Monday, March 28, 2011

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

On March 23, the Department of Foreign Affairs of the Philippines announced that it had been notified that three Filipinos sentenced to death in China on drug smuggling charges would be executed on March 30.

The notice, formally communicated by the Fujian High People's Court and Guangdong High People's Court to the Philippine consulates general in Xiamen and Guangzhou, clarified the status of the three, identified as Ramon Credo, Elizabeth Batain, and Sally Villanueva.

The three death row prisoners, convicted of trying to smuggle several kilograms of heroin to China, had originally been scheduled for execution in late February but won a temporary reprieve when the Supreme People's Court (SPC) reportedly agreed to postpone the executions after Philippine Vice President Jejomar Binay traveled to Beijing to plead on their behalf.

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

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

Just how "unprecedented" was the decision? That depends in part on the justification behind it, which remains opaque. To the extent that news about the cases has been reported in the Chinese media (here, for example), it has been on the basis of reports from the Phillipine side. To date, neither the Supreme People's Court nor the provincial high courts in Fujian or Guangdong have offered any official explanation regarding the legal basis for the delay.

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

Temporary stays of execution are not routinely reported in the Chinese media, but they are not unheard of. A few weeks ago, it was reported that the Zhuhai Intermediate People's Court in Guangdong had halted the execution of a man in January 2010 after he made a final claim that he had not committed the fatal robbery for which he had been convicted. The court empaneled judges to investigate the man's claims and, after finding them not credible, finally carried out the execution on March 16.

Some have speculated that China's decision to delay execution of the Filipinos was a response to various "gestures" made by the Philippine government, such as the decision not to send a representative to last December's Nobel Peace Prize ceremony in Oslo and the extradition of Taiwanese criminal suspects to China.

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

Tuesday, March 1, 2011

Broad Changes to China's Criminal Law Enacted

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

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

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

New Threats to State Security?

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

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

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

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

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

“Pocket Crimes” and Court-Ordered Injunctions

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

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

“Severity Combined with Lenience”

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

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

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