Translation: The Course of Humanization of the Criminal Law

On June 16, the China Daily reported that by the end of 2009 all criminals sentenced to death in Beijing would receive lethal injection rather than being executed by gunshot. The news prompted Liu Renwen (刘仁文), a researcher at the Institute of Law at the Chinese Academy of Social Sciences and a vocal advocate of abolishing capital punishment in China, to publish the opinion piece below in the June 18 edition of Southern Weekend (南方周末), a weekly newspaper based in Guangzhou.

The course of humanization of the criminal law
Liu Renwen

Lately, the nation’s attention was turned to the news that Beijing will use lethal injection to carry out all death sentences by the end of the year. Having reflected on this issue, my conclusion is that this is in step with China’s course toward eventual abolition of the death penalty.

The Chinese government has always indicated that, in the long term, we eventually want to abolish the death penalty, but the present conditions are not yet ripe. As to precisely when is “eventually,” no one had any idea in the past. But if we consider the reforms to China’s system of capital punishment over the past 10-plus years and the achievements they have brought about, perhaps we have reason to be slightly more optimistic for this prospect. The 1996 revision of the Criminal Procedure Law added lethal injection as a method for carrying out the death penalty. The background for this legislation was a consideration of the requirement made in the “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,” passed by the UN Economic and Social Council in 1984, which called on countries that had not yet abolished the death penalty to carry out executions “so as to inflict the minimum possible suffering.” After careful study, legislators decided that, compared to execution by gunshot, lethal injection was better able to reduce the pain of the executed and even more able to preserve the corpses of those executed and prevent the bloody spectacles brought about by execution by gunshot, such as the bursting of brain tissue. Since time was still needed for the development of drugs, construction of facilities, and training of personnel, the traditional method of execution by gunshot was retained at that time.

Beginning with the first use of lethal injection for execution in Kunming in 1997, lethal injection has been promoted in varying degrees in places throughout the country. Starting last year, the Supreme People’s Court began providing lethal injection drugs to local courts free of charge, indicating its attitude toward the gradual replacement of gunshot with lethal injection as a mode of execution. Shortly after this year’s “National Human Rights Action Plan” was issued, Beijing’s stance toward accelerated implementation of lethal injection fills people with hope for an early end to the lack of uniformity in execution methods and the replacement nationally of gunshot with lethal injection for the execution of capital punishment.

Reform of execution methods is not an isolated thing. First, this is the embodiment of the humanization of punishment and those who carry out punishment. Historically, forms of capital punishment have been split between those that “deprive a person of his or her life” and those that “in addition to depriving a person of his or her life, cause the executed to experience pain and suffering”—the latter including “slow slicing” (lingchi), exposure of the decapitated head (xiaoshou), and mutilation of the corpse (lushi). At the end of the Qing Dynasty, Shen Jiaben strongly advocated unifying execution methods and the abolition of “slow slicing,” exposure of the decapitated head, mutilation of the corpse, and other methods that “cause the executed to experience pain and suffering.” After the revolution, we carried out executions by gunshot for a long time. Though, given contemporary historical conditions, execution by gunshot cannot be considered a method that “causes the executed to experience pain and suffering,” when combined with massive sentencing rallies, parading condemned prisoners in the streets, and open-air execution grounds at which spectators gathered to watch the excitement as if at a festival, perhaps it was still [a form of] cruelty that did not take into consideration the dignity or feelings of the condemned and their families. Even more important, this way of doing things induced a culture of social violence and sustained practices that were out of step with the times, such as the death penalty being used as an accepted tool of social control and even a part of people’s daily lives. Now, lethal injections are all carried out in specialized facilities, which will help to slowly eliminate society’s dependence on capital punishment.

Moreover, the gradual replacement of execution by gunshot with lethal injection has been made possible in part by the large-scale decline in the use of capital punishment in China. Beginning on January 1, 2007, the authority over final review of the death penalty in China was restored to the Supreme People’s Court, and death penalties and executions declined dramatically in China following this symbolic event. In 2007, the Supreme People’s Court rejected 15 percent of the death penalty cases it reviewed, and the number of suspended death sentences nationally exceeded the number of death sentences with immediate execution for the first time in many years. [Even] with this reduction in the number of death sentences, odious crimes like setting explosions, murder, and arson actually occurred at a significantly lower rate that year compared to 2006, showing that we can still maintain social order as well or better, even without overly relying on the death penalty. It is precisely because the number of death sentences has declined to such a large extent that places can more quickly satisfy the requirements of lethal injection in terms of things like establishing facilities and mobilizing personnel. According to reports, Beijing only has one facility for carrying out lethal injections. If the number of people to be executed were greater, this would clearly be insufficient.

Looking globally, we can observe a general pattern in Europe and many other countries where the death penalty has been abolished, insofar as these countries have all followed this kind of path: They started with a large number of crimes being eligible for the death penalty, later limited [its use] only in serious murder cases, and finally completely abolished capital punishment. They started with widespread use of the death penalty, later used it more and more infrequently as a kind of “symbolic penalty,” and then completely stopped using it altogether. They started with many different ways of carrying out executions and chose methods involving more or less pain and humiliation depending on [the circumstances of] the individual to be executed, and later they began unifying the methods of capital punishment and employing the method causing the least pain in all cases. They went from “raising troops and mobilizing the masses” to carry out an execution to gradually removing capital punishment from public view. Looking back on the path China has followed with respect to capital punishment and its implementation, I think that it is in line with the logic and experience of eventual abolition of the death penalty.

Related links:

• 刑法的人道化历程, 刘仁文, 南方周末, 2009年6月18日; "The course of humanization of the criminal law," Liu Renwen, Southern Weekend, June 18, 2009 (Chinese only)

• "Beijing ready for lethal injections," China Daily, June 16, 2009

• Welcome Reduction in Use of Capital Punishment in China, Dui Hua Human Rights Journal, June 27, 2008
  

Tibetan Guide's Incitement Case Surfaces: 3-Year Sentence for Emails, Text Messages

Dui Hua has obtained and produced English translations of the indictment and verdict (original documents in PDF) for a previously unknown case of a Tibetan sentenced to three years in prison for “inciting splittism” after the March 14 riots in Lhasa. The case against Gonpo Tserang (贡保才让), a well-respected expedition guide who has trekked with foreign celebrities and participated in high-profile mountain rescue efforts, involved a series of emails and text messages sent over three days to acquaintances outside of China. These messages, which prosecutors claim “distorted the facts and true situation regarding social stability in the Tibetan area following the ‘March 14 incident” were considered by the court to be deserving of severe punishment.

This case is significant in a number of respects. First, it is the only case Dui Hua is aware of in which a Tibetan in Yunnan Province has been convicted of a state security crime following the Tibetan protests of 2008. Second, it is not at all apparent that the charge of “inciting splittism” was properly applied. The content of the messages is never specified, and it is questionable whether individuals who are not located in China are even capable of carrying out acts that would “split the nation or undermine national unity.” An argument could thus be made that, never imagining that his messages could “incite splittism,” Gonpo Tserang did not intend to do so. This is perhaps an argument that an attorney could have raised in his defense. Unfortunately, it appears that, at least for his appeal, Gonpo Tserang was not represented by counsel—very likely a result of the reluctance of most lawyers to take on criminal defense work in political cases and the threats made warning of serious consequences for lawyers who volunteered to defend Tibetans.

Finally, Gonpo Tserang’s case illustrates both the extent to which Chinese police were engaged in monitoring communications between Tibetans and outsiders during the period after the protests and the low threshold for criminal liability in such situations. We do not know the content of Gonpo Tserang’s messages, but sending this handful of messages to individuals outside of China resulted in a three-year sentence. Such intense monitoring and the potential consequences of being caught saying the wrong things to outsiders help to explain the wariness of many Tibetans to report what they witnessed. To a large extent, this wariness has allowed the official Chinese narrative of events to become dominant. It also compels observers to wonder what punishments might be handed down to Tibetans who have been reported detained for saying or doing even more.

Lawyer's Request for RTL Information Disclosure Rebuffed by Chinese Ministry of Justice

On May 14, 2009, Beijing lawyer Xie Yanyi (谢燕益) sent a letter to the Ministry of Justice (MOJ) requesting that information about China's "reeducation-through-labor" (RTL) system be made public under the provisions of the country's 2007 Regulations on the Disclosure of Public Information. That same day, he posted the content of the letter on his blog. On June 6, Xie received a letter from the General Office of the Ministry of Justice (view MOJ document), which denied most of his requests on the grounds of state secrecy but also responded that some general RTL statistics are "open government information" available on the MOJ website. (Dui Hua's translations of Xie's letter and the MOJ response are below.)

Xie's request for information references numerous provisions in China's laws and constitution, as well as plans and policies put forward by the government and the Chinese Communist Party—all of which profess the importance of public information and the right of citizens to exert oversight over government agencies. He explains that disclosing information about RTL is essential so that both policymakers and ordinary citizens have "the important facts and information necessary in the debate over whether to retain or abolish the RTL system." Xie clearly stands on the side of those who believe RTL should be abolished, seeing it as a major obstacle to implementation of rule of law and an arbitrary abuse of power that breeds social resentment and threatens to create the very instability it is supposedly intended to prevent.

Xie Yanyi is one of a relatively small group of lawyers in China who actively represent individuals seeking protection of their rights against injustice. He is known for taking on cases involving HIV carriers, farmers whose land has been seized, individuals whose homes have been forcibly demolished, and Falun Gong practitioners. As a lawyer who frequently meets with obstacles set by the government to prevent him from carrying out his professional responsibilities, Xie no doubt was fully aware that there was little chance his application would be granted and that China's overreaching statutes protecting "state secrets" would be the most convenient grounds upon which to dispose of his request.

This type of rights-protection work carries with it many costs. Since Xie's request was sent to the MOJ, he has become one of dozens of lawyers whose annual licenses to practice law have not been renewed by local lawyers associations, a measure widely interpreted as official retaliation against those who dare to take on sensitive cases.

Document One: Xie Yanyi's Request to the Ministry of Justice

To: Ministry of Justice of the PRC
From: Xie Yanyi, applicant
Date: May 14, 2009

1. Make public on the Ministry of Justice website how many RTL facilities there are currently in China, how many citizens are currently being held in RTL, how many police officers there are in the RTL system, and the annual state financial expenditure [for the RTL system];

2. Make public on the MOJ website how many citizens who have been sent to RTL in the past five years have not accepted the RTL decision and have filed an appeal (including through administrative review, lawsuit, formal complaint, petition, accusation, etc.) and what sort of legal relief these citizens who have been sent to RTL received, such as the acceptance and success rates for administrative lawsuits;

3. Make public on the MOJ website the proportion of the various groups that comprise the group of citizens who have been sent to RTL in the past five years. For example: (1) The percentage and number of petitioners; (2) the percentage and number of religious believers; (3) the percentage and number of individuals sent to RTL who created serious disturbances or other [offenses] that did not "reach the level where they should be subject to criminal punishment"; (4) the percentage and number of dissidents, those imprisoned for speech, rightists, etc.

4. Make public on the MOJ website how individuals sent to RTL are currently being treated. For example: whether they are compelled to engage in labor, the number who have suffered bodily injury after being subjected to beatings or other abuse, and the number of citizens sent to RTL who have died unnatural deaths.

Facts and Rationale:

I. Legal basis for this application for disclosure of information

According to Article 2 of the Constitution of the PRC: "All power in the PRC belongs to the people....The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law." [According to] Article 27: "All state organs and functionaries must rely on the support of the people, keep in close touch with them, heed their opinions and suggestions, accept their supervision, and work hard to serve them." [According to] Article 41: "Citizens of the People's Republic of China have the right to criticize and make suggestions to any state organ or functionary."

Article 1 of the Regulations of the PRC on the Disclosure of Government Information states: "These regulations are hereby formulated in order to ensure that citizens, legal persons, and other organizations obtain government information in accordance with the law, enhance transparency of the work of government, promote administration in accordance with the law, and bring into full play the role of government information in serving the people's production and livelihood and their economic and social activities." Article 9 [states]: "Administrative agencies should disclose on their own initiative government information that satisfies any one of the following basic criteria: (1) Information that involves the basic interests of citizens, legal persons, or other organizations; (2) Information that needs to be extensively known or participated in by the general public; (3) Information that shows the structure, function, and working procedures of and other matters relating to the administrative agency."

In the National Human Rights Action Plan (2009–2010) issued by the State Council of the PRC in April 2009, Part Two on the protection of civil and political rights states: "In the period 2009–2010, China will continue to strengthen work to improve democracy and the rule of law, improving systems for democracy, diversifying the forms of democracy and expanding the channels of democracy, strengthening the protection of civil rights in the execution of administrative laws and in judicial practices, and raising the level of ensuring people's civil and political rights." Section Five on the right to be informed [states]: "The Chinese government will make more efforts to keep the public informed of government affairs and improve relevant laws and regulations so as to guarantee citizens' right of information....By implementing the Regulations on the Disclosure of Government Information, the state will make comprehensive, regular assessments of the work of the government and relevant departments about the disclosure of government information, examine and urge organizations responsible for public affairs management to make public information related to government affairs, and in accordance with the law call to account personnel in charge and people directly responsible who violate the Regulations. Local regulations concerning how to make known to the public government affairs will be improved."

At the same time, the governing [Communist] party, in its report from the 17th Party Congress, clearly [articulated its intention to] safeguard the people's right to information, right to participate, right to expression, and right to supervision, and that government power should operate under the light of day.

II. Why this request for disclosure of information is being made

The RTL system has been controversial from the beginning, and as a citizen of the PRC, in the face of this institution that violates the Constitution of the PRC and the law, in which a decision to deprive an individual of his or her liberty can be made without any legal or public procedure or trial, and for which the administration is not public and frequently offers no manner of judicial remedy, one shudders in fear at such a system which during its long period of existence threatens the personal liberty of every citizen at any time. Although the applicant has to date never suffered harm from RTL, I have always been clear about the principle that "when one man is enslaved, all are not free."

If the RTL system is to continue on as usual, the following initiatives and efforts by China in the area of rule of law and human rights will all amount to empty words:

In 1999, [the phrase] "ruling the country in accordance with the law" was written into the Constitution of the PRC. In 2004, the safeguarding of human rights was written into the Constitution of the PRC in Article 33, which states: "The state respects and safeguards human rights."

In 2000, the National People's Congress passed the Legislation Law of the PRC, clarifying that "coercive measures and penalties involving deprivations of citizens' political rights or restriction of their personal liberty" shall "only be governed by law."

In 1996, the National People's Congress passed the Administrative Penalty Law of the PRC, clarifying that "administrative penalties involving the restriction of personal liberty shall only be created by law."

In a speech to commemorate the 30th anniversary of [the policy of] opening and reform, the ruling [Communist] party general secretary Hu Jintao said, "Don't pointlessly create trouble" (bu zheteng). Everyone knows that the RTL system was an illegal product of the "pointless trouble" (zheteng) created during China's special anti-rightist history. Today, "don't pointlessly create trouble" has increasingly become national consensus.

In the introduction to the April 2009 National Human Rights Action Plan (2009–2010), it is written: "The realization of human rights in the broadest sense has been a long-cherished ideal of mankind and also a long-pursued goal of the Chinese government and people....The National Human Rights Action Plan (2009–2010) is a document explaining the policy of the Chinese government with regard to the promotion and protection of human rights during the period....Governments and government departments at all levels shall make the action plan part of their responsibilities and proactively implement it in line with the principle of 'each performing its own functions and sharing out the work and responsibilities.'" In Part Two on the protection of civil and political rights, section one on rights of the person states: "China will improve its preventative and relief measures to protect citizens' personal rights in every process of law-enforcement and judicial work....The state prohibits illegal detention by law-enforcement personnel....Those who are responsible for illegal detention....shall be subjected to inquiry and punished if found culpable."

III. The significance that raising and resolving the issues raised in the request above will have for makers of national policy, law enforcement officials, and citizens in the current period of social transformation:

From "Legal basis for this application for disclosure of information" and "Why this request for disclosure of information is being made" in Sections I and II above, it is clear:

The RTL system is incompatible with the letter and spirit of China's current constitution and laws and the policies of the ruling [Communist] party. Making the matters in this application public to the applicant and to society in accordance with the law not only fulfills the MOJ's responsibility as a government department to make information public, it also allows facts to speak for themselves and provide policymakers and all of society with the important facts and information necessary in the debate over whether to retain or abolish the RTL system.

[As the saying goes:] "He who cannot manage a single matter will be unable to manage the overall situation." The RTL system and its current implementation have bearing on the vital interests of the people, citizens' supreme rights to life and liberty, and the fundamental difference between good and bad governance. The more a government relies on rule of law, the more it establishes its legitimacy and authority; the more it despises rule of law, its legitimacy and authority will of course be in doubt.

Facing this transitional period in society in which class divisions and conflicts are intensifying daily, rule of law is the only way for a society to solve its own conflicts and [achieve] harmonious, non-violent, sustainable development. The minority of bureaucratic elites who are unwilling to be bound by the law and arbitrarily use such unjust, unlawful methods as RTL to control the people will ultimately bring about negative consequences such as popular resentment and collapse of the regime. At this moment, all of society should stand together and support the government's ongoing efforts to promote rule of law, protect all fundamental civil rights, treat citizens who have been sent to RTL in accordance with the law, and work tirelessly in pursuit of the speedy restoration of personal liberty and provision of fair treatment to all citizens who have been sent to RTL. Doing this will allow even more citizens—including citizens who have been sent to RTL—to become positive forces promoting social reconciliation, harmony, and order and make a historical contribution towards the eventual establishment of a rule-of-law society and the realization of long-term stability!

CC: National People's Congress Standing Committee, State Council, National Human Rights Action Plan Leading Unit

*

Document Two: Response from the Ministry of Justice to Xie Yanyi

Xie Yanyi:

We have received the request to disclose government information you sent to the Ministry of Justice. Our response is as follows:

I. The number of RTL facilities, the number of individuals sent to RTL, and how RTL inmates are being treated is already open government information that has been made public on the MOJ website.

II. The number of individuals sentenced to RTL who have not accepted the RTL decision and have filed petitions for administrative review and the acceptance and success rates of administrative lawsuits all do not fall under the MOJ's scope of administrative responsibility.

III. Statistics on the categories of individuals sentenced to RTL is a state secret, and the MOJ administrative organ does not have the statistics you have requested.

IV. The other information requested falls under the category of state secrets and cannot be disclosed.

Ministry of Justice of the PRC (seal)
June 3, 2009

Related links:

• 政府信息公开申请书（致司法部）, 谢燕益, 5月14日2009年; Government Information Disclosure Request (to the Ministry of Justice), Xie Yanyi, March 14, 2009 (Chinese only)

• 司法部对本人提出的劳教信息公开申请书的答复, 6月4日2009年; Ministry of Justice Response to the RTL Information Disclosure Request Submitted by (Xie Yanyi) (Chinese only)

Six Months Later: What's Next for Liu Xiaobo?

Prominent Beijing intellectual Liu Xiaobo (刘晓波) was taken into police custody on December 8, 2008. The exact reason is unknown, but his detention appears to have been connected to his role as an original signatory of Charter 08, a public appeal to promote human rights and democracy in China. However, authorities may have also been anxious to take Liu—a longtime critic of the Chinese Communist Party—out of circulation before China's year of sensitive anniversaries in 2009.

According to reliable reports, police have been holding Liu under "residential surveillance" (监视居住) in a hotel located in the Beijing suburbs. One of several "coercive measures" (强制措施) provided for under China's Criminal Procedure Law (CPL), residential surveillance authorizes police to restrict a suspect from leaving his or her residence while an investigation is carried out. In this case, police in Beijing appear to have violated the law and applicable regulations by holding Liu in a hotel, rather than his residence. The six-month time limit established by law for this status is set to expire soon, presumably on or shortly after June 8, 2009.

There is some uncertainty about what might happen to Liu when the period of residential surveillance expires—in part because the charge against him has not been made public and few know exactly why he is being held. Though more attention has been paid in recent years to abiding by certain provisions of the CPL, Chinese law-enforcement authorities have in the past frequently ignored legally established rights and time limits, especially in cases like this one that appear to be of a political nature.

It is clear, however, that when the six-month period expires it will be unlawful for Chinese police to simply continue holding Liu Xiaobo under residential surveillance. Some change to his status will need to be made, and no matter what, this change should have significant consequences. Based on a careful reading of the CPL and the associated regulations on implementing the CPL issued by the Supreme People’s Procuratorate and the Ministry of Public Security, Dui Hua believes that Beijing police have the following options open to them:

• They can release Liu and end their criminal investigation.

• They can release Liu on bail pending further investigation. Under this status, Liu would presumably be free to return home but would remain under police monitoring; he would be unable to leave Beijing without permission, required to appear when summoned for questioning, etc. The investigation against Liu would continue. This status can last 12 months.

• They can place Liu under criminal detention and transfer him to a police-run detention center. Normally, this would involve issuing a notice to Liu’s family, specifying the charge, but police could be exempted from this requirement if they make some (in this case, tenuous) argument that doing so would hinder their investigation. In practice, police would be able to detain Liu for 30 days before needing to again decide how to handle his case.

• They could formally arrest him, with approval of the procuratorate. Again, this would normally involve issuing a notice to Liu’s family specifying the criminal charge, but exemptions are allowed under the law under certain circumstances. If police were to formally arrest Liu, they could theoretically keep him in custody in a detention center for up to five months while they continued their investigation.

• They could claim to have uncovered evidence of a new crime and launch a new investigation against Liu, at which point all procedural time limits would be reset.

• Or, they could send his case to the procuratorate for prosecution. At this point, all of Liu’s rights to engage and meet with a defense attorney would automatically take effect. It is true that the procuratorate could decide to place Liu under a further six-month period of residential surveillance, but his status would change significantly with respect to rights as a criminal suspect in comparison to the previous six months.

It seems obvious that, short of releasing him outright, the best scenario for Liu Xiaobo as far as making the charges against him known and restoring his procedural rights would be for the case to be submitted to the procuratorate for prosecution. The CPL simply gives China’s police too much leeway to hold suspects without making the charge known and without allowing access to a lawyer. Unfortunately, sending the case to the procuratorate would be bad news for Liu on another front, as a very high percentage of the political cases that reach China’s courts result in conviction.