Wednesday, December 16, 2009

Translation & Commentary: Eminent Legal Scholar Issues Strong Appeal for Release of Execution Data by China

An area in which China has recently made considerable progress in human rights is in its reduction of the use of capital punishment. Although China still executes more individuals each year than all other countries in the world combined, the number of people put to death is believed to have dropped substantially since reforms in 2007 returned the power of review over all death sentences to the Supreme People’s Court.

Yet one reason that China has not been given more credit for progress in this area is the secrecy with which it treats the subject of capital punishment. Nearly three years after this death penalty reform was put in place, much remains murky about the procedure by which the Supreme People’s Court reviews capital cases. And the total number of people executed remains a top-level state secret, one that is closely guarded by the few officials who are in a position to know.

This secrecy is the subject of a forceful commentary that appeared in the December 17 edition of Southern Weekend (南方周末), a Guangzhou-based newspaper with a reputation for its liberal views. The author of the piece (translated below) is Chen Guangzhong (陈光中), who at the age of 79 is one of China’s pre-eminent legal scholars and a recognized expert in the area of criminal procedure.

While not the first public call from inside China for the government to release data on the number of executions, what Professor Chen has written is one of the clearest arguments in support of the public’s right to know how its government’s policies on capital punishment are carried out and a forthright articulation of the role international opinion can play in shaping human rights reform.

Indeed, the international community has long urged China for greater transparency in the area of capital punishment—and, especially, annual figures for the number of executions. The recommendation was made again by a number of governments during China’s Universal Periodic Review session before the UN Human Rights Council in February, during which China once again balked at committing to provide the information requested.

This is why Professor Chen’s argument in favor of releasing information about the death penalty is so welcome, as it promises to spark further discussion within China about how the nation should pursue further legal reform and human rights progress in ways that strengthen transparency, public oversight, and rule of law. It is these discussions, rather than international pressure, that will have the most impact on China’s future development.

Making Public the Number of Executions:
Weighing the Advantages and Disadvantages

Chen Guangzhong
Southern Weekend, December 17, 2009

The death penalty is the most severe punishment, one that deprives a person of his life. Since the Second World War, abolition of the death penalty has become the global trend, and at present a majority of countries have already abolished the death penalty. On November 21, 2009, the Russian Constitutional Court announced it would extend a moratorium on executions until the Russian Federal Assembly ratifies abolition of the death penalty. This means that in a country like Russia, with its extremely complex national circumstances, the death penalty exists in name only. As one of the few countries that retain the death penalty, China has adopted a policy of “strict control and cautious use” when it comes to the death penalty, and, especially since the authority of final review over the death penalty was restored to the Supreme People’s Court in January 2007, the standards for application of the death penalty are stricter and more uniform.

Most of the public and members of the legal community basically accept and support China’s current policy toward the death penalty, but no one has any way of knowing how the policy is being carried out or exactly how many people are executed annually. This is because the number of executions has never been made public, on the grounds that it is top-secret information. Each year, when the president of the Supreme People’s Court makes his report to the National People’s Congress, he typically announces the number of people who have been sentenced to prison terms of five years or more, without mentioning the specific number of executions. For example: “(In the five years from 2003 to 2008) 760,000 people were sentenced to fixed-term imprisonment of five years or more, life imprisonment, or death, representing 18.18 percent of the total number convicted.” Announcing figures for criminal sentencing in this way is our consistent practice, but I believe that the advantages of making the number of executions public are greater than the disadvantages and that we should do so as soon as possible. This is because:

It is necessary in order to protect the right of citizens to information. The right to information is a fundamental right of citizens in democratic nations with rule of law, and citizens have a right to know how criminal cases are tried and sentences are carried out. According to Chinese law, citizens and the media not only have the right to observe trials; they also have the right to know the outcome of every trial. I think we need to build upon this foundation and further expand the scope of citizens’ right to information, allowing them to know the overall situation of death penalty cases and the total number of people executed.

It safeguards the right of the people to exercise oversight over the judicial organs. Given that the death penalty is the most severe sanction available to the courts, the number of people executed and the way that death penalty policies are implemented ought to be an important subject for public oversight. However, the right of oversight and the right to information are closely linked, and the right to monitor [use of] the death penalty is premised on the right to information, because only if you make public the precise number of people executed will the public be able to conduct an overall evaluation and effective oversight of the implementation of the death penalty.

It is a reflection of the international trend. Resolution 1989/64 of the United Nations Economic and Social Council urges member states to annually publish information about the categories of offenses eligible for the death penalty and the use of the death penalty, including “the number of persons sentenced to death, the number of executions actually carried out, the number of persons under sentence of death, the number of death sentences reversed or commuted on appeal and the number of instances in which clemency has been granted.” Although some countries that retain the death penalty still do not make public the number of executions, this is not a sufficient reason for China not to make [such information] public. China now ranks among the “political and economic powers” and is a “responsible power,” so it ought to respond to the proposal of the Economic and Social Council and serve as a model to other countries. This would be a concrete example of China’s political civilization.

The United Nations has made this proposal because there is a qualitative difference between secrecy about the number of executions and other “state secrets” relating to national security. Put another way, under most circumstances, publishing the number of executions will not cause any damage to society.

Those who are against making the number of executions public are mainly worried that the number of executions in China is too large and that this might provide an opening for international criticism. Actually, since 2006—and especially since review over death penalty cases was restored to the Supreme People’s Court in 2007—the number of executions has clearly decreased. Even if the number is still a bit large, when you consider China’s population and complex national circumstances, it will not create much of a negative impact internationally.

At the same time, death penalty cases in China are all handled in strict accordance with legal procedure and verdicts are announced publicly. For this reason, revealing the number of executions would better reveal the legal, open, and transparent manner in which these cases are handled in China. It would reflect China’s determination and confidence to firmly implement policies of “lenience combined with severity” and “strict control and cautious use of the death penalty.” It would also show the people of China and the world that we have made progress in controlling the death penalty. If, on the other hand, we do not make [the number] public, it might lead to all sorts of speculation that could be damaging to China’s international image.

Making the number of executions public is a practical and substantial step in the process of reducing the use of the death penalty in China. Not only can it encourage Chinese law enforcement agencies to better carry out capital punishment policies with oversight from society; it is also a good method of educating the public about the law, leading the public to gradually discard its old, traditional ideas about “an eye for an eye,” and promoting the construction of a harmonious society and long-term stability.

In sum, my conclusion is that publishing the number of executions has more advantages than disadvantages.

The author is a Lifetime Professor at China University of Political Science & Law.