Zhao Zuohai spent more than a decade in prison after a court convicted him of murdering a man in a hatchet fight. A headless corpse had been found in a well in central Henan Province, and police surmised that it belonged to a man who had gone missing after fighting with Zhao. Zhao was sentenced to death, suspended for two years, in large part on the basis of a confession he provided to investigators. Zhao claimed that he made the confession after investigators subjected him to beatings and forced him to stay awake for a month, but those claims had never been given much credence until early last month, when the man Zhao was supposed to have murdered suddenly reappeared.
The response to Zhao's case has been swift. Within a week, he was acquitted of all charges and released from prison. Days later, he was awarded 650,000 yuan (US$96,000) in state compensation, an amount that may have been in line with Chinese law but that nevertheless has to be considered small in light of the loss and suffering he had undergone. The case elicited considerable public commentary, much of it critical of a law enforcement system in which defendants' rights receive few protections. In apparent response to this criticism, China's law enforcement authorities recently issued new rules aimed at strengthening evidentiary requirements in death penalty cases and clarifying procedures for excluding evidence, including statements and confessions, that have been extracted through torture.
Among the commentaries published in response to Zhao Zuohai's case was an exchange that appeared in the Southern Metropolis Daily on May 17 and 18. Though Wu Zhifeng takes issue with some of the points made in Shen Bin's earlier article, the distance between the two authors actually does not seem that great on the key importance of rule of law. Shen articulates a wariness many legal experts in China feel about public opinion's influence over the exercise of law enforcement—especially when it appears that authorities bend the rules or even break the law in an effort to respond to public sentiment. Wu questions the extent to which law enforcement efforts are influenced by public opinion in China, arguing instead that corners are cut and abuses perpetrated in efforts to satisfy instructions and performance expectations imposed from above—what he calls law enforcement's willingness to cater to "official opinion." Both authors agree on the importance of a certain level of autonomy for the Chinese criminal justice system as a guarantee of its fair administration of justice.
"Basis of Popular Opinion" Contributing to the Zhao Zuohai Case of Injustice
Without a doubt, the injustice done to Zhao Zuohai has been a focus of recent public opinion. This case of injustice that lasted 11 years has given the public an opportunity to reflect on China's legal system and the interactive relationship between public opinion and the judicial system.
Earlier, I wrote a piece entitled "Is the Detention of the Police in the 'Zhao Zuohai Case' the Beginning of Yet More Illegality?" (published in the May 14 Oriental Morning News). In it, I wrote that detaining the police who tortured Zhao Zuohai 11 years ago may have brought much public applause, but it may involve a serious legal mistake and even perhaps be the beginning of yet more illegality. This is because Article 87 of the Criminal Law states that when the maximum punishment prescribed is fixed-term imprisonment of less than five years, a crime cannot be prosecuted after five years has passed. However, Article 247 of the Criminal Law provides a maximum three-year sentence for forcibly extracting confessions, so the statute of limitations on the crime of torture is five years. Therefore, in principle, Zhao Zuohai's case has already exceeded the period in which the case can be prosecuted, so law-enforcement bodies cannot prosecute this criminal act unless there are exceptional circumstances as provided by law, such as Zhao lodging an accusation at the time but no case being filed [for investigation], or the three police officers committing other criminal acts within the statute of limitations. [My article] resulted in a flood of criticism from netizens. Why would a decision that appears to be clearly illegal be supported by a majority of people? Is popular opinion wrong? Where's the problem?
What's more, I've come to realize that the Zhao Zuohai case exists thanks to a process of transformation that occurs when public authority panders to "popular opinion."
Eleven years ago, when an anonymous corpse was discovered in a well, the local public security system internally set a rule that “murder cases must be solved” in order to "ensure the safety of the masses." As a result, Zhao Zuohai was subjected to brutal police torture and confessed to false charges.
In 2002, a mammoth nationwide effort to clear cases of extended detention was launched, and the results in Henan Province that year were brilliant: "By the end of 2002, Henan had cleared more than 5,000 individual cases of extended detention; with only slightly more than 20 individual cases of extended detention [still on record], basically there were no more cases of extended detention remaining." Zhao Zuohai was one of these 5,000 cases of "cleared extended detention." For two years beyond the legal detention period, Zhao had been caught in limbo between release and trial because the facts of his case weren't clear and the evidence was insufficient. In response to this "great clearing up," the local political and legal committee ignored the legal principle of "when in doubt, tend towards acquittal" and decided to force through criminal charges against Zhao.
Of course, the public is not wrong for demanding that the police solve criminal cases or that cases of extended detention be cleared up. The problem arises when public opinion becomes “great popular anger” in the extreme, and higher levels turn this into a form of performance evaluation that exerts pressure all the way down to the lowest levels, so that those lowest levels, out of a sense of responsibility to higher levels of authority, use whatever means necessary to accomplish the tasks handed them.
So when the public demands "murder cases must be solved," the result is torture. When the public demands clearing of cases of extended detention, the result is that Zhao Zuohai is prosecuted. When the public demands redress of a case of injustice, public authority may break the statute of limitations and detain the police for torture once upon a time . . . . Popular opinion is always correct and reasonable, but in the hands of authority, it is transformed and twisted so that popular opinion ultimately turns against itself.
There's no quick fix for the most fundamental reasons underlying all of this. Today's responsible media and citizens, in their interactions with government, should have a rational understanding of how the legal system operates and the capacity and responsibility of the government. They should weigh the pros and cons of government's administrative and legal policies, and guide popular opinion and government actions toward a positive interaction, avoiding the kind of vicious cycle that has appeared in the Zhao Zuohai case.
Taking the solution rate for criminal cases as an example, the media and the government should not focus on "murder cases must be solved" without limitations and take pride in China's high solution rate, because it comes with a price that [ultimately] must be explained to the public. For example, according to official reports, the solution rate for murder cases in China in 2005 was 87.2 percent, reaching the levels in Japan and Germany and outpacing England (87 percent) and the United States (63 percent). Behind this pretty number are the facts: case after case of forcibly extracted confession, round-the-clock interrogation, and interrogation-until-exhaustion by individual police at the local level, as well as police in certain areas who, chasing a high solution rate, don't file cases for investigation until they’ve solved them. As the point of departure for public opinion to provide rational feedback to government actions, information should be diverse and multi-dimensional. The kind of "black-and-white" view of justice seen in traditional theater runs counter to the modern spirit of rule of law. Therefore, rational public opinion shouldn't demand that the government "solve all cases" but should understand that, sometimes, police "inabilities" are [actually] strengths. In fact, if police were truly to "solve all cases," citizens’ legal rights would be harmed.
Modern rule of law is multi-dimensional and has pros and cons. It is not all-powerful and can only safeguard justice through achievement of supreme procedural justice. However, this doesn't mean that all cases of injustice can be eliminated. Some bad guys will go free. There is often a gap between the rule of law and popular opinion. Can we accept this "spirit of the law"? Rule of law is a sign of a mature, reasonable nation. I hope that the reflection surrounding the Zhao Zuohai case won't stop at the level of "a life for a life."
The author is a legal worker in Shanghai.
Is there a "Basis of Official Opinion" in the Zhao Zuohai Case of Injustice?: A Response to the May 17 Opinion
Besides maintaining that the detention of police responsible for committing torture more than a decade ago appears to be an illegal act designed to cater to public opinion, Shen Bin also believes that the Zhao Zuohai case exists thanks to a process of transformation that occurs when public authority panders to "popular opinion" and that it was popular demand that "murder cases must be solved" that led police to seek quick success and employ brutal torture to get a confession. On these points, I beg to disagree.
Zhao Zuohai repeatedly made claims of torture to the court and the procuratorate in the course of the proceedings against him, but neither paid sufficient heed to those claims at the time or filed a case [for investigation.] This should be considered a circumstance in which the statute of limitations is not applicable. Moreover, having objectively taken into account that petitioning [the court for consideration of retrial] results in the docking of points and inability to get a sentence reduction, Zhao Zuohai's thinking and actions were unquestionably twisted by the legal system as he understood it, to the extent that he was deprived of his “right” to file a complaint. Having recovered his liberty, he is now justified in seeking to recover this lost right. And what's the problem if public opinion expresses sympathy for the harm done to Zhao Zuohai and calls for the realization of his legitimate rights and for belated justice to redress the serious damage done to his body and mind? If pressure from popular opinion can bring about reflection and remedy from the present legal system so that the gaps that cause these kinds of unjust cases can be filled and if it can bring about progress in the legal system and further steps towards fairness and justice, this would be a positive interaction between public opinion and the legal system.
But the origins of the Zhao Zuohai case cannot be glossed by public authority's pandering to popular opinion. Popular opinion demands that public authority be used to punish the truly dangerous, not to put forward a scapegoat or, even worse, use illegal means to cause innocent people to be executed. The pressure of public opinion is ultimately flexible, [comprising] demands based on a case's facts and legal principles; it does not replace the power of law enforcement when handling a particular case. Faced with a flood of public opinion, law enforcement should stick to the fundamental principle of remaining in harmony with it. But in the course of handling a specific case, [law enforcement] has its own rational judgment and procedures to follow and cannot change them because of popular opinion at a particular place and time. A crime wave or the reappearance of criminal behavior is a matter for the police. Establishing guilt and passing sentence is a matter for the courts. Using the facts as the basis and the law as a guide, the judicial system must obey the facts and the law. This is the premise and foundation of what constitutes the legal system, its beginning and its end. It is rubbish to blame public opinion for the illegal handling of a case.
What's more, how much heed did those guys who illegally handled the case pay to public opinion, anyway? What kind of public opinion can corrupt the enforcement of the law? My guess is that, in the end, what they were concerned about was "official opinion," the pressure that assessments by higher-ups would have on their official record, their career, and their personal interests. I'm afraid it misses the mark to talk about public opinion whenever law enforcement submits to official opinion and fails to maintain the principle of independence in handling cases. Dressing up official opinion as public opinion and using it as a defense for cases that were illegally handled could become the best straw torturers have to clutch in a courtroom. From this perspective, when we search for the origins of a case of injustice we shouldn't falsely accuse "public opinion" and let the true culprit of "official opinion" off the hook, lest we create the "unjust case of public opinion." Exposing the "basis of official opinion" in the Zhao Zuohai case is much more worthwhile than exposing the "basis of public opinion." By doing so, we allow formal justice and substantive justice to be better reflected in the legal system and do more to aid the early formation of a society with rule of law.