Wednesday, July 28, 2021

Dueling Statements, and Visions, at UN Human Rights Council

United Nations High Commissioner for Human Rights Michelle Bachelet makes remarks during the annual high-level panel discussion on human rights mainstreaming at the 46th session of the Human Rights Council on February 22, 2021. Image credit: UN photo by Violaine Martin

The United Nations Human Rights Council is an ideological battleground between China and its allies and the United States and its allies. Its 47th regular session (hereafter HRC 47) took place from June 21 to July 14, 2021 in Geneva. At the start of the session, Permanent Representative of Canada to the United Nations (UN) in Geneva Leslie E. Norton delivered the Joint Statement on the Human Rights Situation in Xinjiang on behalf of 44 countries. In response, Belarus delivered a joint statement from 69 countries refuting criticisms against China and urging non-interference.

In recent years, HRCs and other UN sessions have seen dueling statements expressing concern over China’s human rights record on the one hand and lauding it on the other. Two blocs have emerged since a joint letter at HRC 41 in 2019. While each of the UN’s 193 member states has its own motivations, some factors offer insights into how countries are negotiating the US-China relationship and the current human rights climate.

Dueling Statements

The Canada statement at HRC 47 expressed concerns about the human rights situation in Xinjiang Uyghur Autonomous Region (XUAR), Hong Kong Special Administrative Region (SAR), and Tibet Autonomous Region (TAR) citing “credible reports” of rights abuses including widespread arbitrary detention, surveillance, restrictions on fundamental freedoms, torture, and gender-based violence by authorities. It urges China to allow “immediate, meaningful, and unfettered access” to the region and to implement the concluding observations of the UN Committee on the Elimination of Racial Discrimination (CERD).

The signatories to the Canadian statement are predominantly developed democracies in North America, Europe, and Asia-Pacific. European states make up the majority. Most of the signatories have been outspoken against China’s human rights record and, as with Asia-Pacific signatories, have geopolitical concerns about China. Ukraine allegedly backed out of signing the statement when China threatened to halt sending vaccines. Israel was reportedly pressured to join by the United States

All of the G7 – Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States – signed the Canadian statement. In 2020, the G7 countries made up at least a third of China’s foreign trade revenue. Except for Japan and the United States, the G7 countries are also members of the China-launched Asia Infrastructure Investment Bank. The countries that signed the Canadian statement likely account for at least 50 percent of China’s export revenue. Trade between the United States and China, meanwhile, has surged to record levels, with some reports writing that it is “as if the protracted tariff war and pandemic never happened.” 

Belarus’ counter statement emphasized the importance of “sovereignty, independence and territorial integrity of states and non-interference in internal affairs.” It implies that the Canadian statement is politically motivated and based on disinformation and double standards. The statement originally had 65 signatories with four nations joining later, and has broad support among the Organization of the Islamic Cooperation (OIC). Twenty-three of the OIC’s 57 members did not sign the Belarus statement, nor did most of China’s major trading partners.

Table 1. HRC 47 Statement Signatories

There were notable omissions. Both Turkey and Kazakhstan have not signed either statement despite cultural links to persecuted groups in China. Multiple ASEAN nations, particularly those that are Muslim-majority and/or have concerns about the South China Sea, have not aligned with either bloc. Several of the world’s largest economies have also been absent, including India and Brazil. South Korea, which enjoys strong economic ties with both but is politically aligned with the United States, refrained from signing, as did Singapore. Finally, four members of the EU have not signed either statement: Cyprus, Greece, Hungary, and Malta.
 
As mentioned, HRC 47 was not the first instance of dueling statements on China’s human rights record. At HRC 41 in 2019, 25 nations signed a letter criticizing China while a counter letter garnered 50 signatories. At HRC 44, the UK issued a joint statement signed by 27 nations; in turn, two statements supported China—one on Xinjiang issued by Belarus signed by 53 states and another on Hong Kong issued by Cuba signed by 46 states. At HRC 46, Belarus and Cuba switched: Belarus offered a statement on Hong Kong for 69 states while Cuba’s statement on Xinjiang garnered 64 signatories. There was no joint measure critical of China; instead, 21 member states made 34 separate remarks criticizing China’s human rights record. 

Similarly, in the 74th session of the General Assembly, the UK issued a statement on behalf of 23 states, which was met by a counter statement from 54 member states. In the 75th session, Germany issued a joint statement on behalf of 39 states. Cuba supported Xinjiang policy on behalf of 45 states and Pakistan supported Hong Kong policy on behalf of 55 states.  

Statements critical of China have been issued by the UK, Germany, and Canada while joint actions supporting China have been issued by Belarus, Cuba, and Pakistan. Both Belarus and Cuba are among the last communist dictatorships in their regions, and both have faced political turmoil and threat of regime change in recent months. Should political instability in Cuba result in the fall of the regime, China could lose one of its key supporters. 

Table 2. Selected Actions at the UN

The joint statements have consistent messaging. Statements critical of China have expressed concern over human rights, noted China’s obligations under international law, recommended that China implement the CERD observations, and urged China to allow meaningful, unfettered access to independent observers. Statements in support of China consistently accuse the other bloc of being politically motivated, commend China’s actions in Xinjiang as human rights achievements through the right to development and, because there have been no terrorist attacks in Xinjiang in three consecutive years, the right to life. 

Regions Beyond the Rhetoric

The most obvious bloc is that of the developed democratic economies of North America, Europe, and Asia-Pacific that express concern over human rights in China. Canada’s HRC 47 statement was the most supported statement yet: 44 states signed on, 23 from the EU and 32 in Europe. This corresponds to recent polling in which publics in 17 advanced economies said China does not respect the personal freedoms of its citizens. Of the nations surveyed—all in North America, Europe, and Asia-Pacific—13 signed the HRC 47 statement. Several of these nations have designated China’s actions in Xinjiang as genocide in their domestic political bodies. Of the remainder, South Korea, Greece, and Singapore have not signed any statement; the latter two reported favorable views of China, and Singapore was the only public to prefer close economic ties with China and to express confidence in Xi Jinping. However, the United States induces uncertainty. Of the 16 other nations, a third said that the United States considered their foreign policy interests. While most described the United States as a “somewhat reliable partner,” most believe that it is no longer a good model of democracy. 

Much has been made of the Islamic world’s support for China’s actions in Xinjiang. Belarus’ HRC 47 statement was signed by 13 MENA countries and the majority of OIC countries. Only one OIC member, Albania, signed Canada’s statement. Muslim populations’ support for alleged genocide against a Muslim population has been explained as a byproduct of strong-man rule because many MENA, OIC, and Central Asian nations have authoritarian features. However, polling has found consistently positive views of China and Xi Jinping even when support for the United States increased among seven MENA countries. Arab publics consistently view the United States as a larger economic threat than China. Across 13 Arab countries, 58 percent viewed US policy towards the region negatively while a majority held positive views on China’s foreign policy. These views persist even though respondents view China as a less desirable employer and a source of inferior goods, and they express broad support for democracy, which suggests that China’s argument for sovereignty is attractive. Dismissing the Muslim world’s support of China as a product of illiberalism may validate China’s narrative that human rights are individualistic western ideals used to infiltrate and subjugate otherwise sovereign states. 

Among ASEAN countries, seven of its 10 members did not sign either statement. The Philippines stopped supporting China after HRC 41. While sharing the Philippines’ concerns over the South China Sea, Indonesia and Malaysia are also facing pressure, both external and internal, over the situation of the Uyghurs in their country. A 2021 survey of government and civil society experts in ASEAN nations found that support for the United States has increased in recent years. A 2020 poll found 79 percent identified China as the most influential power in the region, with 72 percent expressing wariness over this: “China’s economic influence is deeply felt but not very well received in the country.” Still, China is favored in many ASEAN countries with the United States being the overwhelming preference in the Philippines and Vietnam.

Africa has been a consistent source of support for China at the UN, even as some of the continent’s largest economies avoid statements. (In a surprise development, Côte d’Ivoire issued a statement expressing concern over actions in Xinjiang, Hong Kong, and Tibet despite not signing either statement.) A survey of 18 African countries found that while the United States is still the preferred development model, in countries where China had invested mainly in infrastructure, perceptions have held steady or improved. Less than half of those polled said they were aware of Chinese loans or financial assistance to their country but among those who were, 77 percent were concerned about loan repayment and a majority (58 percent) said that their governments had overborrowed. This might indicate that narratives about debt traps and asset seizures are having an effect. 

Like Africa, the region consisting of Latin America and the Caribbean (LAC) has seen hefty Chinese investment. According to the Congressional Research Service, 19 LAC countries have Belt and Road Initiative (BRI) projects in the region and total trade between China and the region reached $316 billion in 2019. Accumulated loans from 2005 to 2020 totaled $137 billion, with top recipients being Venezuela, Brazil, Ecuador, and Argentina—only one of which signed the Cuba statement. Public polling in Brazil, Argentina, and Mexico suggests that people have more positive views of China than negative, and these ratings have improved since 2014; these publics were more likely to name the United States as the top threat but say that they have good economic relations with both countries.

Trading Onwards

A look at China’s top trading partners suggests that any battle for hearts and minds is occurring separate from trade deals. China’s top 10 countries for imports and exports are dominated by Canada statement signatories—the United States, Germany—and non-signers—Brazil, South Korea. While supporters like Russia and the odd MENA state factor in at lower levels, China’s economy is still supported by the countries it accuses of weaponizing human rights. Amongst ongoing calls for decoupling and an economic reality that suggests the opposite, there are several issues to consider moving forward.

Investment and attention seem to matter. In public polls, countries that receive investments tend to have more favorable opinions of a country, which sometimes translates into UN support or at least the absence of opposition. The United States and Europe have recently announced initiatives to compete with China’s BRI, and vaccine diplomacy, as seen by the Ukraine case, remains a crucial issue for international engagement.

Narratives can create opportunities. Narratives on predatory investment may have sway in regions lacking a power monopoly; China-led narratives about sovereignty at the very least provide effective cover for post-colonial societies, some of whom may be truly weary of invasion. Similarly, China’s human rights whataboutism can deflect attention from criticism. It has highlighted the United States’ history of genocide and aggression in the MENA region. At the same time that Canada issued its statement, reports of mass graves at its relocation schools revealed its own human rights abuses. China even issued its own joint statement expressing “deep concerns” on human rights in the United Kingdom largely due to severe systemic racism.

China’s accusations of political bias might seem contrived to western audiences, but the United States has at times taken a similar approach. The Bush administration declined to join the HRC in 2006 when the HRC replaced the Human Rights Commission, which was widely seen as ineffective and even counterproductive. The Bush presidency also cited anti-Israel bias as a reason for non-involvement, and the United States was one of four nations—with Israel, the Marshall Islands, and Palau—to vote against the HRC’s formation. Belarus, Iran, and Venezuela abstained. During the Obama administration, the United States joined and was elected to the HRC. In 2018, the Trump administration withdrew from the HRC, again citing anti-Israel bias as the reason.

On June 19, 2018, then-Ambassador to the United Nations announced the US withdrawal from the HRC. Image credit: C-Span

Similarly, China has used the US-led war on terror to justify its actions. Many Western countries have expressed indignation at China’s actions without acknowledging parallels to US programs of extraordinary rendition, extrajudicial drone killings, and the “off-shoring” of refugees by developed democracy economies. This helps reinforce China’s narrative that human rights are culturally biased, politicized devices. Ignoring these aspects may reinforce China’s notion that the choice between the US and China-led narratives on human rights is a political one, as opposed to one rooted in international law and morality. 

The Biden administration seems to be progressing on some of these fronts. The administration’s statement on key outputs from HRC 47 listed achievements such as co-sponsoring resolutions in human rights in Syria and the human rights of migrants, leading events on Hong Kong’s National Security Law and business and human rights, and cooperating on a new mechanism to combat systemic racism. It also confirmed that the United States will seek election to the HRC leadership for 2022-2024. 

Monday, July 26, 2021

China: All State Security Judgments Purged from Supreme Court Site

 

A search for "inciting subversion of state power" yields no results as of July 23, 2021. Image credit: CJO

In a blow to judicial transparency, all judgments and judicial decisions for endangering state security (ESS) cases, including those for sentence reduction, have been purged from the Supreme People's Court (SPC) online judgment website China Judgements Online (CJO, 中国裁判文书网). 

The SPC has selectively removed judgments on CJO for some time, but the mass purge of a full chapter of the criminal law is unprecedented. In early 2021, the built-in crimes filter on CJO yielded over 640 ESS judgments and rulings, but the whole category of ESS judgments covering Articles 102-113 of the Criminal Law disappeared in mid-July. At the time of this posting, using the CJO’s search feature to look for ESS cases, such as inciting subversion of state power, returns not a single result even though the category has returned to the filters.  

The removal of all ESS judgments is the culmination of a process whereby politically sensitive judgments – including for pocket crimes like picking quarrels and provoking troubles, which is often used against peaceful dissidents and petitioners – have become harder to come by. The Los Angeles Times recently told the story of Dong Zehua (董泽华), a protester who was sentenced to seven months in prison for picking quarrels and provoking troubles. Yuan Shaui (原帅), another young man who protested alongside of Dong, received six months for the same crime. Their judgment was erased from CJO. 

The posting of judgments of sensitive cases has always been arbitrary. One of the most prominent cases to come out of the “709” crackdown on rights lawyers was the trial of veteran political dissident Hu Shigen (胡石根). Bucking the usual secretive practice, China widely publicized the trial for this subversion case. Tianjin Number Two Intermediate Court posted the court hearing and sentencing live on Weibo. The trial was hailed in Chinese official media as proof that China’s legal system secures convictions using evidence – not just witness testimony and confessions – and can withstand outside scrutiny. However, the full judgment was never posted on CJO.

The number of trials for ESS cases is a closely guarded secret. In the annual work reports delivered by the SPC and Supreme People’s Procuratorate to the National People’s Congress, the number of ESS prosecutions and trials has been lumped together under the category of “Others” with crimes such as violation of duty by military personnel. In provincial court reports, ESS is one of the most serious organized crimes together with organized gangs, yet information is rarely given. 

Judgments for splittism and inciting splittism, crimes used almost exclusively against ethnic minorities, have always been selectively posted. Over the past four years, Dui Hua has been unable to find ESS cases in Xinjiang from CJO, despite the region making up the majority of the ESS cases nationwide. That said, intermediate people’s courts in Sichuan published no fewer than 13 inciting splittism judgments between August and December 2020. All the defendants were Tibetans. 

CJO from time to time reveals the humane side of China’s legal system. Discovery of a sentence reduction decision of a long-forgotten prisoner can provide comfort to the family and renew supporters’ hopes. Dui Hua’s research with CJO found that Tibetan monk Tsultrim Gyatso received a six-month sentence reduction in April 2021, just before judgments of a sensitive nature like these were removed from the website. Tsultrim was convicted of splittism in 2009, and very little had been known about him after his life sentence was commuted to 19.5 years in 2014. Now, his sentence reduction decision is nowhere to be found. The lack of transparency now leaves prisoners’ families and supporters in the dark and can lead to misinterpretations, speculation, and undue suffering. 

In addition to ESS, judgments involving other politically motivated criminal offenses have also disappeared. Among them are Article 300 cases, punishing those found to be “organizing/using a cult to undermine implementation of the Law.” Only a few dozen judgments can still be found, down from 4,000 judgments in early June of this year. The contents of these remaining judgments are not disclosed; they are all deemed “unsuitable for disclosure.” 

Besides cases that are of a political nature, death penalty cases, another example of closely guarded “state secrets” in China, have for the most part disappeared from CJO. Death penalty judgments, especially review decisions issued by the SPC, offer a rare window into the legal procedures governing death penalty reviews, including the investigation process, evidence gathering and review, and, most importantly, the appeals process. It is valuable to learn, although very rare, the legal basis on which the SPC chooses to reject a death penalty sentence. Along with judgments on ESS and cult cases, all SPC death penalty review decisions have been removed as well. At the time of writing, only 1,968 documents issued by SPC remain on the site, most of which are notices of rejecting petitions for retrial. 

Paradoxically, references of counterrevolution can still be found under the judgments and decisions issued for crimes abolished under the 1997 Criminal Law revision. The remaining decisions principally relate to sentence reductions. There are 25 results found for counterrevolution listed under the “pre-1997 crimes” category. Most documents suffer from the same lack of content as those noted above. Although the majority of cases are former counterrevolutionaries’ petitions for rehabilitation, the courts usually deemed these case details too “sensitive for online posting.” The box at the end of this article, however, recounts a striking case of a counterrevolutionary, still in prison, found by Dui Hua on CJO.

Dui Hua, in its submission to China's 2018 Universal Periodic Review (UPR) at the United Nations, hailed advances in judicial transparency. It was only in 2016 that the SPC issued the regulation about releasing judgments online. The Court has since issued numerous statements about the importance of judicial transparency and the need to “place justice under the sun.” Even with some issues along the way, the CJO enjoyed a brief boom in both the quantity and quality of the documents released in its infancy. In September 2020, China announced that CJO had reached a milestone of 100 million published cases while also implementing measures to restrict access to judgment sites. However, posting of sensitive cases such as ESS became less frequent in the past two years before stopping fully in mid-2021 and the complete removal of such cases now. The removal of sensitive judgments from CJO is a significant setback which will be brought to the attention of the United Nations Office of the High Commissioner for Human Rights. 

(Left) On November 9, 2018, Assistant Minister of Foreign Affairs of the People's Republic of China Zhang Jun delivers final remarks during the adoption of recommendations for China’s UPR. (Right) The hall as adoption session ends. Image credit: UN Web TV

A popular phrase among young patriotic Chinese netizens is “don’t hand knives to foreign hostile forces” – a self-imposed censorship reminder that no one should volunteer information that could be used by Western media to draw attention to problems in China. In a 2015 Central Political and Legal Affairs Commission work meeting, the Party Secretary Xi Jinping remarked that the Party must firmly grip the “knife handle” – control of the political and legal system. China now sees the outside world gaining an understanding of – and reporting on – its legal system as problematic: a questioning of the fairness of its judicial system and, thus, a direct challenge to the legitimacy of Party rule.  

Although the purging of judgments on ESS, cults, and death penalty reviews considerably diminishes the value of CJO for human rights groups like Dui Hua, that is not to say the CJO is without value. It is not unusual for political and religious prisoners to be tried for economic crimes like operating an illegal business or fraud. US citizen and pastor David Lin (林大卫) was sentenced to life in prison for fraud in December 2009. Dui Hua learned of his subsequent commutation and multiple sentence reductions in CJO. He is due to be released in 2029. News of clemency for David Lin was met with great relief by his family who feared they would never see him again. 

Lost and Found: the Case of He Shuichang

Among the counterrevolution cases still listed without details, Dui Hua was able to identify a man – He Shuichang (何水长) – who is quite possibly one of China's last remaining prisoners still serving a sentence for counterrevolution, a crime that was abolished in the 1997 revision.

He, a 66-year-old man from Sichuan’s Meichan Municipality, was first convicted in 1977 – not long after the downfall of the Gang of Four – by the Pengshan County Court for counterrevolution. He was 22 years old in 1977 and was one of 22,218 individuals sentenced for counterrevolution that year (624 of whom were between 18 and 25 years old). All but 243 of 23,797 tried were convicted.

Details of He Shuichang’s offense are not known. His original sentence would have expired in 1989 had He not escaped from prison. After his recapture, the Muchuan County Court in 1981 gave him a combined 15-year prison sentence for his escape and his previous remaining sentence. This sentence would have expired in 1995 had He not escaped again two years later, in 1983. He evaded the law for almost 15 years. In 2018, He was sent to Jiazhou Prison to serve out his remaining 12-year imprisonment. The sentence was set to expire in 2030.

According to a decision found by Dui Hua on CJO, He recently received his first act of clemency: a seven-month sentence reduction granted by Leshan Intermediate People’s Court in 2020. With this reduction, the counterrevolutionary will leave prison in September 2029, when he will be more than 75 years old.

China’s continued punishment of crimes abolished in its own legal code contravenes international legal norms, notably Article 15 paragraph One of the International Covenant on Civil and Political Rights. Dui Hua noted the importance of “retroactive application of ameliorative law,” citing a report by the Human Rights in Criminal Sentencing project that found that 129 of 193 countries surveyed – 67 percent – have some provision requiring the retroactive implementation of a lesser penalty in their criminal law. 


Wednesday, July 7, 2021

China’s National People’s Congress May Expand Legal Aid in Death Penalty Cases

 

The closing ceremony of the 29th session of the 13th NPC Standing Committee on June 10. Image credit: NPC.gov   

China’s National People’s Congress is considering a new Legal Aid Law. Among its many provisions, Article 24 of the new law would extend access to legal aid to condemned defendants during final death penalty case review at the Supreme People’s Court. 

China’s legal system already provides legal aid to defendants in the trial phase of death penalty proceedings. However, legal aid does not currently cover the crucial final death penalty review stage of China’s capital punishment process: death penalty review at the Supreme People’s Court. Capital defense lawyers have dubbed the lack of legal aid in death penalty review the “last mile problem” of Chinese capital defense. The new law would finally address this last mile, bringing death penalty review under the scope of legal aid and guaranteeing universal representation during all stages of capital proceedings.  

The law would also improve the quality of death penalty counsel at both trial and review. The draft law mandates that legal aid lawyers representing clients in cases carrying a possible sentence of death or an indeterminate life sentence have at least three years of legal practice experience.  

The Development of the Legal Aid Law  

If enacted, the new Legal Aid Law will be China’s first comprehensive legislation on legal aid. Up until now, China’s legal aid has been governed by State Council Regulations. Implementation of the regulations takes place at a local level, and the quality of legal assistance has been uneven. Critics charge that low funding, low status, and lack of oversight lead to substandard representation in many legal aid cases. The new law earmarks funds and sets new standards in an attempt to address these problems. 

In recent years China’s leaders have signaled their intention to overhaul state legal aid as part of the Xi administration’s comprehensive effort to increase “governance through law.” In 2015 the CCP issued “Opinions on Improving the Legal Aid System,” a policy statement setting an agenda for improvements across the legal aid system. The document placed special emphasis on capital cases, including a call for legal aid in death penalty review cases. The 2015 opinion also called for an expansion in criminal representation generally, including the use of duty lawyers—criminal attorneys who can provide basic on-site legal advice at detention centers and courts. In 2018 the Supreme People’s Court and the Ministry of Justice issued “Measures on Launching the Pilot Program for Full Coverage of Lawyers’ Defense in Criminal Cases.” That measure did not specifically provide for death penalty review representation, but it has improved standards and increased access to defense lawyers in all criminal cases.  

The new Legal Aid Law is currently under review at the National People’s Congress. The first draft of the new Legal Aid Law was released in January. A second draft was introduced for public comment in June. The second draft notably improves upon the first by including an additional provision specifying that appointed legal aid counsel must have at least three years of experience in all death penalty review proceedings and trial cases carrying the possibility of an indeterminate life sentence or death sentence. 

Legal Aid and Death Penalty Review 

Death penalty review is the final stage of legal proceedings in China’s capital punishment system. A capital defendant in China initially undergoes a trial of the first instance, typically at an intermediate court. If found guilty, the defendant faces a trial of the second instance, typically at a provincial high court. Following a capital sentence in a second instance trial, the condemned defendant’s case will undergo a final death penalty review. In 2007 the Supreme People’s Court retook the authority to perform death penalty review from provincial courts as part of its sweeping efforts at death penalty reform. Since that time, all death penalty review proceedings have been handled by the Supreme People’s Court in Beijing. 

The Supreme People’s Court has not previously recognized a universal right to legal aid in its death penalty review proceedings. China’s Criminal Procedure Law (Art. 35) requires the provision of a legal aid lawyer in cases in which defendant faces an indeterminate life sentence or death sentence. This provision should logically extend to death penalty review. However, the Supreme People’s Court has declined to apply this provision in death penalty review.  

The conference on providing legal aid for death penalty review. Image credit: Southern Metropolitan 

Currently condemned defendants may choose to hire counsel for the proceedings; however,  if they do not do so, the state will not provide a lawyer for them. While official death penalty review data is a state secret in China, the available evidence indicates that under the current system—in which legal representation at the review is not mandatory and a defendant must hire an attorney privately—most condemned defendants do not retain a lawyer for the proceedings.  

Experts Debate the Draft Law 

On March 27 a group of 20 scholars and lawyers in China came together to discuss the implications of the death penalty review representation provision contained in the new Legal Aid Law. The conference was hosted by China University of Political Science and Law and Shangquan Law firm, a leading criminal defense firm in Beijing. Conference participants noted both the promise of the new legal aid law and the deficiencies that still exist in death penalty in China. 

Defense lawyers pointed out that while universal legal representation in death penalty review is an important legal development, obstacles to lawyer engagement with death penalty review proceedings hinder the substantive impact of the new law. For example, although death penalty review judges are legally mandated to meet with defense counsel, attorneys report difficulty in arranging these meetings. Lawyers also report difficulty accessing casefiles, and often end up taking pictures of documents on their phones because they cannot get copies. 

Scholars at the conference expressed concern that the expansion of legal aid to death penalty review might carry unexpected consequences for the legal market: legal aid lawyers assigned to death penalty review cases may lack experience and qualifications for this technical work, and the provision of these lawyers may also crowd out competent private lawyers who currently focus on death penalty practice. It is therefore important that the legal aid system provide sufficient compensation for this representation and also establish qualifications for death penalty review representation. The second draft of the Legal Aid Law, which was released subsequent to the conference, goes some way to addressing this concern by providing that legal aid counsel in both capital trial and death penalty review cases must have more than three years of related practice experience. Standing committee representatives also included a suggestion to include legal aid costs in the government budget, beginning at the county level. However, it is unclear whether death penalty review at the SPC would be covered by such a measure at the national level. 

Since the Supreme People’s Court retook the power of death penalty review in 2007, the Shangquan law firm in Beijing has been conducting empirical work on death penalty review representation. This work has included pro bono death penalty review representation in the past. At the conference, Shangquan law firm director Mao Lixin formally announced a new pro bono program that will provide pro bono representation for indigent condemned defendants facing death penalty review. The program was intended to run through March 2021, or until the new Legal Aid Law goes into effect. 

By Tobias Smith