standing Committee (NPCSC) approved an amendment including 50 revisions to the Criminal Law of the PRC by a 139-7 vote (with 11 abstentions). This was the eighth time that China has made changes to its criminal code since a complete overhaul in 1997.

The most newsworthy part of the amendment was the removal of the death penalty as punishment for 13 offenses, bringing the total number of crimes eligible for capital punishment to 55. As Dui Hua has noted before, this is unlikely to bring about a significant reduction in the number of individuals executed each year in China, as capital punishment has rarely, if ever, been imposed for most of the affected offenses. Nevertheless, the move is a concrete step signaling China’s intention to move towards further reduction in the use of the death penalty.

Over the past six months, the Chinese press and the Internet community have paid a great deal of attention to the proposed changes to the number of capital crimes, as well as a related proposal to exempt most offenders over the age of 75 from the death penalty. Some of the other changes made to specific provisions received little to no coverage prior to their announcement last week.

New Threats to State Security?

For the first time, changes were made to crimes falling under the category of “endangering state security” (ESS). The change of the greatest potential significance was made to Article 107, which prohibits funding organizations or individuals that carry out criminal activities that endanger state security. The previous statute singled out those who gave funding to “domestic organizations or individuals,” but the amendment removes this restriction.

Speaking to reporters after the amendment’s passage was announced, Wang Shangxin, a member of the NPCSC Legal Affairs Committee, explained:

China’s economic situation has changed, and the criminal situation has changed as well such that domestic organizations or individuals are supporting foreign individuals to commit acts that endanger the national security of the PRC. . . . After this revision of the criminal law provision, it doesn’t matter whether the organization or individual is foreign or domestic: as long as one funds others to commit the crimes of endangering state security specified in the criminal statute, that act will be subject to prosecution.

It is not entirely clear what this change will mean in practice. Dui Hua is aware of only two previous cases in which individuals have been convicted under Article 107. In 1999, a naturalized Spanish national named Wang Ce was sentenced to four years’ imprisonment in Zhejiang for giving US$1,000 to Wang Youcai, one of the founders of the China Democracy Party. The following year, another CDP member named Chen Zhonghe, the head of the party’s Hubei branch, was sentenced to seven years in prison for subversion and funding criminal activities that endanger state security, according to an official Chinese response provided to Dui Hua in September 2003.

Both of these cases involved an organization whose principal members were charged with subversion and convicted in court. How, under the new provision, will “organizations or individuals that commit acts endangering state security” be identified? Will an administrative designation by, for example, the Ministry of Public Security be sufficient and, if so, will such organizations be identified publicly in order to help people avoid violating the law? The recent change potentially expands the range of circumstances in which Article 107 can be applied, but it is too soon to tell whether that means it will necessarily be easier to apply.

“Pocket Crimes” and Court-Ordered Injunctions

Several other changes were made to provisions covering specific offenses, altering either the definition of an offense or the range of punishment applicable. One example of the latter case is Article 293, the crime of “creating a serious disturbance.” Heir to the old crime of “hooliganism,” Article 293 has been criticized as a “pocket crime”—meaning that because of its vague definition “anything can be stuffed into it.” A number of persistent petitioners have been convicted of “creating a serious disturbance,” among them the food-safety activist Zhao Lianhai. Now, in a change that appears specifically targeted at those who petition en masse, the maximum sentence for Article 293 has been increased from five to 10 years for “gathering others on numerous occasions to commit the crime.”

There has been an elaboration of provisions governing the punishments of “public surveillance (guanzhi, also known as “control”) and suspended prison terms. Offenders sentenced to these punishments may now, based on the circumstances of the crime, also be prohibited from participating in designated events, entering designated areas or locations, or making contact with designated individuals during the period of the sentence (Articles 38(2) and 72). Presumably, such injunctions would be imposed by the court at the time of sentencing and enforced by “community corrections” agencies (see below).

“Severity Combined with Lenience”

Besides making changes to specific offenses, many of the revisions also affect general provisions covering application of the criminal law. The net impact of these provisions is mixed, following the principle of “severity combined with lenience.” On the one hand, courts have been given authority to place restrictions on sentence reduction for the most serious offenders; individuals originally sentenced to life imprisonment or suspended death sentences will be obliged to serve longer prison terms before they can be released through parole (Article 81); and the maximum term for concurrently applied sentences has been raised from 20 to 25 years (Article 69).

On the other hand, the law now requires lenient treatment of offenders aged 75 and older, and judges have been given more specific instructions about how “lenient punishment” should be applied in sentencing (Articles 17 and 49). Individuals convicted of minor offenses (subject to punishment of five years’ imprisonment or less) as juveniles are exempted from the requirement to notify employers of their criminal record (Article 100). Parole, as well as the punishments of public surveillance and suspended prison sentences, is to be supervised by “community corrections” agencies, rather than local police stations (Articles 38, 76, and 85).

On the subject of this last provision, Lang Sheng, deputy chairman of the NPCSC Legal Affairs Committee, acknowledged that there had been debate over whether less-developed parts of China had sufficient time to develop community corrections institutions, which have been operating on a trial basis in selected locations for many years. He insisted, however, that concerted direction from the central government would ensure that these new provisions would be able to be instituted nationwide by the time the changes to the Criminal Law take effect on May 1.