The Right to Seek Pardon: From Constitution to Procedural Law

Professors and researchers from China University of Political Science and Law at a forum on Criminal Procedure Law revision and procedural control of the death penalty, September 2011. Photo credit: CUPL.edu.cn

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

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

Dusting Off the Constitution

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

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

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

International Standard

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

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

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

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

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

Can Beijing’s “Black Security” Crackdown Protect Petitioners?

Police in Beijing have launched a six-month campaign to crack down on illegal behavior of the city’s security companies. The campaign claims “zero tolerance” for security contractors involved in “petitioner interception” and “black jails;” however, this involvement is generally sanctioned by local governments keen to keep petitioners out of the capital.

Though long denied officially, the illegal detention of petitioners has been of increasing concern among the Chinese public since the end of 2009. At that time, an in-depth report revealed the role played by local government contractor Anyuanding in the detention, incarceration, and transport of petitioners, resulting in widespread condemnation and a criminal investigation. Partly to curb the abuse of petitioners, Beijing has taken steps to reduce the presence of local “liaison offices” in the capital, but pressure on local governments to “preserve stability” has made it difficult to protect petitioners’ rights.

On December 2 the lead editorial in The Beijing News (translated below) welcomed the announcement of the crackdown but warned that security firms must be held thoroughly accountable, with personnel at all levels punished for their involvement. The editorial also places special emphasis on the need for transparency, urging not only that details of the extent of illegal activity be made public but that police report fully on how they deal with offenders.

Transparency is important partly because, until recently, China’s security companies were monopolized as the revenue-generating ventures of local police. On January 1, 2010, however, new State Council regulations took effect to prohibit police from running security companies, while giving them administrative oversight of the industry.

Yet this Caijing article from April 2011 makes clear that police have had a hard time giving up their monopoly. Police in many areas have apparently been using oversight and registration controls to form patron-client relationships with security companies—some of which may be indistinguishable from companies once run by police. Under these circumstances, it seems natural for The Beijing News to highlight transparency as Beijing probes “black security.”

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Rooting Out “Petitioner Interception” by Security Firms Requires Lawful Punishment

Editorial, The Beijing News

December 2, 2011

How to protect the bottom line that security firms must not participate in “petitioner interception”? Besides a concentrated clean-up and crackdown, it is also necessary to punish involved security companies and personnel in accordance with the law.

According to reports in The Beijing News, Beijing police announced on November 30 that they would be carrying out a six-month campaign to clean up and restore order to Beijing’s security industry, focusing on six types of illegal behavior by security guards. Among them, particular emphasis was placed on strictly prohibiting security service companies from involvement in “petitioner interception” and strictly prohibiting the illegal restriction of the personal liberty of others. Until February of next year, Beijing security guards must carry their security-personnel ID while on duty in an effort to achieve zero tolerance of “petitioner interception” and illegal acts by security service companies.

Now, the security industry certainly needs to be cleaned up and order restored. Targeting “petitioner interception” and other illegal acts by security guards and setting a zero tolerance goal for “petitioner interception” is in line with public opinion and deserves recognition.

Last year, it was revealed that the Anyuanding Security Company took deposits from some local governments to set up several “black jails” and intercept and lock up petitioners. Then in September of this year, Zhao Zhifei, a tourist who came to Beijing from Henan, was mistaken for a petitioner [resulting in] a dozen or so “black security guards” barging into his guesthouse in the middle of the night and escorting him the same night to a town government in Henan. The participation of these “black security guards” in “petitioner interception,” with its illegal detention and pummeling of citizens, not only infringes on the freedom of citizens but also sullies the image of the capital and ought to be punished severely in accordance with the law.

Before, Beijing police have also made many efforts to combat “black security.” For example in July of this year, they discovered and closed one “black jail” and rescued the people being held there illegally, the oldest of whom was 81 and the youngest of whom was still nursing!

This time, a person responsible said that the reason this campaign has set a zero tolerance goal for “petitioner interception” is to remind companies in the industry not to cross the line. How can this “bottom line” be adequately protected? Besides a concentrated clean-up and crackdown, it’s also necessary to punish involved security companies and personnel in accordance with the law.

First, security companies that violate the law should receive appropriate punishment and those that need to be shut down should be shut down. The Security Services Management Regulations issued by the State Council in 2009 stipulate that the security industry must strictly examine and approve entrants. Public security organs are only responsible for the examination and approval of security guards and companies, and management mechanisms have been rationalized. At the same time, the Measures for Implementation of Security Services Management Regulations for Public Security Organs contain explicit provisions for the daily management and punitive measures of security companies. For example, if security companies “instigate or condone security guards’ obstruction of law enforcement, participation in debt collection, or resolution of conflicts through violence or threats of violence,” they can be shut down. This is an important way to achieve “zero tolerance.”

Second, all personnel involved in a case should be punished in accordance with the law to intimidate other violators. When “black security guards” commit acts like intercept petitioners and take people into custody, they are suspected of a crime. Based on relevant judicial interpretations, when an illegal detention lasts for more than 24 hours there should be criminal liability. Clearly, the personnel in charge of the security company as well as guard, support, and other staff all fall under [the category of] accomplices to the crime of illegal detention and should all be investigated. When “black security guards” beat petitioners or steal property, it should be treated as intentional assault, robbery, and so on.

Moreover, fixing [the problem of] “black security” should be open and transparent, giving the public sufficient information. Some cases of “black security guards” intercepting petitioners have such a negative impact that providing the public with the circumstances and developments of the case will restore government credibility. For example, the police have already begun investigations into a group of “black security companies” including Anyuanding and relevant persons in charge have been detained. How the cases are currently progressing; what stage has been reached in the judicial process—the public is actually extremely interested to know this information. Revealing the details of the cases can also better show the resolve of police to combat “black security.” Through these cases, those black security companies that continue to illegally do wrong can be warned and supervision of the entire society can be reminded.

[We] hope, in the course of this six-month campaign, that some “black security” companies are shut down because of it and the relevant people responsible are held accountable in accordance with the law. Otherwise, it will not be enough to intimidate violators and it will not be enough to promote the righteousness of the capital.

Taming Police Influence in Politico-Legal Committees

The overlap of administrative and Communist Party bureaucracies and party control over bureaucratic appointments mean that Chinese officials often wear many hats. Giving a single official simultaneous leadership posts cements party interest in the administration of government and allows various bureaucratic interests to be represented in policymaking. One way to judge an official’s political clout is to look at how many leadership posts he or she occupies at once.

Since 2002, concurrent appointments in powerful party and government leadership groups (领导班子) have indicated an increase in the amount of power granted to China’s police chiefs. One common arrangement at the provincial, prefectural, and especially county levels has been to name the same person as head of the public security organ and the “politico-legal committee” (政法委) within the local party organization. Due to a 2010 party directive discussed in a recent article by Guangzhou’s Southern Weekly, this arrangement may be coming to an end, but the change won’t necessarily mean any diminution of police power.

Entering the Inner Circle

The politico-legal committee is one of the least-understood components of the Chinese criminal justice system. This is largely because the Communist Party has not provided many details on its structure, internal rules, and day-to-day operations. Established at each level of the party’s leadership bureaucracy, from the central government down through China’s counties and urban districts, these committees are responsible for overseeing, coordinating, and managing the work of police, procuratorates, courts, and judicial administration organs.

Particularly at and below the provincial level, politico-legal committees frequently play an active role in the process of administering justice. Represented by high-ranking officials from public security, procuratorates, courts, and judicial administration institutions, the committee serves as a channel through which the interests of these institutions can be coordinated in pursuit of broader policy goals, such as fighting crime or preserving social and political stability.

In 2002, when Zhou Yongkang (then Minister of Public Security) was named to the Politburo and the State Council, it marked a clear elevation in the status of the public security system within the party-state organization. Throughout the country, heads of local public security bureaus joined their respective party and government “leadership groups,” often as members of the standing committee of the local party committee and as secretary of that committee’s politico-legal committee.

Politburo member and Politico-Legal Committee Chairman Zhou Yangkang presides over a plenary
meeting of the Central Politico-Legal Committee in Beijing, October 19, 2011.
Photo credit: Zhang Duo, Xinhua

In practice, this has tended to give police the greatest say in decision-making among China’s various legal institutions. Welcoming public security chiefs into the leadership group has generally increased the political clout of the police, giving them better access to personnel and budget allocations and facilitating the mobilization of political support for security interests.

Honorary Chief of Police

The arrangement, however, carries a significant downside. Instead of giving a sitting police chief a spot within the local leadership group, the more common practice has been to appoint an official who is already part of the leadership group as head of the public security bureau. As a result, many police chiefs have little to no experience in law enforcement and spend much of their time in administrative and party meetings with no direct relation to police work.

Having the same person head both the public security organ and the politico-legal committee also tends to create imbalance between the various institutions charged with enforcing and administering the law. With the head of police managing a committee responsible for “coordinating” the interests of public security, procuratorates, and courts, conflicts are bound to be resolved in favor of police interests—as, for example, when the committee intervenes in a criminal case in which the procuratorate refused to grant police approval for arrest.

Yang Haiyun, who until earlier this year headed the public security bureau and politico-legal committee in Huangzhong County, Qinghai Province, acknowledged that this arrangement tends to have a detrimental effect on the ability of procuratorates and courts to exert proper oversight. In 2010, National People’s Congress Deputy Wu Xiaoling urged an end to the practice of “putting the monitored in charge of the monitors.” Soon thereafter, according to Southern Weekly, the Central Organization Department of the Communist Party issued a directive that would prevent the heads of provincial-level public security departments from simultaneously heading provincial politico-legal committees. As of late October 2011, 22 of China’s 31 provincial-level politico-legal committees had complied.

This is not likely, however, to mean that the overall authority of China’s public security apparatus will diminish. The same 2010 directive still calls for public security chiefs to be members of the leadership group or party organization within the same level of government. So while the directive seeks to address the imbalance of power between public security, procuratorates, and courts that became institutionalized in the politico-legal committee, it also preserves a policymaking role for public security so as to maintain its preeminence in preserving public order and socio-political stability.

Protect Youth, Rights, Clarify Custody and Rehabilitation

The 15-year-old son of Li Shuangjiang, a retired People’s Liberation Army general known for singing patriotic songs, became the subject of scandal in September after reports emerged that he had assaulted a couple in a traffic incident and then warned bystanders not to notify police. The incident fueled intense online criticism from a public fed up with bad behavior and assertions of privilege by children of the rich and powerful.

News that Li’s son would serve one year in “custody and rehabilitation” may have satisfied some of these critics, but it prompted legal scholar Liu Renwen to reflect on shortcomings of the system of custody and rehabilitation—a system intended to protect juveniles who have not yet reached the age of criminal responsibility but that in fact resulted in consequences for Li’s son that in Liu’s opinion were too harsh. In commentary published by The Beijing News, Liu proposes reforms to better protect the rights of young people and improve China’s compliance with its obligations under international human rights law. He argues for greater restrictions on the use of custody and rehabilitation and the transfer of decision-making power from the police to the courts. (Liu is the Criminal Law Department director at Chinese Academy of Social Sciences’ Institute of Law; he also frequently comments on issues related to capital punishment.)

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Custody and Rehabilitation System Needs Improvement

Liu Renwen, The Beijing News

October 8, 2011

Recently, Li Shuangjiang’s son Li X was sentenced by Beijing police to one year of custody and rehabilitation because he created a serious disturbance while under the age of criminal responsibility. This incident has turned the public’s attention to the system of custody and rehabilitation.

The legal basis for the system of custody and rehabilitation originates in Article 17(4) of the Criminal Law: “If [an individual] is not given criminal punishment because he/she has not reached the age of 16, the head of his/her family or his/her guardian shall be ordered to discipline [the individual]. When necessary, the government may take [the individual] into custody for rehabilitation.”

Looking at the original intent of the legislation, this provision was meant to resolve the following problem: Individuals who commit socially harmful acts but have not reached the age of criminal responsibility can neither be labeled criminals nor be simply ignored. So, the system of custody and rehabilitation was created as something akin to a security disciplinary measure.

However, practice shows that this provision has some areas that need to be improved. Specifically, this can be seen in, first of all, the vagueness in the standard for application. What, ultimately, is meant by “when necessary”?

I believe that we should establish the following basic criteria:

First, if the family has the ability to discipline, there is no need for the government to take [the juvenile] into custody for rehabilitation. Only for a juvenile that does not have family or whose family is unable to discipline should the government take [the juvenile] into custody for rehabilitation.

Second, if there is a family and a parent or guardian willing to carry out discipline, as a matter of principle, the family should carry out discipline for a first offense. If there is a second offense, however, custody and rehabilitation should be considered.

Third, in some vicious cases, even if [the juvenile] has a family and a parent or guardian willing to carry out discipline, if, out of overall consideration of the harmful consequences to society of the [juvenile’s] actions and the dangerous nature of the [juvenile’s] character, it is felt that there is need to send [the juvenile] to a custody and rehabilitation facility to carry out the necessary correction and behavioral intervention, custody and rehabilitation may be used even for a first offense.

In sum, [we] cannot regulate as vaguely as we do now with words like “when necessary.” This is too flexible and does not benefit the seriousness of law enforcement. In the case of Li Shuangjiang’s son, many believe that Li Shuangjiang’s notoriety led Li X to be treated unfairly, as custody and rehabilitation would not generally be used under these circumstances. Instead, a parent or guardian would [normally] be ordered to do the disciplining.

Next, there are flaws in the procedure used [for custody and rehabilitation]. [Although the law stipulates that] “the government may take into custody for rehabilitation,” in practice, the public security organ carries out custody and rehabilitation on behalf of the government. According to relevant regulations of the Ministry of Public Security, the duration of custody and rehabilitation generally ranges from one to three years. Deprivations of liberty for such a long period of time, without first conducting a court trial, are unreasonable.

China has already signed the International Covenant on Civil and Political Rights, which holds that all deprivations of liberty, regardless of whether in criminal or other proceedings, must be determined by a “competent, independent, and impartial tribunal established by law.”

With this spirit as a starting point, [we] should reform the procedure used for the system of custody and rehabilitation to transfer the decision-making power from its current holder, the public security organ, to the courts and to give individuals subjected to custody and rehabilitation and their parents or guardians the right to an open-trial hearing, the right to appoint a defense lawyer, and the right to appeal.

Otherwise, this awkward phenomenon will occur in practice: Legislation that was originally intended to protect juveniles results in an individual who has reached the age of criminal responsibility having the right to an open-trial hearing, the right to obtain a defense lawyer, and the right to appeal, while an individual in the same case who has not reached the age of criminal responsibility loses all of these procedural protections. This is clearly unfair.

Some may say that custody and rehabilitation does not involve labeling a [juvenile] as a criminal, and thus, relatively speaking, it still protects [the juvenile’s] interests. The problem is that this kind of protection cannot be at the expense of proper procedure, since this kind of protection can in fact be fully realized through a court decision.

Finally, the duration and implementation of custody and rehabilitation also have room for improvement. The current term of one to three years of custody and rehabilitation is too long and should be shortened. Also, there are currently no standards for the management of custody and rehabilitation facilities, and the methods of custody and rehabilitation used are too homogenous. We need to think seriously about how to truly come up with effective methods of education, reform, and rehabilitation that are based on juveniles’ physical and psychological characteristics, rather than simply locking them up in what even turns into [a kind of] disguised criminal punishment.

Liu Renwen, Researcher and Criminal Law Department Director, Institute of Law, Chinese Academy of Social Sciences

In Chinese Lawmaking, Draft Disclosure Fosters Democracy

In China’s legislative process, public consultation is a relatively new phenomenon that is neither formalized nor routine. The handling of two recent pieces of important legislation suggests, however, that members of the public may begin to get more of a say in how their laws are written.

This would be a welcome turn of events for law professor Wang Lin. In commentary published by the Economic Observer (translated below), Wang recently wrote about the importance of public access to legislative drafts, in particular the criminal and civil procedure laws, as a means to democratize the legislative process.

The 11th NPC Standing Committee reviewing proposed drafts.  
Photo credit: npc.gov.cn

Though not nearly as devoid of debate as implied by the caricature of “rubber-stamp parliament,” the National People’s Congress (NPC) nevertheless remains some distance from being a democratic institution. Much of the process of drafting and deliberating legislation takes place behind closed doors. Because NPC deputies are not chosen through broad-based popular election, the national legislative body is a poor reflection of the increasingly complex and fragmented interests in Chinese society.

In the absence of electoral democracy, one way to give citizens more influence over policymaking is to establish institutions for public consultation and a greater role for public opinion. Public debate and discussion over legislation, Wang argues, will contribute to laws that are more easily accepted by society than laws passed without public comment. Citizen input in the drafting of procedural legislation is particularly important, given that these laws have direct relevance to the ways in which citizens’ rights may be exercised.

Wang’s essay was apparently written between the first release of information about proposed changes to the Civil Procedure Law on October 24 and the time the full text of the amended draft was published by the NPC Standing Committee on October 29. Similarly, official release of the draft of the amended Criminal Procedure Law followed initial media reports by a few days. For both pieces of legislation, the days preceding publication of the drafts were filled with a mixture of government propaganda and critical commentary, much of which was based on uncertainties about the specific wording of certain provisions.

In the case of the Criminal Procedure Law, Wang writes that the ultimate decision to publish the full text was a response to criticism of the proposed amendments. However, the gradual release could also be interpreted as a deliberate means for officials to control the grounds of debate and adapt publicity strategies to the public’s initial response. In fact, the gradual release of the less controversial amendments to the Civil Procedure Law demonstrates that delays are not necessarily indicative of strong public pressure.

Wang notes that in 2008 the NPC Standing Committee made a general commitment to publish draft legislation and seek public comment, but this process has yet to be firmly institutionalized. A possible reason is that China’s limited experience with public consultation has not always been easy. After being first published in 2002, a historic and controversial Property Law was forced by public scrutiny to undergo numerous revisions and withdrawn from consideration by the NPC before finally passing in 2007.

The general messiness democracy typically creates poses a challenge to the Chinese government, which has conventionally prized flexibility and efficiency as drivers of development. Wang maintains, however, that the benefits of a more democratic legislative process ultimately outweigh the short-term costs, and thus he advocates the full integration of public consultation into the legislative process.

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Publicize Legislative Drafts to Promote a Democratic Legislative Process

Wang Lin, Economic Observer

October 30, 2011

     On October 24, the 23rd meeting of the Standing Committee of the 11th National People’s Congress reviewed the Draft Amendment of the Civil Procedure Law. According to reports, the draft will relax [restrictions on] public-interest litigation, and “relevant organs and mass organizations” will be allowed to act as plaintiffs in public-interest lawsuits filed with people’s courts.

     These reports led to much public discussion, but without additional sources of information, reporters and commentators have been left to play guessing games. Besides China’s ever-elusive “relevant organs,” [the term] mass organizations has also been subject to many different interpretations. In particular, use of the traditional phrase “mass organization” instead of the more broadly defined “social organization” has led the media to worry that the draft excludes the up-and-coming [sector of] non-governmental and nonprofit organizations from [the category of] possible plaintiffs in public-interest litigation.

     It is precisely because of the dearth of publicly available legislative information that public opinion has resorted to so much speculation and the legislative debate cannot properly begin. Two months ago the Draft Amendment to the Criminal Procedure Law was also the subject of heated debate after scholars first revealed [its content], and only after widespread calls from public opinion did the legislative organ publish the draft. In the August 26 edition of the Economic Observer, I called for a “public debate platform for the revision of the Criminal Procedure Law.” Of course, this “platform” is not only for the revision of the Criminal Procedure Law; it should be used for all NPC legislation. Specifically, [the entire process] from legislative planning to drafting, to first reading, final review, and passage should all be made public. Not only should the progress of legislation be made public; the drafts under review and the proposed changes should all be announced promptly.

     Legislative drafts concern the public interest and are a prerequisite for legislative debate. There is absolutely no reason why they should be hidden in black boxes. Law is the art of compromise, a reflection of the opinion of the majority. Article 5 of the Legislation Law stipulates clearly: “Lawmaking shall reflect the will of the people, promote socialist democracy, and ensure that people are able to participate in legislative activities through various channels.” Ensuring citizens’ participation in the legislative process is a responsibility that the legislative organ cannot evade.

     Confined by the limitations of legal statute, the constitution and Legislation Law only set forth a few principles of democratic lawmaking. Saying “ensure that people are able to participate in legislative activities through various channels” still requires the legislative organ to establish detailed regulations to put this into practice. Mere principled provisions without institutional protections mean that, after many years, “various channels” really means “no channels.”

     At a time when it has become almost routine not to publicize legislative drafts, citizens have no room for timely participation in the legislative process. They take no interest in lawmaking, which results in passed legislation that lacks legitimacy. When the legislative organ itself is passive in its implementation of the constitution and the law, how can one expect the government, legal entities, and individual citizens to observe the law in an active way?

     Lenin once said: “It would be absurd to speak of democracy without publicity.” Compared to “democratic lawmaking,” a “draft” inside a black box or “made public within a small circle” also looks rather “absurd.”

     It should be admitted that, in the last few years, the legislative organ has been opening the door wider and wider to accepting public participation in the legislative process. Back in April 2008 the Chairmen’s Council of the NPC Standing Committee decided that legislative drafts being reviewed by the NPC Standing Committee would thenceforth generally be made public, and opinions broadly sought from the public. Based on that decision, on April 20 [of that year], the General Office of the NPC Standing Committee published the full text of the Draft Food Safety Law.

     Without a doubt, the decision by the Chairman’s Council to generally make legislative drafts public has greatly strengthened democratic lawmaking and benefited the legislative debate. In fact, every legislative draft that has been made public and for which opinions have been sought in recent years has attracted positive response and participation from the public. Of course, the deepening of legislative debate means that more legislative resources are needed to collect, balance, and accommodate public opinion. Objectively speaking, it increases the workload of the legislative organ and, in reality, makes it more difficult for drafts to gain passage. The fragmentation of society means that different interest groups will have different expectations with respect to legislation. These conflicts of interest must be discovered and resolved during the legislative stage—this is actually the lowest-cost way to resolve [such] conflicts. If you wait until after a law has been unveiled, [people] don’t accept the new law because they did not participate in the lawmaking [process]. This leads directly to opposition and passive violations, both of which come at much greater cost.

     While the draft revision of the Civil Procedure Law is generating public attention, work is underway on revision of the Administrative Procedure Law. [The policy of] “generally” making drafts public should [instead become] publicity as a matter of principle. Revision of the three major procedural laws does not involve state secrets, and the legislative organ should take the initiative to make [the drafts] public. There is no need to wait for the media to begin exposing [aspects of] the drafts before being forced to act. Public speculation because of the non-disclosure of information is actually a waste of valuable social resources, and the longer legislative debate is put off, the more acute the mutual lack of trust between different interest groups becomes. The earlier you make things public, the earlier you can reap the benefits. I look forward to the day that the publication of legislative drafts becomes institutionalized and hope that two months from now I won’t be writing an article calling for the release of the Draft Amendment to the Administrative Procedure Law.

The author is an assistant professor at the Law School of Hainan University.

As Execution Reports Decline, Law Expert Challenges "Secret" Status

In 2010 Dui Hua recorded 700 Chinese executions in a systematic review of open-source materials for the year ended September 30. This year the same research methodology showed a 35 percent decline in reported executions. Neither figure comes close to the actual number of executions in China, which is a closely guarded state secret.

Does this mean that China has curbed its use of the death penalty?

Not necessarily. Amnesty International estimates that China put “thousands” to death in 2010, and there is little reason to expect a change of more than 10 percent from Dui Hua’s 2009 estimate of about 5,000 executions, a number that the government has neither confirmed nor denied. (A source in China’s judiciary recently advised a Dui Hua staff member that the number of executions had in fact decreased in 2011. The source, who is believed to have access to the actual number of executions, declined to give a percentage for the decrease.)

A public sentencing in Chengdu in 2010. Some were sentenced to death.
Photo credit: Beijing Morning Post

Given this and strict media controls in China, the 452 executions recorded during the past year serve as a minimum number for comparison and a bleak reminder of how little is known about the death penalty in China.

Open Secret

Chinese media reported fewer executions over the past year but published no shortage of articles on the death penalty itself. Controversies surrounding several notorious cases and the decision to reduce the number of capital offenses contributed to an ongoing public discussion about the death penalty and its place in the criminal justice system.

Capital punishment is rather unique among controversial criminal justice issues in that it has garnered relatively wide-ranging and sustained public debate involving a diversity of viewpoints. One subject that has been raised periodically is whether China is justified in its policy of refusing the public’s right to know how many people it puts to death.

Although the Chinese public is often described as favoring capital punishment, they don’t necessarily favor the secrecy that surrounds it. According to a general survey of Chinese attitudes towards the death penalty conducted in 2007 and 2008, 64 percent of respondents thought the government ought to reveal execution numbers.

After much debate, Li Changkui was sentenced to death by the
intermediate court. Photo credit: Yunnan Intermediate People's Court

Writing in support of this view in a commentary recently published by Guangzhou’s Southern Metropolis Daily, Peking University law professor Zhang Qianfan rejects the government’s legal basis for classifying execution statistics as state secrets. Noting heated debate sparked this year by the capital cases of Yao Jiaxin and Li Changkui, Zhang argues that the public cannot speak rationally about abolition, or other topics, with little access to anything but sensational reports. Zhang calls for increased transparency in the number and nature of China’s death sentences.

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Death Penalty Numbers Are Not “State Secrets”

Zhang Qianfan, Southern Metropolis Daily

September 9, 2011

Recently, the Yao Jiaxin and Li Changkui cases have generated heated debate over abolition of the death penalty and put the ongoing reform of death penalty sentencing in a difficult position. Actually, both cases involve extremely heinous circumstances that gave rise to considerable public anger. So in terms of a general discussion of whether to abolish capital punishment, they are not representative, and thus not sufficient to stop the general reform of the death penalty.

With these two extreme cases as a backdrop, people have at most been discussing the question of “whether extremely heinous murderers should be spared the death penalty.” But each year there are only a handful of cases like these that become the subject of widespread public attention—what about other death sentences? Even people who support the death penalty for Yao Jiaxin and Li Changkui won’t necessarily oppose sparing the lives of offenders [if] the circumstances of their crimes are not as horrifying, and not to mention, of course, those who have been wrongly convicted. This raises the question: just how many death sentences do we have every year? What kinds of cases are they? When the criminal law currently requires the death penalty with immediate execution for so many cases, can the public accept a decision to forego immediate execution? Without knowing so many of these basic facts, any so-called “discussion” about abolition of the death penalty can be little more than an emotional reaction.

But not only do we not open death penalty sentencing to the public—even the number of death sentences is a closely guarded secret. Everywhere the number and nature of executions are spoken about only vaguely, even to the point that the number of death sentences is called a “state secret.” What is the so-called “state secret”? To answer this, I purposefully read the Law on the Protection of State Secrets that was just amended last year, in which Article 9 sets the following condition for protecting secrets: “Any matter concerning state security or interests that, if leaked, might damage the security or interests of the state in areas such as politics, economics, defense, or foreign relations shall be classified as a state secret.” What sorts of things, specifically? Poring over the six items [enumerated under Article 9], the only things I found of any relevance were Item 1, “secret matters of major policies related to national affairs,” and Item 6, “secret matters related to activities for the protection of state security and the investigation of criminal offenses.” But can such a small thing as the number of death sentences amount to “major policies related to national affairs”? Can revealing this number, the result of proper court adjudication, be a “secret matter related to the protection of state security and the investigation of criminal offenses”? Even if these two [provisions] are themselves more than a little “flexible,” to use them to determine that the number of death sentences amounts to a “state secret” is clearly a “stretch” of the imagination.

Of course, no Chinese law would be complete without a “pocket clause.” Besides the six items mentioned above, there is a last item: “other secret matters that have been classified by the state secrets administration agency.” This “state secrets administration agency” must mean the State Bureau for the Protection of Secrets and not any other central offices or local agencies for the protection of secrets. For the time being, let’s not say whether the State Bureau for the Protection of Secrets has officially classified the number of death sentences as a “state secret”; even if it had it would not be etched in stone and beyond question. Clearly no office or individual can unilaterally say what constitutes a “state secret”; it must meet legal conditions, the least of which is the precondition in Article 9 of the Law on the Protection of State Secrets: [namely, that] “if [the matter is] leaked, [it] might damage the security or interests of the state in areas such as politics, economics, defense, or foreign relations.” Can “leaking” the number of death sentences really damage the political, economic, or diplomatic “security or interests” of China? Will it give others a way to attack our “human rights situation”? This kind of “pretext” might, in certain people’s eyes, “damage China’s image,” but, in fact, as far as China’s “security and interests” are concerned, there is no harm and many benefits. When you come right down to it, human rights are our own, our lives are our own. If making the number of executions public can provide a factual basis upon which to have a rational discussion about the abolition of capital punishment and reduce the number of unnecessary death sentences, the Chinese people themselves should be happy—what’s the point in worrying about what others think or say?

Although the Regulations on Disclosure of Government Information have been in force for nearly five years and the Law on the Protection of State Secrets has narrowed the scope of “state secrets,” there has been no fundamental change in the reality that “state secrets are everywhere you look.” Officials at all levels can easily put a “state secrets” stamp on any information they are unwilling to make public, causing the public discussion of serious issues to lose basic, factual foundations. The number of death sentences and executions is a classic example. Even though judicial information is not necessarily subject to information disclosure regulations, it is information that the public has a right to know since it does not qualify as a “state secret” under the Law on the Protection of State Secrets, and no agency has the right to refuse to reveal this number. Only when the number of executions is made public can China’s rational debate on abolition of the death penalty begin.

The author is a professor of constitutional law at Peking University.

Increased Use of Bail a Double-Edged Sword

China’s detention centers are bursting at the seams. Overuse of pre-trial detention is a big part of the problem, and researchers have been seeking new ways to reduce unnecessary confinement. Now, following on the heels of a major study conducted by the Supreme People’s Procuratorate (SPP), a proposed amendment to the Criminal Procedure Law (CPL) raises the use of bail* as a means to reduce excessive detention—but the cost may be stronger public surveillance.

Status Quo

Originally built to hold 160 detainees, the Fei County Detention Center in Shandong Province held 348 criminal suspects and defendants in April 2011. Such overcrowding, however, is neither an isolated occurrence nor necessarily symptomatic of high rates of serious crime. In this largely rural county of just under one million, more than 65 percent of detainees are likely to be given suspended or otherwise non-custodial sentences (indicating relatively minor offenses), while in many places, around 60 percent of criminal-court verdicts result in light sentences of three years’ imprisonment or less, including non-custodial punishments.

Despite this, SPP data for the last 10 years indicate that, on average, arrest is approved for more than 85 percent of criminal suspects, and the vast majority remain behind bars through trial.

Police reading conditions of bail to a detainee in Guiyang. Photo credit: www.gog.com.cn

There are complex reasons behind China’s tendency to detain suspects for the entire pre-trial period. First, as Hunan National People’s Congress (NPC) Deputy Qin Xiyan has noted, China’s criminal investigators tend to use incarceration as a substitute for investigation, a practice that both derives from and reinforces the emphasis given to obtaining confessions. Such reliance on incarceration and confession not only promotes torture, but hinders the development of better investigatory methods and limits the development of a more professionalized investigatory force.

Second, police performance is partially measured by the rate at which arrests are approved, meaning, as explained by Dan Wei, a researcher at the SPP’s Institute for Procuratorial Theory, that there is a tendency to seek arrest solely on the basis of whether there is evidence of a crime and ignore other legally mandated criteria like the prospect of a fixed-term sentence and the necessity of arrest. Even though the CPL gives suspects, their family members, and their legal representatives the right to request pre-trial release on bail or into residential surveillance, these requests are handled by the same institutions that make the initial decisions to arrest, without independent review, and are not subject to appeal. (Rough, anecdotal data suggest that about 15-20 percent of suspects were released on bail in 2010 and that the figure will increase by only a few percentage points in 2011.)

Finally, sensational and politicized notions of crime-fighting and stability put pressure on authorities to keep criminal suspects in custody, even when alleged offenses are relatively minor. Thus the fear of a public outcry or the possibility of escape or additional offense, no matter how unlikely, promote the overuse of pre-trial detention and ultimately drain scarce resources that could be used to improve social services or, often cited for poor sanitation and torture, detention centers.

Pilots, Prospects …

Given current abuse of pre-trial detention, there is reason to be cautiously optimistic about a new provision that has been added to the draft CPL revision announced by the NPC in late August. The provision would explicitly empower the procuratorate to review the necessity of continued detention of individuals who have been formally arrested and to recommend release via other measures when the criteria for further incarceration are no longer met.

This provision stems from a three-year study conducted by the Supreme People’s Procuratorate that explored ways of reducing high rates of pre-trial detention. Led by SPP researcher Dan Wei, the investigation involved visits to more than 200 detention centers, interviews with more than 5,000 criminal suspects, and a pilot study involving detention centers in 20 locales nationwide. In a March interview with Legal Daily, Dan noted that procuratorates already have the authority to monitor detention centers but that this authority has rarely been accompanied by specific mechanisms that enable implementation sufficient to safeguard detainee rights. He thus developed an 11-point scheme as part of the study to help procuratorate officers normally resident in detention centers evaluate the necessity of continuing to hold arrested suspects.

The pilot project appears to have yielded some positive results. In the abovementioned Fei County, 183 detainees were evaluated between October 2009 and April 2011.The procuratorate found that 46 of these individuals met the requirements for release, and, of these, the public security organ released 37. During the same period, 433 detainees were evaluated in 10 detention centers in the city of Yichang, Hubei Province. All of the 35 individuals found to be unnecessarily detained were released, with no negative impact on the legal process reported in any of the cases.

… and Politics

These results are promising, if somewhat limited. Given that these measures do nothing to lower high rates of arrest, reducing reliance on pre-trial detention means expanding use of non-custodial measures, including bail and “residential surveillance,” that may have negative consequences, especially in political cases.

Bail has generally been granted infrequently for political prisoners, though there has been an increase in its use over the past year. A case in point is the release on bail of Ai Weiwei in June, following 81 days of secret detention in a case ostensibly about tax evasion. Several others detained this year for alleged offenses connected with the so-called Jasmine Revolution were also later released on bail—many on the condition that they not speak publicly about their detentions.

Left: Beijing legal lecturer and activist Xu Zhiyong was arrested for "tax evasion" on July 29, 2009. He received bail on August 23, 2009. Nearly one year later, on August 21, 2010, the charge against him was dropped. Photo credit: Beijing lawyer Peng Jian

Right: Artist and activist Ai Weiwei was arrested for "tax evasion" on April 3, 2011. On June 22, 2011, it was announced that Ai had been released on bail. The investigation is still pending. Photo credit: Reuters

Professor Jerome Cohen of the US-Asia Law Institute at New York University has noted the way in which release on bail has frequently been used as a “face-saving” measure whereby detainees in sensitive cases may be released without authorities having to acknowledge wrongdoing or lack of evidence. In many of these recent cases, bail also appears to be a way of using legal means to wrap up detentions that were intended as punishment or intimidation, rather than as part of an investigation intended for further prosecution.

Similarly, rights activists, lawyers, and the media have raised serious concerns about provisions in the draft CPL revision for another non-custodial measure—residential surveillance. As with bail, expansion of the use of residential surveillance could significantly help to decrease the rate of pre-trial detention in China. But the proposal would also authorize placing an individual suspected of endangering state security (ESS), terrorist activity, or serious cases of bribery under “residence surveillance” in a designated location other than the suspect’s residence without requiring that a family member be notified, if it were felt that notification had the potential to impede investigation. If enacted, this would effectively legitimize the kind of long-term, enforced disappearance that has been increasingly used against dissidents and activists—most notably Nobel laureate Liu Xiaobo—who are often charged with ESS crimes like inciting subversion.

In other words, expanding the use of non-custodial measures is potentially double-edged. Procuratorial oversight is welcome as a means to reduce excessive rates of detention and better protect suspects’ legal rights. But suspects’ rights must also be protected outside of detention centers. Further guarantees are necessary to ensure that the expansion of bail and residential surveillance does not facilitate the intimidation and punishment of critical voices through legal formalities lacking proper legal process.

Note: *When discussing the Chinese system, “bail” refers to 取保候审 (qubao houshen), which we translate as “obtaining a guarantee pending further investigation or trial.” The Criminal Procedure Law allows for the imposition of this procedure at any stage of a criminal investigation or prosecution. Professor Jerome Cohen of the US-Asia Law Institute explains that, pursuant to qubao houshen, investigations can go on for up to one year, during which suspects are generally restricted to their city of residence.

State Security Indictments Remain at Historic Highs

Criminal justice statistics published in the 2011 China Law Yearbook (中国法律年鉴) offer more evidence of the heavy security crackdown that has been underway in China since 2008.

According to included Supreme People’s Court data, Chinese courts tried approximately 670 cases involving “endangering state security” (ESS) charges in trials of the first instance in 2010, down only slightly from the previous year’s high of nearly 698. (As in previous years, court statistics published in the yearbook combine the number of ESS trials with trials for “dereliction of duty by military personnel” in a category simply labeled “other.” Based on consideration of additional data, however, Dui Hua can say with a high degree of confidence that 99 percent of trials covered in this “other” category are ESS cases.)

During the decade from 1998—the first full year after ESS crimes were included in the criminal code—through 2007, courts averaged only 289, or 132 percent fewer, ESS trials per year.

Concluded Endangering State Security Trials, 1998‒2010

Note: Limited to trials of first instance. Source: China Law Yearbooks, Dui Hua

Chinese authorities use ESS crimes in their effort to suppress political dissent in the name of protecting national security. Provincial statistics and Dui Hua’s database of political prisoners indicate that subversion, “splittism,” and incitement are the chief offenses for which individuals are charged with ESS.

Meanwhile, statistics from the Supreme People’s Procuratorate (SPP) continue to show that authorities arrested and prosecuted individuals on ESS charges at historically high levels, with 1,045 arrests approved for ESS in 2010, and 1,223 individuals indicted. Both figures slightly exceed estimates Dui Hua produced earlier this year using incomplete data that the SPP included in its report to the National People’s Congress.

Individuals Indicted for Endangering State Security, 1998‒2010

Note: Limited to trials of first instance. Source: China Law Yearbooks, Dui Hua

Trends in yearbook data clearly show that endangering state security has become a major focus of China’s law enforcement system since 2008, a period that has seen a marked emphasis on stability due to the Beijing Olympics; high-profile commemorations such as the 60th anniversary of the founding of the People’s Republic of China; and increased levels of ethnic unrest, exemplified in part by the violence that broke out in Lhasa in 2008 and Urumchi in 2009.

In January 2011, the president of the Xinjiang Uyghur Autonomous Region (Xinjiang) High People’s Court announced that courts there concluded 376 trials for ESS offenses in 2010. If this figure is limited to first-instance trials, Xinjiang would account for more than half of all ESS trials reported in China for that year. While the scope of this data remains unclear, other evidence indicates that the majority of ESS trials are brought against ethnic minorities, many of whom with roots in Xinjiang and Tibet.

For example, of the 36 ESS cases recorded in Dui Hua’s prisoner database for 2010, only three involve Han Chinese. Though stark, this data point also clearly demonstrates the scarcity of reliable information available on ESS cases.

While providing information on the number of trials, the 2011 yearbook does not include the number of individuals convicted of endangering state security. SPP data show that, on average, ESS cases involve more individuals than criminal cases taken as a whole—the overall ratio of individuals per criminal indictment has remained consistent at around 1.5 since 1998 versus roughly 2.5 individuals per ESS indictment during the same period and nearly 3.0 individuals per ESS indictment between 2008 and 2010, but there is too much variation in the data to produce meaningful estimates of the number of people convicted.

Although the exact number of ESS convictions remains a mystery, it seems evident that heightened state security concerns are here to stay. China’s recent white paper on peaceful development included the political system as one of its “core interests,” a measure that reinforces the close identity between Communist Party rule and Chinese national security. Given that popular uprisings have toppled authoritarian rulers in Tunisia, Egypt, and Libya, and the heightened anxiety surrounding the leadership transition expected during China’s 18th Party Congress in 2012, there is little to suggest any imminent political reform of the decades-old policy of ensuring “stability above all else.”

Sealing Juvenile Records: From Pilot to Practice?

After years of study, China is starting to take important steps to reform its juvenile criminal justice system. Balancing leniency and severity as a means to prevent recidivism, Chinese law enforcement officials have been exploring measures like delayed prosecution, non-custodial punishment, and community corrections.

Earlier this year, China’s Criminal Law was amended to exempt individuals from reporting light, juvenile criminal records when seeking employment or military enlistment. Now it is no longer necessary to disclose sentences of five years’ imprisonment or less (including suspended sentences and other non-custodial penalties) for crimes committed before the age of 18. Meanwhile, a draft revision of the Criminal Procedure Law (CPL) currently under consideration would require that judicial organs and other government bureaus strictly limit the release of such records.

Sealing Juvenile Records.
Image Credit: Southern Daily

The sealing of juvenile criminal records can have a significant impact on an individual’s future, as even relatively light criminal offenses can limit opportunities for education and employment. According to a study by the Tianning District People’s Court in Changzhou, Jiangsu Province, 16 of 98 juvenile offenders given non-custodial sentences over a five-year period were unable to obtain employment because of their prior criminal records. Proposed CPL revisions come as several locations throughout the country are still experimenting with new ways of dealing with the juvenile records.

Typical are regulations that took effect in Changzhou on August 1. These regulations allow juvenile offenders, their guardians, or their relatives to petition courts to seal records of first offenses punished by no more than five years’ imprisonment. Before sealing, courts must scrutinize an individual’s post-conviction behavior and sincerity of remorse; after sealing, records can be unsealed upon further offense.

The new draft CPL does not appear to require courts to take offenders’ behavior or attitude into consideration when sealing records nor to provide for unsealing records after an additional offense. The variations between proposal and pilot demonstrate the importance of implementation, which will depend on concrete measures established by the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security.

Once drafted, these measures may also clarify whether individuals who commit certain offenses will be excluded. Under current regulations in Changzhou and other locales, individuals convicted of endangering state security, terrorism, or organized criminal activity are not eligible to have their records sealed. Such limitation seems to go against the spirit of the law, given that neither the amended Criminal Law nor the proposed CPL provisions make any mention of offense categories in connection with juvenile criminal records.

Several legislators and legal practitioners attending a recent conference—hosted by the All-China Lawyers Association Professional Committee for the Protection of Juveniles and the Beijing Juvenile Law Research Association—on the proposed provisions expressed concern that sealing criminal records was insufficient. Instead, they advocated expunging records fully after a specified period of time.

Despite having one of the worst juvenile crime rates in the country, Guangdong Province recently announced a plan to test expunging as a means of expanding efforts to help juvenile offenders re-enter society. From 2004 to 2009, Guangdong courts heard the criminal cases of more than 43,000 juveniles, accounting for 10 percent of all criminal trials in the province. Since 2009, Guangdong's procuratorates have prosecuted more than 23,000 juvenile offenders, 70 to 80 percent of whom are the children of migrant workers drawn to the Pearl River Delta's export manufacturing center. 

Guangdong intends to expunge the criminal records of those sentenced to non-custodial punishment and to limit the release of any record of arrest or criminal investigation that did not lead to prosecution. (On experiments already underway in Beijing, please see this earlier report.)

Inevitably, given the overall concern with social stability in China, some have raised concerns that measures like delayed prosecution and record sealing will send the wrong message and limit the deterrent effect of criminal punishment. Commenting on the new measures in Guangdong, a recent editorial in Southern Daily, the Guangdong Province Communist Party Committee's official paper, urged caution:

未成年人心理发育不成熟，不能因其一次失足就否定其终生的可塑性，否则是对他们的极端不公平；但同样，对未成年人犯罪不能一味强调“宽”，不适当的宽就是放纵，反而变相鼓励未成年人再次犯罪。[Juveniles are psychologically immature, and it would be extremely unfair if we blocked their ability to mold themselves because of a single slip-up. But at the same time, we shouldn’t simply emphasize “lenience” in handling juvenile crime, because improper lenience is equivalent to indulgence that could, on the contrary, implicitly encourage juveniles to re-offend.]

Such concern reflects anxiety about how legislators should balance the rights of individuals and the rights of society. With juvenile justice reforms still undergoing experimentation in a relatively small number of locations, the prospect of extending lenience to juvenile offenders appears risky to some. National People’s Congress Deputy Yao Xiaoying also voiced concern during the initial reading of the revised CPL draft in August:

如果对五年以下的免予起诉，也不向社会公布，虽然对一个孩子今后走上社会是一个重要的保护，但在这个保护当中，我们对另外一部分人的生命、财产、成长的安全如何保护？这个社会承载的将是放任他继续犯错误的成本，这个成本巨大。[If juvenile offenders] are exempt from prosecution for [punishments of five years or less] and this cannot be publicly reported, though it would be an important protection for a child’s future entry into society, how can we concurrently protect the safety of others’ lives, property, and security? Society must bear the burden of allowing [an individual] to continue to make mistakes. This is a huge burden.]

If the proposed additions to the CPL are passed, it would represent an important step in the evolution of juvenile justice reform in China. It remains to be seen, however, whether the practical impact of such legislation will be blunted by restrictive rules for implementation and whether current willingness to pursue even more progressive practices like expunging might recede amongst waves of concern over moving too fast, too soon.