Dui Hua Human Rights Journal

Welcome Reduction in Use of Capital Punishment in China

2008-06-27T00:23:00.000-07:00

According to a report in Friday's China Daily, in the first half of 2008, China's Supreme People's Court (SPC) overturned about 15 percent of the death sentences sent by provincial courts for final review. This news follows another report last month estimating that roughly 30 percent fewer death sentences were handed down in 2007 compared to the previous year.

Both of these revelations illustrate the impact of one of the most important reforms to take place in China's criminal justice system in recent years: the restoration on January 1, 2007, of the SPC's authority of final review over all death sentences in China.

Chinese legal officials, especially former SPC President Xiao Yang, deserve considerable credit for seeing this important reform to fruition. Facing serious practical challenges in guaranteeing that final reviews of capital cases are carried out in a consistent, timely fashion, SPC judges nevertheless have clearly made a priority of ensuring that the most serious punishment possible is only handed down when warranted by law, evidence, and the facts of the case.

Many Chinese legal experts believe that China should end—not just curb—its use of execution. Officially, the SPC appears to share this aspiration, but warns that the time is not yet right because of the deep-seated demand for retributive justice that reportedly still exists in Chinese society. But even if now is not the time for abolition, there are additional steps that China can—and should—take to further reduce its use of capital punishment.

China should increase the transparency of its system of capital punishment by releasing detailed statistics. China executes more people per year than the rest of the world combined. Dui Hua estimates that around 5,000 people were executed in China in 2007. We can make this statement based on a combination of published and anecdotal evidence despite the fact that the Chinese government closely guards its statistics on capital punishment on the grounds of "state secrecy." As the speakers at a recent press conference held in Hong Kong by the World Coalition Against the Death Penalty persuasively argued earlier this month, the attitude of the Chinese public about the necessity of retaining capital punishment might soften somewhat if more Chinese could know precisely how many people are executed on their behalf annually.

China should place stricter limits on the number of crimes eligible for the death penalty. China's criminal code allows criminals to be executed for more than 50 different crimes, many of which do not involve violence of any kind. China's use of capital punishment for "extremely serious or heinous crimes that lead to grave social consequences" is overly broad, including serious, but nonviolent crimes such as drug trafficking, official corruption, and disclosing state secrets abroad. If China is serious about moving towards abolition, it should remove these nonviolent crimes from the scope of application.

China should increase use of "suspended death sentences." Chinese law already provides for a punishment in which the death semtence is suspended for two years. After the two-year period expires, the case is reviewed by the court and, if the prisoner is not found to have committed any crimes during the intervening two years, the sentence is commuted to life imprisonment. As part of the effort to guide Chinese public opinion away from the expectation of death for serious crimes, Chinese courts should expand their use of this unique form of punishment.

To be sure, the substantial drop in the number of death sentences carried out in China is welcome news whose significance for preserving the dignity of human life should not be overlooked. Building on this important accomplishment to improve China's human rights situation further will require more mold, decisive actions and additional legislative and institutional reforms.

Related links:

Top court overturns 15% death sentences in 1st half year, China Daily, June 27, 2008
China sees 30% drop in death penalty, China Daily, May 10, 2008
Will Death Penalty Review Overwhelm China's Supreme Court?, Dui Hua Human Rights Journal, November 25, 2007
Death Penalty Reform Should Bring Drop in Chinese Executions, Dialogue 26 (Winter 2007)
China 2008: Some records must be broken, World Coalition Against the Death Penalty, February 15, 2008

Sentence Reductions for Political Prisoners More Than Previously Thought

2008-06-17T07:06:00.000-07:00

Over the last two months, The Dui Hua Foundation has received information on a total of 19 Chinese prisoners convicted of subversion for attempting to establish four separate illegal political groups. The information was provided by multiple authoritative sources in the Chinese government that have proven reliable in the past.

Most of these individuals and the causes they led are not well-known, even within China. The groups (three political parties and one labor rights organization) were set up in Gansu, Chongqing, Henan, and Fujian, and were active in the period between 1999 and 2002. Despite the relative obscurity of these groups, Dui Hua researchers were able to collect sufficient information to recommend several leading members for inclusion on prisoner lists submitted as part of bilateral dialogues on human rights with Beijing as well as pursue several direct inquiries of its own.

Analysis of 19 Prisoners: Sentences and Prisoner Lists

Of the 19 individuals about whom Dui Hua has received information, 10 are still in prison. Five of the nine individuals who received sentence reductions have already been released from prison. Three of the nine who received no sentence reductions have been released after serving out their terms; the remaining six continue to serve their original sentences. One individual died shortly after being released on medical parole. (Please refer to the accompanying table for additional details.)

While it is difficult to draw firm conclusions from such a small sample, the information nevertheless suggests that there have been more sentence reductions for political prisoners in the last two years than previously believed. All of the sentence reductions and early releases in this group took place over the past two years, since the middle of 2006. The timing may be significant: Beijing informed the US government at the end of 2005 that prisoners serving sentences for endangering state security enjoyed the same access to sentence reduction and parole as prisoners convicted of other crimes. Around that time, a nationwide review of China's policies towards sentence reduction and parole was being conducted by the Ministry of Justice, the Supreme People's Court, and the Supreme People's Procuratorate. The review uncovered many irregularities in the application of sentence reduction and parole policies.

The information on this group of prisoners once again illustrates the impact of being asked about in a human rights dialogue with China's central government. Eight of the 19 individuals had their names on prisoner lists submitted to China's Ministry of Foreign Affairs. Of these, sentence reductions were granted to six prisoners, three of whom have since been released from prison. Of the 11 prisoners who were not on lists submitted in a dialogue, sentence reductions were given to only three prisoners, two of whom have been released.

The most recent prisoner information received by Dui Hua concerns a group in Fujian Province who were given long sentences in 2003 for allegedly attempting to form a labor rights organization. The group's leader, Li Jianfeng (李建峰), was given a 17-month sentence reduction in December 2007—he still has eight years to serve—and one of his two top lieutenants was released 10 months early, in May 2007.

Hu Shigen Case: String of Reductions Sets Up Impending Release

The news of the clemency granted to the Fujian labor activists comes shortly after confirmation that Hu Shigen (胡石根), a pro-democracy leader and labor organizer who is one of China's longest-serving counterrevolutionaries, received his third sentence reduction since December 2005. The latest reduction was granted on April 1, 2008, setting the date of Hu's expected release from Beijing Number Two Prison for August 26, 2008—nearly four years before the end of his original sentence. The former university lecturer was originally sentenced to 20 years in prison for counterrevolutionary propaganda and incitement and leading and organizing a counterrevolutionary group.

In Dui Hua's experience, the reductions to Hu's sentence are unusual in terms of their swift succession. According to the relevant regulations, a prisoner serving a sentence longer than 10 years should be eligible for a sentence reduction only every 18 months, but Hu's three reductions were spaced approximately 14 months apart.

Once more, this case shows the value of handing over prisoner lists to the Chinese government as part of the human rights dialogue, whether the names are of prominent prisoners like Hu or among the more obscure individuals profiled here.

Situation of Uyghur and Tibetan Political Prisoners

All of the sentence reductions reported to Dui Hua in recent months have been granted to Han prisoners convicted of endangering state security. Dui Hua is unaware of any recent sentence reductions granted to Uyghur or Tibetan prisoners convicted of political crimes. This is consistent with other news recently received by Dui Hua: that sentence reduction and parole for prisoners convicted of "splittism"—the criminal charge for separatist activity—are now being "strictly handled." This means that clemency is rarely granted to Tibetan and Uyghur political prisoners, who are almost solely involved in "splittism" cases.

Table: Political Prisoner Cases: Group Affiliation, Prisoner List Presence & Sentence Information (opens in new window)

Commentary & Translation: "Can 2008 Become China’s Year of the Special Pardon?"

2008-05-16T18:30:00.000-07:00

In late April, The Dui Hua Foundation appealed for an “Olympic pardon” for some long-serving Chinese prisoners in a letter from Executive Director John Kamm to Wu Bangguo (吴邦国), Chairman of the Standing Committee of the National People’s Congress. In the recent past, articles have in fact appeared in the official Chinese press about the idea of Beijing issuing pardons in 2008, a special year that marks both Beijing’s hosting of the Olympics and the 30th anniversary of the country’s economic reform and opening.

These articles have received little coverage in English-language media, but their publication may represent a sign of openness by the Chinese government on the subject of pardons. At the very least, they suggest that Beijing has felt for some time that granting pardons to prisoners, which was last done in China in 1975, is a topic worthy of renewed public attention during this important period for the country.

The most widely cited official Chinese article with a highly favorable view of issuing pardons is, “Can 2008 Become China’s Year of the Special Pardon?,” published in the Guangzhou-based Southern Weekend (南方周末) on December 13, 2007 (PDF of Chinese article with Dui Hua’s translation). The author, Liu Renwen (刘仁文), a prominent scholar with the Chinese Academy of Social Sciences, presents the history of special pardons in China since 1949, the legal basis for pardons under the Chinese constitution, and their implementation by other countries that can serve as positive examples for Beijing.

Mr. Liu points out categories of prisoners who are good candidates for pardons, such as those serving what now may be seen as excessively severe sentences after their arrests during “strike hard” campaigns. He further discusses how the government can use pardons to “relieve strictness with lenience” as a way to help achieve a “harmonious society.”

Notably, the piece quotes remarks made by Xiao Yang (肖扬), President of the Supreme People’s Court, whose views provide insight, however limited, about how the topic of pardons perhaps has been part of an internal dialogue among top-level government officials. In comments on penal policy he laid out in a “Report of Achievements,” President Xiao stated, “[p]ardons are a major national policy measure and an important manifestation of civilized progress for society.” He added that “fully demonstrating the role of the pardon system certainly will have an enormously positive impact toward creating a harmonious and stable social environment and enhancing the internal unity of the people.”

At this moment in history, as Beijing looks to improve the country’s image abroad, it would be welcome to see the government re-activate its dormant pardon system for long-serving prisoners who pose no threat to society. This benevolent gesture would speak to China’s historical spirit of generosity as well as the country’s principal ambitions to build a society that integrates the ideals of harmony and rule of law.

Related links:

Dui Hua Appeals for “Olympic Pardon” for Long-Serving Prisoners, 「对话」呼吁为长期服刑的囚犯实施"奥林匹克特赦"

2008，能否成为中国特赦年？(“Can 2008 Become China’s Year of the Special Pardon?") ,南方周末 (Southern Weekend), November 7, 2007, in Chinese only

Southern Weekend home page

Some Observations on the Conviction of Hu Jia

2008-04-04T08:43:00.000-07:00

The prominent Chinese rights activist Hu Jia (胡佳) was sentenced yesterday to 3-1/2 years imprisonment by the Beijing Number One Intermediate People's Court. According to the Xinhua News Agency's official report on the conviction, "Hu published articles on overseas-run websites, made comments in interviews with foreign media, and repeatedly instigated other people to subvert the state's political power and socialist system."

Hu's case can be examined from a number of angles—for example, whether China's laws against "incitement" contravene the International Covenant on Civil and Political Rights or whether punishing Hu is part of a larger effort to silence dissent in advance of the Beijing Olympics. Here, though, we explore briefly two aspects of the way Hu Jia's case was handled and try to place his case in a bit more context.

What's the Rush?

It took only 98 days from the time Hu Jia was detained for the court to render its verdict. This is an unusually short amount of time to investigate and try a political case in China. Although time limits for each stage in the legal process are spelled out in China's criminal procedure law, numerous provisions allowing for extensions make those deadlines highly elastic.

To compare, we checked Dui Hua's prisoner information database and came up with a collection of 48 other cases involving a single charge of inciting subversion in which the dates of detention and sentencing were both known. These 48 cases cover the period from October 1997, when the law prohibiting "inciting subversion" came into force, until March 2008 and originate from 22 of China's 31 provinces and municipalities.

In this sample, The median amount of time taken to process a case of inciting subversion was 229 days, more than four months longer than in Hu's case. Jiang Qisheng (江棋生), a veteran democracy activist who called for a candlelight vigil to mark the tenth anniversary of the crackdown on the 1989 pro-democracy demonstrations, spent more than 19 months in detention before being sentenced to four years' imprisonment. Yang Chunlin (杨春林), the land-rights activist whose petition demanding "human rights, not the Olympics" gathered more than 10,000 signatures and brought a five-year sentence for "inciting subversion" less than two weeks ago, spent more than 260 days in detention.

On the one hand, we might welcome the fact that, unlike so many other cases involving political crime, Hu's case was handled in accordance with the time limits set out by law. However, given the atypical nature of such judicial dispatch, one cannot help but suspect that the relevant authorities were reluctant to announce a judgment against Hu too close to the Olympics (where it might cause image problems), preferring instead to send an early warning to other activists not to make trouble.

A Lenient Sentence?

Xinhua also noted that, in light of Hu's "confession of crime and acceptance of punishment," the court had judged leniently and handed down a lighter sentence.

Just how light a sentence did Hu receive? Chinese law sets the maximum sentence for the crime of "inciting subversion" at five years' imprisonment, unless the crime can be considered major, in which case a fixed-term sentence of more than five years is allowed. Also, those previously convicted of criminal charges who re-offend within five years of completing their sentence are also subject to heavier penalties.

Whether or not the court determined Hu's crimes to be major will likely remain unknown until the verdict becomes available, but given what is known about the charges raised by the prosecution it seems unlikely that the court would make such a determination. Moreover, we know that Hu had no previous convictions.

Looking again at the 48-case sample, we find the median punishment for inciting subversion to be . . . exactly 3-1/2 years. Because Chinese courts do not reveal the considerations that go into determining sentencing, it is impossible to know the basis for considering Hu's sentence to be "lenient."

In fact, recent years have seen several similar, high-profile cases that were arguably handled more leniently. Suspended sentences were given to both Du Daobin (杜导斌), another critic of the government whose essays frequently appeared on overseas web sites, and Gao Zhisheng (高智晟), the crusading human rights lawyer who represented defendants in a number of controversial cases. In November 2003, Beijing Normal University student Liu Di (刘荻) was released after 386 days spent in detention for her Internet essays and alleged involvement in organizing an opposition party; prosecutors subsequently determined her crimes to be too minor to prosecute and set her free.

Concluding Remarks

China's judicial system is far from transparent, and the number of cases we know about is small relative to the total number of incitement cases. (Official statistics revealed over the past six months have shown that we know fewer than five percent of the names of people arrested for political crime in China. Our knowledge about the outcomes of political trials is limited to a similar degree.) Nevertheless, based on what evidence is available, it certainly appears that Hu Jia's case was handled with unusual urgency, if not particular lenience.

Related Links:

Op-Ed: "Laws, not favours, for political prisoners"

2008-03-04T10:58:00.000-08:00

On March 4, an op-ed submitted by Dui Hua was published in the South China Morning Post. The piece was written in reaction to the recent release on parole of Hong Kong journalist Ching Cheong, with an emphasis on the Chinese government's inconsistent use and arbitrary enforcement of parole laws for political prisoners. Printed under the title, "Laws, not favours, for political prisoners," the op-ed was co-written by Executive Director John Kamm and Research and Programs Manager Joshua Rosenzweig. The full content as submitted to the South China Morning Post appears below:

Hearing that Singapore Straits Times correspondent Ching Cheong (程翔) had been released on parole earlier this month and allowed to return to Hong Kong, we noticed many similarities to the January 1997 release of Ming Pao journalist Xi Yang (席扬), who was also granted parole following an international campaign and allowed to return to Hong Kong after serving less than one third of a 12-year sentence for trafficking in state secrets. Both releases were the result of political decisions made at the highest levels in Beijing, decisions that despite being made "in accordance with the law," actually suggest more of a willingness to bend China's laws and regulations, rather than operate subject to them.

To this day, we still don't know all that went on behind the scenes prior to Xi Yang's release. Preparations were underway for a visit of President Jiang Zemin to the United States in the summer of 1997, and Xi's name headed an American list of eight cases of concern submitted to Premier Li Peng, who had taken the most interest in Xi's case. Many have speculated that Ching was released early in an effort by China's leaders to improve the country's human rights image as the clock ticks down toward the opening ceremonies of the Beijing Olympics. Both journalists' cases became causes celebres for the media in Hong Kong, and the Hong Kong government played a strong role in securing both releases.

With all of the conjecture about why Ching might have been released at this time, less attention has been paid to the peculiar manner in which the release was carried out and the unanswered legal questions that arise as a consequence. Parole is not unconditional release, which is why it is a less ideal route toward early release than either medical parole or sentence commutation. (Having a verdict in a political case overturned by a court, with a declaration of innocence, is almost unknown in China.) Chinese law subjects parolees to regular police supervision and places numerous restrictions on their rights. In fact, to the best of our knowledge, Xi Yang and Ching Cheong are the only two political prisoners who have been allowed to leave China during their parole period—with the apparent knowledge of the authorities that such legal restrictions would not be enforced.

Specifically, the provisions of the "Procedural Regulations for the Handling of Criminal Cases by the Public Security Organs" (公安机关办理刑事案件程序规定) prohibit parolees who were deprived of their political rights as part of their original punishment—which includes the majority of political offenders—from publishing books, giving interviews, making speeches, or expressing any views damaging to China's national reputation or interests. Chinese police are prohibited from issuing passports to released political prisoners until the subsequent period of political rights-deprivation brings to an end the court's original punishment (and frequently continue to do so for long thereafter on grounds of potential threats to national interests). And regulations prohibit any journalist convicted of a felony from ever receiving the necessary accreditation to work.

By allowing Ching to return to Hong Kong, Chinese officials essentially abandoned any pretense of enforcing their own parole regulations. In recent weeks, Ching has given a press conference, granted interviews, indicated plans to publish books begun during his stay in prison, and expressed his intention to continue working for the Straits Times and even his desire to cover the Beijing Olympics. There are no apparent restrictions on his ability to travel abroad. Under "one country, two systems," China presumably has no means to compel law enforcement agencies in the Hong Kong SAR to act as its agent in supervising Ching's parole. And, even if Ching were instructed to return to Guangzhou periodically to "check in" with police there, can the Chinese government—or the SAR government—oblige him to do so?

Small victories such as the early releases of Xi Yang and Ching Cheong are welcome, if opaque and arbitrary, gestures by the Chinese leadership. The question remains: will others benefit as well? Will Lu Jianhua (陆建华), serving a 20-year sentence in Beijing in connection with Ching Cheong's case, be blessed with the slightest gesture of clemency? And what of the hundreds—perhaps more than 1,000—other Hong Kong residents serving prison sentences on the mainland? Will they also enjoy the right to serve their paroles in Hong Kong? Justice demands that, as we rightly celebrate Ching Cheong's release, we do not forget them and ask the Hong Kong government to help them as it has helped in the case of Ching Cheong.

Hu Jia Formally Arrested: Human Rights in Olympic Spotlight

2008-01-31T10:37:00.000-08:00

News has just emerged of the formal arrest of Beijing rights activist Hu Jia (胡佳) on charges of "inciting subversion." Hu was taken into police custody on December 27, 2007, following a raid on his home.

Members of Hu's family were reportedly served with a notice of the arrest approval on January 30, 2008. Specific charges against Hu Jia have not been made public. For several years, however, he has been publicly active on behalf of victims of injustice, during which he has maintained close communication with dissidents, petitioners, and rights lawyers and used the Internet to serve as an invaluable source of information about human rights abuses throughout China. This work has led to several previous run-ins with political security police, including a 41-day incommunicado detention in the spring of 2006 and more than 200 days of informal house arrest that preceded his detention in December. Hu and his wife Zeng Jinyan, also an activist, were prevented from traveling to Europe in May 2007 on the grounds that they were suspected of "endangering state security." (Since Hu's detention over a month ago, Zeng and their infant daughter have been prevented by police from leaving their apartment or receiving visitors, and virtually all communication ties have been severed.)

Under China's criminal procedure law, approval for "formal arrest" (正式逮捕) is granted to police by prosecutors upon consideration of evidence obtained during the preliminary period of criminal detention, which can last up to one month. After formal arrest is approved, police have two months to continue their investigation before being required to hand the case over to the procuratorate for prosecution. However, other legal provisions allow for police to request up to five additional months for investigation of complex cases in which the defendant faces 10 years or more in prison.

Hu's case has been formally classified as a "state secret," meaning that he has no right to meet with his defense attorney until after the case has been handed over to the procuratorate for prosecution—which, given the procedural regulations described above, could happen as late as seven months from now. The state secrecy classification also means that, assuming Hu's case goes to trial, the court will be required by law to bar all members of the public from attending all court proceedings other than the final verdict announcement.

One month before his arrest, Hu spoke via an Internet connection to a committee of the European Parliament, during which he is reported to have offered criticism of China's human rights record and the Beijing Organizing Committee for the Olympic Games. Whether or not these criticisms triggered his arrest, it is clear that the action taken against Hu Jia cannot escape being connected to the Olympics. From the perspective of the authorities, the opportunity to take this high-profile rights activist out of action in the final months before the Olympics may have been too good to pass up. By the same token, however, the arrest of such a prominent activist who maintained close connections to the international community creates a huge image problem for the Chinese government, as Hu Jia is likely to remain behind bars through the Olympic Games—possibly without even having a chance to see a lawyer. In his absence, Hu thereby becomes a leading symbol of China's human rights problems, a subject Beijing would rather the world not think about in connection with the Olympics.

Commentary: Arrest of Human Rights Activist Shows China's Determination to Suppress Protests

2008-01-03T09:35:00.001-08:00

After the December 27 detention of Chinese human rights activist Hu Jia, Dui Hua was invited by JURIST, a web-based legal news and legal research service, to comment on the significance of the detention in terms of China's approach to handling popular dissent. Dui Hua Executive Director John Kamm submitted a perspective on the topic entitled, "Arrest of human rights activist shows China's determination to suppress protests."

Commentary: Increased Rate of Political Arrests in China is Troubling

2007-12-06T14:20:00.001-08:00

Following its November 27 statement on the rise in Chinese political arrests in 2006, Dui Hua was invited by JURIST, a web-based legal news and legal research service based at the University of Pittsburgh School of Law, to comment on the legal implications of the increase for China. Dui Hua Manager of Research and Programs Joshua Rosenzweig shared his perspective in a short commentary, "Increased rate of political arrests in China is troubling."

Will Death Penalty Review Overwhelm China's Supreme Court?

2007-11-25T15:49:00.000-08:00

The following opinion piece, which appeared on November 21, 2007 in The Beijing News (新京报, Chinese original in PDF) and was then translated by Dui Hua, raises concerns about the future of China’s Supreme People’s Court. Faced with an "extremely large number" of death sentences to review, the SPC has been forced to take on hundreds of new criminal court judges, many of whom have lower qualifications than judges in the past. The author suggests this influx of less-qualified judges who focus on reviewing individual capital cases presents an obstacle to the SPC’s progress toward a more ideal goal, one in which high-court decisions contribute to the nation’s social and economic development. At stake, he warns, is the court's ultimate ability to ensure judicial authority.

It’s unclear how much consideration the author (who is very likely writing under a pseudonym) has given to the most obvious solution: a substantial reduction in the application of the death penalty in China. If, as he argues, the burdens of death-penalty review are hindering the efficiency of China’s legal institutions, this could be yet another argument in favor of further reducing the use of capital punishment.

A Cold, Hard Look at the Supreme Court’s
“Expansion of the Ranks” of Criminal Judges
By Ni Jian, Beijing (Scholar)

The Supreme Court is the symbol of justice and equality in the system of state power. Put plainly, the number of cases that make it to the Supreme Court should be strictly limited to only those that are essential, substantial, and that will have general relevance for lower courts hearing similar types of cases.

Registration for the 2008 central government civil service examination has closed, with the number and composition of available positions in government bureaus remaining steady compared to last year—but, I noticed the biggest change was in the Supreme People’s Court (SPC). According to its recruitment plan, this year the SPC will hire 120 “criminal judicial officers” and nine “civil and administrative judicial officers.” Compared to previous years, in which roughly 20 new hires were sought, distributed more or less evenly between criminal and civil tribunals, this is a fundamental change.

It should be pointed out that such a change was predictable. Since January 1, 2007, authority to carry out review of death sentences has returned to the SPC, and, in order to meet the work burden of the large number of capital cases sent annually for review, the court began its largest “expansion of the ranks” since the founding of the PRC, adding three criminal tribunals and several hundred judges. Except for judges picked from local courts and institutions of higher learning, all of these new judges are chosen based on the results of the civil service examination.

Following the tremendous shock caused by the She Xianglin and Nie Shubin cases, among others, the legal community and the general public both feel that the death sentence should be handled with utmost caution and that the power to review capital cases should only be exercised by the highest judicial institutions. This has developed into a kind of social consensus. However, the volume of cases that have flooded the SPC as a result will have a considerable impact on the composition of the ranks of judges at the court, as well as its style of judgment and overall character. This deserves more attention.

The Supreme Court is the symbol of justice and equality in the system of state power. Put plainly, the number of cases that make it to the Supreme Court should be strictly limited to only those that are essential, substantial, and that will have general relevance for lower courts hearing similar types of cases. For this reason, many countries employ a system in which courts decide whether or not to accept cases for appeal, based primarily not on considerations of the right and wrong of a particular case but on whether a decision in that case can solve a certain type of problem that is the focus of society. People expect that the extremely large number of death-sentence review cases will have no impact on the court’s ability to carry out its most important responsibility, “ensuring judicial authority.”

Under a Chinese court system employing four levels, two trials, and final judgments, only a very limited number of civil and administrative cases get to be heard by the SPC; death penalty cases will make up more than 90 percent of the total number of cases heard by the court. Consequently, the ranks of SPC judges will be dominated by the large number of criminal court judges, who also will make up the principal part of the [court’s] adjudication committee. This could have an impact on the Supreme Court’s character and functional effect. Historically in China, rectification of problem cases and review of death sentences, through institutionalized procedures such as the “autumn assizes” and “court assizes,” were always the primary responsibility of the central judicial body, whether it be the Board of Punishments or the Court of Judicial Review. However, looking at the last one or two hundred years of experience in the West, the Supreme Court’s role in promoting fairness in individual cases and supervising lower courts has gradually been marginalized in favor of a more active role in economic life. For example, the series of rulings on contract freedom by the US Supreme Court basically led to the development and rise of the entire country.

The authority of an institution is typically determined by the character, quality, and reputation of its members. Compared with the past, we’ve seen the educational requirements for SPC judges drop from a doctoral degree to a master’s degree—a concession perhaps necessary in light of the recruitment needs. Though I don’t believe that academic background counts for everything, I still feel that under China’s present circumstances it is necessary to preserve a high threshold for [positions on] the Supreme Court. Only by selection according to the most exacting standards can SPC judges be differentiated from other ordinary civil servants and garner society’s trust and approval.

We live in an interconnected world, where a perfectly normal systemic adjustment enjoying popular support can produce many indirect negative consequences. We should proceed with caution.

Leadership Transition Points to Possible Reduction in Police Power

2007-10-25T11:09:00.003-07:00

[Edited 10/29/07]

The ascension of Zhou Yongkang (周永康) to the Chinese Communist Party’s Politburo Standing Committee, announced at the close of the 17th Party Congress, leaves an opening at the head of the Ministry of Public Security. This position will ~~reportedly~~ be filled by Meng Jianzhu (孟建柱), who previously served as the party secretary of Jiangxi Province.

This transition in leadership could significantly affect the power of the Ministry of Public Security and China's police. Holding a concurrent position on the Politburo, Zhou Yongkang was the most powerful public security minister in recent history. From this position, he ushered in new reforms designed to professionalize China’s police force—while also boosting the political leverage of the Ministry of Public Security vis-à-vis other bodies in China’s criminal justice system, particularly the courts and the procuratorate. The result has been a failure to move forward on key legal reforms that would limit police power over detention and the criminal investigation process.

When Meng Jianzhu takes over as public security minister, it will be from a far weaker political position than Zhou. Meng will presumably even have to wait until at least next spring’s plenary session of the National People’s Congress to become a member of the Standing Committee of the State Council (China’s cabinet). Analysts predict that Meng and future public security ministers will not be allowed to hold a concurrent position on the Politburo precisely in order to limit the power of the police among China’s legal institutions.

Zhou Yongkang is now expected to take over from Luo Gan (罗干) as head of the Central Party Political-Legal Committee, arguably an even more powerful position, since this body sets policies and oversees all the institutions in China’s legal system. However, it is yet unclear whether Zhou—who has long focused on the importance of maintaining social stability—will continue to favor the extra power of the police from his new post. It is possible that, in fact, Zhou will be forced to pay more consideration to greater balance among the institutions in the criminal justice system, which would mean more authority and oversight by the courts and procuratorate. If so, it would be a welcome step toward establishing a more just and credible legal system for China.

Related links:

China appoints new minister, party chiefs, China Daily, October 29, 2007.

孟建柱證實接掌公安部非政治局委員出任降低權重 ("Meng Jianzhu confirmed to take over Ministry of Public Security, will wield less weight as non-member of Politburo"), Ming Pao (Hong Kong), October 25, 2007, in Chinese only [via news.sina.com.tw].

China oilman turned top cop wins place in elite, Reuters, October 22, 2007.

Chinese Officials on Presence of Counsel and Torture Cases Against Investigators

2007-10-06T11:12:00.000-07:00

A recent article from a Chinese government web site discusses the failure of China's legal mechanisms to guarantee the presence of counsel during criminal interrogation, which can leave suspects vulnerable to illegal coercion at the hands of investigators. It also touches on the burden on criminal investigators to disprove torture charges against them stemming from cases of forced confessions. With comments attributed to officials from China's main criminal justice bodies, the article (PDF with Dui Hua's translation) prescribes several measures to help China improve protection of the human rights of criminal suspects.

The piece echoes the position the Chinese government has held for years: investigators still use force, including elements of torture, to coerce confessions, and China has expressed a commitment to curb this problem through legal and penal reform. The use of torture to force confessions has been a criminal offense in China since 1979, and torture during interrogation explicitly violates the United Nations Convention Against Torture, which China ratified in 1988.

In China, a confession by a criminal suspect who is later brought to trial all but ensures a guilty verdict (and possible prison sentence) since virtually all such suspects in criminal cases are convicted. And in the Chinese penal system, forced confessions from prisoners who initially attempted to maintain their innocence have been linked to reduced sentences or better treatment, a practice that has received intense international criticism.

Positive changes in these and other areas are expected to accompany reform of China's criminal procedure law, drafts of which have been circulating and may soon receive a reading by the National People's Congress. If provisions to improve access to legal counsel and "presumption of innocence" are eventually included and effectively implemented, it would help safeguard suspects from being coerced into confessing guilt and bolster progress toward better human rights protections and established rule of law in China.

Dui Hua has paid close attention to the issues of torture and forced confessions, most prominently in its Dialogue cover story (PDF) and interview with the UN Special Rapporteur on Torture (PDF) in 2006 on the use of torture in

China

Related link:

legaldaily.com.cn (source web site)