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.

Tuesday, December 15, 2009

Translation & Commentary: Petition Procedures in China Receive Official Treatment

China’s petitioning system is once again in the spotlight, both in the country and abroad. The modern incarnation of China’s centuries-old tradition of providing individuals with channels to voice complaints and seek redress for injustice—formally known as the “letters and visits” (信访) system—is officially viewed as an important element in promoting a “harmonious society” and combating official corruption and other malfeasance. At the same time it is widely seen as overburdened and ineffective, and some charge that it is contributing to the very social instability it is intended to address.

One area of focus lately has been the disturbing treatment of some petitioners at the hands of “interceptors,” agents hired by local officials to retrieve individuals who have traveled to Beijing in hopes of getting their grievances heard by the central government. Local officials, concerned that too many (or overly troublesome) petitioners from their home jurisdictions will reflect poorly on their job performance and chances for career advancement, have sanctioned the incarceration of such individuals in "black jails"—unauthorized, unregulated detention centers where petitioners are kept while being pressured to drop their cases and return home.

Significantly, concern over “black jails” and the treatment of petitioners has recently been expressed (English story links to original Chinese text) in Outlook Weekly (瞭望), a major state-sponsored magazine devoted to news and opinion. This sort of public acknowledgement of such a serious rights infringement is rare in China, and marks a clear departure from previous public denials that “black jails” even existed.

Indeed, there now appears to be spreading recognition that China’s petitioning system is in need of substantial reform if it is to play a role that is socially beneficial, rather than harmful. Some of these reform efforts were discussed recently in a front-page item (Chinese only, entitled “信访工作应在法律框架下运作,” published here and translated by Dui Hua below) from Legal Daily, a newspaper published in Beijing by the Ministry of Justice. In the piece, the author looks at a pair of developments in the southern city of Shenzhen, just across the border from Hong Kong.

On one hand, Shenzhen is attempting to facilitate petitioners’ activities by grouping the letters-and-visits offices of various city agencies under a single roof. On the other hand, Shenzhen also recently warned of possible serious punishments for “abnormal” petitioning behaviors—an announcement that elicited strong criticism from some online commentators and rights advocates.

The author’s call for a clearer legal framework to govern petitioning is not surprising, given the nature of the publication in which it appeared. However, his warning that better “hardware” (government infrastructure) should be accompanied by improvements in “software” (or petitioning procedures) should also serve as a reminder that a “legal framework” is only as good as its implementation and enforcement. If maintaining social stability and harmony is given priority over safeguarding individual rights—that is, if petitioners are viewed as “unruly people” and potential sources of instability—authorities may use the law to punish, rather than protect.

Letters and Visits Work Should Operate Under a Legal Framework
You Chunliang
Legal Daily, December 1, 2009

Recently, [letters and visits work] for Shenzhen, Guangdong Province, and each of its urban districts began operating out of a single letters and visits hall. This is the first time that the letters and visits personnel from 16 functional departments have been gathered to work from one location. [These departments] cover land resources and planning; science, technology, industry, and trade information; residential habitat; transportation; health and family planning; education; public security; supervision; civil affairs; justice; human resources and social security; culture, sports, and tourism; state-owned assets; housing construction; market regulation; and urban management.

Although this letters and visits hall is still in a trial phase, a spokesperson from the city’s letters and visits office indicated that the launch of the newly formed hall combining the city and district levels will help to break the traditional work mode of scattered resources and lack of coordination. Integrating resources will help to raise the petition resolution rate and the quality of case handling.

However, with the establishment of the Shenzhen Letters and Visits Hall, one cannot help but recall the recent attention paid to 14 types of “abnormal petitioning” activities. The Shenzhen Intermediate Peoples Court, Procuratorate, Public Security Bureau, and Justice Bureau recently issued a “Notice Regarding the Lawful Handling of Abnormal Petitioning Activity,” [which identified] 14 types of “abnormal petitioning,” such as wearing petition garments [i.e., clothing upon which the petitioner’s complaints have been written], engaging in sit-in protests, self-mutilation, suicide, causing unreasonable disturbances, blocking vehicles, or pestering employees of government organs, and [outlined] serious punishments such as administrative detention, pursuing criminal responsibility, or re-education through labor [for engaging in such behavior].

Release of the announcement led immediately to popular debate. Some took it as an effort by public authorities to suppress petitioners and something that would have a detrimental effect on the timely resolution of social grievances. Others viewed it as an effective, legal measure to stem unlawful petitioning behavior, one that would promote social harmony and stability.
In fact, the announcement released does not restrict the rights of Shenzhen residents to engage in normal petitioning, but rather encourages residents to exercise those rights properly. The announcement particularly addresses the issue of “how residents should properly exercise their petitioning rights,” pointing out that petitioners who choose to submit petitions in person should do so at the relevant government agency or locations specified for receiving petitions.

Construction of the Shenzhen Letters and Visits Hall shows us that the Shenzhen government is making progress in carrying out petitioning work. But “software” needs to keep up with this infrastructural “hardware”—for example, regulating the time needed to resolve a petition, standardizing the rights and obligations of personnel receiving petitions, and improving the quality of personnel receiving petitions. In practice, some locations view petitioning as “making trouble” and petitioners as “elements of instability.” They buy off petitioners, try to win over or deceive them, or even attack or harm them, making the situation even worse. The key to resolving the issue is to face the problems that exist with the petitioning process, improve work procedures, eliminate the popular concern that “nothing gets resolved without making a fuss,” and effectively protect people’s [right to make] reasonable and legitimate demands.

Work involving petitioning is not something that can be glossed over; it should operate under a legal framework and must not be placed above the law. This is the bottom line to which personnel and concerned functional departments [that handle] petitioning should adhere, and it is the most fundamental legal rule that petitioners should obey.

Tuesday, December 8, 2009

Premier’s Support for Rule of Law Prompts Candid Critique

December 4 is “National Legal Publicity Day” in China, an occasion for the Chinese government—especially those within the country’s legal system—to promote China’s successes in law enforcement and the administration of justice.

This year the Legal Daily, a newspaper published by the Ministry of Justice, gave a prominent position on its front page to a talk given by Premier Wen Jiabao in May 2008 at China University of Political Science and Law (CUPL), one of the nation’s premier law schools and an elite breeding ground for both law enforcement officials and legal practitioners. In his discussion with students, Wen gave strong backing to the promotion of rule of law in China, acknowledging that China faced big challenges in terms of enforcing existing laws and ensuring that justice is “not only done, but also seen to be done.”

While there’s nothing surprising about the publication of a senior leader’s views in a central government newspaper, publishing those views for the first time more than 18 months after being first articulated is rather unusual. This curious situation is alluded to in an editorial (translated below) published in the December 8 edition of Southern Daily (南方日报), the official newspaper of the Guangdong Province Branch of the Chinese Communist Party and part of a family of publications known for in-depth reporting and outspoken views.

The editorial, which was widely republished on official media websites throughout China, focuses on Wen’s explication of one of the mottoes of CUPL, “Governing by law” (法治天下), which he equates with the idea of “supremacy of the law” (法比天大)—literally, “the law is greater than heaven.” Bluntly acknowledging that abuses of power by officials have hindered the development of faith in China’s legal system, the editorial urges readers to reflect on this failure and stresses the importance of enforcement, transparency, and participation as keys to building a society under rule of law.

“Supremacy of the Law”: The Essence of Society Under Rule of Law
Southern Daily editorialist, December 8, 2009

Legal Daily recently featured the full transcript of a talk that Premier Wen Jiabao gave on May 4, 2008, to students at China University of Political Science and Law. Premier Wen said, “The importance of the law can simply not be overemphasized,” “ ‘Governing by law’ means ‘the law is supreme’” and “The difficulty of ruling lies not in making laws, but in making others follow the law. It is better to have no laws than laws that are not followed.”

It is unclear why, after a year and a half, Legal Daily was so late to publish the transcript of Premier Wen’s talk. Perhaps it is simply to re-emphasize the importance of the law. [As for] the law being “greater than heaven,” first one must be clear about what is meant by “heaven.” To some people, especially officials, “heaven” seems to be authority, either those people who allow them to have power or the myriad advantages that power brings. Within the jurisdictions of some people [whose ethos is] “I am number one” and “I am the law,” neither the law nor heaven is of any use; only they themselves are effective.

The more common this phenomenon, the more inevitably it causes people to develop many doubts about rule of law. If ordinary people have problems, the first thing they think of is not taking the matter to court, but rather going to Beijing to petition. The dramatic increase in the number of petitioners in recent years is not just a result of economic development bringing about more social conflict; we also need to look at the problem of insufficient development of rule of law. Over the years, more and more laws have been established, but what truly defines a society under rule of law is not how many laws there are but, rather, whether people act in accordance with legal norms, whether those with power respect the law, and whether the law rules supreme over authority. Unfortunately, the administration of justice continues to encounter pressure from all sorts of public power, as evidenced by the fact that lawsuits against the government rarely succeed, [because] judges sometimes do not decide cases on the basis of the law, but on the basis of official instructions. After years of this, why should ordinary people have faith in the law? Why shouldn’t officials see the legal system as their plaything? We often say that the administration of justice is the baseline for fairness, but then why are there judgments that pervert the law and interference in the administration of justice? Doesn’t this show that society still suffers from the stubborn disease of authority being above the law?

Such stubborn diseases must be eliminated, even if it means paying a high price. For if authority being above the law is allowed to spread further, [the idea of] “society under rule of law” will be reduced to nothing but a tattered fig leaf, and the resulting weakening of social restraint will be a cost far greater than that which accompanies curing a stubborn disease. In fact, “supremacy of the law” is only the essence of a society under rule of law, something that could not be more a matter of common sense. That it sounds so enlightening when uttered by the premier just shows how lacking we are in common sense. We should reflect on why a truly common faith in the law has not yet been established. Why is the administration of justice faced with all sorts of constraints? Why is the legal system itself designed in ways that do not fully adhere to legal common sense? In analyzing this question, we cannot simply look at external factors but must examine internal ones as well. More effective construction of rule of law, opening up the legislative process and oversight of the law, and promoting a democratic judicial system—all of these would be welcome measures.

The “supremacy of the law” of which Premier Wen spoke is one founded on the premise of a rule of law. Some intentionally twist the phrase to mean that the law is so supreme that it does not have to consider or care about anything else. This is clearly an unreliable interpretation. Premier Wen’s “supremacy of the law” is one in which laws must be observed, one in which there is respect for the law—and especially respect for good laws. This does not mean that all laws are legitimate and constitutional: the former system of “custody and repatriation” is a classic example of a bad law. In addition, recent years have witnessed the phenomenon of “departmental legislative guidance” in the legislative process, something that needs to be guarded against. Government ministries, commissions, and departments that are prevented from participating in the drafting of legislation concerning them have not only insisted on participating but have even played a leading role in guiding the legislative process, with the result that too many departmental interests are manifested in the laws themselves, to the detriment of the public interest. These kinds of laws are the result of a closed-door legislative process, one that ultimately leads to social injustice and hinders the establishment of judicial authority.

“Supremacy of the law” tells us that we must establish faith in the administration of justice in all sectors of society. In order to establish such faith and give the justice system the authority to oversee all matters, we must further reform the external and internal environment for the legal system, curb inappropriate interference in the administration of justice, and promote a democratic judicial process.

Monday, November 23, 2009

US State, China Formulate Lethal Injection Drugs, Procedures

On November 13, Ohio became the first state in the United States to adopt a single-drug procedure for lethal injections. Of the 36 states with capital punishment, 35 use lethal injection (Nebraska still uses the electric chair). These states use a three-drug cocktail typically containing sodium pentothal (an anesthetic), pancuronium bromide (a paralytic agent), and potassium chloride (which stops the heart and causes death). In 2007, the Supreme Court considered whether the pending lethal injection of a Kentucky man by the three-drug protocol constituted cruel and unusual punishment. The appeal followed revelations that, in many instances, the level of sodium pentothal administered during lethal injections may not be sufficient to induce anesthesia, while the pancuronium bromide renders prisoners paralyzed, but fully awake, during cardiac arrest.

Stays of execution were issued across the country while the Supreme Court considered the case. Ultimately, in April 2008, the court ruled in that case that the three-drug procedure was in fact constitutional, but many states have remained hesitant to use the procedure. Ohio’s new plan calls for using only the first drug in the cocktail, sodium pentothal, effectively inducing a barbiturate overdose. Presumably, this new method addresses the issue of paralyzed cardiac arrest, but it raises several legal concerns as well.

First, the single drug method is untested, and this will likely produce a slew of new court challenges. Second, constitutional concerns about the death penalty rest not only on which drugs are used, but how they are administered. Because ethics rules prohibit most medical professionals from taking part in executions, lethal injections in the United States are performed by prison staff, who often lack proper training.

On September 15 of this year, Ohio was set to execute Romell Broom, who had been sentenced to death for the 1984 rape and murder of 14-year-old Tryna Middleton. Ohio Governor Ted Strickland turned down a final appeal for clemency, and the execution team proceeded to attempt to execute Broom, trying unsuccessfully for two hours to insert an IV, reportedly sticking him at least 18 times. Finally, with the team unable to find a suitable vein—though Broom even tried to help by pointing out possible veins to penetrate—the execution was halted.

Broom’s is not an isolated case. In 2006, Lewis Clark was put to death for the 1984 shooting of David Manning. The execution team struggled for more than 20 minutes to insert an IV into his arm. A few minutes into the injection, the vein collapsed and Clark reportedly raised his head and repeated, “It don’t work.” In all, it took 90 minutes from the start of the procedure until Clark was pronounced dead. In 2007, when Ohio executed Christopher Newton, it took staff so long to locate a vein that they reportedly paused to give Newton a bathroom break. Similar accounts of botched executions in many states are common.

As US states grapple with how, and if, they can make lethal injection more humane, China appears committed to replacing its own traditional method of execution—the bullet—with the needle. In a 2008 interview published in the China Daily, Jiang Xingchang, vice president of the Supreme People's Court (SPC), stated that half of China’s 404 intermediate courts, which carry out most China’s executions, already use lethal injection. He went on to say, “It is considered more humane and will eventually be used in all intermediate people's courts.” Currently, more than 30 percent of China’s population lives in areas that use lethal injection.

Unlike the United States, where each state adopts its own method of execution, including its own formula for lethal injection, lethal injection procedures in China are dictated by the Supreme People’s Court, which manufactures the drugs and distributes them to the lower courts to carry out executions. Although Dui Hua does not know the precise composition of the lethal injection administered in China (and this information is almost assuredly a state secret), anecdotal reports indicate that it is a single anesthetic injection much like that adopted in Ohio.

In an interview that appeared in the Beijing News in November 2008, Wang Jun, director of the Forensic Division of the Kunming Intermediate People’s Court, discussed his role in developing China’s first lethal injection procedure. Wang stated that he rejected numerous other drugs, including potassium cyanide, in favor of a combination of anesthetics (麻醉剂) and asserted the Supreme People’s Court adopted an essentially identical formula for national application.

Most people would agree that methods of execution that lessen the pain of death are, all else being equal, better than others. At the same time, it should not be assumed that increasingly technical methods are adopted primarily because they are humane. The paralytic second drug in the three-drug protocol, for example, freezes a victim in a mask of tranquility, which makes an execution more palatable to witness, but neither numbs pain nor hastens death. And in China, where use of prisoner organs for transplants is not forbidden by law—though a prisoner’s written consent is now required—death by lethal injection eliminates the chance that an organ will be damaged by a bullet.

Thursday, October 22, 2009

Translation & Commentary: Verdict in Guo Quan Subversion Case Shows Conflict Between Free Expression & State Security

On October 16, the Suqian Intermediate People’s Court in Jiangsu Province sentenced political activist Guo Quan (郭泉) to 10 years in prison on charges of subversion. A copy of the court’s verdict against Guo (original document in PDF) began circulating on Chinese-language websites five days later, and Dui Hua has produced a full English translation of the verdict.

Guo, 41, is a former criminal-court judge and literature professor at Nanjing Normal University who became renowned online for his anti-Japanese nationalism, criticism of China’s one-party political system, and support for “rights defenders” seeking redress for various forms of social injustice. In 2007, he began posting a series of articles entitled “Herald of Democracy” and announced the formation of the opposition China New Democracy Party (CNDP). Guo penned several open letters to top Chinese leaders and was frequently detained by police, especially around “sensitive” periods. For these actions, he was fired from his university position and expelled from the China Democratic League, one of eight “approved” parties in China other than the CCP. He has been in police custody in this case for over 11 months.

As the verdict shows, the case against Guo Quan was centered on the prosecution’s claim that Guo’s actions were aimed at “subverting state power and overthrowing the socialist system.” The facts were largely not in question, though the defense was put at a serious disadvantage by the introduction into evidence of a large number of statements by prosecution witnesses (a number of whom under different circumstances might have been considered co-defendants) who were evidently not compelled to appear in court to have their accounts challenged under cross-examination.

Though Guo acknowledged writing articles and organizing the CNDP, he disputed the prosecution’s characterization of his actions as subversive. The trial boiled down to a conflict between the defense, on one side, arguing that Guo’s actions were not subversive and, in any case, should be covered by constitutional protections of rights to free speech and association, and, on the other side, the prosecution’s assertion that the interests and integrity of the state always trump the constitutional rights of citizens.

Under China’s legal system, this conflict is essentially irreconcilable. As long as the party in power and the government it controls see no distinction between their own interests and integrity and those of the nation as a whole, it will remain virtually impossible for those who attempt to challenge the system through raising criticisms or posing alternatives to defend themselves against charges of subversion.

Tuesday, October 6, 2009

Clemency for Prisoners on PRC's 60th Anniversary Comes from Provinces, Not Central Government

While China’s leaders did not issue a national special pardon to mark the 60th anniversary of the founding of the PRC, thousands of prisoners benefited from provincial-level acts of clemency that coincided with National Day celebrations around the country.

Official Chinese press reports indicate that large-scale sentence reductions, paroles, and other forms of clemency took place in at least three locations—Sichuan Province, Henan Province, and the Ningxia Hui Autonomous Region—to mark China’s National Day of October 1. In September, courts in Sichuan rushed to consider the more than 1,300 recommendations for parole, commutation of remaining sentences, and temporary leave made by prison authorities from throughout the province. In Henan, 2,485 sentence reductions were granted (including 1,166 that allowed prisoners to leave prison before the National Day holiday), five prisoners were granted parole, and 44 prisoners were granted medical parole. In Ningxia, more than 500 prisoners were given sentence reductions or parole, and 272 were granted temporary home leave

It is not unusual for prison authorities to announce sentence reductions and paroles in advance of important festivals such as the lunar new year, but it is less common to explicitly link such acts to a political celebration such as the PRC’s founding. In announcing the sentence reduction and parole in Ningxia, the region’s vice chairman was quoted as saying that releasing prisoners would allow them to “understand and appreciate the great changes since the Republic was founded 60 years ago.”

Compared to the seldom-used pardon procedure, sentence reduction and parole are more routine and better defined legislatively, and this may in part explain why they were used to show clemency during the anniversary period. Such a choice is not without important consequences; for one, it appears that the clemency in recent weeks was part of the celebrations in only a few areas of China, whereas prisoners throughout China could have benefited from a special pardon.

Furthermore, Dui Hua has found that regulations governing sentence reduction and parole in at least some parts of China clearly discriminate against prisoners who have been convicted of state security crimes (including subversion, “splittism,” and incitement) and “using a cult to undermine implementation of the law.” Indications from Sichuan—where authorities reserved clemency for those prisoners “without deeply ingrained bad habits,” those serving relatively light sentences or whose crimes were unintentional—suggest continued “strict handling” of the cases of individuals imprisoned for political or religious reasons.

If more information about prisoners who recently received sentence reduction or parole is provided in the coming weeks, we may learn more about whether such discrimination was evident in China’s recent anniversary celebration, or whether, in fact, slogans about combining punishment with leniency, promoting national unity, and building a harmonious society were realized in practice.

Related links:

Thursday, September 17, 2009

Commentary: "Celebrating 60 With Confidence" (in Far Eastern Economic Review)

September 17 marks the 50th anniversary of Mao Zedong’s call for a special pardon of prisoners that marked the 10-year anniversary of the founding of the People’s Republic of China. Chinese leaders will have the chance to mark the country's 60th anniversary (coming up on October 1) in a similar fashion. In the essay “Celebrating 60 With Confidence,” published today on the Far Eastern Economic Review website, Dui Hua’s senior manager of research Joshua Rosenzweig examines the historical context and benefits of the 1959 pardon and comments on the possibility of an anniversary special pardon for this year.

Throughout 2009, Dui Hua has tracked discussion and debate on a special pardon in China, and the proposal was also analyzed in the Winter 2009 issue of our quarterly Dialogue newsletter.

Friday, August 28, 2009

Translation & Commentary: "The Death Penalty: When Will the 'Last Gunshot' Be Heard in China?"

A short piece published on August 27, 2009, in the Southern Weekend (南方周末, click on image below) and translated by Dui Hua (see end of this post), indicates that the Liaoning High People’s Court, and presumably the intermediate people’s courts under its jurisdiction, will completely replace execution by gunshot with lethal injection by the end of 2009. Information in the accompanying map shows that Liaoning will join seven other provinces and municipalities in making lethal injection the exclusive mode of capital punishment by next year. Lethal injection already has been fully adopted for executions carried out in Shanghai (implemented in 2001), Yunnan (2003), Zhejiang (2006), Henan (2009), and Shandong (2009); will be universal in Beijing (and Liaoning) by the end of 2009; and will be adopted for all executions in Chongqing in 2010.

The piece appears to be significant on a number of fronts. First, this vivid publication of facts constitutes a noteworthy level of transparency by judicial departments of the Chinese government, which regularly refuse to disclose even basic information on executions, regarded as state secrets. The increased use of lethal injection, which some observers in China view as a positive departure from China’s gruesome practice of execution by gunshot, may give the Chinese government reason to be more open about the way it conducts executions—if not about the number of prisoners executed. (Although China still executes more prisoners every year than the rest of the world combined, the number of executions has decreased steadily over the past decade and particularly since January 2007, when the Supreme People’s Court resumed the power of final review over all death sentences. Dui Hua estimates that China will execute approximately 5,000 people in 2009.)

Also of importance, the areas set to have adopted lethal injection as the only execution method by 2010 are home to approximately 30 percent of China’s population. The published map also points out 33 cities, municipalities, or prefectures throughout China—including provincial capitals and other heavily populated areas—that have begun using lethal injection. An interview with Supreme People’s Court Vice President Jiang Xingchang published in the China Daily in January 2008 revealed that half of China’s 404 intermediate people’s courts—which carry out most but not all executions—used lethal injection (though not necessarily exclusively) at that time. Judge Jiang stated that it will eventually be used by all intermediate people’s courts, though no timetable was given.

The adoption of lethal injection in China is a recent phenomenon that has spread at a relatively rapid rate. It came about after domestic and international pressure for reform. In the 1980s, the United Nations passed a series of conventions calling for more humane practices for implementing the death penalty, and many countries, including China, moved away from execution by gunshot. In 1996, China amended its Criminal Procedure Law to allow for execution by either gunshot or lethal injection, with China’s first lethal injection officially being carried out in Kunming, Yunnan, in 1997. In a 2008 interview (Chinese only, included in a lengthy article on lethal injection) with The Beijing News (PDF of translated interview by Dui Hua), Wang Jun, director of the Forensic Division of the Kunming Intermediate People’s Court and the person in charge of the first lethal injection, explains that he and his team formulated China’s lethal injection procedure from scratch. Also in 1997, the Supreme People’s Court began to institute a trial program of lethal injection in other areas, and in September of 2001, the Supreme People’s Court further mandated that all courts above the intermediate level work to institute lethal injection.

Publication of the Southern Weekend piece follows closely on the heels of another recent revelation about capital punishment in China: On August 26, the China Daily reported “expert” statements that condemned prisoners comprise 65 percent of organ transplant donors. According to the article, there were about 10,000 organ transplants in China in 2008
a rare admission that the number of executions in China numbers is in the thousands. In the same article, Vice Minister of Health Huang Jiefu stated that executed prisoners “are definitely not a proper source for organ transplants.” For those who remain concerned about organ harvesting in China, however, part of the final sentence in the translation below—“all criminals sentenced to death will soon enjoy this mode of execution that preserves the body’s tissues and organs”—offers cold comfort that the harvesting of organs from executed prisoners will soon be a thing of the past.


The Death Penalty: When Will the “Last Gunshot” Be Heard in China?
Southern Weekend, August 27, 2009

Recently, the Liaoning High People’s Court indicated that, by the end of this year, it would replace execution by gunshot with lethal injection. In 1997, Kunming, Yunnan, was the first place in China to use lethal injection, and in 2001, the Supreme People’s Court required courts throughout China to promote the use of lethal injection; these are two nodes in the history of capital punishment in China. In the course of promoting [lethal injection], two phenomena have emerged—“let some areas inject first” and “let some people (primarily corrupt officials sentenced to death) be injected first.” The latter aroused widespread controversy, and was seen as the final exercise of the privilege of corrupt officials and a violation of the legal principle that “all are equal before the law.” However, as use of lethal injection has spread fully throughout China and the time nears when the death penalty’s “last gunshot” will be heard, all criminals sentenced to death will soon enjoy this mode of execution that preserves the body’s tissues and organs: less suffering and blood, more dignity and humanity.

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Thursday, August 6, 2009

Chan Yu-lam Sentence Reduction Sheds Light on How Prisoners Are Rewarded for Good Behavior

Chan Yu-lam (陈瑜琳), a Hong Kong resident and naturalized British citizen convicted of espionage in 2004, was granted an 18-month sentence reduction on June 5, 2009, The Dui Hua Foundation has learned from an informed source in China.

A former foreign affairs official at the Xinhua News Agency, the Chinese government's de facto representative office in Hong Kong before 1997, Chan was originally sentenced to life in prison after prosecutors charged him with passing secrets to an alleged British agent. Several other former Xinhua employees were arrested simultaneously in connection with what Chinese officials at the time claimed to be a "Hong Kong spy ring," though no clear links between the detainees have ever been independently confirmed.

In August 2007, Chan’s sentence was commuted to a 19½-year fixed-term sentence. As a result of this latest reduction, he is due to be released from Shaoguan Prison in Guangdong Province on August 14, 2025.

Additional Clemency May Be Expected

Chan Yu-lam’s case illustrates how Chinese regulations enable individuals serving long prison terms to reduce their sentences gradually through “showing regret” or “acts of meritorious service.” Based on provisions of the system established in Guangdong in 2005, Chan appears to have had his sentence reduced at intervals and by lengths that indicate that he has been a model prisoner so far, suggesting that further reductions may be expected in the future.

Each provincial-level prison administration bureau in China establishes slightly different systems to reward inmate behavior, but inmates generally earn points for participating in assigned labor, obeying prison rules and other disciplinary measures, participating in education, and maintaining a positive attitude towards reform. Conversely, points are deducted for rule infractions, failure to participate in labor, or a poor attitude towards reform.

Of all of the criteria that go into judging whether a prisoner has shown regret, “acknowledging one’s crime and submitting to the law” is among the most important. The Chinese penal system’s emphasis on acknowledging guilt is something that UN Special Rapporteur on Torture Manfred Nowak singled out for particular concern (PDF) following his inspection of Chinese prisons and detention centers in 2005. In his report, Nowak notes, “Convicted prisoners who have not confessed to their crimes are put under special education systems and are deprived of certain rights and privileges which converted prisoners enjoy, such as family visits, access to a telephone or the incentive of reduced sentences.” Prisoners who protest their convictions on procedural grounds may also face parole stigmatization, since prisoners’ continued efforts to petition higher courts to retry their cases can reflect negatively on their attitude, even though all relevant regulations make clear that inmates’ right to petition should be protected.

At the end of each evaluation period, inmates who accumulate a certain number of points are eligible to receive merit awards. Additional awards are granted to top point-earners in each cell block, and prisoners also compete for special recognition at the prison- and provincial levels. After accumulating a certain number of these merit awards, inmates may apply to the prison to recommend that a court issue a sentence reduction on grounds of good behavior or in recognition of various types of meritorious service. “Detailed rules for implementation” (实施细则) issued at the provincial level regulate the conditions, length, and frequency with which sentence reductions may be granted. Provincial courts have also issued general opinions governing how courts evaluate applications for sentence reduction and parole. Most of these rules and regulations were issued subsequent to a 2004 nationwide campaign aimed at cracking down on irregularities in the granting of sentence reduction, parole, and medical parole.

“Strict Handling” for State Security Prisoners

Under these rules, sentence reductions for individuals convicted of “endangering state security”—along with underworld gang members, core “cult” members, recidivists, and repeat drug offenders—should be “strictly handled.” In Guangdong, at least, this means delaying commencement of sentence reductions for these prisoners by six months relative to “ordinary” inmates who are similarly qualified, and cutting the length of the initial reduction by at least six months relative to what it would be otherwise. Regulations also stipulate that prisoners convicted of endangering state security should “generally not be granted parole.”

In the case of Chan Yu-lam, whose crime of espionage falls under the category of endangering state security, the commutation of his life sentence was granted nearly three years after he first entered prison. (Guangdong’s regulations [Chinese only] specify that prisoners serving life sentences must wait at least two years before they receive their first reduction, and it is not uncommon for new inmates to go through a period when they accumulate fewer points and merits as they adjust to life in prison.) Assuming that six months was cut from Chan’s reduction because of his status as a prisoner to be “strictly handled,” the decision to reduce his sentence to a fixed-term sentence of 19½ years suggests that his behavior qualified as “outstanding” (突出). The decision to reduce his sentence 22 months later by 18 months is also indicative of “outstanding” behavior, based on the regulations in force in Guangdong. If the schedule proceeds in strict accord with these regulations, Chan can next expect to have his sentence reduced in the first quarter of 2011.

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Thursday, June 25, 2009

Translation: The Course of Humanization of the Criminal Law

On June 16, the China Daily reported that by the end of 2009 all criminals sentenced to death in Beijing would receive lethal injection rather than being executed by gunshot. The news prompted Liu Renwen (刘仁文), a researcher at the Institute of Law at the Chinese Academy of Social Sciences and a vocal advocate of abolishing capital punishment in China, to publish the opinion piece below in the June 18 edition of Southern Weekend (南方周末), a weekly newspaper based in Guangzhou.

The course of humanization of the criminal law
Liu Renwen

Lately, the nation’s attention was turned to the news that Beijing will use lethal injection to carry out all death sentences by the end of the year. Having reflected on this issue, my conclusion is that this is in step with China’s course toward eventual abolition of the death penalty.

The Chinese government has always indicated that, in the long term, we eventually want to abolish the death penalty, but the present conditions are not yet ripe. As to precisely when is “eventually,” no one had any idea in the past. But if we consider the reforms to China’s system of capital punishment over the past 10-plus years and the achievements they have brought about, perhaps we have reason to be slightly more optimistic for this prospect. The 1996 revision of the Criminal Procedure Law added lethal injection as a method for carrying out the death penalty. The background for this legislation was a consideration of the requirement made in the “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,” passed by the UN Economic and Social Council in 1984, which called on countries that had not yet abolished the death penalty to carry out executions “so as to inflict the minimum possible suffering.” After careful study, legislators decided that, compared to execution by gunshot, lethal injection was better able to reduce the pain of the executed and even more able to preserve the corpses of those executed and prevent the bloody spectacles brought about by execution by gunshot, such as the bursting of brain tissue. Since time was still needed for the development of drugs, construction of facilities, and training of personnel, the traditional method of execution by gunshot was retained at that time.

Beginning with the first use of lethal injection for execution in Kunming in 1997, lethal injection has been promoted in varying degrees in places throughout the country. Starting last year, the Supreme People’s Court began providing lethal injection drugs to local courts free of charge, indicating its attitude toward the gradual replacement of gunshot with lethal injection as a mode of execution. Shortly after this year’s “National Human Rights Action Plan” was issued, Beijing’s stance toward accelerated implementation of lethal injection fills people with hope for an early end to the lack of uniformity in execution methods and the replacement nationally of gunshot with lethal injection for the execution of capital punishment.

Reform of execution methods is not an isolated thing. First, this is the embodiment of the humanization of punishment and those who carry out punishment. Historically, forms of capital punishment have been split between those that “deprive a person of his or her life” and those that “in addition to depriving a person of his or her life, cause the executed to experience pain and suffering”—the latter including “slow slicing” (lingchi), exposure of the decapitated head (xiaoshou), and mutilation of the corpse (lushi). At the end of the Qing Dynasty, Shen Jiaben strongly advocated unifying execution methods and the abolition of “slow slicing,” exposure of the decapitated head, mutilation of the corpse, and other methods that “cause the executed to experience pain and suffering.” After the revolution, we carried out executions by gunshot for a long time. Though, given contemporary historical conditions, execution by gunshot cannot be considered a method that “causes the executed to experience pain and suffering,” when combined with massive sentencing rallies, parading condemned prisoners in the streets, and open-air execution grounds at which spectators gathered to watch the excitement as if at a festival, perhaps it was still [a form of] cruelty that did not take into consideration the dignity or feelings of the condemned and their families. Even more important, this way of doing things induced a culture of social violence and sustained practices that were out of step with the times, such as the death penalty being used as an accepted tool of social control and even a part of people’s daily lives. Now, lethal injections are all carried out in specialized facilities, which will help to slowly eliminate society’s dependence on capital punishment.

Moreover, the gradual replacement of execution by gunshot with lethal injection has been made possible in part by the large-scale decline in the use of capital punishment in China. Beginning on January 1, 2007, the authority over final review of the death penalty in China was restored to the Supreme People’s Court, and death penalties and executions declined dramatically in China following this symbolic event. In 2007, the Supreme People’s Court rejected 15 percent of the death penalty cases it reviewed, and the number of suspended death sentences nationally exceeded the number of death sentences with immediate execution for the first time in many years. [Even] with this reduction in the number of death sentences, odious crimes like setting explosions, murder, and arson actually occurred at a significantly lower rate that year compared to 2006, showing that we can still maintain social order as well or better, even without overly relying on the death penalty. It is precisely because the number of death sentences has declined to such a large extent that places can more quickly satisfy the requirements of lethal injection in terms of things like establishing facilities and mobilizing personnel. According to reports, Beijing only has one facility for carrying out lethal injections. If the number of people to be executed were greater, this would clearly be insufficient.

Looking globally, we can observe a general pattern in Europe and many other countries where the death penalty has been abolished, insofar as these countries have all followed this kind of path: They started with a large number of crimes being eligible for the death penalty, later limited [its use] only in serious murder cases, and finally completely abolished capital punishment. They started with widespread use of the death penalty, later used it more and more infrequently as a kind of “symbolic penalty,” and then completely stopped using it altogether. They started with many different ways of carrying out executions and chose methods involving more or less pain and humiliation depending on [the circumstances of] the individual to be executed, and later they began unifying the methods of capital punishment and employing the method causing the least pain in all cases. They went from “raising troops and mobilizing the masses” to carry out an execution to gradually removing capital punishment from public view. Looking back on the path China has followed with respect to capital punishment and its implementation, I think that it is in line with the logic and experience of eventual abolition of the death penalty.

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Monday, June 22, 2009

Tibetan Guide's Incitement Case Surfaces: 3-Year Sentence for Emails, Text Messages

Dui Hua has obtained and produced English translations of the indictment and verdict (original documents in PDF) for a previously unknown case of a Tibetan sentenced to three years in prison for “inciting splittism” after the March 14 riots in Lhasa. The case against Gonpo Tserang (贡保才让), a well-respected expedition guide who has trekked with foreign celebrities and participated in high-profile mountain rescue efforts, involved a series of emails and text messages sent over three days to acquaintances outside of China. These messages, which prosecutors claim “distorted the facts and true situation regarding social stability in the Tibetan area following the ‘March 14 incident” were considered by the court to be deserving of severe punishment.

This case is significant in a number of respects. First, it is the only case Dui Hua is aware of in which a Tibetan in Yunnan Province has been convicted of a state security crime following the Tibetan protests of 2008. Second, it is not at all apparent that the charge of “inciting splittism” was properly applied. The content of the messages is never specified, and it is questionable whether individuals who are not located in China are even capable of carrying out acts that would “split the nation or undermine national unity.” An argument could thus be made that, never imagining that his messages could “incite splittism,” Gonpo Tserang did not intend to do so. This is perhaps an argument that an attorney could have raised in his defense. Unfortunately, it appears that, at least for his appeal, Gonpo Tserang was not represented by counsel—very likely a result of the reluctance of most lawyers to take on criminal defense work in political cases and the threats made warning of serious consequences for lawyers who volunteered to defend Tibetans.

Finally, Gonpo Tserang’s case illustrates both the extent to which Chinese police were engaged in monitoring communications between Tibetans and outsiders during the period after the protests and the low threshold for criminal liability in such situations. We do not know the content of Gonpo Tserang’s messages, but sending this handful of messages to individuals outside of China resulted in a three-year sentence. Such intense monitoring and the potential consequences of being caught saying the wrong things to outsiders help to explain the wariness of many Tibetans to report what they witnessed. To a large extent, this wariness has allowed the official Chinese narrative of events to become dominant. It also compels observers to wonder what punishments might be handed down to Tibetans who have been reported detained for saying or doing even more.

Thursday, June 18, 2009

Lawyer's Request for RTL Information Disclosure Rebuffed by Chinese Ministry of Justice

On May 14, 2009, Beijing lawyer Xie Yanyi (谢燕益) sent a letter to the Ministry of Justice (MOJ) requesting that information about China's "reeducation-through-labor" (RTL) system be made public under the provisions of the country's 2007 Regulations on the Disclosure of Public Information. That same day, he posted the content of the letter on his blog. On June 6, Xie received a letter from the General Office of the Ministry of Justice (view MOJ document), which denied most of his requests on the grounds of state secrecy but also responded that some general RTL statistics are "open government information" available on the MOJ website. (Dui Hua's translations of Xie's letter and the MOJ response are below.)

Xie's request for information references numerous provisions in China's laws and constitution, as well as plans and policies put forward by the government and the Chinese Communist Party—all of which profess the importance of public information and the right of citizens to exert oversight over government agencies. He explains that disclosing information about RTL is essential so that both policymakers and ordinary citizens have "the important facts and information necessary in the debate over whether to retain or abolish the RTL system." Xie clearly stands on the side of those who believe RTL should be abolished, seeing it as a major obstacle to implementation of rule of law and an arbitrary abuse of power that breeds social resentment and threatens to create the very instability it is supposedly intended to prevent.

Xie Yanyi is one of a relatively small group of lawyers in China who actively represent individuals seeking protection of their rights against injustice. He is known for taking on cases involving HIV carriers, farmers whose land has been seized, individuals whose homes have been forcibly demolished, and Falun Gong practitioners. As a lawyer who frequently meets with obstacles set by the government to prevent him from carrying out his professional responsibilities, Xie no doubt was fully aware that there was little chance his application would be granted and that China's overreaching statutes protecting "state secrets" would be the most convenient grounds upon which to dispose of his request.

This type of rights-protection work carries with it many costs. Since Xie's request was sent to the MOJ, he has become one of dozens of lawyers whose annual licenses to practice law have not been renewed by local lawyers associations, a measure widely interpreted as official retaliation against those who dare to take on sensitive cases.

Document One: Xie Yanyi's Request to the Ministry of Justice

To: Ministry of Justice of the PRC
From: Xie Yanyi, applicant
Date: May 14, 2009

1. Make public on the Ministry of Justice website how many RTL facilities there are currently in China, how many citizens are currently being held in RTL, how many police officers there are in the RTL system, and the annual state financial expenditure [for the RTL system];

2. Make public on the MOJ website how many citizens who have been sent to RTL in the past five years have not accepted the RTL decision and have filed an appeal (including through administrative review, lawsuit, formal complaint, petition, accusation, etc.) and what sort of legal relief these citizens who have been sent to RTL received, such as the acceptance and success rates for administrative lawsuits;

3. Make public on the MOJ website the proportion of the various groups that comprise the group of citizens who have been sent to RTL in the past five years. For example: (1) The percentage and number of petitioners; (2) the percentage and number of religious believers; (3) the percentage and number of individuals sent to RTL who created serious disturbances or other [offenses] that did not "reach the level where they should be subject to criminal punishment"; (4) the percentage and number of dissidents, those imprisoned for speech, rightists, etc.

4. Make public on the MOJ website how individuals sent to RTL are currently being treated. For example: whether they are compelled to engage in labor, the number who have suffered bodily injury after being subjected to beatings or other abuse, and the number of citizens sent to RTL who have died unnatural deaths.

Facts and Rationale:

I. Legal basis for this application for disclosure of information

According to Article 2 of the Constitution of the PRC: "All power in the PRC belongs to the people....The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law." [According to] Article 27: "All state organs and functionaries must rely on the support of the people, keep in close touch with them, heed their opinions and suggestions, accept their supervision, and work hard to serve them." [According to] Article 41: "Citizens of the People's Republic of China have the right to criticize and make suggestions to any state organ or functionary."

Article 1 of the Regulations of the PRC on the Disclosure of Government Information states: "These regulations are hereby formulated in order to ensure that citizens, legal persons, and other organizations obtain government information in accordance with the law, enhance transparency of the work of government, promote administration in accordance with the law, and bring into full play the role of government information in serving the people's production and livelihood and their economic and social activities." Article 9 [states]: "Administrative agencies should disclose on their own initiative government information that satisfies any one of the following basic criteria: (1) Information that involves the basic interests of citizens, legal persons, or other organizations; (2) Information that needs to be extensively known or participated in by the general public; (3) Information that shows the structure, function, and working procedures of and other matters relating to the administrative agency."

In the National Human Rights Action Plan (2009–2010) issued by the State Council of the PRC in April 2009, Part Two on the protection of civil and political rights states: "In the period 2009–2010, China will continue to strengthen work to improve democracy and the rule of law, improving systems for democracy, diversifying the forms of democracy and expanding the channels of democracy, strengthening the protection of civil rights in the execution of administrative laws and in judicial practices, and raising the level of ensuring people's civil and political rights." Section Five on the right to be informed [states]: "The Chinese government will make more efforts to keep the public informed of government affairs and improve relevant laws and regulations so as to guarantee citizens' right of information....By implementing the Regulations on the Disclosure of Government Information, the state will make comprehensive, regular assessments of the work of the government and relevant departments about the disclosure of government information, examine and urge organizations responsible for public affairs management to make public information related to government affairs, and in accordance with the law call to account personnel in charge and people directly responsible who violate the Regulations. Local regulations concerning how to make known to the public government affairs will be improved."

At the same time, the governing [Communist] party, in its report from the 17th Party Congress, clearly [articulated its intention to] safeguard the people's right to information, right to participate, right to expression, and right to supervision, and that government power should operate under the light of day.

II. Why this request for disclosure of information is being made

The RTL system has been controversial from the beginning, and as a citizen of the PRC, in the face of this institution that violates the Constitution of the PRC and the law, in which a decision to deprive an individual of his or her liberty can be made without any legal or public procedure or trial, and for which the administration is not public and frequently offers no manner of judicial remedy, one shudders in fear at such a system which during its long period of existence threatens the personal liberty of every citizen at any time. Although the applicant has to date never suffered harm from RTL, I have always been clear about the principle that "when one man is enslaved, all are not free."

If the RTL system is to continue on as usual, the following initiatives and efforts by China in the area of rule of law and human rights will all amount to empty words:

In 1999, [the phrase] "ruling the country in accordance with the law" was written into the Constitution of the PRC. In 2004, the safeguarding of human rights was written into the Constitution of the PRC in Article 33, which states: "The state respects and safeguards human rights."

In 2000, the National People's Congress passed the Legislation Law of the PRC, clarifying that "coercive measures and penalties involving deprivations of citizens' political rights or restriction of their personal liberty" shall "only be governed by law."

In 1996, the National People's Congress passed the Administrative Penalty Law of the PRC, clarifying that "administrative penalties involving the restriction of personal liberty shall only be created by law."

In a speech to commemorate the 30th anniversary of [the policy of] opening and reform, the ruling [Communist] party general secretary Hu Jintao said, "Don't pointlessly create trouble" (bu zheteng). Everyone knows that the RTL system was an illegal product of the "pointless trouble" (zheteng) created during China's special anti-rightist history. Today, "don't pointlessly create trouble" has increasingly become national consensus.

In the introduction to the April 2009 National Human Rights Action Plan (2009–2010), it is written: "The realization of human rights in the broadest sense has been a long-cherished ideal of mankind and also a long-pursued goal of the Chinese government and people....The National Human Rights Action Plan (2009–2010) is a document explaining the policy of the Chinese government with regard to the promotion and protection of human rights during the period....Governments and government departments at all levels shall make the action plan part of their responsibilities and proactively implement it in line with the principle of 'each performing its own functions and sharing out the work and responsibilities.'" In Part Two on the protection of civil and political rights, section one on rights of the person states: "China will improve its preventative and relief measures to protect citizens' personal rights in every process of law-enforcement and judicial work....The state prohibits illegal detention by law-enforcement personnel....Those who are responsible for illegal detention....shall be subjected to inquiry and punished if found culpable."

III. The significance that raising and resolving the issues raised in the request above will have for makers of national policy, law enforcement officials, and citizens in the current period of social transformation:

From "Legal basis for this application for disclosure of information" and "Why this request for disclosure of information is being made" in Sections I and II above, it is clear:

The RTL system is incompatible with the letter and spirit of China's current constitution and laws and the policies of the ruling [Communist] party. Making the matters in this application public to the applicant and to society in accordance with the law not only fulfills the MOJ's responsibility as a government department to make information public, it also allows facts to speak for themselves and provide policymakers and all of society with the important facts and information necessary in the debate over whether to retain or abolish the RTL system.

[As the saying goes:] "He who cannot manage a single matter will be unable to manage the overall situation." The RTL system and its current implementation have bearing on the vital interests of the people, citizens' supreme rights to life and liberty, and the fundamental difference between good and bad governance. The more a government relies on rule of law, the more it establishes its legitimacy and authority; the more it despises rule of law, its legitimacy and authority will of course be in doubt.

Facing this transitional period in society in which class divisions and conflicts are intensifying daily, rule of law is the only way for a society to solve its own conflicts and [achieve] harmonious, non-violent, sustainable development. The minority of bureaucratic elites who are unwilling to be bound by the law and arbitrarily use such unjust, unlawful methods as RTL to control the people will ultimately bring about negative consequences such as popular resentment and collapse of the regime. At this moment, all of society should stand together and support the government's ongoing efforts to promote rule of law, protect all fundamental civil rights, treat citizens who have been sent to RTL in accordance with the law, and work tirelessly in pursuit of the speedy restoration of personal liberty and provision of fair treatment to all citizens who have been sent to RTL. Doing this will allow even more citizens—including citizens who have been sent to RTL—to become positive forces promoting social reconciliation, harmony, and order and make a historical contribution towards the eventual establishment of a rule-of-law society and the realization of long-term stability!

CC: National People's Congress Standing Committee, State Council, National Human Rights Action Plan Leading Unit


Document Two: Response from the Ministry of Justice to Xie Yanyi

Xie Yanyi:

We have received the request to disclose government information you sent to the Ministry of Justice. Our response is as follows:

I. The number of RTL facilities, the number of individuals sent to RTL, and how RTL inmates are being treated is already open government information that has been made public on the MOJ website.

II. The number of individuals sentenced to RTL who have not accepted the RTL decision and have filed petitions for administrative review and the acceptance and success rates of administrative lawsuits all do not fall under the MOJ's scope of administrative responsibility.

III. Statistics on the categories of individuals sentenced to RTL is a state secret, and the MOJ administrative organ does not have the statistics you have requested.

IV. The other information requested falls under the category of state secrets and cannot be disclosed.
Ministry of Justice of the PRC (seal)
June 3, 2009

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Monday, June 8, 2009

Six Months Later: What's Next for Liu Xiaobo?

Prominent Beijing intellectual Liu Xiaobo (刘晓波) was taken into police custody on December 8, 2008. The exact reason is unknown, but his detention appears to have been connected to his role as an original signatory of Charter 08, a public appeal to promote human rights and democracy in China. However, authorities may have also been anxious to take Liu—a longtime critic of the Chinese Communist Party—out of circulation before China's year of sensitive anniversaries in 2009.

According to reliable reports, police have been holding Liu under "residential surveillance" (监视居住) in a hotel located in the Beijing suburbs. One of several "coercive measures" (强制措施) provided for under China's Criminal Procedure Law (CPL), residential surveillance authorizes police to restrict a suspect from leaving his or her residence while an investigation is carried out. In this case, police in Beijing appear to have violated the law and applicable regulations by holding Liu in a hotel, rather than his residence. The six-month time limit established by law for this status is set to expire soon, presumably on or shortly after June 8, 2009.

There is some uncertainty about what might happen to Liu when the period of residential surveillance expires—in part because the charge against him has not been made public and few know exactly why he is being held. Though more attention has been paid in recent years to abiding by certain provisions of the CPL, Chinese law-enforcement authorities have in the past frequently ignored legally established rights and time limits, especially in cases like this one that appear to be of a political nature.

It is clear, however, that when the six-month period expires it will be unlawful for Chinese police to simply continue holding Liu Xiaobo under residential surveillance. Some change to his status will need to be made, and no matter what, this change should have significant consequences. Based on a careful reading of the CPL and the associated regulations on implementing the CPL issued by the Supreme People’s Procuratorate and the Ministry of Public Security, Dui Hua believes that Beijing police have the following options open to them:
  • They can release Liu and end their criminal investigation.
  • They can release Liu on bail pending further investigation. Under this status, Liu would presumably be free to return home but would remain under police monitoring; he would be unable to leave Beijing without permission, required to appear when summoned for questioning, etc. The investigation against Liu would continue. This status can last 12 months.
  • They can place Liu under criminal detention and transfer him to a police-run detention center. Normally, this would involve issuing a notice to Liu’s family, specifying the charge, but police could be exempted from this requirement if they make some (in this case, tenuous) argument that doing so would hinder their investigation. In practice, police would be able to detain Liu for 30 days before needing to again decide how to handle his case.
  • They could formally arrest him, with approval of the procuratorate. Again, this would normally involve issuing a notice to Liu’s family specifying the criminal charge, but exemptions are allowed under the law under certain circumstances. If police were to formally arrest Liu, they could theoretically keep him in custody in a detention center for up to five months while they continued their investigation.
  • They could claim to have uncovered evidence of a new crime and launch a new investigation against Liu, at which point all procedural time limits would be reset.
  • Or, they could send his case to the procuratorate for prosecution. At this point, all of Liu’s rights to engage and meet with a defense attorney would automatically take effect. It is true that the procuratorate could decide to place Liu under a further six-month period of residential surveillance, but his status would change significantly with respect to rights as a criminal suspect in comparison to the previous six months.
It seems obvious that, short of releasing him outright, the best scenario for Liu Xiaobo as far as making the charges against him known and restoring his procedural rights would be for the case to be submitted to the procuratorate for prosecution. The CPL simply gives China’s police too much leeway to hold suspects without making the charge known and without allowing access to a lawyer. Unfortunately, sending the case to the procuratorate would be bad news for Liu on another front, as a very high percentage of the political cases that reach China’s courts result in conviction.

Thursday, May 21, 2009

Former June Fourth Prisoners Still Paying Heavy Price

As the 20th anniversary of the suppression of the China's pro-democracy demonstrations approaches, Dui Hua estimates that there are approximately 30 individuals still serving sentences for their participation in the 1989 protests. While remembering those imprisoned, it's worth noting that several individuals detained in connection with the protests are currently incarcerated, albeit not for the crimes they committed in 1989.

Of the eight people whose cases are summarized below, a number have spent most of the past two decades in prison and have many years remaining on their sentences. Medical parole has not been granted for several of these prisoners who are believed to be in extremely poor health. These individuals’ current prison terms—lengthier than their first sentences, in most cases—are actually in line with provisions in Chinese criminal law, whereby individuals who recidivate are liable to be sentenced more severely than first-time offenders.

Like many governmental and non-governmental bodies, Dui Hua has raised the following eight cases with the Chinese government. This list is by no means exhaustive, but Dui Hua believes it documents some of the most noteworthy cases to be kept in mind as human rights observers reflect on the tragedy of June Fourth.

Li Wangyang (李旺阳), 58, originally a worker at the Shaoyang Cement Plant in Hunan Province, was involved in organizing an independent labor union and served as chairman of the Shaoyang Workers' Autonomous Federation in 1989. After the suppression of the demonstrations in Beijing, Li publicly called on workers to go on strike and held a ceremony to mourn the victims of the crackdown. Arrested on charges of "counterrevolutionary propaganda and incitement," Li was sentenced to 13 years' imprisonment in October 1989 by the Shaoyang Intermediate People's Court. While imprisoned in Hunan's Chishan Prison, Li developed serious heart disease and was transferred to a prison hospital for treatment in 1996. He subsequently developed a number of other medical issues and was eventually released early in June 2000 after having served 11 years of his sentence. With no way to earn a living and facing major medical bills, Li carried out a 22-day hunger strike in February 2001 to protest the Shaoyang government's unwillingness to take responsibility for the health problems he had developed while imprisoned and to pay for his medical care. In May 2001, police took Li from his hospital bed on charges of "inciting subversion," and he was subsequently sentenced to 10 years in prison on September 11, 2001. In response to official inquiries, the Chinese government acknowledges that Li suffers from heart disease, hyperthyroidism, and vision and hearing deficiencies, and he has been held in a prison ward intended for the elderly and handicapped, where he is exempted from all physical labor. Despite this, prison authorities insist that his condition is "normal" and have not approved his release on medical parole. He has not received a sentence reduction since re-entering prison in 2001. In the two decades since the suppression of the pro-democracy demonstrations in Beijing, Li Wangyang has spent all but 11 months behind bars. He is due for release from Chishan Prison on May 5, 2011.

Wang Miaogen (王妙根), 55, was sentenced to 2-1/2 years of re-education-through-labor in connection with his activities as chairman of the Shanghai Workers’ Autonomous Federation during the 1989 protests. After being released, Wang carried out a series of protests to demand the release of other workers who had been detained during the 1989 demonstrations. During one incident at a local police station, Wang cut off several of his fingers. He was taken into custody by police in April 1993, diagnosed with paranoid schizophrenia, and committed to the Shanghai Ankang Hospital, a police-run psychiatric detention center. After his condition was determined to have stabilized, he was released in May 1997, only to be recommitted two years later. Although the Chinese government has provided no confirmation of his whereabouts for more than five years, Wang is presumed to remain incarcerated in the Shanghai Ankang Hospital. Since his first imprisonment in 1989, Wang Miaogen has been in custody for more than 16 years. Unlike the other individuals listed here, he has no terminal date when his release can be expected.

Xu Wanping (许万平), 48, participated as a worker activist in Chongqing during the pro-democracy demonstrations in 1989 and was sentenced to eight years in prison for "counterrevolutionary propaganda and incitement" and "organizing a counterrevolutionary group" in connection with his attempt to establish the China Action Party in opposition to one-party rule. After his release from prison in July 1997, Xu immediately became involved with the national movement to organize the China Democracy Party (CDP) and was sentenced to three years of re-education-through-labor following attempts to register a branch of the opposition party in Chongqing. Upon his release in October 2001, Xu remained active in CDP activities, frequently used the Internet to publicize local cases of injustice, and made efforts to raise and distribute funds to support the families of other jailed activists. Police arrested him on subversion charges in April 2005, and he was sentenced to 12 years' imprisonment. Xu is serving his sentence in Chongqing Municipality's Yuzhou Prison, where he is reported to suffer from spleen problems and general ill health attributed to his many years of incarceration. Xu has spent 15 of the past 20 years in prison and still has just under seven years left to serve. Prison authorities granted him a one-year sentence reduction in August 2008, meaning he is now scheduled to be released on April 29, 2016.

She Wanbao (佘万宝), 51, was a bank employee in his hometown of Guangyuan, Sichuan, when he became involved in the pro-democracy demonstrations in the spring of 1989. After the protests were suppressed in June, She organized a resistance movement and wrote essays that were published in Hong Kong. In November 1989, he was convicted of "counterrevolutionary propaganda and incitement" and sentenced to four years in prison. After being released in July 1993, She Wanbao became a private entrepreneur and remained active in dissident politics. He was a leading member of the Sichuan preparatory committee of the China Democracy Party and organized public protests calling for the release of CDP leaders and other political prisoners. Police in Guangyuan detained him on subversion charges in July 1999, and he was sentenced to 12 years in prison the following month. Chuanzhong Prison authorities placed She in solitary confinement for a period in June 2001 after he attempted to transmit a secret communication from prison. In September 2005, he was granted a six-month sentence reduction. As of today, She has been imprisoned for 14 of the past 20 years and is not scheduled to be released from prison until January 6, 2011.

Zhang Lin (张林), 45, headed the Bengbu (Anhui) Students Autonomous Federation in Anhui Province during the 1989 demonstrations. Throughout May of that year, he gave speeches, organized sit-in demonstrations, and led a hunger strike in support of students in Beijing. Police arrested him on June 8, 1989, and he was subsequently sentenced to two years in prison. In 1994, Zhang was sentenced to three years of re-education-through-labor for his role in organizing the independent Federation for the Protection of Workers' Rights. After being released in 1997, Zhang spent a period in the United States, where he had contacts with exiled political activists like Wang Bingzhang. In 1998, Zhang Lin secretly returned to China and was captured by police, who again sentenced him to three years of re-education-through-labor. Upon his release, Zhang remained under close police surveillance and supported his family by publishing articles in overseas publications, all of which were highly critical of the government. Zhang was detained in January 2005 when he attempted to travel to Beijing to pay respect to the recently deceased Zhao Ziyang, who had been deposed as general secretary of the Chinese Communist Party in 1989 after expressing sympathy for the pro-democracy demonstrators. Zhang was subsequently charged with inciting subversion and sentenced to five years in prison in July 2005. He is scheduled to be released from Anhui's Tongling Prison on February 12, 2010. Adding together his four stints of imprisonment, Zhang has spent 12 of the past 20 years behind bars.

Zhang Jianhong (张建红), 51, was sentenced by authorities in Ningbo, Zhejiang, to 1-1/2 years of re-education-through-labor for supporting the pro-democracy demonstrations in 1989. Zhang (who is also known by his pen name Lihong) is an author and editor who has published poetry, fiction, and several screenplays. He was detained for one month in 1999 in connection with the efforts to organize the China Democracy Party, and in August 2005 he founded and became editor of a popular literary and current affairs website called "Agean Sea," before police shut it down in March 2006. Zhang was arrested for inciting subversion in September 2006 after expressing support for human rights activists and lawyers such as Gao Zhisheng. In March 2007, the Ningbo Intermediate People's Court sentenced Zhang to six years in prison. Two months later, he was diagnosed with a rare neuromuscular disease, a condition that was reportedly left untreated while authorities considered whether he should be released on medical parole. Zhang's petition for medical parole was ultimately rejected, and he was transferred first to Qiaosi Prison, then to the Zhejiang Prison General Hospital, and finally to Changhu Prison in Changxing County. Despite repeated calls that Zhang be released on humanitarian grounds, prison authorities have so far refused to show clemency, insisting that Zhang is receiving adequate medical treatment for his condition and that he is otherwise healthy. He is currently scheduled for release on September 6, 2012.

Xie Changfa (谢长发), 56, had already been involved in local pro-democracy groups in his native Hunan Province for several years before becoming active in the 1989 movement. For giving a series of speeches denouncing the suppression of the protests in June, Xie was sentenced to three years of re-education-through-labor. Released after serving two years, he continued his political activism and was detained by police several times during the 1990s. In 1998, he helped to found the Hunan preparatory committee of the China Democracy Party, and for the next decade he remained an active member of the outlawed party, many of whose founding members were imprisoned. Beginning in 2002, he organized a series of annual meetings of CDP members in different cities throughout China, and in June 2008 he and other party members discussed the possibility of holding a national party congress. Shortly thereafter, police in Changsha took Xie into custody and charged him with the crime of subversion. A trial was held at the Changsha Intermediate People's Court on April 28, 2009, but the court has not yet issued a verdict.

Zhou Yongjun (周勇军), 42, was about to graduate from university in Beijing when the pro-democracy demonstrations broke out in 1989. Zhou briefly served as chairman of the Beijing Students Autonomous Federation and was one of three students who, in April 1989, knelt on the steps of the Great Hall of the People to request a meeting with then-Premier Li Peng. He participated in the May hunger strike and acted as a legal adviser to the Beijing Workers Autonomous Federation. Zhou was detained in Beijing's Qincheng Prison for more than 18 months on charges of "counterrevolutionary propaganda and incitement" but was later released without trial. In 1992, Zhou fled to Hong Kong and soon thereafter settled in the United States. Like many political activists living overseas, Zhou Yongjun was denied a Chinese passport and was thus unable to return home legally. When he tried entering China illegally to visit his ailing mother in December 1998, he was caught and sentenced to three years of re-education-through-labor at a facility in Mianyang, Sichuan. He was released early in March 2001 and allowed to return to the United States the following year. In September 2008, Zhou was once again taken into custody while crossing the border between Hong Kong and Shenzhen. Held incommunicado for seven months on unspecified charges, Zhou was recently transferred from Shenzhen to a detention center in Suining, Sichuan Province, and his family was notified that he had been formally arrested on fraud charges. The case is currently under further investigation.