Monday, December 10, 2018

Will Revisions to the Lay Assessors Law Help Limit the Number of Executions in China?

Lay assessors sitting in court alongside judges in China. Image Credit: China Daily.

In April, the National People’s Congress (NPC), China's national legislature, passed a revised Lay People’s Assessor’s Law (renmin peishenyuan fa), substantially affecting the role that ordinary citizens play on adjudicatory panels in criminal cases in China. Revisions to the law had been contemplated since at least 2015, when a series of pilot projects were launched to determine the feasibility of enacting nationwide reforms. Whether the law’s revisions will affect criminal trials and sentences involving the death penalty is a major question especially in light of China’s efforts in recent decades to limit the number of executions.

Though some might see an expansion of the role of lay assessors in Chinese courts as an imported legal idea, a robust role for lay assessors is arguably a revival of practices from China’s own not-so-distant past. Traces of China’s lay assessor system can be found as early as the 19th century in the late Qing Era, and in Communist-controlled territories before and after the founding of the PRC, lay assessors were granted authority in adjudication practice rivaling that of judges. It was not until the more radical periods following the Great Leap Forward and Cultural Revolution that the lay assessor system was discontinued as part of the larger dismantling of legal institutions countrywide.

The lay assessors’ system was revived along with other aspects of the legal system at the conclusion of the Cultural Revolution, first as part of the 1978 Constitution and subsequently in several pieces of relevant legislation including the Law on Organization of Courts and the Criminal Procedure Law. In 2004, The NPC Standing Committee decided to reform the lay assessor system, and the effort to revamp the adjudicatory function of lay assessors eventually led to a pilot program in 10 provincial-level regions starting in 2015.

The Role of Lay Assessors Expands to Include Death Penalty Cases

In April, a second draft of a law on lay assessors was passed by the NPC, which expanded the role of lay assessors in participating in judgments in many types of disputes, including sentencing in criminal cases that involve the death penalty. A draft law on lay assessors was initially submitted to the NPC Standing Committee in December 2017, and recognized that the lay assessors “‘have equal rights’ as professional judges in trials, unless the law specifically provides otherwise.” According to the law, high-school educated citizens of the PRC who are 28 years of age or older can serve as lay assessors, with some exceptions; once in court, an assessor can exercise power equivalent to that of a judge but cannot hear cases independently or serve as chief judge of a collegial panel (heyi ting). In a report on lay assessors’ pilot projects conducted across China since 2015, Supreme People’s Court President Zhou Qiang reported that a total of 13,740 assessors in the ten pilot locations participated in 30,659 criminal cases, 178,749 civil cases and 11,846 administrative cases.

More specifically, when the Lay Assessors’ Law came into effect in April, assessors were granted authority to serve on seven-person judicial panels that pass judgment on death penalty cases. Although observers, researchers, and human rights advocates will need a much longer period of time to examine whether the expanded role of assessors can help continue the decrease in the number of executions in China, developments in the early days after the passing of the revised law indicate that the law is being followed in local courts even in potentially sensitive, high-profile cases. In April, Zhao Zewei killed nine classmates and injured several others in a school in Mizhi County, Shaanxi province in one of the most violent mass murders in China in recent times. In the trial presiding over Zhao’s eventual conviction and death sentence, media outlets reported that four lay assessors and three judges sat on the seven-member panel ruling on Zhao's guilt and death sentence, indicating that plans to include lay assessors on judicial panels even in high profile death penalty cases with potentially “severe social impact” continues to move forward.

Lessons from Reforms in a Neighboring Country

Allowing lay assessors to participate more actively in death penalty cases would mark an important opportunity for human rights advocates and researchers to examine whether changes to the lay assessor system will continue to influence efforts to limit the number of executions. According to the new law, lay assessors who serve on seven-person benches will have more weight when questioning lawyers and defendants and examining physical evidence.

Based on research from other legal systems, China’s reforms of its criminal legal system toward incorporating greater input from lay actors – away from the unquestioning authority and deference given to the criminal judges – is a step in the right direction. As noted, a robust role for lay assessors is consistent with legal practice at various periods in China’s Communist and non-Communist past. Expansions of the role of jurors in the neighboring country of South Korea also indicates that concerns that expansions in the authority of assessors, and even the adoption of a full jury system, were overblown. Although many in Korea criticized the implementation of a jury system as being against cultural norms, the recent jury reforms in Korea beginning in 2007 have shown that culture is not a deterrent to the effectiveness of a jury system; in fact, the adoption of jurors seems to have raised the quality of the legal profession, a shared goal of the Korean and Chinese governments. The need to persuade a jury has been cited as a factor in raising the quality of oral advocacy of criminal lawyers and improving the quality of evidentiary rules and discovery processes.

An expanded role for lay assessors in China appears to be a positive step in the careful adjudication of serious criminal cases, and for human rights in China more broadly. The next step is to ensure that assessors are given more than simply a passive role in the criminal justice system, and strong enforcement of elements of the law on lay assessors designed to guard against retaliation for criminal verdicts is critical in this regard.