Monday, December 19, 2011

The Right to Seek Pardon: From Constitution to Procedural Law

Professors and researchers from China University of Political Science and Law at a forum on Criminal Procedure Law revision and procedural control of the death penalty, September 2011. Photo credit:
A group of legal scholars from China University of Political Science and Law (CUPL) has recommended adding a provision to the Criminal Procedure Law to give people sentenced to death the right to seek pardons, according to a Legal Daily report. The recommendation was included in a submission made to the National People’s Congress during the period of public comment (August 30–September 30, 2011) on a draft revision of the law.

Supporters say the proposal would “mobilize” long-dormant constitutional provisions, help limit use of the death penalty, and put China’s criminal justice system more in line with the International Covenant on Civil and Political Rights (ICCPR). China signed the ICCPR in 1998 but has yet to ratify.

Dusting Off the Constitution

Mechanisms for the pardon of specific prisoners, as opposed to general amnesties, already exist in China’s constitution. They authorize the Standing Committee of the National People’s Congress to make pardon decisions that are then issued by the head of state. In 1959, tens of thousands of prisoners were released or had their sentences reduced in a pardon commemorating the 10th anniversary of the founding of the People’s Republic of China. Six more pardons were carried out between 1959 and 1975, but no Chinese leader has issued a pardon since the death of Mao Zedong.

There have been several proposals to initiate special pardons in recent years, for example to commemorate the 2008 Beijing Olympics and the 60th anniversary of the founding of the PRC. Though these proposals generated interest from legal scholars, legislators, and members of the general public, they did not succeed in reviving the practice.

Wu Hongyao, an assistant professor at CUPL and person responsible for the group advancing the proposal on pardons, recommends that a new provision to the Criminal Procedure Law put forth the following procedure: after authorizing a death sentence, the Supreme People’s Court should notify individuals of their right to apply to the Legal Committee of the National People’s Congress for pardons. If an individual decides to apply, then the president of the Supreme People’s Court should delay signing their execution warrant until a decision is made.

International Standard

Wu argues that instituting a pardon mechanism for death penalty cases is part of China’s obligation under the ICCPR. Article 6.4 of the covenant stipulates that “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.” Though China has not yet ratified the ICCPR, as a signatory it is required to take legislative steps to implement the rights provided therein. Wu contends that since China will eventually ratify, the question of pardons for death-row prisoners is one China must eventually face.

Pardons are a “political remedy that exists outside the judicial process,” says CUPL researcher Luo Haimin. They allow judicial outcomes to be adjusted in ways that realize political or diplomatic interests without directly manipulating the judicial process. Luo says that pardons might best be used in cases where the death penalty is indicated as a matter of law but that the interests of the state or society would be better served by not carrying out an execution. One example she gives is the case of Lai Changxing. The Canadian government delayed his extradition to China for more than a decade over concerns that he would face the death penalty if convicted of the corruption charges against him.

Pardons could also solve the problem of dubious convictions that present no legal basis for retrial, argues CUPL lecturer Fang Peng. To illustrate his point, Fang mentions the execution of Nie Shubin for a crime he didn’t commit and blanket clemency granted by former Illinois Governor George Ryan in 2003. Governor Ryan pardoned all 156 people on Illinois’ death row stating that it was impossible to guarantee that no innocent person would be put to death.

Though Fang considers the US system of executive pardons an effective means of restricting capital punishment, he is quick to point out that what’s being contemplated in China is “certainly different” and acknowledges that details remain unclear.

Overall, proponents of making pardons available see their proposal as part of a longer process of reform aimed at reducing China’s use of capital punishment—Dui Hua estimates that China will execute 4,000 people in 2011 alone. Though their proposal may not be embodied in the next draft of the Criminal Procedure Law, it represents a first step that could garner public support for future reform.