Thursday, December 6, 2007

Commentary: Increased Rate of Political Arrests in China is Troubling

Following its November 27 statement on the rise in Chinese political arrests in 2006, Dui Hua was invited by JURIST, a web-based legal news and legal research service based at the University of Pittsburgh School of Law, to comment on the legal implications of the increase for China. Dui Hua Manager of Research and Programs Joshua Rosenzweig shared his perspective in a short commentary, "Increased rate of political arrests in China is troubling."

Sunday, November 25, 2007

Will Death Penalty Review Overwhelm China's Supreme Court?

The following opinion piece, which appeared on November 21, 2007 in The Beijing News (新京报, Chinese original in PDF) and was then translated by Dui Hua, raises concerns about the future of China’s Supreme People’s Court. Faced with an "extremely large number" of death sentences to review, the SPC has been forced to take on hundreds of new criminal court judges, many of whom have lower qualifications than judges in the past. The author suggests this influx of less-qualified judges who focus on reviewing individual capital cases presents an obstacle to the SPC’s progress toward a more ideal goal, one in which high-court decisions contribute to the nation’s social and economic development. At stake, he warns, is the court's ultimate ability to ensure judicial authority.

It’s unclear how much consideration the author (who is very likely writing under a pseudonym) has given to the most obvious solution: a substantial reduction in the application of the death penalty in China. If, as he argues, the burdens of death-penalty review are hindering the efficiency of China’s legal institutions, this could be yet another argument in favor of further reducing the use of capital punishment.

A Cold, Hard Look at the Supreme Court’s
“Expansion of the Ranks” of Criminal Judges
By Ni Jian, Beijing (Scholar)

The Supreme Court is the symbol of justice and equality in the system of state power. Put plainly, the number of cases that make it to the Supreme Court should be strictly limited to only those that are essential, substantial, and that will have general relevance for lower courts hearing similar types of cases.

Registration for the 2008 central government civil service examination has closed, with the number and composition of available positions in government bureaus remaining steady compared to last year—but, I noticed the biggest change was in the Supreme People’s Court (SPC). According to its recruitment plan, this year the SPC will hire 120 “criminal judicial officers” and nine “civil and administrative judicial officers.” Compared to previous years, in which roughly 20 new hires were sought, distributed more or less evenly between criminal and civil tribunals, this is a fundamental change.

It should be pointed out that such a change was predictable. Since January 1, 2007, authority to carry out review of death sentences has returned to the SPC, and, in order to meet the work burden of the large number of capital cases sent annually for review, the court began its largest “expansion of the ranks” since the founding of the PRC, adding three criminal tribunals and several hundred judges. Except for judges picked from local courts and institutions of higher learning, all of these new judges are chosen based on the results of the civil service examination.

Following the tremendous shock caused by the She Xianglin and Nie Shubin cases, among others, the legal community and the general public both feel that the death sentence should be handled with utmost caution and that the power to review capital cases should only be exercised by the highest judicial institutions. This has developed into a kind of social consensus. However, the volume of cases that have flooded the SPC as a result will have a considerable impact on the composition of the ranks of judges at the court, as well as its style of judgment and overall character. This deserves more attention.

The Supreme Court is the symbol of justice and equality in the system of state power. Put plainly, the number of cases that make it to the Supreme Court should be strictly limited to only those that are essential, substantial, and that will have general relevance for lower courts hearing similar types of cases. For this reason, many countries employ a system in which courts decide whether or not to accept cases for appeal, based primarily not on considerations of the right and wrong of a particular case but on whether a decision in that case can solve a certain type of problem that is the focus of society. People expect that the extremely large number of death-sentence review cases will have no impact on the court’s ability to carry out its most important responsibility, “ensuring judicial authority.”

Under a Chinese court system employing four levels, two trials, and final judgments, only a very limited number of civil and administrative cases get to be heard by the SPC; death penalty cases will make up more than 90 percent of the total number of cases heard by the court. Consequently, the ranks of SPC judges will be dominated by the large number of criminal court judges, who also will make up the principal part of the [court’s] adjudication committee. This could have an impact on the Supreme Court’s character and functional effect. Historically in China, rectification of problem cases and review of death sentences, through institutionalized procedures such as the “autumn assizes” and “court assizes,” were always the primary responsibility of the central judicial body, whether it be the Board of Punishments or the Court of Judicial Review. However, looking at the last one or two hundred years of experience in the West, the Supreme Court’s role in promoting fairness in individual cases and supervising lower courts has gradually been marginalized in favor of a more active role in economic life. For example, the series of rulings on contract freedom by the US Supreme Court basically led to the development and rise of the entire country.

The authority of an institution is typically determined by the character, quality, and reputation of its members. Compared with the past, we’ve seen the educational requirements for SPC judges drop from a doctoral degree to a master’s degree—a concession perhaps necessary in light of the recruitment needs. Though I don’t believe that academic background counts for everything, I still feel that under China’s present circumstances it is necessary to preserve a high threshold for [positions on] the Supreme Court. Only by selection according to the most exacting standards can SPC judges be differentiated from other ordinary civil servants and garner society’s trust and approval.

We live in an interconnected world, where a perfectly normal systemic adjustment enjoying popular support can produce many indirect negative consequences. We should proceed with caution.

Thursday, October 25, 2007

Leadership Transition Points to Possible Reduction in Police Power

[Edited 10/29/07]

The ascension of Zhou Yongkang (周永康) to the Chinese Communist Party’s Politburo Standing Committee, announced at the close of the 17th Party Congress, leaves an opening at the head of the Ministry of Public Security. This position will reportedly be filled by Meng Jianzhu (孟建柱), who previously served as the party secretary of Jiangxi Province.

This transition in leadership could significantly affect the power of the Ministry of Public Security and China's police. Holding a concurrent position on the Politburo, Zhou Yongkang was the most powerful public security minister in recent history. From this position, he ushered in new reforms designed to professionalize China’s police force—while also boosting the political leverage of the Ministry of Public Security vis-à-vis other bodies in China’s criminal justice system, particularly the courts and the procuratorate. The result has been a failure to move forward on key legal reforms that would limit police power over detention and the criminal investigation process.

When Meng Jianzhu takes over as public security minister, it will be from a far weaker political position than Zhou. Meng will presumably even have to wait until at least next spring’s plenary session of the National People’s Congress to become a member of the Standing Committee of the State Council (China’s cabinet). Analysts predict that Meng and future public security ministers will not be allowed to hold a concurrent position on the Politburo precisely in order to limit the power of the police among China’s legal institutions.

Zhou Yongkang is now expected to take over from Luo Gan (罗干) as head of the Central Party Political-Legal Committee, arguably an even more powerful position, since this body sets policies and oversees all the institutions in China’s legal system. However, it is yet unclear whether Zhou—who has long focused on the importance of maintaining social stability—will continue to favor the extra power of the police from his new post. It is possible that, in fact, Zhou will be forced to pay more consideration to greater balance among the institutions in the criminal justice system, which would mean more authority and oversight by the courts and procuratorate. If so, it would be a welcome step toward establishing a more just and credible legal system for China.

Related links:

Saturday, October 6, 2007

Chinese Officials on Presence of Counsel and Torture Cases Against Investigators

A recent article from a Chinese government web site discusses the failure of China's legal mechanisms to guarantee the presence of counsel during criminal interrogation, which can leave suspects vulnerable to illegal coercion at the hands of investigators. It also touches on the burden on criminal investigators to disprove torture charges against them stemming from cases of forced confessions. With comments attributed to officials from China's main criminal justice bodies, the article (PDF with Dui Hua's translation) prescribes several measures to help China improve protection of the human rights of criminal suspects.

The piece echoes the position the Chinese government has held for years: investigators still use force, including elements of torture, to coerce confessions, and China has expressed a commitment to curb this problem through legal and penal reform. The use of torture to force confessions has been a criminal offense in China since 1979, and torture during interrogation explicitly violates the United Nations Convention Against Torture, which China ratified in 1988.

In China, a confession by a criminal suspect who is later brought to trial all but ensures a guilty verdict (and possible prison sentence) since virtually all such suspects in criminal cases are convicted. And in the Chinese penal system, forced confessions from prisoners who initially attempted to maintain their innocence have been linked to reduced sentences or better treatment, a practice that has received intense international criticism.

Positive changes in these and other areas are expected to accompany reform of China's criminal procedure law, drafts of which have been circulating and may soon receive a reading by the National People's Congress. If provisions to improve access to legal counsel and "presumption of innocence" are eventually included and effectively implemented, it would help safeguard suspects from being coerced into confessing guilt and bolster progress toward better human rights protections and established rule of law in China.

Dui Hua has paid close attention to the issues of torture and forced confessions, most prominently in its Dialogue cover story (PDF) and interview with the UN Special Rapporteur on Torture (PDF) in 2006 on the use of torture in China.

Related link: