<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:81559.wais]
CHINA'S CRIMINAL JUSTICE SYSTEM
=======================================================================
ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
JULY 26, 2002
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
U. S. GOVERNMENT PRINTING OFFICE
81-559 WASHINGTON : 2002
___________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate
House
MAX BAUCUS, Montana, Chairman DOUG BEREUTER, Nebraska, Co-
CARL LEVIN, Michigan Chairman
DIANNE FEINSTEIN, California JIM LEACH, Iowa
BYRON DORGAN, North Dakota DAVID DREIER, California
EVAN BAYH, Indiana FRANK WOLF, Virginia
CHUCK HAGEL, Nebraska JOE PITTS, Pennsylvania
BOB SMITH, New Hampshire SANDER LEVIN, Michigan
SAM BROWNBACK, Kansas MARCY KAPTUR, Ohio
TIM HUTCHINSON, Arkansas SHERROD BROWN, Ohio
JIM DAVIS, Florida
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State
GRANT ALDONAS, Department of Commerce
D. CAMERON FINDLAY, Department of Labor
LORNE CRANER, Department of State
JAMES KELLY, Department of State
Ira Wolf, Staff Director
John Foarde, Deputy Staff Director
(ii)
C O N T E N T S
----------
Page
STATEMENTS
Cohen, Jerome A., professor, New York University School of Law,
New York, NY................................................... 1
Tanner, Murray Scot, professor, Western Michigan University,
Kalamazoo, MI.................................................. 4
Hung, Veron Mei-Ying, associate, China Program, Carnegie
Endowment for International Peace, Washington, DC.............. 7
Hecht, Jonathan, deputy director, China Law Center, Yale Law
School, New Haven, CT.......................................... 9
APPENDIX
Prepared Statements
Cohen, Jerome A.................................................. 34
Tanner, Murray Scot.............................................. 43
Hung, Veron Mei-Ying............................................. 52
CHINA'S CRIMINAL JUSTICE SYSTEM
----------
FRIDAY, JULY 26, 2002
Congressional-Executive
Commission on China,
Washington, DC.
The roundtable was convened, pursuant to notice, at 10:02
a.m., in room SD-215, Dirksen Senate Office Building, Ira Wolf,
(Staff Director) presiding.
Also present: John Foarde, Deputy Staff Director; Susan
Weld, General Counsel for the Commission; Matt Tuchow, Office
of Representative Levin; Karin Finkler, Office of
Representative Joe Pitts; Susan O'Sullivan, for Lorne Craner,
Assistant Secretary of State for Democracy, Human Rights, and
Labor.
Mr. Wolf. All right. I would like to welcome all of you to
the ninth staff-led issues roundtable of the Congressional-
Executive Commission on China. The tenth, and final roundtable
before the summer, will be an open forum on Monday, August 5 in
this room at 2:30 p.m. If you are interested in participating
in that, please check our Website in order to register.
Today we will look at the criminal justice system in China.
We have four panelists with us today--Professor Jerome Cohen
from the New York University School of Law; Professor Murray
Scot Tanner from Western Michigan University; Dr. Veron Mei-
Ying Hung from the Carnegie Endowment for International Peace;
and Jonathan Hecht from the China Law Center at the Yale Law
School.
We appreciate, Jonathan, that this is your second time
here, the first being at one of the full Commission hearings
earlier this year.
There is a wide breadth of experience on the panel today,
many years--decades--of research, of advocacy, of assistance to
the development of China's legal system.
Jerry, let us begin with you, please.
STATEMENT OF JEROME A. COHEN, PROFESSOR, NEW YORK UNIVERSITY
SCHOOL OF LAW, NEW YORK, NY
Mr. Cohen. I am delighted to have a chance to talk with
the Commission staff. In 1997 and 1998, Presidents Jiang Zemin
and Clinton made agreements that we should cooperate, the
United States and China, on legal reform. Finally, in the last
couple of years, we have witnessed significant cooperation.
I think this hearing on criminal law matters is very, very
important and I am happy to talk about the role of China's
criminal defense lawyers, if only to assure their American
counterparts that the post-9/11 government actions in this
country have not yet subjected American lawyers, fortunately,
to the problems of the Chinese defense lawyer.
China's lawyers have come a long way in the last 20-odd
years. They were denounced, of course, in the 1950s, 1960s, and
1970s as ``the worst of that stinking ninth category of
intellectuals.'' They were suppressed, resurrected in 1980, and
in the last two decades, China's lawyers have really come a
long way.
They play a very important role in the country's economic
development and cooperation with the rest of the world,
supporting social and economic progress at home. They are
making money, they are prestigious. They are important players.
Lawyers are now one of the top categories for people's
professional aspirations in China, but not criminal defense
lawyers.
Criminal defense lawyers are in a sad, frustrating
situation. Some of them make money. Some of them are even
recognized and admired. But even they lead a dangerous life,
and a difficult, frustrating life. In my paper, for which I
apologize, since it is so long, there is much material about
this, and I discuss many cases of people based in the United
States who have been detained in China. I have taken part in a
number of those cases as advisor to the family and in my paper
I try to link that experience to the more abstract propositions
of my report.
But essentially what I do, is first show the variety of
excuses developed by the police--public security and secret
police--and prosecutors, unfortunately, for keeping lawyers out
of the case, frustrating the right given by the revised
Criminal Procedure Law to counsel, even in the investigation
stage.
The pretexts that have been developed are a tribute to the
ingenuity of police and prosecutors in developing mostly phony
excuses, finding loopholes in the law which they then
exaggerate.
Second, I show that even when a lawyer gets into a case at
the investigation stage, what the lawyer can do is extremely
limited. Lawyers can give advice if they can manage to meet the
detained person, but usually they are only allowed to meet him
once.
They cannot investigate the case at that stage. Usually
they cannot even discuss the facts of the case with the
suspect. They are very limited. It is highly artificial what
they can do and it does not amount to much.
Now, when the case is sent to the prosecutor at the
conclusion of investigation, lawyers come into their own. In
principle, they are recognized then as not merely legal
advisors, but defense lawyers. Nevertheless, that is a very
frustrating situation for them. They get very limited access to
the material on which the prosecution is requested by the
investigators.
They do not see the evidence that the investigators are
giving the prosecutor at that stage. In principle, they can
talk to witnesses, they can gather evidence, but they need the
consent of witnesses. In some circumstances, they need the
consent of the victim or his family, or the prosecutors.
People do not want to talk to defense lawyers in China.
Even though witnesses rarely go to court, they do not want to
get involved even for purposes of giving their statements prior
to trial.
The upshot is, at the time when the prosecutor is deciding
whether or not to indict, at the time when the defense lawyer
is supposed to have an opportunity to discuss the case with the
prosecutor before a decision to indict is made, the opportunity
does not amount to much. It is hard to get the attention of
prosecutors. Because of the restrictions involved, it is also
hard for the lawyer to understand the case sufficiently to have
a significant opinion.
Things get even worse at the trial stage. At the trial
stage, you would think a defense lawyer now would have an
opportunity. They have not had pre-trial discovery to a
significant extent, so they do not know the government's case
in advance. They usually do not have enough time to prepare for
trial, and they do not have enough access to witnesses and
other evidence before trial.
But here, you think, in court, when there is going to be a
public trial, here is their chance because the new Criminal
Procedure Law of 1996 made a significant innovation by
providing the right to cross-examine witnesses.
However, the problem is, if the witnesses do not come to
court, there is nobody to cross-examine. If their statements
are merely read out in court, as they are in almost all
criminal cases in China, the right of cross-examination is
hollow.
There are a variety of other restrictions in the trial. Of
course, if the case is one involving political sensitivities,
then there are even greater restraints on the counsel during
the trial.
My paper goes into all of this, with examples. Time is
limited. I just want to reserve some time, not for the appeal
or post-conviction stages which I also mention, but for the
plight of the defense lawyer in terms of his personal
insecurity. That insecurity is professional. It is also very
personal.
I have been involved in cases where, when the lawyers point
out to the police that they have violated the Criminal
Procedure Law, the lawyers get detained, sometimes so
intimidated they drop the case, and in one case I know of, even
gave up the practice of law.
Then there is the risk of formal criminal prosecution.
Under article 306 of the Criminal Law, dozens of lawyers have
been detained, prosecuted, some even convicted, for supposedly
assisting defendants in providing false testimony.
Usually that is because the lawyer tells the accused, the
confession you gave during investigation was coerced so you do
not have to stick with that. You can tell the truth as you see
it.
But when the defendant tells the truth as he then sees it,
the lawyer is later charged with telling the defendant to give
false testimony.
One of China's leading lawyers, Zhang Jianzhong, is now in
detention in China. We do not know for sure what the basis of
the charge is under article 306. The police are reporting
informally that it has nothing to do with criminal defense
work, but he has been a leading criminal defense lawyer, and
many of his colleagues at the Beijing bar feel he is being
discriminated against because of his criminal defense work.
There are other sanctions against lawyers, including
control in sensitive cases by the local judicial bureau.
Lawyers sometimes need to have the permission of the local
judicial bureau to handle cases, certainly Falun Gong cases,
and a variety of other politically sensitive cases.
They have been prosecuted, on a selective basis, for not
paying taxes, for corruption and for defamation of officials
when they charge officials with misconduct.
In sum, we have to recognize that, 20 years ago, criminal
defense lawyers were just coming back after an absence of over
two decades. But the life of the criminal defense lawyer today
is a frustrating and difficult one.
Finally, I end my prepared statement with certain proposals
that might, at the suggestion of many criminal defense lawyers,
boost their status and their cooperation with the outside
world.
We ought to have joint research with them to underlie that
cooperation, and I hope that Congress will continue the funding
that it has recently begun for rule of law projects, and
indeed, expand it. I think one of the most worthy subjects for
Congressional support would be to study the plight of the
Chinese criminal defense lawyer.
Thank you.
[The prepared statement of Mr. Cohen appears in the
appendix.]
Mr. Wolf. Thanks very much, Jerry. Scot.
STATEMENT OF MURRAY SCOT TANNER, PROFESSOR, WESTERN MICHIGAN
UNIVERSITY, KALAMAZOO, MI
Mr. Tanner. I would like to begin by expressing my sincere
thanks to the members of the Commission for honoring me with
this invitation, and thank in particular the Commission staff,
in particular Mr. Wolf and Dr. Susan Roosevelt-Weld, for their
kind help in inviting me and arranging my visit to the
Commission.
It is also, by the way, an honor to share a panel with such
well-known China legal scholars as Professors Cohen, Hung, and
Hecht.
The purpose of my testimony today is to focus some
attention on the political and legal battle within China's
legal system to confront the widespread and horrific use of
torture, especially tortured confessions.
Members of the Commission have heard testimony on the
prevalence of torture, which has been carefully documented by
Amnesty International, by Human Rights Watch, our own State
Department, and many others. As an individual analyst, there is
very little I can add to this excellent monitoring work.
Instead, my testimony draws on my research on China's
police to look at an important and unusual aspect of this
battle against torture, the battle within the law enforcement
system itself.
For the past half-dozen years, a growing number of
officials and scholars within China's law enforcement system,
even some within the public security and procuratorial systems,
have been criticizing China's pervasive torture problem with
increasing bluntness.
These officials and analysts are also openly debating
policy reforms designed to control torture, in particular,
pushing to professionalize reforms of law enforcement, as well
as revising China's Criminal Procedure Law to create
disincentives for torture. In many instances, these proposed
revisions draw explicitly on U.S. and Western law.
I cannot stress strongly enough that my purpose here today
is not to argue the brief that either China's leadership or its
law enforcement system are making adequate progress in dealing
with torture. Emphatically, they are not.
Nor am I here arguing that this emerging group of anti-
torture critics is strong enough to reform the system without a
major overhaul backed by pressure from Chinese society and from
the international community.
Instead, my purpose is to carefully evaluate the origins of
this pressure for improvement from within the system, to
examine critically the proposals these officials and analysts
are making, and analyze the obstacles they face in trying to
promote progress.
Such an analysis hopefully can assist the Commission and
other U.S. policymakers trying to evaluate the most effective
ways for the United States to assist in fighting torture and
encouraging legal reform.
In my mind, there is little question that the key obstacle
to fighting torture in China lies in her authoritarian
political system and we cannot realistically anticipate
fundamental self-generating and self-sustaining progress
against torture until China constructs the package of social,
political, and legal institutions that most liberal democracies
rely on to fight torture, most importantly a free, competitive,
and aggressively investigatory press, citizen-based human
rights organizations, independent, fair, and accessible courts,
and, of course, multi-party elections as an implicit threat
against unresponsive leaders.
But even among authoritarian systems there can be
significant differences in the levels of torture and law
enforcement abuses. Thus, even without waiting for or weakening
our commitment to full democratization, we can and must expect,
promote, and support significant improvement in China's torture
record through reforms within the existing system.
In many societies, even fledgling democracies, torture is
greatly exacerbated by a severe lack of law enforcement
professionalism, including excessively compliant judges, a lack
of even rudimentary commitment to legal procedure, and rules of
evidence that create incentives for torture, as well as weakly
trained police who lack the professional skills to solve non-
political criminal cases using legally gathered evidence.
But in systems like China, even partial progress is
impossible unless top leaders exert sustained monitoring and
punishment of abuses. Under Jiang Zemin's leadership, that
commitment to fighting torture has been largely instrumental,
and at best sporadic, ambivalent, or to use Amnesty
International's term, ``indifferent.''
Periodic crackdowns on police abuses are only part of a
strategy of the government to use rule by law to revive its
legitimacy and to offer average citizens a bargain that says,
in effect, if you stay away from politics, if you stay away
from officially suspect religions, and do not commit crimes,
the Party is going to try to guarantee you an orderly, low-
crime society and gradually expand legal protections against
arbitrary law enforcement and abuses.
Such a strategy, however, is extremely risky for the
regime. In particular, any serious effort to reign in torture
risks undermining the capacity of police and prosecutors to
fight crime and maintain adequate law and order, which is of
course the other cornerstone of this rule by law legitimacy
strategy.
As in many authoritarian systems, decades of being
protected by an undemocratic government have rendered China's
law enforcement departments, quite simply, rather weak in
modern criminal investigation skills and excessively reliant
upon compliant courts, coerced confessions, and a culture of
informants to obtain their convictions.
This is, one might say, a police State in which the police
are not very good at regular police work. These dilemmas help
explain the start-stop and ambivalent character of legal
reforms.
Among the most noteworthy steps forwarded in recent years
has been the growing willingness of legal officials to
acknowledge, sometimes rather publicly, that torture is
extremely widespread. This contrasts with the denials and
linguistic dodges that Foreign Ministry press spokespersons
typically employ when they are asked about specific torture
cases.
Senior officials and analysts now characterize the torture
problem as ``very serious,'' ``pretty common,'' ``a long,
persistent, chronic disease,'' and even claim that ``the vast
majority of police interrogators regard torture as a fast and
effective technique.''
Even Minister of Public Security Jia Chunwang told the
summer 1998 Police Conference that torture and related abuses
were one of the two most common complaints he heard from
ordinary citizens.
In late 1997, the Supreme People's Procuratorate openly
published this case book entitled, in English, ``The Crime of
Tortured Confession,'' that not only describes hundreds of real
torture cases in the dispassionate and gut-wrenching detail we
expect from an Amnesty International report, but also for the
first time openly reported official statistics on torture
cases.
These statistics, though they clearly greatly understate
the magnitude of the problem, nevertheless contained, for
example, the striking admission that 241 persons were tortured
to death in China between 1993 and 1994.
In response to this, many law enforcement analysts are
putting forward new proposals that typically fall into four or
five categories: (1) greater professionalization and training
for police and prosecutors; (2) reforming legal incentive
structures, especially strengthening rules of evidence; (3)
increased legal prosecution and punishment for torturers; (4)
increased publicity for torture and its punishment; and (5)
encouraging lawsuits by torture victims.
Clearly, we can see that to the extent that if these are
actually implemented--and that is a huge if--these proposals
could yield significant benefits. But all of these proposals
are also largely State initiated and state dominated, not self-
generating and self-sustaining. The only partial exception to
that would be the last two, aggressive press publicity and
lawsuits.
My written statement addresses each of these. In the
interest of time, I want to touch just very briefly on two of
the most prominent, professionalization and reforming the legal
incentive structure.
Calls for increasing professionalization of police and
procurators are seeing that these officials employ torture
primarily because they lack the professional skills necessary
to solve many cases any other way. Investigatory skills and
technology, legal knowledge, professional norms, education,
personnel quality are all weak.
I do not exaggerate when I say that many street-level
Chinese police probably have less knowledge of modern crime
scene management, fingerprinting, blood typing, and rudimentary
forensic and investigatory skills than the average educated
American viewer of ``Law and Order'' or ``NYPD Blue.'' I see my
time is short. I will skip ahead.
In the area of creating legal and institutional
disincentives, anti-torture advocates are criticizing China's
Criminal Procedure Laws for a lack of a presumption of
innocence, a lack of an unambiguous right to remain silent, and
in particular, the lack of an exclusionary rule to keep
tortured confessions from being used in court.
In recent years, there has also been rather fascinating
debate by many public security scholars over whether or not to
adopt a ``fruit of the poison tree'' exception for this.
For U.S. observers, it is striking to see these officials
using and advocating rules borrowed from Western law. While we
have to be cautious about overestimating our foreign
intellectual influence on legal reform, it is important to
recognize the impact that exposure to these legal notions
appears to be having in, of all places, Chinese law enforcement
policy debates on torture.
It may be, sadly, that the best we can hope for in the
current authoritarian system is strengthening
professionalization and legal disincentives. For the West,
however, all of this raises an extremely complex and morally
difficult dilemma of how to deal with such reform. Clearly,
strengthening some aspects of law enforcement professionalism
are an essential prerequisite to fighting torture.
But, while improving the ability of law enforcement
officials to solve real, non-political crime without resorting
to forced confessions will very likely contribute to the rule
of law and the Chinese's people's sense of legal rights in the
long term, in the short term, it risks contributing to the
institutional strength of the current flawed system.
Along these lines, this research raises the question of
whether or not expanded legal exchanges between carefully
selected individual analysts and scholars within China's
procuratorial system and with United States and other legal
training institutes might contribute to some of these anti-
torture recommendations.
I thank the Commissioners for their invitation, their time,
and their kind indulgence.
[The prepared statement of Mr. Tanner appears in the
appendix.]
Mr. Wolf. Thanks very much. Veron.
STATEMENT OF VERON MEI-YING HUNG, ASSOCIATE, CHINA PROGRAM,
CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, WASHINGTON, DC
Ms. Hung. Thank you for inviting me to speak here today.
Over the past 10 years, I have, in different capacities,
studied legal reform and human rights in China. I was legal
associate for Asia at the Washington-based International Human
Rights Law Group. I was also assistant professor of law at the
City University of Hong Kong, and a visiting scholar at the
People's University in Beijing. I worked with international law
firms in Beijing, Hong Kong, and Los Angeles.
As an associate of the Carnegie Endowment for International
Peace, I implement its Political and Legal Reform Project to
study, among other subjects, the impact of China's accession to
the World Trade Organization [WTO] on its legal system and the
legal reform in Shanghai.
I recently trained legislative affairs officials from
China's provinces and the State Council, the country's highest
executive organ, on ``WTO and Judicial Review.''
I am also a consultant for the United Nations Office of the
High Commissioner for Human Rights, advising the office on
implementing human rights technical cooperation programs in
China. Today I will focus on re-education through labor, a
mechanism of punishing ``minor crimes'' in China.
I will discuss the greatest problems of this system, the
current debate in China about its future, and my reasons for
recommending its abolition.
I will draw on discussion in my doctoral thesis entitled
``Administrative Litigation and Court Reform in China,'' which
is based on empirical research that includes observation of
eight administrative trials and interviews with over 140
judges, law professors, lawyers, administrative officials, and
litigants in Guangdong province, Chongqing, Wuhan, and Beijing.
Re-education through labor, one of the most prominent
administrative sanctions in China, is imposed on people whose
act is not serious enough to warrant criminal punishment, but
too serious to deserve other lenient administrative sanctions.
However, the Chinese criminal law and courts' interpretations
do not clearly define ``serious'' and ``minor'' crimes.
There are four problems of this system. First, the
mechanism has been abused. As shown in principal legislative
documents governing the system, the scope of re-education
through labor has gradually expanded. Such expansion has drawn
criticisms that these documents are conflicting, and that the
police have turned re-education through labor into a crime
control mechanism.
The police dominate the committees that decide the
imposition of re-education through labor and reportedly send
suspects to labor camps if they lack evidence to support a
criminal charge.
Since its establishment in the 1950s, re-education through
labor has sent 3.5 million people to labor camps. At present,
300,000 people are being reeducated in nearly 300 camps
nationwide. At least 1,000 of them are Falun Gong followers.
Human rights groups estimate that the number could be 10 times
more.
The second problem: Re-education through labor is more
severe than some criminal punishments. Anyone who is subjected
to re-education through labor may be detained in a labor camp
for up to 4 years. Ironically, some criminal punishments are
more lenient, fines and surveillance, for example. Even
``criminal detention'' only lasts for 6 months at the most.
This problem has aroused much concern because torture and
maltreatment are alleged to be common in these camps.
The third problem: The legality of re-education through
labor is questionable. China's Administrative Punishment Law
requires all administrative punishments that restrict personal
freedom to be prescribed by ``laws.'' Under Chinese law, only
the National People's Congress [NPC] and its Standing Committee
can promulgate. Although re-education through labor is such
type of administrative punishment, it is only prescribed by
three decisions either made by the State Council or the
Ministry of Public Security.
The National People's Congress' Standing Committee did
approve two of these decisions, but it does not mean that the
approved decisions were transformed into ``laws.''
The fourth problem: Implementation of re-education through
labor is not effectively supervised. Re-education through labor
is not a criminal punishment. So it is not subject to any human
rights safeguards, however limited they are, embodied in
China's Criminal Law and Criminal Procedure Law.
In theory, aggrieved parties facing re-education through
labor may resort to judicial review, or what they call in
China, administrative litigation. In practice, the courts' role
in reviewing the legality of administrative sanctions such as
re-education through labor is limited. Aggrieved parties are
afraid of suing administrative organs. They have limited access
to lawyers. Above all, administrative organs' interference with
the judicial process is serious.
To tackle these problems, many Chinese scholars call for
abolishing re-education through labor. They also suggest reform
as an alternative. In this case, the maximum detention period
should be reduced from 4 years to 1 or 2 years. Courts, as
opposed to the police, should decide whether re-education
through labor can be imposed, and these decisions can be
challenged on appeal. Further, re-education through labor
should be incorporated into the criminal law to subject it to
human rights safeguards embodied in criminal legislation.
However, these reform measures that I just mentioned, as
proposed by the Chinese scholars, will not effectively resolve
the problems of re-education through labor. Why? Although
Chinese courts are undergoing a 5-year reform program,
interference will not disappear soon.
The Criminal Procedure Law only offers limited human rights
protections and has not yet been fully implemented since its
revision in 1996. Abolition of re-education through labor is
the best option.
The Chinese Government is planning to enact a law on re-
education through labor to fix some of its shortcomings. This
intent is welcomed. The government must understand that any
changes that fall short of addressing the problems discussed
today will negate its efforts in establishing a rule-of-law-
based legal system. Re-education through labor is a major
anomaly in such a legal system and the Chinese Government
should abolish it. Thank you.
[The prepared statement of Dr. Veron Mei-Ying Hung appears
in the appendix.]
Mr. Wolf. Thank you. Jonathan.
STATEMENT OF JONATHAN HECHT, DEPUTY DIRECTOR, CHINA LAW CENTER,
YALE LAW SCHOOL, NEW HAVEN, CT
Mr. Hecht. Thank you, Ira. Thank you, other members of the
Commission staff for having me back.
Today, I am going to talk about developments in the area of
evidence law in China. Evidence law, in my view, is the area
where the most interesting and important debates about criminal
justice in China are now taking place.
I think this may seem curious to American lawyers.
We tend to think of evidence law as a very narrow technical
subject having to do with the presentation and examination of
evidence in court.
I think, in China, evidence law is also, to some extent,
viewed as a technical subject, which may be why it has proved
to be a useful vehicle for looking at bigger issues of criminal
justice reform in China.
In fact, the people who are focusing on evidence law in
China are using it in that way, in order to focus on
fundamental issues, fundamental problems in the criminal
justice system, including many of the ones that Jerry and Scot
were just talking about.
The subject of re-education through labor is the other area
where there is important work going on in China on criminal
justice, but the legislative work in that area seems to have
come to a stop. I think it would be interesting, perhaps,
during the question and answer period to talk a little bit
about what could be done to restart the legislative process in
China on re-education through labor.
In contrast, in the evidence law area, there is a lot of
ongoing work. There is local experimentation, local court
rules, for example in Shanghai, on evidence in criminal cases.
Just in the last month or two, a very distinguished group of
Chinese legal scholars put out what they are calling a
scholar's draft, of an entire evidence law.
In the National People's Congress, in the Legislative
Affairs Commission there, there is a very active process of
looking at issues of criminal evidence and drafting up
legislation that would be presented to the NPC for its
enactment.
I guess the basic question, is why evidence law. In
answering that, I want to go back a little bit to look at where
Chinese criminal justice has come from in the last 10 years. I
think maybe at the end, if I have a little bit of time, I can
talk about what this suggests about the process of reform in
the criminal justice area in China.
The current interest in evidence law in China really is an
outgrowth of the reforms in the trial process that were enacted
as part of the amendments to the Criminal Procedure Law in
1996.
Traditionally, fact finding in China in the criminal
process has been done out of court and pre-trial. Judges in
China have traditionally had broad powers of investigation. In
reality, they often depended on the files that had been
assembled by the police and reviewed by prosecutors. But before
the trial began, they had the power to go out and do whatever
investigations of the facts that they wanted. They did, as a
routine matter, talk to the defendant, talk to witnesses, and
they could, again, go and look at crime scenes, and so on. Only
where, as a result of this pre-trial examination of the
evidence, they felt that the facts were clear, would they
actually open the trial.
A number of factors led to a rethinking of this approach
and to the reforms that were adopted in 1996.
Some of these were very practical factors having to do just
with the increase in the number of cases, the complexity of
cases, the expense that the courts had to go to to actually go
out and investigate. But there were also concerns about
fairness.
There was a good deal of criticism within China of this
system of pre-trial examination of facts because it essentially
negated the right to defense entirely, because the court had
already looked at all of the facts and made up its mind about
the case before it even began the trial. There were also a lot
of concerns about corruption, because all of this fact-finding
was taking place behind closed doors.
Then judges themselves, I think, were becoming increasingly
unhappy with the sort of position that the system put them in,
where, as a gatherer of facts and a presenter of facts in
court, they were essentially acting as the prosecutor and
coming into conflict with defense counsel. I think that they
felt that that was undermining the respect that they ought to
be getting as fair and neutral arbiters of the facts.
So in the 1996 amendments, the trial process was reformed
in the direction of putting the burden more on the prosecution
and on defense counsel to collect and present the evidence at
trial.
The most significant change that this represented was the
expansion in the role of the defense lawyer, who, before 1996,
only came into a criminal case 7 days before the trial was to
open. Of course, that was at a point where the court had
already done its examination of the facts and essentially
already decided the outcome, so there was not much for a
defense counsel to do.
So this shift in the 1996 amendments to putting the burden
of collecting and presenting evidence on the parties
correspondingly meant that the role of the judge as
investigator would be much more limited.
At the same time, the 1996 revisions tried to turn the
trial itself much more into a fact-finding exercise in open
court, where the parties would have an opportunity to present
their case, the proceedings would take place in a transparent
fashion that people had confidence in, and in that way try to
address both these issues of fairness, as well as the sort of
practical issues of how the courts could handle cases.
As this has been implemented, as Jerry and others have made
quite clear, things have not worked out the way that they were
intended. There is still very little proof-taking at trial.
Witnesses do not appear, experts do not appear. The written
statements of witnesses and experts are presented as evidence.
There is no opportunity to cross-examine.
There is still very little ability, in reality, for defense
lawyers to prepare for trial, as Jerry details in his paper.
They have very limited powers to gather evidence on their own,
and very little access to evidence gathered by the state. Where
lawyers do try to play an active part in gathering evidence,
oftentimes they are subjected to various forms of harassment,
or ultimately prosecution, by the state.
So the result is that the case that comes before judges is
still quite one-sided, and one could even argue that is more
one-sided than before, because at least before the judges, in
theory, could be going out and doing their own investigation of
the facts. Now judges are sitting in the court waiting for
facts to be presented to them, but the only facts they are
seeing are the facts that are developed by the state.
So the current debates about evidence law are largely about
how to make the 1996 trial reforms work. One of the big areas
of interest has to do with witnesses and how to get witnesses
to appear in court. There are a lot of obstacles to this, some
of them having to do with traditional preferences against
testifying, some of them having to do with fear of retribution.
But there are also some more technical problems involved.
The Chinese courts have no process for compelling witnesses
to appear in court and they have no basis for providing
compensation for people who miss work, or have various expenses
in connection with coming to court.
Naturally, on the prosecution side, they are not very
enthusiastic about having witnesses appear in court because
they prefer to have the ``sure thing'' of their written
statements.
While in most respects judges would like to see fact
finding take place in open court in the way that was foreseen
in the 1996 revisions, they themselves do not have a lot of
experience doing it and I think that they are not quite sure
how they should oversee trials that have live witnesses.
But there is a broad recognition of the need to get
witnesses to appear if fact finding is going to occur at trial,
if these issues of transparency are going to be addressed, and
if the defense is going to be given a chance to question the
witnesses.
As I have said, there has been some local experimentation.
The Shanghai courts have adopted some rules about requiring key
witnesses to appear in all criminal cases. There was talk about
enacting a separate law on witnesses at the National People's
Congress. That now has been folded into this broader effort on
evidence.
With respect to the right to defense, which was the other
major goal of the 1996 reforms, there is a lot of emphasis now
on developing a system of discovery. This would compensate for
the lack of ability that defense lawyers have under the 1996
law to gather evidence themselves, as well as improve their
access to evidence that is in the hands of the state.
There are, again, local experiments going on in Yantai, in
Shandong Province, with discovery. This is also now being
focused on as part of this broader evidence law.
Let me just quickly say one thing about some of the bigger
issues that are being considered. I think one of the
interesting things about what has happened with the evidence
law, is that it has also gone beyond the immediate problems
with the 1996 revisions to address a lot of the pre-trial
problems in the criminal justice system.
This reflects a recognition that importing an adversarial
process into the trial stage alone is not sufficient if the
entire pre-trial stage is highly inquisitorial and police-
dominated.
So, there is a lot of interest in various issues concerning
the defendant as the source of evidence, and this relates
directly to what Scot was talking about in terms of torture and
the development of rules on the right to silence and rules on
exclusion of illegally gathered evidence. I think that this is
in some ways the most significant area in terms of long-term
development because of the problem of a police-dominated pre-
trial system.
Mr. Wolf. Thanks. I will start out with questions.
I am going to keep coming back to this question in further
rounds, because I want everyone to address the role of legal
scholars and legal reformers in China.
If we look at economic reform, the Communist Party
determined decades ago that it needed consistent growth to
maintain public support of the regime. Deng Xiaoping made a
decision that he could pursue economic reform without having a
significant impact on political reform.
In the case of judicial reform, what, in fact, are the
powers and the influence of legal scholars today? How would you
differentiate between the ability of Deng Xiaoping to go down
the road of economic reform--trying to isolate it from
political reform, and the fear or unwillingness of the top
leadership to take interest in legal reform because of the
possible implications.
So, Jerry, let us start out with you.
Mr. Cohen. I admire very much the role that Chinese legal
scholars and law professors have played in recent years. When I
first visited China in 1972, legal education was non-existent.
In 1973, I met some law professors. They had nothing to say.
I admired their deep suntans, because they had been working
in the fields for years. But now they are important players,
and they are courageous players, and they take a very active
role in law reform, more important than their counterparts in
the United States.
There are also legal scholars working in the National
People's Congress as staff people. There are legal scholars in
the Ministry of Justice. Even Public Security has good legal
scholars in the sense of people sincerely concerned with law
reform who are highly knowledgeable experts. The State Council
also has these people. They are very important.
As the number of lawyers increases, as the number of
specialists expands in all of these government departments,
including state-owned enterprises, and even in private
enterprises now, and joint ventures, a legal elite is
developing in China that is increasingly influential.
But their influence, as Scot has indicated, is not
sufficient. You really need to reach the leaders of China.
While the Standing Committee of the Politburo allows itself to
be photographed on the front page of the People's Daily
occasionally like schoolboys studying international business
law and WTO matters, I would like to see someday a similar
photograph of them studying the Criminal Procedure Law of China
and the U.N. Convention Against Torture, to which China has
adhered. These are not purely domestic questions.
Supreme Court leaders, in principle, have been very
enlightened, but they operate within a limited sphere. I like
very much the quotation from Veron Hung's paper of the previous
Supreme Court President Ren Jianxin, who in late 1996
criticized law enforcement officials who have taken advantage
of legal loopholes, intentionally misinterpreted the law,
distorted evidence, and broken the law they enforce. That is an
admirable summary of my paper.
Similarly, when I have said that the courts are sometimes
an instrument of oppression in China, I am quoting reports of
the Supreme Court leadership saying the courts must be used to
suppress ``counter-revolution,'' and a lot of these troublesome
political problems.
The legal elite themselves are not strong enough. They need
political support. Our hope must be that there will be a new
political leadership coming in during the next year or two, as
China phases in new leaders, who will be more sensitive to the
values that we are talking about today. Those values are under
challenge in our own country at this moment also, but the fact
is, China is in much more serious shape.
Now that China is a member of the world community, taking
part in WTO, hosting the Olympics, having millions of people
visit China every year, I think the Chinese Government has to
move up criminal justice in its priority list.
Mr. Wolf. Thanks. We will come back to this question in a
little while.
Next is John Foarde who is the Deputy Staff Director of the
Commission.
Mr. Foarde. Thanks to all four of you for sharing your
expertise with us this morning. This has been a very rich
conversation that has gotten us deeply into something that we
are very interested in. So, thanks for putting the effort into
the papers, and what have you.
Scot, I think I will begin with a question to you, please.
What do you think would be the biggest disincentive for Chinese
police or law enforcement authorities to torture, an
exclusionary rule or some ability by a victim to sue, as we
have in section 1983 of title 42 of the United States Code?
What is the biggest disincentive?
Mr. Tanner. Well, obviously both of those are very
significant. But actually the one that I would put up at the
top, is that extorting a confession by torture is very clearly
and unambiguously a crime under Chinese law.
One of the things that is made clear if you read these case
books, is that the punishments meted out for these things are
extremely light, even when they bothered to prosecute.
We did a statistical run-down on the 200 and some-odd cases
in this, and less than 10 percent actually involved anybody
being sent to prison. In many cases, these are suspended
sentences anyway. In most cases, there are administrative
penalties for this sort of thing.
We do not even know what percentage of torture cases
actually get prosecuted. Indeed, I suspect an extremely small
percentage, and I will tell you why I suspect that. The
official number of torture cases in China in a given year is
listed at about 400 to 500. Yet, we know that upward of 125
people a year are reported killed as a result of torture. It is
not credible that one-fourth of all cases that begin in torture
end in death.
What that strongly suggests to me, is that the cases that
get prosecuted are the ones where there is clear physical harm
or the death of the person involved. So I would say that the
biggest thing that the leadership could do to create a powerful
disincentive in addition to, as you mentioned, lawsuits and
exclusionary rules, would be if they very seriously prosecuted
a much larger percentage of these cases, and that would require
pushing local Communist Party officials to prosecute these
cases and then to mete out the punishments that the law
prescribes.
Mr. Cohen. It is a problem in every society, including our
own. The police and so-called law enforcement authorities tend
to protect each other, and sometimes there are understandable
reasons. We struggle with that every day in New York City, in
Washington, and in lots of places. But it is worse, much worse,
in China. I agree, criminal punishment should be used against
police who violate the law.
Mr. Tanner. Pardon me. Since you raised the question of New
York City, every Chinese police scholar I have spoken with
knows the cases of Abner Louima in New York and Rodney King in
Los Angeles. They have all seen the King tape. One thing that
they did all take note of, is the very long prison sentence
that was given to Officer Volpe. A lot of them found that a
very encouraging thing.
I would say, without even hinting at moral equivalence
here, one of the things that the United States can do that
actually has an impact on China, is when we punish these things
very strongly, this stuff gets noticed in China.
Mr. Foarde. The exclusionary rule is very controversial,
even today. What sort of conversation is going on in legal
circles in China about it? Is it the same sort of issues that
proponents and opponents of the exclusionary rule in the United
States have, or is it different?
Mr. Cohen. Well, Jon can talk about this, of course. They
have been debating and going back and forth, settling sometimes
on the position of excluding illegally obtained confessions,
but continuing to admit illegally obtained physical evidence,
because the physical evidence does not lie. You can have less
confidence in a confession. But they are wavering on this. It
is, understandably, a very difficult subject.
Mr. Tanner. I would point out that one of the first things
they do when they study an issue like this, is that they
undertake a tremendous translation of Western legal materials.
You can see the research materials that they compile of
United States law, and British, and Canadian, and all sorts of
other systems. So, they address these things with a very strong
understanding of how these issues have been battled in the
United States. For example, questions of good-faith exceptions.
Mr. Foarde. We will come back to this, because other people
want to ask questions, I think.
Mr. Wolf. Matt Tuchow works for Congressman Sander Levin,
one of our Commissioners.
Mr. Tuchow. Thanks. My question comes down to a more
practical policy-oriented question for you about the
Commission's work and how to tackle the difficult issue of
trying to influence the Chinese. In listening to the witnesses
today, I heard an encouragement of technical assistance
programs in the area of rule of law and exchange.
But I am wondering if the panelists--and maybe I will
direct this, first, to Professor Cohen, then if we have time,
the others--could address what policy recommendations you feel
the Commission should make to play a role in pressuring the
Chinese or encouraging the Chinese to fairly and honestly
reform and implement their criminal procedure laws.
Mr. Cohen. Well, I think the Chinese Government, not only
at the top but at the working level, and the Chinese judiciary,
even the prosecutor's office, the procuracy, generally welcomes
foreign assistance, not only United States assistance, but
European, Japanese, whatever, and they are quite right to do
so.
This is a wonderful time to try to make some progress in
the light of this possibility and in light of the obvious needs
of China's system. Chinese leaders are very proud people. They
do not want to be criticized, as they are being criticized
today, in a prominent forum. I think we should try to work with
them.
Now, it gets more controversial. We have started training
judges, and that is an exciting and rich field, I think, with
many possibilities. But prosecutors also need legal training,
more than even judges. The most controversial question will be,
and it was implicit in what Scot said, about the police. It is
obvious the police are the most powerful of the law enforcement
agencies in China.
They really dominate the show, as Jon and Veron have also
impressed on us. Something has to be done. There are, within
the police, as Scot has demonstrated, people who are receptive
to law reform assistance. On the other hand, that may be
politically unpalatable at home in the United States because
``the optics,'' are not too good. Some will ask: Training
Chinese police? Are we going to make them better repressors?
But the truth is, at the working level, they need all kinds
of sensitivity to legal values and to better legal methods of
investigation. The more cooperation we can have with them, I
think, the better.
It is a little bit like the analogous question, to what
extent do we cooperate with the Chinese military? There are
pros and cons. Sometimes engagement is politically impossible,
as after June 4, 1989. But I lean to engagement.
Engagement, I think, spreads the values that we
increasingly share with China. I think there are many
possibilities, and this Commission can encourage a number of
specific programs, and even recommend their financing.
Mr. Tuchow. How about the other panelists? In particular,
if you agree that technical assistance is part of the solution,
how do you do it smartly so it does not get wasted or get in
the wrong hands?
Mr. Hecht. I think, as someone who has actually been
involved in that for a long time, it is a very difficult
question. But I think the starting point has to be
understanding what the situation is in China.
I think that that is another very important function that
the Commission is performing, getting more information out
about what the actual State of affairs is in China, where the
problems lie, where the opportunities for improvement lie, and
what are the institutions and the people in those institutions
that can be looked to as real movers for change in the Chinese
context.
I do not think there is really any magic formula. It is
just a lot of hard, painstaking work in order to identify where
those opportunities and where those potential partners lie.
Ms. Hung. Perhaps I may add one remark on--actually, in the
context of reform of the re-education through labor system--
what kind of assistance the United States can offer to help
China.
The answer to this question is also linked to the first
question raised about the role of legal scholars in China. Look
at the recent developments in this area, re-education through
labor. In early 2001, the Chinese Government said that they had
a plan to enact a law on re-education through labor by the end
of the year. But right now, this plan seems to have changed.
There is no clear timeframe existing as to when they will enact
this piece of legislation.
I recently went to Beijing to interview legal scholars in
this area. They actually said that this could be a good
opportunity, because now they have more time to do research, to
learn from other countries' experiences. They want to take this
opportunity to have joint research projects, or maybe to have a
chance to come to the United States or other Western countries
to understand how they punish offenders of minor crimes.
So in this regard, I think that one type of assistance the
U.S. Government and also organizations here in this country can
offer is to establish training and joint research projects.
Mr. Wolf. Thanks.
Susan O'Sullivan works for Lorne Craner, Assistant
Secretary of State for Democracy, Human Rights and Labor.
Ms. O'Sullivan. Thank you all for your presentations today.
They were very helpful to me, and I am sure to everyone here.
I have a question related to Matt's, and also to Ira's,
that focused a little bit more on criminal lawyers. I read
somewhere recently that criminal lawyers made up 3 percent of
the bar in China several years ago, and now it is down to 1
percent. At the State Department, we are following these recent
arrests that you referred to, and Jonathan, also.
I am wondering if there is something that you could
recommend to us that we could be doing diplomatically, or even
programmatically, to help the criminal defense bar in China.
Generally, I think we all agree that rule of law programs are
the way to go, but if you have any more specific
recommendations of things we could be doing at the State
Department, as well as in the Commission.
Mr. Cohen. I think there are two levels. One, is to show
support for them in various ways. For example, the State
Department has a distinguished program for visitors. You seldom
see a Chinese criminal lawyer invited on those. They are not
people who know English, by and large. They are people who
concentrate domestically.
We can encourage our bar associations to put on programs.
Recently, the Canadian Bar Association had a very good 2-week
program with Chinese criminal defense lawyers. They have
emphasized to me, we should be doing similar things.
I brought one of the leaders of the Chinese bar to NYU for
a week. It was fabulous for us, our students, and people in the
New York community. But we ought to be doing much more to make
that kind of visit, not merely the 1-month tour but the follow-
up for staying in one place and doing some serious exchanges.
But then there are many subjects we ought to be pursuing
with them. Although our system suffers from many defects and we
are struggling with them, we are making progress and we are way
ahead of China in this regard, and the Chinese are aware of
that.
There are so many things that we ought to be sharing with
them, exchanging ideas about, now that they are coming into a
serious period of law reform.
I mean, how can they establish some functional equivalent
of habeas corpus? One of the most frustrating things about
being a defense lawyer in China, is where do you go when the
police or prosecutors violate their own law? To whom can you
appeal?
In traditional Imperial China, you could ring the county
magistrate's gong and sometimes get a hearing that way, or even
make it to Beijing to the Imperial Court. Where do you ring
that gong now? We have a provision. The Chinese are working
with us about that possibility.
Mr. Wolf. Thanks. Can I suggest that you let some other
people participate?
Mr. Hecht. Well, just to follow up on where Jerry is going,
I think the underlying problems that the Chinese defense bar
faces are these structural problems in the criminal justice
system. Obviously, we should be giving support to individual
criminal defense lawyers, but more fundamentally we need to be
helping them create an environment in which it is possible to
be a criminal defense lawyer.
That goes to, I think, the range of things that we have
been talking about today in terms of how to reform the trial
process so that what the criminal defense lawyer does has some
meaning, how to reform the pre-trial process so criminal
defense lawyers can actually prepare a case and do it without
risking ending up in jail themselves.
Ms. Hung. Perhaps one specific issue we can also address is
that, while criminal defense lawyers encounter this problem, in
fact, administrative law lawyers also encounter the same
problem. Lawyers are not willing to stand up to the government.
That is why they do not want to take up administrative cases
and criminal cases. They do not want to offend the government.
Why? Because their licenses to practice have to be renewed
by the government every year. So, perhaps we need to think
about whether this system should be changed.
Ms. O'Sullivan. Thank you.
Mr. Wolf. Next is Susan Weld, general counsel of the
Commission.
Ms. Weld. Thanks a lot.
One thing that occurred to me in listening to some of the
testimony today is whether strengthening the aspects of an
adversarial system now present in the Chinese procedure is the
way to go, and what the problems might be for China in the
future. I guess I will start with Jonathan on that. I would
like to hear what Veron has to say, then going left.
Mr. Hecht. Well, I think the Chinese themselves have
decided they want to strengthen the adversarial nature of their
system. The problem--and I referred to this but did not really
get to it in my remarks--is how to get from here to there, and
what are the problems that can emerge between here and there. I
think that that has been characteristic of a lot of areas of
reform in China, not just the legal area.
Ira referred earlier to economic reform. Economic reform
has been described in China as a process of crossing the river
by feeling the stones. To some extent, I think that has been
the case in the legal area as well. As each reform has been
adopted to address some immediately apparent problem, it has
tended to throw up a lot of other issues.
Either it has exacerbated other problems, as has happened
with the criminal defense bar as we have been talking about, or
it has served as a forum for discussing underlying problems
that perhaps could not be discussed previously, but which are
now too obvious for people to ignore.
I think that is what we are seeing now with respect to this
discussion about pre-trial procedures which do not fit with the
increasingly adversarial trial process. So, I think that that
is the nature of the reform process.
The challenge for us, and this goes back to Matt's
question, is to identify what are the problems on which
progress can be made in the short term, but which contribute in
the long term to a criminal justice system that is both
effective and fair.
I do not know if there is time to talk a little bit more
about re-education through labor, but I think this is an
excellent case study of how to engage effectively in legal
reform in China.
I agree with all of Veron's analysis of the problem and
with the need for fundamental reform, but I disagree that the
answer is simply to tell the Chinese to abolish it. In addition
to being used to suppress political dissent, re-education
through labor is used to deal with a lot of problems that all
societies face: Prostitution, drug use, minor crimes, juvenile
delinquency. To go to the Chinese and simply say, abolish this
system, is a non-starter because these other problems still
need to be dealt with in some way.
So the challenge for us to help them craft responses to
those problems so that then the use of re-education through
labor as a political tool is exposed. If it has no purpose
other than to deal with political dissidents, then it has no
legitimacy, even in the Chinese context.
Ms. Hung. Perhaps I can say something about re-education
through labor. According to recent developments, the government
seems to have said they do not want to consider abolition as an
option.
As I quoted in my statement, the director of the Ministry
of Justice's Bureau of Re-education Through Labor, explained,
``For such a populous Nation as China, the re-education through
labor, which aims at stopping those on the verge of committing
serious crimes, is an effective way of reducing crime.''
Based on the research I did in China, one main concern they
have is exactly what Jonathan just mentioned. They want to use
re-education through labor as a means to punish drug addicts,
prostitutes, brothel visitors, and other offenders of minor
crimes.
In fact, based on recent statistics, of all the current
inmates, one-third are punished by re-education through labor
because they were drug addicts, prostitutes, and brothel
visitors. The other third are offenders of minor crimes that I
just mentioned.
One point we need to bear in mind, is that when I say
abolition is probably the best option for curing the problems
they face in re-education through labor, it does not mean that
we cannot do other things.
For example, the government has said that there is a need
to have re-education through labor because this is a means to
punish drug addicts and prostitutes. Then my question is, are
there any other measures you can take? Can you help these
people or punish these people in another way? What other
countries' experiences can the Chinese Government refer to
instead of using such a harsh punishment like re-education
through labor?
So I am not suggesting that these people should go free and
we do not offer any assistance. This is not my idea. I just say
that the re-education through labor system is such a big
anomaly in this rule-of-law-based legal system, that it should
not exist anymore. Thank you.
Mr. Wolf. Karin Finkler is with Congressman Joe Pitts of
Pennsylvania.
Ms. Finkler. Thank you to all of you for your testimony.
I would like to follow-up on Ira and John's questions, in
the interest of time, so there is a little more time for people
to expand on their ideas. Jonathan, you looked like you had
some things to say earlier, so if you would please start, on
the role of legal scholars in reform, and also on the
disincentives for Chinese police, regarding use of torture.
Mr. Hecht. I think the Chinese legal scholars, if you look
back over the last 15 years, have played an incredibly
important part in opening up new areas of debate.
The whole area of human rights, which was a taboo area in
China as recently as 1989, 1990, was essentially opened up to
public debate and ultimately embraced as part of the
government's own discourse, largely through the efforts of
academics.
A lot of the more concrete problems that we have been
talking about today, right to silence, exclusionary rules, and
so on, again are things that have been introduced into China as
ideas by scholars.
But at the same time, I do not think we can overestimate
the influence of scholars. Ultimately, the power of decision is
in the government. The bureaucracies are tremendously powerful.
A lot of what is ultimately possible in China depends on a
political decision at the very top.
So, I think academics are a very important conduit for new
ideas, but I think we also have to be building bridges to
reformers within the institutions of the legal system and the
political system themselves. I think that Ira's earlier point
about developing a broader constituency for legal reform in the
government is very, very important.
I think one way to do that is to make more explicit the
link between economic reform and legal reform. I think that
there has to be a much broader recognition within the
government that if economic reform is going to continue to be
successful, the importance of a professionalized, independent
legal system cannot be overlooked.
As far as disincentives to torture, I think if you look at
our own experience in the United States, criminal penalties
are, of course, important. Compensation to victims is, of
course, important. But in our own experience, these were not
enough to stop police abuses.
What has ultimately been effective in cutting down police
abuses in the United States--though of course they still
occur--has been a combination of the exclusionary rule and
other sorts of measures, both taken within the police and
forced upon the police, to create conditions where coercion is
less likely to occur.
If you look at the Chinese criminal process, there is no
bail system, so all criminal suspects are held in police
custody for long, long periods of time. Access to lawyers, as
Jerry has talked about, is limited. Access to family is
limited. Outside oversight of detention centers themselves is
quite limited. These are all inducements to torture.
So I think that, ultimately, there has to be a focus on
both of those areas of reform in China, both the exclusionary
rule so that there is a disincentive to torture because the
evidence that you come up with will not be admissible, and also
creating conditions that are less conducive to torture in the
first place.
Ms. Hung. Two examples actually illustrate very well the
roles played by the legal scholars. On the one hand, they play
a significant role, but on the other hand, their role is also
very limited.
One, is re-education through labor, another is judicial
reform. For example, as I just said before, because the
government seems to have already set the tone that abolition
should not be considered earlier this year, legal scholars in
Beijing organized two large-scale forums.
One was on procedural issues involved in the reform of re-
education through labor, the other one focused on the
substantive issues involved in this system. So, they cannot go
beyond the scope, saying that we recommend to abolish the
system.
Another example, is judicial review. I interviewed the
Supreme People's Court senior judges. Quite a few of them are
scholars at the same time. They said that they felt their hands
were tied.
For example, the scope is severely limited by the Supreme
People's Court's 5-year court reform plan. If we take a look at
that 5-year reform plan, the focus is more on training, on
something that they can do within the court system.
But a major problem of the court system right now that we
have in China is that the courts are controlled by the local
governments. Because courts' personnel arrangements and
financial arrangements are, to some extent, subject to local
governments' control. So, that is why the type of reform we
need for improving the court system is institutional reform.
But this is not mentioned in the court reform plan, only
briefly mentioned, saying that maybe within these 5 years we
can conduct some research on this area to see what other
countries do in terms of the relationship between the court and
other branches of the government. But that is all. So, you can
see how limited these legal scholars' roles are.
Mr. Wolf. Thanks.
Scot, can you address my earlier question? And maybe bring
it down to the area of torture, where, as you said, the senior
leadership is simply uninterested in addressing this. Is there
a role for the legal scholars, and those in the system who are
looking at reform, or under current conditions is it a
fruitless effort because of the concerns of the impact of that
reform?
Mr. Tanner. Well, as I stressed in the beginning part of my
statement, significant progress is possible within the current
system, though I still believe that fundamental progress on
that particular issue is going to require a full-scale change
of the Chinese political system.
But let me use that to step off a little bit and talk about
the role of scholars. The ones that I have been studying play a
particularly interesting and important role here because a
number of these people train students in China's police college
system.
That means that they get to train the people who are then
going to go out to the provincial police colleges throughout
the country and train, and so on down the line.
They do have a great opportunity to influence the way that
these people think about the handling of criminal cases,
whether or not they have at their disposal a repertoire of ways
of solving a case that do not just involve what some people
call the ``Claude Raines theory'' of policing--round up the
usual group of suspects and beat them until somebody confesses.
So they can have an enormous impact on what is one of the
fundamental long-term challenges, which is retraining this vast
core of prosecutorial and police officials throughout the
country.
Another place where they have a tremendous amount of
influence, alluded to by my colleagues here, is that several of
these people take part and play a prominent role in the actual
drafting of these laws.
One who has written widely about the redrafting of the
Criminal Procedure Law is Professor Cui Min of the People's
Public Security University, who happens to be one of China's
most vocal and persistent critics of the problem of torture.
So, here is another person who has an opportunity to influence
the actual regulations on this.
Nevertheless, these people still have to deal with the
regular officials within the procuracy, the public security
system. It is quite clear that on some of these issues,
particularly things such as exclusionary rules, they face an
enormous amount of opposition from the working level leaders
within this system.
In the end, however, within an authoritarian system, as I
say, there are not self-sustaining, self-generating mechanisms
for fighting torture. So, it still comes down to, how much
pressure does the top leadership put on lower levels to fight
torture as opposed to pressuring them to solve crimes?
Very clearly, the top leadership in China right now is more
concerned about the crime rate spiraling out of control and are
more fearful that that loss of control over crime is going to
eventually undermine their legitimacy and authority. So, in the
end, they put more pressure on that than they do on fighting
torture.
Mr. Wolf. Before President Bush met with Jiang Zemin,
Senator Baucus and Congressman Bereuter, the Chairman and Co-
Chairman of the Commission, sent a letter to the President
asking him to raise the issue of the visit by the U.N. Special
Rapporteur on Torture, requesting that this be allowed.
I heard in Beijing, a couple of months ago, that the
Chinese had agreed to his visit, but I do not think anything
has happened since then.
How significant is it in your mind, as you try to influence
the more senior levels to have a visit by the Special
Rapporteur on Torture?
Mr. Tanner. I would say moderately significant, not
enormously significant. There are some within the Chinese
police system who believe that, because China has acceded to a
wide variety of these agreements, that means that China should
therefore revise its internal laws to meet these international
agreements against torture.
That is rather striking because, of course, as Ms.
O'Sullivan knows, the standard line from the Chinese is that
human rights standards are unique to each country, and that
international agreements like this should not be used to force
China to change its system. But we do see some voices within
the system saying that we should accept this sort of outside
international influence.
Mr. Wolf. Thanks.
John.
Mr. Foarde. Some odds and ends questions. Jerry, at the
beginning when you were talking about the criminal bar, defense
bar in China, you said that some are able to make a living
doing it. How do they set fees, and how do they collect them?
Mr. Cohen. Well, this raises some important questions,
again, that we could share in cooperation with them because we
have had to deal with these. The British have a different way,
sometimes, of dealing with questions of contingency fees.
Chinese lawyers will sometimes take contingency fees of a
very significant nature. In other words, if they get a certain
result, then maybe their original fee might be trebled, or many
times more than that.
But that troubles me, because it is a real incentive to
corruption. Lawyers in China--unfortunately, criminal defense
lawyers prominent among them--are often channels to corruption,
conduits.
Some of them feel that, although they will not take part,
they know their clients sometimes take measures and they just
look the other way, the way some foreign corporations look the
other way when they know middle men are taking actions that are
not legal on their behalf.
So I think this whole question of fees is very important to
study. I have been in some cases where I have been disturbed by
some of the criminal defense lawyers' actions, trying, for
example, to take advantage of the helpless suspect who is
awaiting trial and has no access to the outside world except
through the defense lawyer, and the defense lawyer says, here,
sign here an agreement that will say if I get you out in the
next 10 days, that you will give me X.
I mean, that is terrible coercion of the client. You are
supposed to be, as a defense lawyer, protecting the interests
of the person who is subject to incommunicado detention and
interrogation, not exploiting them. So, there are serious
questions of fees.
I think the financial problem is not a serious problem for
criminal defense lawyers. It is these other sanctions. Also,
the question of respect. That is why I mentioned individuals
who can be recognized, and the desirability of foreign bar
associations indicating their support.
We should be interested in not only the WTO, not only in
foreign investment and arbitration of commercial disputes, we
should show greater interest in criminal defense problems that
these people are confronting and we have a long experience
with.
Mr. Foarde. Is there a nationwide criminal defense
organization?
Mr. Cohen. Yes. Under the ALL China Lawyers Association,
there is a nationwide criminal defense lawyers' group. It is
headed by distinguished, experienced people. Even these people
feel under pressure. When lawyer Zhang Jianzhong got locked up
in Beijing, people in the Beijing Bar Association, people in
the national bar association, were very concerned, but it was
hard to get a peep out of them.
One point I mentioned in my report that I did not talk much
about in my summary is the control of the local judicial bureau
over sensitive matters. I made a brief allusion to it, but did
not go into any detail.
These defense lawyers are people who can lose their law
practice, they can lose their partners' law practice, their law
firm can be shut down. They can go to jail, informally, for
long periods, and they can be formally prosecuted. I think
article 306 of the Criminal Law should be abolished because it
is, indeed, as the lawyers say, a sword of Damocles that
intimidates them.
Mr. Hecht. If I could just add two things on defense
lawyers. Of course, the vast majority of criminal defendants
are poor in China, as they are everywhere. The Chinese have
tried to deal with that by keeping the mandated fee for
criminal defense lawyers quite low.
The Ministry of Justice rules on lawyers fees set the
amount that lawyers can charge. Of course, they do a lot on the
side with these contingent fee arrangements, and so on, but the
actual fee that they are supposed to charge is quite low. That
has created another disincentive, of course, for lawyers to
take these cases.
So one of the big problems that China has to face is coming
up with some sort of public defender system that is going to
enable the majority of criminal defendants to get a lawyer
under conditions that they can afford.
But you also have to recognize that even with those sorts
of measures, that chances are you are not going to have enough
criminal defense lawyers in the near term in China to handle
the number of cases.
Getting back to re-education through labor and its reform,
if those cases are moved into the formal criminal justice
system, the numbers of cases is going to go up considerably.
That is a real, practical concern that the Chinese also have
that could be addressed by thinking about alternatives to
lawyers per se. If you go to U.S. drug courts, if you go to
U.S. community courts, you see various types of representatives
and advocates for the indigent other than defense lawyers.
There is a whole range of different people who can serve a
similar sort of function, especially in fairly minor cases.
So, this is another example of where we have an opportunity
to share some quite practical, useful experience that could
actually open up some of these bigger problems that we have a
tendency to try to come at at very high levels.
We do not like the system, we want it to change, but you
have to get down into the guts and see what is making the
system go in China and what conditions are there or not there
in China for solving the problem.
Mr. Wolf. Thanks.
Matt.
Mr. Tuchow. There are so many questions I would like to
ask, but I am going to stick, again, to a large, over-arching
question. In my previous question, we spoke a lot about
engagement. Some think that the flip side of engagement is
pressure, but perhaps that is part and parcel of the same thing
because when you engage, you try to pressure as well.
One of our mandates as a Commission is to create a
prisoner's list. Professor Cohen has mentioned in his paper a
number of political prisoners. I am interested in your thoughts
as to how we as a Commission can best work on behalf of
political prisoners, whether it makes sense for the Commission
to mount campaigns on behalf of individual political prisoners,
and if doing so cuts back at all on our ability to engage the
Chinese.
So I guess the question kind of boils down to, how do you
sensitively pressure, if you feel that is appropriate? Why
don't I start again with Professor Cohen, and then to the
others if we have time.
Mr. Cohen. I think the most important thing we can do in
the United States does not directly concern China. It is the
example we set within our own society and legal system. As Jon
has already noted, this is widely appreciated in China.
Are we people who say ``do as I say but not as I do,'' who
expect the Chinese to adhere in practice to our theories even
though we ourselves are under pressure constantly, especially
after 9/11, to abandon some of our values?
Now, as to direct measures of cooperation with China, of
course, I think the Chinese are practical people. They know
they need cooperation. They are willing to cooperate with us
now on legal matters, and that is something, as I said, we
should take advantage of.
But we should not do it at the sacrifice of ventilating
problems that exist now. There are courageous, democratic
people in China serving many, many years in prison simply
because of efforts to organize a truly democratic party.
Xu Wenli has put in about 18 years in prison. He is in
deteriorating health now. What is his offense and what kind of
a trial did he really get? Mrs. Rebiya Kadeer, out in Xinjiang
Province, is another example. There are a lot of people whose
cases deserve continuing ventilation until China gets smart
enough to release them and get them off United States-China
relations' agenda, because they are very negative examples of
good people being suppressed. China is impugning its own
reputation by harming these people.
A final point. I do not want Jon to be misunderstood. He
has been supplementing my remarks so I am not misunderstood,
and I appreciate it. I just want to say, none of us is for
keeping re-education through labor. None of us. The question
is, how to deal with it? It is a kind of a false dichotomy we
are talking about here. Abolish it, in the sense of ignoring
the problems it is designed to meet? Veron has explained she
did not mean that.
China has to stop the current version, where it puts people
away for 3 or 4 years with no real substantive guidance that at
least the Criminal Law purports to provide in other cases, and
no real procedural protections which the Criminal Procedure Law
provides. It is not that one should ignore prostitution, or
drug addicts, or a lot of these other problems that plague
China as well as other societies.
The problem is, it is inconsistent with all of China's
criminal justice reforms to allow re-education through labor to
persist to let people be put away for 3 or 4 years under this
sanction.
As Jon says, we have to address, if the Chinese want our
help, how can we find legal techniques in light of our
experience, and that of others, that might address these
problems in a way more consistent with the Chinese Constitution
and legal reforms that we are talking about, even with their
limitations.
So I agreed with Veron's statement, because I understood
her. It would be desirable to abolish the current sanction, but
one cannot walk away from the problem, as Jon said. It has to
be handled in some ways that are more consistent with the post-
1996 criminal justice reforms in China.
Mr. Tuchow. Jon, real quickly, what are your thoughts about
our role regarding political prisoners?
Mr. Hecht. There is no question that there should be a list
of political prisoners. I think that the Commission's role as
an educator of the American public about the situation in China
and the potential for legal reform can be carried out at the
same time as you are preparing prisoners' lists. I do not
really see any problem with that. But, as to who is going to
actually take these prisoner lists and do something effective
with them, that is a more difficult matter.
Mr. Wolf. Next, Susan O'Sullivan.
Ms. O'Sullivan. Just to pick up on the list issue. I think
that we have had our greatest success with putting pressure on
the government to release people when it has been kind of a
joint project.
The Song Yongyi case comes to mind, where the academic
community spoke out very forcefully on his behalf. Jerry Cohen
played a key role. Members of Congress, Senator Specter and
others, played a key role. The State Department was in there
doing its thing.
So I really think that if you are going to talk about
lists, leaving it to the State Department is probably not the
way to go because we need other people to be reinforcing what
we are doing. I mean, I think we have lists. We pass them all
the time and we raise cases all the time, but my experience has
been that it is really helpful when other people are raising
their voices, too.
In terms of a question, on the human rights agenda that we
have been trying to push for a long time for China's
ratification of the International Covenant on Civil and
Political Rights, and China has signed this under pressure at
the summits in 1998, they now tell us as a matter of course
that they are reviewing their laws and trying to bring their
laws into compliance, and this is why they have not ratified,
and this is why they cannot predict when they will be finished
and when they will be able to ratify this.
I am wondering, going back to the question of what sort of
outside pressure is affected and supports those inside China
working for change, whether you think this is something useful
for us to continue to pursue, keeping in mind that a lot of
people ratified it and do not comply with it, just your sense
of the futility of that as a human rights agenda item.
Mr. Cohen. Again, the United States sets a powerful
example, negative or positive. If we would complete our
adherence to various human rights agreements, we would be in a
better posture, and that would exert very influential pressure
on China, and others.
Mr. Hecht. I think it should continue to be pursued, not
with any expectation that it is likely to actually happen any
time soon. But I think that China has accepted this as the
benchmark. It has not ratified it, but its government has
signed it and its leadership has said that it is committed to
ultimately ratifying it. I think that it should be held to that
standard.
I think that if you look at a lot of the issues that we
have been talking about today, one of the sources of
argumentation that reformers within China use again and again,
is the international standards.
To the extent that you have an inside/outside effort to
both push for formal ratification, use the standards in
discussions at the Commission on Human Rights, and at the same
time provide an international backing to the effort within
China to look at the covenants as the standard that China
should aspire to, I think that is a very powerful and useful
combination.
Ms. Hung. Perhaps we have to ask the question, why did they
decide not to ratify the international covenant? Is it because
there is no strong will to do that? Or is it because they
believe that the system is not ready for them to ratify this
international covenant as they cannot satisfy all of the
obligations?
If this is the case, then one issue we need to tackle is,
how can we help them to bring the legal system in line with
these requirements? So that is the reason why we say human
rights is a very sensitive topic. But legal reform, I believe,
is a fundamental solution to the human rights problem. This
issue is not sensitive, so the U.S. Government can offer some
assistance in this regard.
Mr. Tanner. Ms. O'Sullivan, I think that pressure for
Chinese ratification of these international covenants, and to
bring their own system in line with that, is one of a wide
variety of areas where we should continue pressure on the
Chinese.
We cannot expect that this is going to have a huge impact.
I do not see a lot of evidence that, internally within the
system, that this is regarded as a major lever, but it is one
among several.
We have the historical example of the way that the Helsinki
agreements were used in Eastern Europe over a long period of
time, two decades, to create increasing pressure for that. I
see people in China who are thinking in the same sort of long-
term fashion to use this as one more lever to change the
system.
Mr. Cohen. I think it is important that we not bilateralize
the question intellectually and in practice. I think Europeans
are a very important influence. China does business with
Europe. European business people, visitors, and tourists want
to be respected by a proper criminal justice system.
So I think, similarly, there are countries and areas
adjacent to China whose example is very useful for the Chinese
to study. That means South Korea, that means Taiwan.
Those places have made great progress in some of these
problems in the last 15 years. The more we can bring to bear
that experience, where social, economic, cultural, historical
conditions more closely resemble those of the mainland of
China, I think that, too, is useful.
There is a tendency here, naturally, to think of reform as
a United States-China issue. Of course, I do not have to tell
you, that is the most sensitive political relationship. Often,
reform comes in a more multilateral way and more comparative
way.
Mr. Wolf. Susan Weld.
Ms. Weld. Thanks, Ira.
I wanted to ask about something that many of you seem to
talk about as a dead letter, which is the administrative
litigation law. One problem with the punishment of re-education
through labor, is that it is administrative in nature. It does
not come within the scope of the protections of the criminal
procedure laws.
If the administrative litigation law does not help people
in administrative detention, could it be fixed to help them? I
believe it is not just re-education through labor, but all
sorts of other kinds of detention where that law might be
helpful to people. So I guess I am asking all of you, starting
with Veron, because that is her specialty.
Ms. Hung. I want to understand the question better.
Ms. Weld. All right. As I understand from your statement,
you do not feel that the ALL functions to protect people in
those circumstances. Could it be fixed so that people could use
it to protect themselves? Could it also operate in other kinds
of administrative detention where people do not have access to
help?
Ms. Hung. Right. In fact, I have spent a lot of time
studying administrative litigation in China. That, as I
mentioned, was my focus in my doctoral thesis. There are a lot
of problems, but there also have been some improvements, like I
have noticed that there has been growing respect for procedural
requirements.
But then a major problem, again, and again, and again, is
interference from administrative organs and Communist Party
members. Can that be fixed? It is very difficult, for the
reasons I just said before. Why do we have that? Because the
courts feel that they are subject to pressure. They are
susceptible to their control because personnel and financial
arrangements are controlled by local governments.
But I still remain hopeful. Why? Because there has been a
lot of discussion among government officials on how they can
improve the system. Recently, they have been talking about
drafting a piece of legislation called ``administrative
procedure law'' in addition to what they have now,
``administrative litigation law.''
I talked with a committee consisting of five scholars that
is drafting this piece of legislation. They look at other
countries' experience, including the United States and European
countries, to see whether they can learn from these experiences
to improve the administrative litigation system. So, I try to
remain hopeful.
Mr. Cohen. The judicial review of administrative action is
a startling development in China that only got going in 1989,
1990. I am not so pessimistic. I would not characterize it as a
dead letter.
WTO is going to inject a little more life into that.
So far, one of the restrictions of China's administrative
litigation law is that the judges are not supposed to consider
abstract regulations, only concrete cases, and there are
questions of what meaning to ascribe to both of those terms.
But I think China will have to revise, soon, its
administrative litigation law to permit judges also to review
abstract regulations, and that could even justify a court that
felt comfortable in doing it--and that is a big if--in saying
that the re-education through labor regulation decisions are
not in accordance with Chinese law.
Ms. Hung. I am very happy that Jerry just mentioned the
WTO, because I almost forgot. In fact, this is a big
opportunity for the Chinese Government to improve the system
because under the WTO agreement, China is required to ensure
that their judicial review system is independent.
Judicial review system means the administrative litigation
system in China's context. Because they are bound by this
international treaty obligation, they have to improve it,
otherwise they have to face the consequences. So, eventually
this will benefit the entire legal system in China as well.
Thanks.
Mr. Hecht. If I can just add one more comment on this. I
think both Jerry and Veron have talked a lot about the reform
of the administrative litigation law itself, and there is an
active effort going on to reform the administrative litigation
law, and there is an academic group that is drafting, again,
what they are calling a scholar's draft, but they are very tied
in with the NPC and the actual lawmakers.
But I think your point was specifically about detention and
the role of administrative litigation in dealing with
detention. I think this ties in somewhat with what Susan was
saying. The problem in the Chinese case has been this division
between criminal detention and administrative detention.
Re-education through labor has been such a huge human
rights problem, precisely because it has continued to be viewed
as an administrative measure. And where the international
standards really play an important role, is that it cuts
through that to make clear that what matters is not whether it
is called ``criminal'' or called ``administrative,'' but
whether people are deprived of their liberty.
If people are deprived of their liberty, then there must be
a prior judicial decision and prior judicial process.
Administrative litigation, even in the best of circumstances,
only happens after the fact.
So I think, again, this is an area where a new conception
needs to be encouraged, away from this arbitrary division into
criminal and administrative, and toward more explicit reference
to the international benchmark.
Mr. Wolf. Well, this has been, obviously, a very rich
discussion. We have a few more minutes, if there was something
that was left unsaid that you would like to mention. We can
start with Jonathan and work our way down. If there are things
you think of, by the way, afterward that you wish you had said,
we are happy to add that into the record.
But, Jonathan, anything that you want to add, or sum up,
whatever?
Mr. Hecht. Well, I think I have spoken a fair amount,
actually.
Mr. Wolf. All right.
Veron.
Ms. Hung. I want to add one remark that I have repeatedly
mentioned ever since I arrived in Washington. I believe that
United States assistance in legal reform in China bodes well
for United States-China relations because such dialog is
beneficial to the United States as well.
The topic is closely related to two issues that the
American Government and also American citizens are most
concerned about: ``human rights,'' and``WTO and trade with
China.''
Human rights is a highly sensitive issue in China. But
legal reform, a fundamental solution to this problem, is not.
It is also beneficial to the United States if they help
China to reform the legal system because we know that China
cannot satisfy all of the WTO obligations immediately. We can
foresee that numerous trade disputes between China and the
United States will occur. So, to reduce these conflicts, the
United States should help China bring its legal system in line
with the WTO agreements.
Once the United States offers this kind of assistance, I
believe it can provide a springboard for improving United
States-China relations, and that can also help resolve other
thorny issues, such as Taiwan issues. This is my final note.
Mr. Wolf. Thanks.
Scot.
Mr. Tanner. Thank you.
One of the issues that was raised earlier was the way in
which we consider whether or not to expand our legal
cooperation to include elements of the procuracy, and perhaps
even people within the public security system.
I sympathized greatly with one of the points that was made,
which is that it is very, very difficult to figure out exactly
how to section that sort of cooperation off to make sure that
we are contributing to improvement in the human rights
situation in China and not inadvertently simply making this
repressive system better and more efficient at being
repressive.
There are a few things that I think we can do that are
controllable that we might be able to think about for helping.
Perhaps by bringing some scholars and officials from these
systems over to the United States, some of the people who are
going to be training lower-level officials later on.
It has an enormous impact on them to see that the United
States is not the anarchic, crime-ridden society that a lot of
them have been told that it is, that crime can be fought
without resorting to torture.
The exchange of materials, things like translation or study
materials, or things like that. These are things that Chinese
universities and training institutes are very starved for. So,
that sort of thing is worth considering.
In a sad way, one thing that can be noted is that one area
in which Western countries and the Chinese police already have
a good deal of contact--and it is not official contact, it is
market contact--is that a significant number of companies in
the west that deal in police equipment already are involved in
joint ventures in China.
I have walked along Zhengyi Street in Beijing. There is a
strip of police goods stores. You can go in there, and they are
perfectly happy to tell you, oh, yes, this stun gun we made in
a joint venture with such-and-such a European country, or so
on, and so forth. It is tragic that that is, in some way, the
best-developed aspect of contact between the west and Chinese
police.
I think we want to consider, with the procuracy and the
public security system, trying to think of controllable ways in
the academic sphere that we might contribute to improving their
training so that they can fight crime without resorting to
torture.
Mr. Cohen. I think structural reform has to be the ultimate
proposal. The Manchu Dynasty did more for structural reform of
its legal system than the Chinese Communist Party has done for
its system.
For example, no Manchu judge would be sent back to his
local area to work. Too many dangers of corruption, familistic
ties, etc. Any Manchu judge was only kept in place, wherever he
was sent, for 3 years for similar reasons. They moved them
around.
The evil of local protectionism and the way it destroys any
independence and integrity for the Chinese court system is
recognized every year in the annual report of the president of
the Chinese Supreme Court. But it is like Mark Twain said about
the weather: ``Everybody talks about it, but nobody does
anything about it.'' They have to do something about it.
Some enlightened future leaders have to realize how
important this is to China's system domestically, and
increasingly, internationally. Chinese courts are weak. They
need more professional help. They do not address many questions
in their judgments.
They sort of hide them under the table or just ignore them.
And they are under the coordination of the Communist Party
Political Legal Committee, and I think that should be ended.
They should be left to stand on their own professional feet. I
think a lot of things can be done.
A final point. We have not mentioned the importance of a
free media to rule of law. You cannot have, in any country or
genuine legal system, a rule of law system, and human rights
protection unless the media are free to report on the abuses
that occur in every country.
Where would we be in our own society with respect to all of
the problems we have mentioned here if we did not have a free
press to ventilate these things to put the heat on legal
administrators, police, politicians, etc.?
The more China can develop freedom of the press and
competent legal specialists to report--they have some legal
investigative reporters--the more likely it is that the
government will be stimulated to stamp out corruption and
create a genuine rule of law.
Mr. Wolf. Well, on behalf of Senator Baucus and Congressman
Bereuter, I want to thank you all very much for spending the
morning with us today. This has been quite useful, and I think
it is a significant contribution to the annual report that the
Commission will be completing in October. Thanks again.
[Whereupon, at 11:55 a.m., the hearing was concluded.]
A P P E N D I X
=======================================================================
Prepared Statements
----------
Prepared Statement of Jerome A. Cohen
july 26, 2002
Challenges for Criminal Justice in China
At a time when American criminal justice values are being
challenged by a range of post-9/11 U.S. Government actions, I welcome
the opportunity to discuss the plight of China's criminal defense
lawyers, if only to assure their American counterparts that things in
the United States could be a lot worse.
Of course, lawyers in the People's Republic of China (``PRC'') have
come a long way in the past quarter century since the end of the
Cultural Revolution and the start of Deng Xiaoping's ``Open Policy.''
Formerly denounced as the worst type of ``stinking intellectuals'' and
totally suppressed for over 20 years beginning with the 1957-58
campaign against ``rightists,'' PRC lawyers--now almost 120,000 in
number--are currently transforming themselves from Soviet-style ``state
legal workers'' \1\ to increasingly recognized, prosperous and semi-
independent professionals. Many play an important role in business
transactions that facilitate domestic economic development. A growing
number promote the international trade, foreign investment and
technology transfer that have spurred their nation's remarkable
progress. Others foster the rights of women and children, and some even
dare to protect the rights of workers. Although dismayed by the extent
to which corruption, politics and personal influence affect--and often
involve--their law practice, even when settling disputes before courts,
China's lawyers, by and large, now lead an increasingly satisfying and
attractive life. So attractive, indeed, that it has become difficult to
recruit and retain top talent to serve as the country's
underappreciated and underpaid judges, prosecutors, government legal
experts and law professors. According to some recent social surveys,
being a lawyer is now considered one of China's most favored career
choices.
---------------------------------------------------------------------------
\1\ The Interim Regulations of the People's Republic of China on
Lawyers, article 1 (1980) (passed by the Standing Committee of the
National People's Congress on Aug. 26, 1980).
---------------------------------------------------------------------------
Criminal defense lawyers, however, are an exception. To be sure,
some of them are well-compensated, and a few have become deservedly
famous and admired. Yet even they have a daily diet of disillusionment
and danger, and their situation is not improving, despite the hopes
that in 1996 accompanied enactment of the Lawyers Law\2\ and revision
of the Criminal Procedure Law (``CPL'').\3\ The following remarks,
based upon conventional legal research as well as experience advising
the American families of people detained in China, will suggest why.
---------------------------------------------------------------------------
\2\ The Lawyers Law of the People's Republic of China was enacted
by the National People's Congress Standing Committee on May 15, 1996.
\3\ The Criminal Procedure Law of the People's Republic of China
was promulgated on July 1, 1979 and revised on March 17, 1996.
---------------------------------------------------------------------------
1. obstacles to entering a case
One of the major innovations of the 1996 CPL is the right it
confers on a detained suspect, after the first interrogation by
investigators or from the first day of detention, to select and meet a
lawyer.\4\ In 1998 the revised CPL was authoritatively interpreted to
confer on the family the right to select a lawyer on behalf of the
suspect, so that a lawyer chosen by the suspect or his family is
recognized as having a right to enter the case and meet with the
suspect.\5\ These rights are not contingent upon the approval of the
detaining authority, unless the case is determined to involve ``state
secrets.'' \6\ Yet PRC police and prosecutors often deny lawyers access
to their clients on far-fetched claims of ``state secrets.'' For
example, in the 1999 case of detained Dickinson College librarian Song
Yongyi, even after the prosecutor had rejected the State Security
Bureau's application for a formal arrest warrant on a ``state secrets''
charge, the SSB continued to deny his lawyer an opportunity to meet
him.
---------------------------------------------------------------------------
\4\ CPL, article 96.
\5\ Supreme People's Court, Supreme People's Procuratorate,
Ministry of Public Security, Ministry of State Security, Ministry of
Justice and the National People's Congress Standing Committee Legal
Affairs Working Committee: Provisions Concerning Several Issues in the
Implementation of the Criminal Procedure Law, issued on January 19,
1998, article 10.
\6\ CPL, article 96.
---------------------------------------------------------------------------
More often, the police simply do not transmit a detainee's request
for a lawyer or delay or refuse access to a lawyer without giving any
reason, as the Inner Mongolia Public Security Department did for months
last year in the case of Connecticut resident Liu Yaping and as the
Beijing Public Security Bureau did for weeks after the recent detention
of well-known lawyer Zhang Jianzhong. If the frustrated criminal lawyer
becomes too assertive in reciting the CPL provisions authorizing access
to his client, the police seldom hesitate to demonstrate who is boss,
especially outside the major cities. In the Liu case, which is a
blatant use of the criminal process to settle a political struggle
within the police itself, those in charge of the Inner Mongolia PSD,
tired of listening to the arguments of local counsel about the PSD's
illegal detention of Liu and its illegal denial of access to him,
detained the lawyer as well. She was released 28 hours later, but only
after ``agreeing'' to sign a false statement, and was so intimidated
that she not only dropped the case but also said that she would give up
the practice of law for some less hazardous occupation! When the
suspect's family retained a former prosecutor from Beijing to take up
the case, he too was detained by the PSD and released only after
agreeing to board the next flight out and not return. And when one of
the police officers handling the case mentioned the provisions of the
CPL to the Party Secretary of the Inner Mongolia Communist Party
Political-Legal Committee, which ``coordinates'' the work of police,
prosecutors and courts, the Secretary, who was one of the two major
combatants in the political struggle, reassured him by saying: ``I am
the law in Inner Mongolia.''
A more subtle technique frequently used by police and prosecutors
to defeat a defense lawyer's entry into a case is simply to fail to
comply with the requirement of the CPL that, within 24 hours of
detaining someone, the detaining authority must notify the family or
employer of the detainee of the detention,\7\ the reason therefore, the
identity of the detaining authority and the place of detention.\8\ If
questioned about their failure to issue the required notice, ``law
enforcement officials''--an ironic name for those who so frequently
violate their own nation's law--shamelessly exploit an exception to the
CPL's notification requirement by claiming that notification would
``interfere with their investigation.'' \9\ Yet in most cases the only
reason that notification might ``interfere with the investigation'' is
that it might lead the family or employer to retain counsel to meet the
detainee in accordance with the CPL in order to explain the nature of
the offense suspected, relevant procedures and the rights of the
detainee.
---------------------------------------------------------------------------
\7\ CPL, article 64.
\8\ Ibid.
\9\ Ibid.
---------------------------------------------------------------------------
It should be emphasized that the CPL does not require a lawyer to
show the detaining authority a copy of the detention notice in order to
get access to his client. Yet police and prosecutors frequently take
this position, and defense lawyers themselves will often reluctantly
tell a would-be client that they cannot even accept the case unless a
copy of the detention notice is provided to them. This, of course, is a
ludicrous situation, for it denies the family and employer of the
detainee their legally guaranteed access to counsel at the outset of a
case, a time when all they may know is that the suspect is missing and
is probably in the custody of an unknown agency in an unknown place on
an unknown charge. This is a crucial time when laymen urgently need the
help of a criminal lawyer, who has the knowledge and contacts to enable
them to find the detainee, so that the rights conferred by the CPL upon
detainee, family, employer and defense counsel can all begin to be
implemented. Moreover, if the detaining authority can defeat a lawyer's
legally guaranteed entry into a case by failing to give the legally
guaranteed detention notice, it has an added incentive to violate the
CPL's notification requirements.
This farce has recently been acted out in the case of the Boston-
based democracy activist Yang Jianli. On April 26, 2002, Yang, a PRC
national and U.S. permanent resident with Ph.Ds from Harvard and
Berkeley, after repeatedly being denied entry to his homeland and even
to Hong Kong, was detained in China's Yunnan Province on suspicion of
using someone else's passport to return to his country illegally.
Although 3 months have passed, no detention notice has yet been
received by his family, which has been frantically trying to obtain
one, so that defense counsel can belatedly begin to assist him. This is
surely not a case in which the detaining authority can claim that
issuance of a detention notice might interfere with its investigation
by revealing to others the fact of Yang's detention, since the case has
been widely publicized abroad from day one and well-known in China via
the internet, e-mail, fax, phone and travelers. Furthermore, on May 10,
2002 the PRC Foreign Ministry, after inquiries from foreign journalists
and the U.S. Government, admitted at a press conference that Yang was
in custody, but it neglected to State in whose custody and where.
Letters from Yang's American wife to the Ministry of Foreign
Affairs, the Ministry of Public Security, the Ministry of National
Security and their local agencies requesting notification of his
detention have all gone unanswered, and, when she arrived at Beijing
Airport in May in an effort to call upon relevant agencies, her visa
was canceled and she was sent home on the plane that brought her.
Yang's brother, who lives in Shandong Province and is a loyal Communist
Party member, nevertheless believes that the police should follow the
country's law. He has courageously persisted in vainly knocking on the
doors of Beijing's various law enforcement agencies as well as its
criminal law firms, and in talking to any journalist who will listen,
despite increasing police pressures upon him. The sad fact is that
lawyers seem unwilling to take on this politically sensitive case until
a detention notice is received. Recently one lawyer reportedly agreed
to enter the case but changed his mind by the time Yang's brother,
whose phone is presumably tapped, reached his office.
On July 12, 2002 the Ministry of Foreign Affairs, aware of the bad
publicity generated by the illegal conduct of the police, informed the
American Embassy in Beijing that Yang is being detained by the Beijing
Public Security Bureau and predicted that a detention notice would soon
be issued. Two weeks later, the family is still waiting.
Another frequently used technique to keep lawyers out of the
detention/investigation process is for police or prosecutors to pretend
that the suspect is not really detained but merely being accommodated--
forcibly to be sure--at a ``guest house'' run by the detaining agency.
Sometimes, as in a current case I am not at liberty to identify, the
family is informally told who the detaining authority is (in this case
the local branch of the State Security Bureau) and vaguely what the
investigation is about (student sexual activities) and the family is
even required to pay 100 RMB (roughly US$12) a day for room and board,
which really adds insult to injury! Since the case has not yet become a
formal criminal matter, and might not become one, the family has been
advised against legalizing the situation by retaining a lawyer.
American University scholar Gao Zhan and her husband were secretly
confined in separate ``safe houses'' by the State Security Bureau for 3
weeks before pressure from the American Embassy caused the PRC
government to admit they were in detention. Similar techniques are even
used on Party members, who can be summoned by the local Party
discipline and inspection committee for investigation of matters that
later become criminal. The procedure is called shuanggui and can result
in a long period of incommunicado detention. And, of course, when
ordinary people are detained pending determination whether they should
receive the administrative punishment of ``reeducation through labor,''
which can result in 3 years in a labor camp, no detention notice need
be issued if the police regard the case as certain to result in this
``non-criminal'' punishment rather than a formal criminal sanction.\10\
---------------------------------------------------------------------------
\10\ According to the Implementation Regulations of the Ministry of
Public Security Concerning Reeducation through Labor, issued on January
21, 1982, although the decision to impose the sanction of ``reeducation
through labor'' on someone should be announced to his family, there is
no requirement to notify the family of his initial detention. See
article 12 of the Implementation Regulations.
---------------------------------------------------------------------------
In some cases defense lawyers are forbidden or informally
discouraged from assisting a detainee by the local bureau of the
Ministry of Justice. Local justice bureaus used to exercise control
over defense lawyers' conduct in all cases. In recent years, after the
1996 promulgation of the Lawyers Law and the revised CPL, they have
relaxed their grip in most cases. Yet old habits die hard, and in some
parts of China rules issued by local justice bureaus restrict defense
lawyers to varying extents in certain types of cases. In Beijing, for
example, according to rules issued in early 1999,\11\ without the
advance approval of the Leading Group established by the Municipal
Justice Bureau, no defense lawyer may accept a case that involves
``state security,'' foreigners or ``critical social influences.''\12\ A
special notice issued 6 months later, after the onset of the continuing
campaign to suppress the Falungong, makes clear that cases against
Falungong followers are deemed to involve ``critical social
influences.''\13\ This continuing control by the Beijing Judicial
Bureau over the entry of lawyers into politically sensitive cases may
be the reason why Beijing lawyers have refused to enter the Yang Jianli
case until shown a copy of his detention notice. They may be tacitly
complying with a condition imposed by their masters.
---------------------------------------------------------------------------
\11\ The Rules of Beijing Municipal Justice Department on Reporting
Major Legal Matters by Beijing Law Offices, JING SI FA No. 7 (1999).
\12\ Ibid, article 4(a).
\13\ Notice of Beijing Municipal Justice Department Concerning
Reporting Legal Advice to and Representation of Falungong Followers, a
document widely circulated in the internet, which was reportedly issued
on July 29, 1999.
---------------------------------------------------------------------------
2. obstacles during the investigation stage
The 1996 CPL and other laws authorize lawyers to perform two
different functions in the criminal process. During the investigation
stage they may offer legal counseling (falu zixun). During the
prosecution and trial stages, they may offer defense representation
(daili bianhu). The differences between the two functions are
significant.
In view of the extreme difficulties that lawyers confront in
entering the investigation stage, one might think that those who manage
to do so might then be allowed to render substantial service.
Unfortunately, the revised CPL, while for the first time granting
lawyers access to detainees during investigation, nevertheless severely
restricts what they can do. At this stage, which usually lasts for many
months and sometimes even years, the lawyers may merely ``offer legal
advice'' and file a complaint or petition on behalf of the suspect. If
the suspect has been formally arrested, the lawyer may also apply for
``release under guarantee pending trial.'' The lawyer also has the
right to ask the investigating agency about the nature of the alleged
offense and to interview the suspect to understand the circumstances of
the case. However, the revised CPL ominously provides: ``Depending on
the circumstances and necessities of the case, personnel from the
investigating agency may be present during the lawyer's interview with
the criminal suspect.''\14\
---------------------------------------------------------------------------
\14\ CPL, article 96.
---------------------------------------------------------------------------
Police and prosecutors have applied these provisions in ways that
minimize the opportunities for a lawyer to affect their investigation.
In practice, lawyers are generally allowed only one brief meeting with
the detainee at this stage. Usually these meetings are closely
monitored, and sometimes recorded, by investigators, so that
confidential communication is impossible. Lawyers are frequently not
allowed to ask their clients detailed questions about the case. When,
for example, a lawyer was finally permitted to meet American citizen
Fong Fuming last year, after he had been in detention on bribery and
``state secrets'' charges for almost a year and after the investigation
was virtually concluded, no detailed discussion of his case proved
possible, and counsel and client were required to talk through a glass
partition by means of microphones that broadcasted their every word to
the nearby guards.
During the lengthy investigation period, lawyers are definitely not
permitted to undertake their own inquiry into the case--no interviewing
of witnesses, no collecting of other evidence, not even discussion with
the detaining authority about the inadequacy of its evidence. The
complaints or petitions that lawyers are authorized to file with
investigating authorities usually fall upon deaf ears, even if based
upon clear violations of the CPL's procedures. Although police
sometimes grant ``release under guarantee pending trial'' for their own
convenience, lawyers' requests for such release are rarely granted.
Yet there is nowhere else to go for a hearing concerning
investigators' arbitrary actions, including torture. Although the
prosecutor's office is supposed to serve as the ``watchdog of
legality'' and protest the misconduct of not only the police but also
other prosecutors, it seldom offers relief, and it frequently is
difficult for lawyers even to obtain meetings with prosecutors or
higher police officials in order to challenge investigators'
violations. China lacks any proceeding similar to habeas corpus, so
lawyers who try to persuade a court to hear a detainee's grievance are
told that courts have no jurisdiction until after indictment, and the
local judicial bureau will also disclaim authority. Nor will a lawyer
without powerful connections find assistance at any level of people's
Congress or the Party political-legal committee that coordinates the
government law enforcement agencies or the Party discipline and
inspection committee that deals with misconduct by Party members. In
rare cases the Chinese press reveals egregious police misconduct, but
lawyers attuned to a government that suppresses political freedoms
seldom risk contact with journalists.
In China, as elsewhere, the investigation stage is the most crucial
phase of the criminal process. In the PRC, in law and even more so in
practice, it is heavily weighted against the suspect, so that even the
ablest defense lawyers find the system to be an exercise in
frustration.
3. limited role during the indictment stage
Under the revised CPL, defense counsel are supposed to come into
their own once the government investigation concludes and the case is
sent to the prosecutors' office together with a report recommending
indictment. Prior to the 1996 reforms, defense lawyers were not even
admitted to a case at this stage but had to wait until it had reached
the court following indictment. The revised CPL requires the
prosecutors' office, within 3 days of reviewing the case file, to
inform the suspect of his right to ask a lawyer to defend him.\15\ In
principle, the lawyer, now formally referred to as ``defense lawyer,''
has a right to conduct his own investigation of the case and to read,
excerpt and reproduce ``litigation documents and technical materials''
in the file, as well as to meet and correspond with the suspect in
custody.\16\ The lawyer also has a right to present his views on the
evidence and applicable law to the reviewing prosecutor before the
decision is made concerning indictment.\17\
---------------------------------------------------------------------------
\15\ CPL, article 33.
\16\ CPL, article 36.
\17\ CPL, article 139.
---------------------------------------------------------------------------
Unfortunately, the provisions of the revised CPL that detail the
newly granted rights of the defense lawyer at this stage lend
themselves to frustration of those rights. The revised CPL fails to
define the scope of the ``litigation documents'' in the file to which
the prosecutor must grant access, and it affirmatively restricts
defense counsel's prospects for independently gathering evidence. The
law provides that defense counsel may only collect materials concerning
the case from witnesses or other persons or organizations with their
consent, and may only obtain materials relating to the case that are in
possession of ``the victim, the victim's close relatives and witnesses
proposed by the victim'' with the consent of the victim and the
approval of the prosecutors' office.\18\
---------------------------------------------------------------------------
\18\ CPL, article 37.
---------------------------------------------------------------------------
Not surprisingly, these detailed provisions governing the defense
lawyer's pre-indictment role have been applied in ways that severely
limit the possibility of mounting an effective defense. Although some
scholars hoped that the ``litigation documents'' that the prosecution
is required to show defense counsel would include documentary evidence,
physical evidence and the records of statements made by witnesses, the
victim and the suspect himself during the investigation stage, as well
as other evidence available to the prosecution, the term has been
construed narrowly by the nation's chief prosecutor's office, the
Supreme People's Procuracy (``SPP''), to exclude all such material.\19\
Prosecutors are required to grant access merely to the formal documents
in the file, such as copies of the detention and arrest notices. In
practice prosecutors have proved even stricter in withholding relevant
documents. Even the investigators' summary of the case and
recommendation to indict, a most important formal document, is not
usually revealed, although the SPP's interpretation requires it to
be.\20\ Of course defense counsel ``may apply'' to see the evidence in
the file and even to ask the prosecutors to help collect additional
evidence for the defense,\21\ but such requests seldom yield a positive
response.
---------------------------------------------------------------------------
\19\ Supreme People's Procuratorate: Rules on the Criminal Process
for People's Procuratorates, issued on December 16, 1998, article 319.
\20\ Ibid.
\21\ CPL, article 37.
---------------------------------------------------------------------------
Moreover, defense counsel, lacking the power and prestige of police
and prosecutors, find it very difficult to obtain the consent and
cooperation of witnesses, of victims and their families and of other
people and organizations. Despite the fact that witnesses do not
usually appear in person to testify in criminal trials in China, they
do not even wish to be interviewed, and lawyers have no way to make
them cooperate. Thus the belated right of the defense lawyer to conduct
an investigation often turns out to be a sham.
These restrictions plainly limit the ability of the defense lawyer
to persuade the prosecution not to issue an indictment or to indict for
fewer or lesser offenses. There is no way the defense lawyer can know
the case as well as the prosecution, especially in view of the fact
that the indictment stage is usually brief, unlike the investigation
stage, and prosecutors often place little stock in the defense lawyer's
views. In any event it is frequently difficult for defense lawyers even
to arrange a meeting with the responsible prosecutors in order to
discuss the matter. These realities help to explain the fact that, year
in year out, prosecutors approve over 98 percent of investigators'
requests for indictment.\22\
---------------------------------------------------------------------------
\22\ Human Rights in China: Empty Promises-Human Rights Protections
and China's Criminal Procedure Law (hereafter ``HRIC Report''), New
York, March 2001, at 24.
---------------------------------------------------------------------------
Plea bargaining is neither authorized nor practiced in the PRC, at
least in principle. Of course, during the investigation stage
interrogators frequently bargain with the suspect, offering ``leniency
for those who confess and severity for those who resist,'' and in some
cases defense lawyers do have an opportunity to exchange ideas with
prosecutors about their case, and perhaps even negotiate after a
fashion. Indeed, in some of the PRC criminal cases in which I have
advised, our Chinese defense counsel surely conducted conversations
with prosecutors, sometimes at my suggestion. They did not feel free to
inform me of the occurrence or content of certain other meetings with
prosecutors. The latter experience led me to believe that in sensitive
cases defense counsel may not be free agents.
That defense lawyers in important cases are often not independent
is confirmed by the 1999 Rules of the Beijing Municipal Justice Bureau
to which I previously referred.\23\ This is true not only in those
cases for which approval of the Bureau's Leading Group is required for
entry into a case, but also in a broad variety of other major cases.
The Rules grant the Leading Group the power ``to listen to the requests
and reports of law firms in major cases'' (written reports that the
firms are required to make at every stage of the case),\24\ ``to decide
the principles for handling major cases and to coordinate the work
connections between lawyers and relevant agencies.''\25\ If a written
report causes the Leading Group to believe that a meeting is necessary
with the lawyer handling the case, it can summon him to ``report
relevant circumstances,'' which include ``the tactics adopted by the
lawyer for handling the case as well as the issues that need to be
discussed.''\26\ The Rules conclude by stating: ``The lawyer handling
the case must prepare his tactics in accordance with the decision made
by the Leading Group after its discussion.''\27\ If circumstances
subsequently change, the lawyer is authorized to revise his defense
arguments in accordance with the new situation but must report the
details to the Leading Group.\28\ It would be surprising if the rules
of at least some other local judicial bureaus were very different in
this respect.
---------------------------------------------------------------------------
\23\ Supra note 11.
\24\ Ibid, article 2.
\25\ Ibid.
\26\ Ibid, article 6.
\27\ Ibid, article 7.
\28\ Ibid.
---------------------------------------------------------------------------
4. trials and tribulations
The frustrations of defense counsel do not diminish following
indictment. The revised CPL purported to transform the criminal trial
into a meaningful experience by precluding the court, prior to the
judicial hearing, from reaching its judgment on the basis of the file
submitted by the prosecution. In order to implement this objective the
revised CPL eliminated the previous practice whereby the prosecution
submitted its entire file to the court along with the indictment.
Instead, it required only that the prosecution submit a list of the
evidence and witnesses to be presented at the trial together with
copies of ``major evidence'' and the litigation and technical documents
to which defense counsel had access at the indictment stage.\29\ This
has meant that defense counsel, instead of gaining access to the whole
file prior to trial, as in pre-1996 practice, now has the benefit of
merely the skeletal prosecution file called for by the revised CPL,
which again is narrowly construed by prosecutors in practice. Thus, in
preparing for trial, defense lawyers have much less knowledge about the
nature of the prosecution case and much less material to work with than
under the old procedure, and this hinders their preparation greatly.
---------------------------------------------------------------------------
\29\ CPL, article 150.
---------------------------------------------------------------------------
Nor does the revised trial procedure enhance the ability of defense
counsel to gather evidence on their own. Indeed, it constitutes another
setback.\30\ Prior to 1996, although the old CPL was silent on this
question, both the national interim regulation on lawyers and some
local regulations emphasized the right of defense counsel to
investigate and collect evidence and the obligations of witnesses and
other relevant people and institutions to cooperate with those efforts.
The revised CPL, as the provisions cited in the previous section make
clear, virtually invites witnesses and others to reject the requests of
defense counsel, who have no power to compel their cooperation.
Although the new law provides that defense lawyers may apply for a
court order to collect essential evidence on behalf of the defense,\31\
such applications tend to be as unsuccessful as similar requests made
to the prosecutors' office, and there is no way to obtain review of
such rejections. Moreover, the orders of Chinese courts are ignored to
a shocking extent due to the absence of both appropriate punishments
for contempt of those orders and an effective judicial enforcement
system.
---------------------------------------------------------------------------
\30\ HRIC report, Chapter III. supra note 19.
\31\ CPL, article 37.
---------------------------------------------------------------------------
Denied the opportunity to learn the prosecutor's case in advance of
trial and restricted in his ability to build his own case prior to
trial, defense counsel, to the extent allowed by the judicial bureau,
should at least be able to rely on the opportunity to puncture the
prosecution's case at the trial. In China, as elsewhere, often the best
way to demolish the factual allegations underlying the indictment is
for defense counsel to cross-examine the prosecution's witnesses. Yet,
prior to 1996, witnesses were not required to appear in court. One of
the most well-known reforms of the revised CPL,\32\ at least as its
somewhat ambiguous language was clarified by Supreme Court
interpretation,\33\ is the requirement that generally witnesses must
testify in court, rather than have their pre-trial statements read out
during the trial, and that the opposing lawyers, as well as the judges,
must have the right to cross-examine the witnesses. In view of the
previous practice, this was a change of potentially historic
proportions.
---------------------------------------------------------------------------
\32\ CPL, article 47.
\33\ Supreme People's Court: Interpretation on Several Issues
Regarding Implementation of the PRC CPL, enacted on June 28, 1998,
article 141.
---------------------------------------------------------------------------
The problem is that this requirement has remained a dead letter.
Except in a tiny percentage of cases, witnesses still do not appear in
Chinese criminal courts. No one disputes that. The only debate is over
whether, nationwide, as few as 1 percent or as many as 10 percent of
the trials might be graced by the presence of even a single witness. So
much for the right of cross-examination! Defense counsel inevitably
confront difficulty in challenging the records of statements made
outside their presence to police and prosecutors, although, as with
physical and documentary materials, they seek to demonstrate
discrepancies and other reasons to doubt the evidence.
Many other basic evidentiary challenges confront PRC trial lawyers.
Is there a presumption of the defendant's innocence? If a confession or
other evidence was illegally obtained, should it be excluded from
evidence? What are the elements of proof required for conviction of
various offenses and what standard of guilt should be applied by the
court? Literally, scores of serious evidentiary issues arise, and many
Chinese prosecutors and judges--and many defense lawyers--are ill-
equipped to deal with them, especially in the absence of detailed
legislative guidance.
It is often difficult for informed foreign observers to gain access
to PRC criminal trials, especially since many important trials are
still effectively closed, even to the Chinese public, contrary to
constitutional and legislative prescriptions that generally require
public trials. My impression from studying criminal court judgments,
however, is that Chinese judges often do not address or respond in a
reasoned manner to many of the factual and legal arguments presented by
defense counsel. Although the Supreme Court has instructed the courts
to State the reasons for their judgments, their decisions are often
cloaked in cursory generalities.
In this year's Fong Fuming case, for example, many questions of law
and evidence went unanswered. What are the elements that must be proved
to make out a ``bribery'' conviction? Did ``extortion'' occur and, if
so, should it have vitiated a ``bribery'' charge? Was the court correct
to exclude proffered evidence that the alleged extorter had also sought
to extort other businessmen? On what basis could the court conclude
that commercial documents found in Fong's laptop were ``state secrets?
'' Should defense counsel and defendant have been allowed to read the
documents in question in order to be able to rebut the charge? Did the
prosecutors and judges themselves have an opportunity to read those
documents or were they simply required to accept the decision of the
national State Secrets Bureau? Did an opinion of the State Secrets
Bureau accompany its decision and, if so, should the defense have been
allowed an opportunity to review it, if not the documents themselves?
Similar questions relating to ``state secrets'' arose, but were not
adequately addressed, in the 2001 prosecutions of scholars Li Shaomin
and Gao Zhan on charges of spying for Taiwan. What was the basis for
classifying the internal essays and analyses involved as ``state
secrets,'' and did the accused have the knowledge and intent required
for conviction?
Political trials, of course, subject defense lawyers to their
gravest challenges, particularly trials such as those that followed the
Tiananmen tragedy of June 4, 1989 or that have dealt with efforts to
organize independent political or Falungong activities. The lawyer for
Muslim activist Rebiya Kadeer was reportedly not even allowed to speak
at her 1999 trial.\34\ Judges in such trials generally keep defendants
and their lawyers on a very short tether, as demonstrated by the 1998
prosecution of famed democracy advocate Xu Wenli for helping to
establish the China Democratic Party. They frequently interrupt and
even shout down efforts to refute the underlying basis for allegations
such as ``endangering State security'' by acting with ``intent to
subvert State power,'' for which Xu received a thirteen-year prison
sentence. The Xu trial, like that of Li Shaomin, Gao Zhan and many
others, was concluded in half-a day!
---------------------------------------------------------------------------
\34\ World Brief, Detroit News, March 12, 2000, at 9.
---------------------------------------------------------------------------
Although able defense counsel can sometimes utilize the right of
appeal to obtain a more considered review of a deserving case,
convicted defendants, who remain in police detention pending conclusion
of their case, are often persuaded not to appeal by their jailers,
their family or even their lawyers. If the defendant hopes for release
prior to completion of his sentence, the lawyer may be concerned that
appeal may be interpreted as a sign of the defendant's obstinacy and
lead to longer prison time. Moreover, knowing that trial courts
frequently clear their decisions with the relevant appellate court
before pronouncing judgment, the lawyer may well believe that pursuing
an appeal would be throwing good money after bad. Yet, especially in
cases involving complex business transactions, certain lawyers have
developed the expertise and reputation for waging an impressive defense
at the appellate level and sometimes winning a reduced sentence, a
retrial or acquittal on certain of the charges. However, in a country
where the final conviction rate is over 98 percent, defense counsels do
not harbor illusions.
Less can be done after a conviction has become legally effective.
Defense lawyers even have difficulty arranging a meeting with their
client after the time for appeal has expired or the appellate court has
confirmed the judgment below. Yet one advantage of China's notoriously
flexible criminal procedure is that, in cases of gross injustice or
where important evidence is newly discovered, the defense lawyer may be
able to find a post-conviction remedy by resort to ``adjudication
supervision.''\35\
---------------------------------------------------------------------------
\35\For detailed rules, see CPL, articles 203-207.
---------------------------------------------------------------------------
It is possible that the Criminal Evidence Law that is currently
being drafted by respected Chinese specialists inside and outside PRC
government circles will improve the plight of defense lawyers in many
respects, not only at the trial stage but also from the very beginning
of the criminal process. Contrary to its title, the new legislation,
which might be adopted within a few years, will probably not be
strictly limited to matters of evidence but will touch upon many
aspects of criminal procedure. Since the revised CPL is unlikely to be
revised again in the near future, the Criminal Evidence Law will be of
profound importance to the administration of criminal justice in China.
If it closely resembles the comprehensive and impressive Expert Draft
being prepared by a group of China's leading academic specialists, and
if the new law should actually be implemented, the work of China's
defense lawyers will become somewhat less depressing.
5. the sword of damocles
Yet a new Evidence Law will do nothing to reduce the professional
and personal risks that Chinese defense lawyers confront every day. I
have already mentioned instances of police intimidation of lawyers who
seek legally guaranteed access to detained suspects and the more covert
controls exercised by local judicial bureaus. Failure to follow the
instructions of a judicial bureau, which regulates the local practice
of law, can lead to loss of benefits and to administrative sanctions
that include suspension of the lawyer's professional license and even
closing of his law firm. Thus, not only the livelihood of the defense
lawyer is at stake but also that of his colleagues, which is
undoubtedly why some judicial bureaus require a would-be defender to
discuss whether and how to deal with a criminal representation with the
other lawyers in his firm before deciding on a course of action.\36\
---------------------------------------------------------------------------
\36\ See, e.g., The Several Provisions of Anhui Province on Law
Practice issued by the Standing Committee of the People's Congress of
Anhui Province, on March 26, 1999. Article 28 states that ``the
decision to defend a defendant on the basis of a not guilty plea should
be discussed collectively within the law firm to which the defense
lawyer belongs.''
---------------------------------------------------------------------------
Defense lawyers whose efforts offend police, prosecutors or other
power-holders also run the risk that, in retaliation, criminal
prosecution may be initiated against them. Tax evasion has proved a
readily available pretext for prosecution in a country where tax law
and administration are in need of serious reform and non-compliance is
rife. Corruption is another favorite. Lawyers who work for state-owned
law firms have been convicted of embezzlement of public funds, and in a
culture where, despite legislative prohibitions, lawyers are still
expected to wine and dine judges, and where bribery is a huge problem,
lawyers are easy targets for selective prosecution. They have also
sometimes been convicted of criminal defamation for revealing official
misconduct, and a lawyer in Hunan Province was recently sentenced to 1
year in prison for leaking ``state secrets.'' Her only offense was to
allow the family of her client to see the court file in the case she
was defending.\37\
---------------------------------------------------------------------------
\37\ Yu Ping: ``Glittery Promise vs. Dismal Reality: The Role of a
Criminal Lawyer in the People's Republic of China after the 1996
Revision of the Criminal Procedure Law,'' Vanderbilt Journal of
Translational Law, May 2002, at 858-859.
---------------------------------------------------------------------------
The gravest threat to the personal security of defense lawyers
comes from Article 306 of the Criminal Code, which specifically targets
lawyers who ``induce'' or ``force'' their clients or witnesses to
change their testimony, forge statements or commit perjury. Any lawyer
who advises his client to repudiate at trial a confession that may have
been coerced during the investigation stage risks of an Article 306
prosecution, and, although this provision only became law in 1997,
dozens of lawyers have reportedly been investigated and prosecuted
under it. This is why lawyers openly call Article 306 the ``sword of
Damocles'' and why conferences sponsored by the All China Lawyers
Association have expressed great concern about it as well as other
forms of intimidation.
The May 3, 2002 detention and subsequent arrest of Zhang Jianzhong,
managing partner of one of China's leading law firms and head of the
Beijing Lawyers Association's committee for protecting lawyers, has had
a chilling effect on the criminal defense bar. Mr. Zhang, in addition
to maintaining a flourishing business practice, has represented some
high-profile defendants in major corruption cases. It is feared that
his current investigation and virtually incommunicado confinement for
alleged violation of Article 306--for allegedly providing a false
statement in a commercial transaction, an offense that in China would
not normally warrant such severe treatment--may be another instance of
selective prosecution in retaliation for offending a prominent
political figure through vigorous criminal defense work.
6. conclusion and recommendations
In these circumstances, is it any wonder that China's lawyers are
reluctant to take on criminal cases? Yet, nationwide, defense lawyers
probably appear in merely one-third of the cases brought to trial, and,
even in cities where economic and educational standards are relatively
high, many defendants go without counsel. In one Eastern city, for
example, recent representation rates at basic level trials ranged from
less than 18 percent in one court to roughly 90 percent in another,
with the representation rate in most courts falling below 50
percent.\38\
---------------------------------------------------------------------------
\38\ Interviews with judges in China, on file with the author.
---------------------------------------------------------------------------
The plight of China's criminal defense lawyers is appalling, and
the country's entire criminal process is in need of radical reform. The
people of China deserve far better. Moreover, now that the PRC is in
the WTO, is preparing to host the 2008 Olympics and welcomes millions
of foreigners to its shores every year for tourism, business,
educational and cultural exchange and many other purposes, it is time
for a new generation of Chinese leaders to make a genuine ``great leap
forward'' in the direction of meeting international minimum standards
for the administration of criminal justice. The legitimacy of the
Chinese Government at home and abroad is at stake. Significant
improvements in China's justice will yield corresponding improvements
in its international relations and reputation for safeguarding human
rights and the rights of all foreigners who enter the country. The
current Lai Changxing case, in which the PRC has been struggling for
over a year to secure the return from Canada for trial in China of
allegedly the greatest smuggler in China's history, vividly illustrates
the extent to which Chinese justice itself can be put on trial abroad
in an increasingly interdependent world.\39\
---------------------------------------------------------------------------
\39\ On May 6, 2002 a panel of the Refugee Division of Canada's
Immigration and Refugee Board, after hearing testimony for forty-five
days over a 5-month period and after 6 months of subsequent
deliberation, rejected the claim of Mr. Lai and his family to be
considered political refugees, rather than criminal fugitives, from
China. Much of the hearing and the reasons cited by the panel in
support of its decision analyzed the administration of criminal justice
in China. The case is currently being appealed to the Canadian courts.
---------------------------------------------------------------------------
I cannot discuss in these remarks the radical, long-run political-
legal restructuring that would be necessary in order to bring the PRC's
criminal process into compliance with minimum international standards
or even all the changes required in legislation and practice
significantly to ease the plight of its defense lawyers. Many of the
measures that ought to be adopted are implicit in my earlier comments
and in any event are, of course, for China to decide.
I will conclude by merely suggesting several steps that can be
taken now by others, including those of us in the United States, in and
out of government, who wish to be useful in this area.
(1) We should promote opportunities to cooperate with PRC defense
lawyers through professional and academic conferences, workshops, study
groups and training programs. Although China's criminal lawyers are not
generally fluent in English or other foreign languages, as PRC business
lawyers increasingly are, many have an intense interest in comparative
criminal law and procedure and the situation of their counterparts in
other countries. Many subjects can fruitfully be discussed. For
example, might some form of plea bargaining be useful to China, thereby
freeing court resources to provide better trials for the minority of
genuinely contested cases? Would the process of sorting out contested
cases from others be facilitated by establishing fair procedures for
pre-trial discovery of evidence? Would some type of habeas corpus
proceeding or criminal ombudsman be suitable for China?
Defense lawyers also confront difficult questions of legal ethics
and might welcome exchanges regarding a number of problems. One topic
worthy of exploration is the propriety of contingent fees for criminal
defense lawyers. It is not unknown in China for a defense lawyer, in
addition to charging a substantial retainer for his time, to arrange to
be paid a very large fee, even by American standards, if successful in
gaining acquittal, reversal of the judgment below or a designated
reduction in sentence. The incentive to corruption provided by such an
arrangement is obvious.
(2) Enhanced cooperation with Chinese lawyers of the kinds
suggested above will need to be supported by scholarly research of a
comparative nature. Here is an important role for academic institutions
in China, the United States and other countries. China's leaders and
legal officials are increasingly aware of the value of accurate
knowledge of how their own legal system and that of other countries
perform, and they have recently welcomed a range of cooperative
activities in law. Opportunities even for joint legal research between
PRC and foreign scholars may be expanding.
(3) This scholarly research and the cooperation of defense lawyers
that it is designed to support will require significantly increased
funding from public international organizations, governments including
our own and China's .and charitable foundations. We should seize the
moment, as Chairman Mao once said, but for a purpose that he could not
have foreseen.
______
Prepared Statement of Murray Scot Tanner
july 26, 2002
Torture in China: Calls for Reform From Within China's Law Enforcement
System\1\
I would like to begin by expressing my sincere thanks to the
Members of the Congressional-Executive Commission on China for
honouring me by with this invitation. I would also like to thank the
Commission staff, in particular Dr. Susan Roosevelt Weld, for their
kind help in inviting me and arranging my visit to the Commission.
---------------------------------------------------------------------------
\1\ This presentation includes sections revised and adapted from
Murray Scot Tanner, ``Shackling the Coercive State: China's Ambivalent
Struggle Against Torture,'' Problems of Post-Communism, Sept-Oct, 2000.
---------------------------------------------------------------------------
The purpose of my testimony today is to focus some attention on the
battle within China's law enforcement community to confront the
widespread and horrific use of torture--especially tortured
confessions--within the criminal justice system. The prevalence of
torture has been carefully documented by international human rights
monitoring organizations--such as Amnesty International, Human Rights
Watch, the Lawyer's Committee on Human Rights--as well as by our own
State Department and the U.N. Human Rights Commission. Members of this
Commission have heard testimony on this terrific problem from
representatives of many of these organizations, and I as an individual
analyst can add little to their excellent work.
Instead, my testimony today draws on my studies of China's police
and internal security system to focus on an important and unusual
aspect of China's torture problem: for the past half-dozen years, a
growing number of officials and scholars within China's law enforcement
system--even many affiliated with China's police ministry (the Ministry
of Public Security--``MPS'') and its national prosecutors office (The
Supreme People's Procuratorate--``SPP'')--have begun criticizing
China's pervasive torture problem with increasing bluntness. A few
years ago, some officials within the procuracy for the first time
publicized official statistics on cases of torture--even death by
torture. Experts privately stress that these official numbers still
greatly understate the prevalence of torture. At the same time, these
figures and other characterizations clearly concede a pervasive,
systemic, problem, and they mark a significant advance in the halting,
ambivalent struggle against torture in China. These law enforcement
officials and scholars are also openly debating policy reforms designed
to control torture--in particular they are pushing for what I would
call ``professionalizing'' reforms of China's law enforcement system,
as well as revisions to China's criminal procedure laws which they
believe will create disincentives for officials to commit torture--
legal revisions that, in many cases, draw explicitly on U.S. and
Western criminal procedure law. It is impossible to say for certain how
numerous these officials and analysts are, and difficult to evaluate
their policy influence.
I cannot stress strongly enough that my purpose here today is not
to argue the brief that either China's top leadership or its law
enforcement system are making adequate progress on dealing with
torture--emphatically, they are not. Nor am I here to argue that this
anti-torture cadre of officials and analysts is strong enough for us to
hope that this system can reform itself without a major system overhaul
and increased pressure from Chinese society and the international
community.
Instead, my purpose is to discuss these important policy debates
and efforts at legal reform within China that I believe are important
to those who must determine U.S. human rights and legal policy toward
China. A careful review of such reform debates can help U.S.
policymakers evaluate the initial signs of progress on the problem of
torture, the sources of current or future progress, and also the
limitations on such progress. Such analysis can also shed light on the
degree to which U.S. human rights policies and legal exchanges may be
having a positive impact in China.
As we evaluate the importance and limitations of such policy
battles over legal reform, we have to confront the painful distinction
between the kinds of significant improvements that may be possible
within China's current authoritarian system, and the more fundamental
improvements that must, unfortunately, await a fundamental
liberalization and democratization of that system. In my opinion there
is no question that the core of China's torture problem lies in her
authoritarian political system, and fundamental improvement of the
torture problem will be impossible before China liberalizes and
democratizes. A perusal of international human rights reports, however,
makes clear that there can be significant differences in levels of
torture, law enforcement abuses, and police professionalism even among
authoritarian systems. Nevertheless, their fundamental shortcoming
compared with democratic systems is that authoritarian systems lack
self-generating or self-sustaining social and political institutions to
fight torture--most importantly a free, competitive, aggressively
investigatory press, citizen-based human rights monitoring
organizations, independent, fair and accessible courts and prosecutors,
and multi-party elections as an implicit threat to unresponsive
leaders. Authoritarian systems such as China cannot even make
significant progress against torture unless their top leaderships
undertake sustained, detailed monitoring and punishment of local law
enforcement who commit the crime. In many authoritarian countries--in
particular China--the leadership's commitment to fighting torture is,
at best, instrumental and sporadic rather than fundamental and
enduring. Thus, when competing political demands cause top-level
pressure and monitoring to slacken, torture inevitably reasserts
itself.
We cannot expect fundamental, self-generating and self-sustaining
progress on torture in China until China constructs the package of
liberal-democratic social, political, and legal institutions to
oversee, expose, and compel the punishment of torturers. But even
without waiting for, or weakening our commitment to, full
democratization, Western countries can and must expect, promote and
support significant improvement in China's torture record through
reform of the existing system. Studies of torture in many societies,
including China, demonstrate clearly that torture is also greatly
exacerbated by a severe lack of law enforcement professionalism--
including compliant judges lacking even rudimentary commitment to rule
by law and legal procedure, rules of evidence that create incentives
for interrogators to obtain tortured confessions, and weakly trained
police and prosecutors who lack the professional ability to solve non-
political criminal cases using legally gathered evidence. Such
rudimentary problems of unprofessionalism are, at least in part,
distinguishable from whether the system is democratic or non-
democratic. Sadly, the continued disturbing human rights records in
such fledgling democracies as Russia, Brazil, South Africa, Indonesia,
and elsewhere demonstrate that where law enforcement organs suffer from
severe unprofessionalism, not even democratization and freedom of the
press can alleviate torture and other abuses--at least not for a very
long time. Fighting torture is a long-term struggle that must be fought
out on many fronts.
Therefore, I believe that recent calls from within China's legal
and law enforcement communities for reining-in torture can best be
understood against the backdrop of a top leadership--Jiang Zemin's
leadership--whose efforts to deal with torture and legal abuses have at
best been sporadic, irregular, instrumental, and marked by profound
ambivalence.\2\ Under Jiang, the leadership has ordered occasional
short-lived crackdowns on police abuses,\3\ but only as one part of a
broader strategy to use ``rule by law'' to revive its threatened
legitimacy, stabilize its authoritarian regime, and drive a wedge
between average citizens and the politically active. Jiang's leadership
is offering citizens a legal bargain to ``demobilize'' them politically
saying, in effect, that if the vast majority of citizens stay out of
politics, eschew officially ``suspect'' religious groups, and do not
commit crime, the Party and government will try to guarantee them an
orderly, relatively low crime society coupled with gradually expanding
legal protection against abuses by law enforcement officials. Jiang and
his allies are, in effect, gambling that moderate legal reforms can
prolong the current regime, and will not instead become a stepping
stone toward expanded notions of political and legal rights and
democratization.
---------------------------------------------------------------------------
\2\ In its most recent report on torture in China, Amnesty
International described these leadership efforts as betraying an
attitude of ``indifference,'' and I would not dispute that
characterization.
\3\ Perhaps the most prominent such crackdown on torture, abuses,
and corruption within law enforcement organs occurred between late 1997
and Fall 1998, as part of the so-called ``Education and Rectification''
campaign.
---------------------------------------------------------------------------
But such a social bargain is fraught with political dilemmas.
First, most reforms that could help establish ``self-sustaining''
institutional checks on torture risk undermining the Party's hold on
power and its control over law enforcement and the press. Second, any
serious effort to rein in torture risks undermining the capacity of
police and prosecutors to fight crime and maintain adequate ``law and
order''--the other cornerstone of the ``rule by law'' legitimacy
strategy. As in other authoritarian systems, decades of being protected
by an undemocratic government have rendered China's law enforcement
departments, quite simply, rather weak in modern criminal investigation
skills and excessively reliant upon compliant courts, coerced
confessions, and a culture of informants to obtain convictions. Jiang's
legal reform strategy requires cracking down on, reforming, and
undermining the morale of, the very law enforcement organs on which he
relies to control crime, suppress dissent, and contain ``suspect''
religious groups. It is these political and institutional dilemmas that
give Chinese efforts to rein-in torture their ``start-stop,'' highly
ambivalent character.
Still, this backdrop of ambivalent leadership commitment over the
past half dozen years has opened enough of a window to encourage
unprecedently frank policy discussion about torture within the law
enforcement community. But because of this ambivalence, this debate has
also, emphatically, not been held for the benefit or consumption of
foreigners--even educated Chinese only get to glimpse it through
newspaper expose articles on torture. Clearly fearing that foreign
press and governments will simply treat these discussions as an
admission of China's embarrassing torture record rather than a
harbinger of progress, these discussions have largely been limited to
``internal circulation'' (confidential) reports and documents, and
unclassified journals, newspapers, and books that are rarely read by
anyone outside of the criminal justice field.\4\ In stark contrast to
such heavy-handed propaganda exercises as China's various ``White
Papers'' on legal and rights issues, the policy discussion on torture
has largely been kept out of those official media most heavily
monitored by foreigners.\5\ In assessing these policy discussions, it
is worth noting that these law enforcement officials and analysts have
been criticizing China's extensive use of torture and debating how best
to rein it in even when they had least reason to believe that foreign--
or even domestic--critics were watching.
---------------------------------------------------------------------------
\4\ An excellent example would be the large number of articles on
fighting torture in Gongan Yanjiu (English Titles: Public Security
Studies or Policing Studies), the chief theoretical and policy journal
of the Ministry of Public Security and of its Number Four Research
Institute. Despite having converted to open circulation over a decade
ago, and containing rich materials on China's police, the magazine is
rarely read in China and almost never cited in international human
rights monitoring reports or foreign analyses of China's legal system.
The major exception to this relative anonymity has been the prominent
role played by Fazhi Ribao (Legal System Daily), the highly respected
and rather widely read flagship paper of the Party's top legal policy
organ, the Central Political-Legal Committee. In recent years few
papers have more regularly published investigatory articles on law
enforcement abuses of all types, including torture.
\5\ The mass media most heavily monitored by foreigners would
include People's Daily, China Daily, the New China [Xinhua] News
Service English reports, Radio Beijing International, China Central
Television [CCTV], and so on.
---------------------------------------------------------------------------
new admissions on the prevalence of torture
Among the most significant steps forward has been the growing
willingness of legal officials to acknowledge--sometimes in public--the
widespread use of torture. In sharp contrast to the denials and
linguistic dodges Foreign Ministry spokespersons employ when asked
about torture cases, senior Chinese police, procuratorial, and legal
officials and scholars have become increasingly Frank in acknowledging
the extent of the problem.\6\
---------------------------------------------------------------------------
\6\ See, for example, the Foreign Ministry's dodgy response to the
Canadian Broadcasting Corporation's (CBC) filming of Shanghai police
beating several suspects: Agence France Presse (AFP) May 21, 1998; Ta
Kung Pao, May 25, 1998, pg. A2; Kyodo News Service May 21, 1998, in BBC
Summary of World Broadcasts (BBCSWB) May 23, 1998. By contrast, during
the same period, Fazhi Ribao (Legal System Daily) and Renmin Gongan Bao
(People's Public Security Daily) were publishing numerous expose
articles on police and procuratorial torture as part of the ``Education
and Rectification'' campaign. See Tanner, ``China's Ambivalent Struggle
Against Torture.''
---------------------------------------------------------------------------
In recent interviews and publications, officials and analysts have
characterized the torture problem as ``very serious,'' ``rather
common,'' ``especially prominent,'' ``a long-persistent, chronic
disease among public security and other judicial organs'' \7\ and even
claimed that ``the vast majority (jueda duoshu) of people's police who
handle cases'' believe ``torture is a fast and effective interrogation
technique,'' and hence ``tortured confession has existed for a long
time on a large scale.'' \8\ Professor Cui Min of China's national
police college--the Chinese People's Public Security University--one of
the legal system's most persistent critics of torture--has written that
``using very large amounts of evidence derived from torture and other
illegal means (especially the accused person's confession) remains, as
before, a principal basis for proving cases.'' \9\ Without question,
Minister of Public Security Jia Chunwang provided the most
authoritative characterization when he told a summer 1998 public
security conference that police torture and related abuses was one of
the two most common complaints he heard about in letters from ordinary
citizens.\10\
---------------------------------------------------------------------------
\7\ These phrases come from interviews with the author and various
articles. See, for example, Xu Deming, ``Gongan Minjing Zhiwu Fanzui de
Tedian Yuanyin de Duice'' (Crimes Committed by Public Security People's
Police in Performance of their Duties, their Special Characteristics,
Origins, and Policies to Deal with Them), Gongan Yanjiu (Public
Security Studies), 1998, Issue 4, pp. 75-77.
\8\ Du Jingji, ``Qianlun Xingxun Bigong de Chansheng ji qi Duice''
(A Superficial Discussion of the Sources of Tortured Confession and
Policies to Deal with it), in Wang Huaixu, ed., Zhencha Xunwen Yanjiu
yu Yingyong (Research and Practise of Investigation and Interrogation),
(Beijing, China People's Public Security University Press, 1998), pp.
372-376, esp. pg. 374.
\9\ Cui Min, Zhongguo Xingshi Susongfa de Xin Fazhan: Xingshi
Susongfa Xiugai Yantao de Quanmian Huigu (New Progress in China's
Criminal Procedure Law: A Comprehensive Look Back at Research and
Discussions of Reforming China's Criminal Procedure Law), (Beijing,
China People's Public Security University Press, 1996), pg. 216.
Because of Cui's prominent role in revising the Criminal Procedure Law,
this unclassified source is rather widely read in China's legal
community.
\10\ Jia told the meeting:
``The problem of forced confessions--in a number of areas, it
absolutely exists. Recently, while I was visiting basic level public
security organs, talking with university student trainees, some of them
told me that they themselves had beaten people. Of all the letters I
have received from the masses since coming to the MPS, two types are
most common. The first says that in some area, the social order is bad
and the criminals are ferocious. The second type says that the people's
police are breaking the law as they enforce the law. By committing
forced confessions, they have turned someone who has committed no crime
into a criminal, or turned someone who committed a minor violation into
a serious criminal violator, and harmed the masses terribly.'' See
``Minister Jia Chunwang's Speech'' to the Dalian conference on building
the Public Security corps, June 12, 1988, in Gongan Duiwu Zhengguihua
Jianshe Lilun yu Shijian (Beijing, China People's Public Security
University Press, 1998), pg. 7.
---------------------------------------------------------------------------
This willingness to concede the pervasive of torture was further
confirmed when the Supreme People's Procuratorate published an open
circulation volume in late 1997 entitled The Crime of Tortured
Confession (Xingxun Bigong Zui). This casebook for procurators
described hundreds of real torture cases with a sort of dispassionate
but gut-wrenching detail that was reminiscent of Amnesty International
reports. The book also included China's first openly published official
statistics on criminal cases of tortured confession--reporting an
average of 364 cases per year between 1979 and 1989, upward of 400
cases per year for most years in the 1990's, and the striking admission
that 241 persons had been tortured to death over the 2-year period
1993-1994.\11\
---------------------------------------------------------------------------
\11\ Xingxun Bigong Zui, pg. 9.
---------------------------------------------------------------------------
Numerous Chinese experts insist that for both political reasons and
statistical shortcomings, these data greatly understate the real
occurrence of torture, though they note that publishing the statistics
at all was a major change in policy.\12\ Also, as Amnesty International
and others have pointed out, such official reports and statistics focus
almost exclusively on torture as a source of confessions--not as a form
of extra-judicial punishment or abuse or intimidation. Finally, they
almost never mention torture of political detainees, religious
activists, or ethnic minorities.
---------------------------------------------------------------------------
\12\ Owing to the narrow definition of ``tortured confession'' in
Chinese law, these statistics only include torture aimed at extorting
confessions (thereby excluding wanton assaults by the police) and only
torture committed by ``judicial officials'' or those deputized by them
(thereby excluding civilian legal activists, who according to these
sources are a major part of the problem). Annual fluctuations reflect
not only changing actual rates of these crimes, but also the changing
willingness of victims to come forward, and of procurators to prosecute
these sensitive cases. Finally, the fact that the 1993-1994 statistics
on persons tortured to death (241) represents such an enormous
percentage of all torture cases (between a fourth and a third) suggests
strongly that most torture cases do not even get reported or prosecuted
unless they result death or detectable serious injury.
Table One: Official Torture Statistics (1979-1996)
------------------------------------------------------------------------
Tortured Confession
Year(s) Cases Formally Persons Tortured to
Established Death
------------------------------------------------------------------------
1979-1989 over 4,000 total (avg. (no report).
364+/year).
1990 472................... (no report).
1991 407................... (no report).
1992 352................... (no report).
1993 398................... 126.
1994 409................... 115.
1995 412................... (no report).
1996 493................... at least 32 (Jan.-
Aug., MPS statistic).
------------------------------------------------------------------------
(Principal Source: Supreme People's Procuratorate Casebook, The Crime of
Tortured Confession, pg. 9.)
recognizing the failure of traditional solutions
Since about 1995, law enforcement analysts have also largely ceased
blaming China's ancient feudal culture and residual leftist influence
from the Cultural Revolution (1966-76) for current torture problems and
conceded that the real reasons must lie in the failures of China's
post-Mao law enforcement system. These officials are also gradually
conceding that the traditional oversight mechanisms the State can most
easily control--ideological education, internal police oversight, and
procuratorial oversight--are grossly inadequate to China's pervasive
torture problem.
To check law enforcement abuses China, like other Leninist systems,
has historically relied almost exclusively on ideological-educational
campaigns to inculcate norms, and oversight by various Party and
government organs internal to local public security departments. Every
department down to the county level has within Party committees and
departments for discipline inspection, political work, personnel, State
supervision, auditing, and the new ``oversight police''--each one
charged with internal oversight of some aspect of discipline and/or
legality. There is, simply put, no shortage of internal oversight
organs. Nevertheless, as these sources make clear, China is a textbook
case of how internal police oversight can fail when local police
leaders are more concerned with raising ``case-cracking rates'' than
fighting abuses.
China primarily relies on the old Soviet institution of the
Procuracy to augment internal with external oversight. But law
enforcement sources stress that the Procuracy plays a contradictory
triple role--prosecuting criminal cases, overseeing police
investigatory procedure, and investigating government corruption
cases--that often results in it paying more attention to convicting
criminals than aggressively overseeing the police. Indeed, much torture
is committed by procurators themselves. Moreover, Chinese legal organs
are far more decentralized than their old Soviet counterparts. Local
Communist Party Committees--not superior-level law enforcement
officials--have primary control over local police, procurators, and
judges. Thus, when the Party has promoted greater ``legality,''
procurators sometimes oversee police more aggressively. But during
Party-led anti-crime campaigns, procurators often deliberately abdicate
their oversight role or risk being criticized for ``obstructionism.''
\13\
---------------------------------------------------------------------------
\13\ For analysis of the procuracy and how its role can be
undermined by campaigns, see Murray Scot Tanner, ``State Coercion and
the Balance of Awe: The 1983-1986 `Stern Blows' Anti-Crime Campaign,''
forthcoming in The China Journal, July 2000; also Harold M. Tanner,
Strike Hard! Anti-Crime Campaigns and Chinese Criminal Justice, 1979-
1985 (Ithaca, N.Y., Cornell University East Asia Series, Number 104,
1999), esp. pp. 42-47.
---------------------------------------------------------------------------
With this lack of self-sustaining oversight institutions, it is
little wonder that since 1990, the leadership has launched several
short-lived official crackdowns on torture, all of which sooner lost
steam or were overwhelmed by renewed fears of crime waves.
In response, many analysts have put forward new proposals aim at
greater professionalization and training for police and procurators,
reforming legal incentive structures (especially rules of evidence),
increased publicity for torture crimes and their punishment, and
encouraging lawsuits by torture victims.
greater professionalization
Proposals focusing on ``professionalization'' largely begin from
the assumption that police and procurators usually employ torture
because they simply lack the professional skills necessary to solve
many cases any other way. Professional investigators contend that most
torture cases occur in basic-level police stations, where investigatory
skills, technology, legal knowledge, professional norms, education, and
``personnel quality'' are all weakest. Many ``professionalizers'' lay
considerable blame on local Communist Party leaders for forcing police
to hire unqualified cronies, using the police as a ``private army,'' or
funneling scarce budgetary revenues away from law enforcement training
and pay into economically profitable ventures. Most local-level police
get little or no training in crime scene management, fingerprinting,
blood-typing, and rudimentary forensic and investigatory skills. One
MPS document claims that ``A few People's Police . . . treat `beating
people' as their principal case-cracking technique.'' \14\ Advocates of
professionalism also argue that many abuses are committed by the large
array of untrained, non-professional citizen security activists, semi-
private security guards, and ``contract police'' officers on whom
regular Public Security officials rely to assist in protecting work
units and maintaining social order.
---------------------------------------------------------------------------
\14\ Zhifa Shouce (1996), pg. 380-381.
---------------------------------------------------------------------------
Many other law enforcement analysts admit, however, that many
professional problems are attitudinal--many if not most police officers
simply don't believe that torture is wrong, or at least that it leads
to much more good than harm. According to another police official,
``more than a few'' local police captains ``believe that during
interrogations . . . as long as one doesn't beat the person to death or
until they are crippled, that's all right.'' \15\ Cui Min of the Public
Security University has recounted innumerable arguments he has had with
local police who bluntly insist that torture is necessary and
appropriate for law enforcement.\16\
---------------------------------------------------------------------------
\15\ Du Jingji, pg. 374.
\16\ Cui Min, ``Zai Lun Jiezhi Xingxun Bigong'' (Yet Again
Discussing the Abolition of Tortured Confession), in Xingshi
Susongfaxue de Xueke Qianyan Wenti (Beijing, Chinese People's Public
Security University Press, May 2002), pg. 255-256.
---------------------------------------------------------------------------
Police and procuratorial experts agree with the judgment of
international human rights monitors that during ``strike hard'' anti-
crime campaigns professionalism is further undermined, causing torture
cases to spike. Local Communist Party leaders, who are also under
evaluated by their superiors on the State of local social order, turn
up the pressure on local police to solve cases quickly. According to
one police official, many officers ``find it hard to resist this `fast
and effective interrogation technique.' '' \17\
---------------------------------------------------------------------------
\17\ Du Jingji, pg. 374.
---------------------------------------------------------------------------
In recent years, professionalization advocates have stressed
expanding police training programs, increasing equipment purchases,
raising hiring requirements, and giving police departments (vs. local
CCP committees) tighter control over their personnel. Beginning in 1997
the MPS undertook a long-term effort to professionalize criminal
investigation that would eventually remove local police station
officers from investigatory work, while building a nationwide network
of professional investigators. The MPS's chief of criminal
investigation, however, has shown little optimism that such a large
professional corps could be trained in the near future.
creating legal and institutional disincentives
Public security and procuratorial anti-torture advocates also
contend that flaws in China's Criminal Law (CL) and Criminal Procedure
Law (CPL)--both originally drafted in 1979--create powerful incentives
for investigators to obtain confessions by torture. They seized on the
efforts to revise both of these laws in 1996-97, launching a debate on
how best to discourage torture. The reforms they recommended--and are
still promoting--to change police and procuratorial incentives borrow
strikingly from U.S. legal concepts and incentive structures.
They have been especially critical of the lack of an unambiguous
``presumption of innocence'' (wuzui tuiding) and the lack of a ``right
to remain silent'' or avoid self-incrimination (chenmo quan). Despite
strong efforts incorporate these presumptions, the new CPL ultimately
moved only obliquely toward requiring the State to present an
evidentiary proof of guilt beyond a mere confession.\18\ But CPL
Article 93 still tempts interrogators to press hard for confessions by
requiring the criminal suspect to ``answer the investigator's questions
truthfully.'' \19\ One police scholar complained that since the law
encourages interrogators to believe they are dealing with guilty
parties who have no right to withhold incriminating information, it
clearly ``creates a pretext for investigators to engage in torture.''
\20\ These advocates have clearly not given up, however, and in recent
months the Public Security University press has brought forward volumes
of essays by law enforcement scholars continuing to press for a clear
right to remain silent. On this issue, however, there appears to be a
fairly clear line of disagreement between the police scholarly
community and the Ministry of Public Security itself.
---------------------------------------------------------------------------
\18\ According to the revised CPL ``No person shall be found guilty
without being judged as such by a People's Court according to law'' and
``A defendant cannot be found guilty and sentenced to a criminal
punishment if there is only his statement but no evidence'' (Articles
12 and 46).
\19\ All quotes are from the official English translation, Zhonghua
Renmin Gongheguo Xingshi Susong Fa [Zhong Ying wen ban] (Criminal
Procedure Law of the People's Republic of China [Chinese-English
Edition]), (Beijing, China Procuratorial Press, 1997). For a side-by-
side comparison of the 1979 and 1996 CPLs, see Cui Min, pp. 267-353.
\20\ Zhou Guojun, ``Yanjin Xingxun Bigong de Sikao,'' (Pondering
the Prohibition of Extorting Confessions), Gongan Yanjiu (Public
Security Studies), 1999, Number 1, pp. 26-29, 43.
---------------------------------------------------------------------------
Despite China's longstanding insistence that ``rights'' are unique
to each countries' special socio-economic and cultural conditions, some
police scholars have recently claimed that the numerous international
legal treaties China has recently signed obligate her to incorporate
these fundamental ``international principles of criminal procedure,''
in her domestic CL and CPL.\21\
---------------------------------------------------------------------------
\21\ Zhou Guojun, pp. 27-28.
---------------------------------------------------------------------------
The central focus of these efforts to reform the legal-incentive
structure has been their effort to adopt an ``exclusionary rule'' for
illegally obtained evidence--in particular tortured confessions. Cui
Min of the Public Security University, with typical bluntness, argues
that so long as tortured confessions remain admissible for convictions,
``the clause `extorting confessions by torture is strictly forbidden'
essentially exists in name only.'' \22\ Relatedly, many law enforcement
scholars continue to support at least some modified version of a U.S.-
style ``fruit of the poisoned tree'' rule (du shu zhi guo) barring the
use of physical, documentary, and other evidence obtained as a result
of a tortured confession. This rule has produced an enormous range of
opinion among law enforcement scholars, from those favouring completely
``chopping down the tree and discarding the fruit'' (kan shu qi guo) to
those who would ``chop down the tree but savour its fruit'' (kan shu
shi guo), to a full range of compromise positions in between.\23\
---------------------------------------------------------------------------
\22\ Cui Min, pg. 216. Professor Cui was a key participant in
drafting the revised Criminal Procedure Law.
\23\ This complicated debate is summarized in some detail in
Tanner, ``China's Ambivalent Struggle Against Torture,'' pp. 21-24.
---------------------------------------------------------------------------
Although reformers failed in their efforts to enshrine these
principals in the revised CPL, they continue to use various means to
write these rules into law. It appears that reform advocates within the
Supreme People's Court and Supreme People's Procuratorate have tried to
use their power to draft implementing regulations for the CPL to
cautiously advance a fledgling exclusionary rule without a ``poisoned
fruit'' exclusion. The SPC's June 29, 1998 ``interpretation'' on the
new CPL states that illegally obtained witness and defendant testimony
may not be used to decide a case.\24\ Likewise, the SPP, in its January
30, 1997 CPL Implementing Regulations, reportedly ordered that
``tortured confessions cannot serve as evidence of guilt of a crime.''
The SPP further reports it is experimenting with a ``Miranda''-style
warning to suspects.\25\
---------------------------------------------------------------------------
\24\ Zhou Guojun (pp. 29-43) indicates the SPC first issued this
directive in its March 21, 1994 regulations on investigatory procedure.
This document is unavailable to the author. The June 1998 Supreme
People's Court Explanation of Several Questions of Carrying Out the
``People's Republic of China Criminal Procedure Law,'' Court
Interpretation No. 23 [1998], Article 61, states ``It is strictly
forbidden to use illegal methods to collect evidence. Any witness
testimony, defendant statement, or defendant confession which, through
investigation, is confirmed to be obtained by using torture, threats,
inducements, deception, or other illegal methods, cannot serve as a
basis for deciding a case.'' in Gong, Jian, Fa Jiguan Zhixing Xingfa
Xingshi Susongfa Xin Guiding (Beijing, Qunzhong Chubanshe, 1999) pg.
428.
\25\ Zhou Guojun, pg. 29-43; Beijing Xinhua English, Jan. 5, 1999,
translated by FBIS-CHI, Jan. 5, 1999.
---------------------------------------------------------------------------
On January 2, 2001, the Supreme People's Procuratorates' latest (of
many) confidential circulars condemning recent torture cases reflected
these new proposals. It criticized what it called the outmoded
traditional idea of a ``presumption of guilt,'' and the ``blind worship
of confessions as evidence.'' The directive also called on local
procurators to ``clarify the principle of excluding illegal evidence,''
and cited article 265 of its national criminal procedure regulations
for procurators to the effect that confessions or victim or witness
testimony obtained by torture may not be used as the basis for
prosecuting criminals.\26\
---------------------------------------------------------------------------
\26\ ``Zuigao Renmin Jianchayuan guanyu Yanjin jiang xingxun bigong
huoqu de fanzui xianyiren gongshu zuo wei dingan yiju de tongzhi''
(Circular of the Supreme People's Procuratorate on Using Crime
Suspect's Confessions Obtained Through Torture as the Basis for
Deciding Cases), January 2, 2001, in Ministry of Public Security,
comp., Gongan Jiguan Zhifa Xuzhi, 2001 edition, pp. 526-528.
---------------------------------------------------------------------------
Current efforts among these reform advocates appear to center of
the drafting of an ``Evidence Law'' (Zhengju Fa) that would attempt to
unify standards of admissible evidence among China's major procedural
codes (Civil, Criminal, and Administrative). Advocates want the draft
law to clearly enshrine an exclusionary rule--at least for tortured
confessions--although support for a relatively absolute ``fruit of the
poisoned tree'' exclusion seems to have waned as China faces
corruption, organized crime, and drug-trafficking cases that it finds
harder to crack. Such a draft is not expected to be ready for National
People's Congress debate for at least one to 2 years. Participants in
drafting the law indicate their proposals still face opposition from
the MPS and local police who fear that China's police are simply
incapable of maintaining proper social order under stricter rules of
legal procedure.\27\
---------------------------------------------------------------------------
\27\ Interviews with legal experts, Beijing, December 2001, June
2002.
---------------------------------------------------------------------------
deep ambivalence about publicity and lawsuits
Several law enforcement analysts privately laud the great increase
in publicity given to torture cases and the punishment of torturers.
Publicizing the disturbing details of several torture cases, and
spotlighting the punishment of guilty officers communicates leadership
disapproval far more dramatically than any internal administrative
document. It can also force officers to carefully recalculate the costs
and risks of getting caught, thereby establishing powerful norms
against the practice. In recent years, the cultivation of a corps of
reasonably aggressive ``investigative reporters'' among the official
press has helped extend the government's monitoring capacity and help
it crack through local cover-ups of torture cases. These reporters have
become popular, even heroic, symbols for the government, and citizens
often compete to entice them to come report on local abuses as a way of
attracting top leaders' attention.
But for the regime leadership, which fears for its stability,
large-scale publicity of police abuses also risks undermining morale
among the repressive forces that they rely upon for their grip on
power. In the vast majority of cases reviewed for this project,
officers convicted of torture have received administrative punishments,
suspended sentences, or at most one-to-three years imprisonment.\28\
---------------------------------------------------------------------------
\28\ For a complaint about courts' unwillingness to mete out tough
punishments, see Cui Min, ``Zai Lun Jiezhi Xingxun Bigong.''
---------------------------------------------------------------------------
Encouraging bold investigative journalism risks further eroding
regime control of the official media (reporters, in turn, have often
faced retaliation by local officials, or even from the center, when
policies changed). Moreover, the leadership cannot control the reaction
among broader domestic and foreign audiences. Interviews with security
experts indicate that government leaders have carefully debated whether
publicizing torture cases will strengthen its legitimacy, or if
skeptical citizens and foreign observers would simply dismiss the
publicity as the regime's admission that such abuses really are
ubiquitous after all. As a result, publicity of torture cases tends to
come in waves, and at other times been discouraged or carefully
managed. Unprecedented domestic and official publicity has also, at
times, been coupled with stronger efforts to fight international or
unofficial publicity. Even while the official legal press investigates
and exposes torture in unprecedented ways, police continue to arrest
citizens who attempt to form autonomous ``civil society'' anti-torture
monitoring groups. In one case, even a retired Chinese policeman was
jailed.\29\ Meanwhile, official spokespersons lambaste foreign
reporters and human rights monitoring organizations for what they label
as ``lies'' and ``interference in China's internal affairs.''
---------------------------------------------------------------------------
\29\ ``Ex-China Cop Punished for Report,'' Associated Press, March
25, 1999.
---------------------------------------------------------------------------
Through its cautious experimentation with popular lawsuits against
police and procuratorial abuses over the past decade, the Party-state
has tried to provide a new vehicle of popular oversight that is more
self-sustaining, though still structured not to threaten the CCP's
ultimate grip on power. Partial statistics and anecdotal data indicate
a growing minority of citizen plaintiffs have successfully sued for
redress or compensation. Still, with the limited evidence available, it
is difficult to go beyond the commonsense conclusion that plaintiffs
are at least winning often enough to encourage more and more suits. And
even when they do not win a court verdict, abused citizens can use
these suits as a strategy to draw high level attention to their
problems and force local officials to respond.
Some police officials have tried persuading their colleagues to
embrace these new litigation systems as a powerful impetus to fight
torture, and warned them of the problems that they will face if they
fail to reform.\30\ Several departments have protested that the
Administrative Litigation Law has been applied far too broadly, and is
obstructing interrogation and other criminal investigative work, which
they insist is ``non-administrative'' work. Still, courts nationwide
have consistently found a variety of pretexts to block the use of these
new legal avenues by political dissidents and religious activists, a
fact which underscore the two-tiered nature of legal reforms and their
strategic goal of splitting ``average citizens'' off from
``activists.''
---------------------------------------------------------------------------
\30\ Lu Quanzhen, (Jilin Province PSB Deputy Chief) ``Renzhen Xuexi
Guanche `Guojia Peichang Fa' Dali Tuijin Gongan Fazhi Jianshe,''
(Resolutely Study and Implement the ``State Compensation Law'' to
Powerfully Promote Public Security Legal System Construction), Gongan
Yanjiu, 1994, No. 6, pp. 16-18; also Zhou Zhenbo, ibid., pp. 13-15.
---------------------------------------------------------------------------
weak leadership commitment, frustration among reformers
Since the late 1990's, the leadership's ambivalent, sporadic
commitment to fighting torture, along with the limitations imposed by
its fear that police will not be able to solve crimes, or that the
State will lose its political control, appear to be causing growing
frustration among anti-torture advocates. Anti-torture advocates seem
resigned to a very long, politically difficult battle over years and
decades, requiring repeated persuasion of political leaders, the
retraining of current law enforcement officials, the recruitment of
new, better ones, persistent efforts to get procurators and judges to
use their authority with greater independence. Many officials and
scholars--who are very realistic that it might take China decades to
really root out torture--are daunted by powerful enduring attitudes
favouring or excusing torture at local levels, especially during anti-
crime campaigns. It remains to be seen whether this frustration might
push reformers to yet another level of even bolder proposals.
In a recently published speech before other criminal justice
experts, Cui Min let his frustration at the start-stop pace of change
show through:
``It is not just a few police officials at basic levels who
have the confused belief that `tortured confession has many
benefits a only does a little harm'--in fact, this also
represents the views of a few middle and high-ranking leaders.
Since the 1980's, when it comes to fighting tortured confession
and other violations of law and discipline, even though we have
tried to grasp this work many times, it has often been a case
of `a lot of thunder, but very little rain'--we've been strict
for a while, then we're loose for a while. The focus and
opinions of our leaders change especially during `strike hard'
periods--even to the point of finding various methods to
overlook and excuse torture by lower level police. These past
few years, torture problems haven't just occurred in public
security organs, even some people's procuracies--the organ of
legal oversight--have committed torture while doing their own
investigations; it has even reached the point that the
Discipline Inspection Committees of the ruling party are
committing torture during their ``two requireds'' \31\--all of
which has caused the trend of torture to get worse and worse.''
\32\
---------------------------------------------------------------------------
\31\ The ``two requireds'' are a stipulation that Party anti-
corruption investigators can place on a suspected corrupt official--
that they be available for questioning by authorities at any time they
are required, and at any place they are required--an often brutal
interrogation regimen effectly somewhat similar to house arrest.
\32\ Cui Min, ``Zai Lun Jiezhi Xingxun Bigong'' pg. 256.
In closing, Cui, in effect, threw up his hands in frustration and
asked his colleagues rhetorically ``Do we really want to get rid of
torture? ''
implications for the west
A key goal of this presentation has been to outline the proposals
of analysts and officials in, of all places, China's law enforcement
system, who have been highly critical of China's torture problem, and
are fighting to rein it in. For U.S. observers, it is striking to note
their advocacy of rules and institutions borrowed from Western law--and
occasionally U.S. law of the Warren Court-era--to reform the incentives
for police and prosecutors to commit tortured confessions. We must
always be cautious in trying to attribute changes in something as
complex as Chinese legal thinking to foreign intellectual influence,
and we certainly do not want to overestimate the degree of our own
influence. But it is important for the West and the U.S. to recognize
the impact that exposure to Western legal notions appears to be having
on policy debates over how to fight torture, even within Chinese law
enforcement organs.
Until China undergoes a systemic transition to a system with the
type of self-sustaining, self-generating oversight mechanisms needed to
fundamentally root-out torture, it may well be that the best that can
be hoped for is a change in the legal incentives to commit torture,
greater professionalization, increased punishment of torturers, greater
publicity, continued reforms with lawsuits, and related reforms within
the current authoritarian system. Of course, no one can forecast when
or if such a transition might occur.
This situation has always raised for the West an extremely complex
and morally difficult issue of how best to support such legal reform.
There is no avoiding a brutal dilemma--that strengthening some aspects
of professionalism in law enforcement is an essential prerequisite to
decreasing the incidence of torture in any country, not just China. But
while improving the ability of law enforcement officials to solve real,
non-political crime without resort to forced confession will very
likely in the long term--contribute to the rule of law and the Chinese
people's sense of their legal rights, in the short term, it risks
contributing to the institutional strength of the current flawed legal
system.
The institution of the Procuracy demonstrates this policy conundrum
very well. In recent years, the Supreme People's Procuratorate has
actively and wholeheartedly encouraged procurators to support the
suppression of democracy and rights advocates, and officially suspect
religious groups. But there is also significant evidence in this study
that the SPP is one of the most important institutional ``homes'' for
those advocating strengthened legal procedures to fight torture,
including stronger evidence laws and exclusionary rules, strengthened
oversight of police interrogations, expanded prosecution of torturers,
and greater public acknowledgement of the scale of the problem. The
evidence in this study raises the question of whether expanded legal
exchanges between carefully selected procuratorial scholars and
analysts and U.S. and other Western legal training programs might
contribute to some of these anti-torture policy recommendations.
______
Prepared Statement of Veron Mei-ying Hung*
july 26, 2002
Protection of Human Rights in the Context of Punishment of Minor Crimes
in China
Thank you for inviting me to speak here today.
---------------------------------------------------------------------------
* I am very grateful to Tom Carothers, Vice President for Studies,
Carnegie Endowment for International Peace, Professor Stanley Lubman,
Lecturer in Law, School of Law, University of California (Berkeley),
and Professor Hualing Fu, Associate Professor, Faculty of Law,
University of Hong Kong, for their comments.
---------------------------------------------------------------------------
Over the past decade, I have, in academia and the private sector,
studied administrative litigation and judicial reform in China,
constitutional development in Hong Kong, human rights in Cambodia, and
trade with China.
I was Legal Associate for Asia at the Washington-based
International Human Rights Law Group. I was also Assistant Professor of
Law at the City University of Hong Kong and a visiting scholar at the
People's University in Beijing. I am qualified as a barrister in
England, Wales, and Hong Kong, and an attorney-at-law in New York State
and District of Columbia. I worked with Freshfields LLP in Beijing and
Hong Kong and the U.S. law firm O'Melveny and Myers in Los Angeles.
As an associate of the Carnegie Endowment of International Peace, I
implement its Political and Legal Reform Project to study, among other
subjects, the impact of China's accession to the WTO on its legal
system and the legal reform in Shanghai. I recently trained legislative
affairs officials from China's provinces and the State Council, the
country's highest executive organ, on ``China: WTO and Judicial
Review.''
I am also a consultant for the United Nations Office of the High
Commissioner for Human Rights, advising the office on implementing
human rights technical cooperation programs in China. These programs
focus on various legal reform and human rights issues including re-
education through labor (laodong jiaoyang or laojiao) and training of
prison staff.
In this testimony, I will examine ``minor crimes'' under Chinese
law and how they are punished. I will then focus on re-education
through labor, a mechanism of punishing ``minor crimes,'' by discussing
its legal background, the legal and human rights problems it presents,
the current debate in China about its future, and my reasons for
recommending its abolition. I will, wherever appropriate, draw on
discussion in my doctoral thesis titled Administrative Litigation and
Court Reform in China, which is largely based on empirical research
that includes observation of eight administrative trials and interviews
with over 140 judges, law professors, lawyers, administrative
officials, and litigants in Guangdong province, Chongqing, Wuhan, and
Beijing.
Summary
Re-education through labor (``RETL''), one of the most prominent
administrative sanctions in China, is imposed on people whose act is
not serious enough to warrant criminal punishment but too serious to be
subjected to lenient administrative sanctions prescribed by the
Security Administration Punishment Regulations (``SAPR''). Yet, neither
the Chinese Criminal Law nor judicial interpretations clearly define
serious and minor crimes.
RETL presents four legal and human rights problems:
<bullet> Extensive Use. The expansion of the scope of RETL, as
manifested in the principal legislative documents governing the system,
has drawn criticisms that these documents are conflicting and that
public security organs have turned RETL into a crime control mechanism.
The extensive use of the system has also led to widespread human rights
concerns.
<bullet> Severe Punishment. Anyone who is subjected to RETL may be
detained in a labor camp for up to 4 years. This punishment is more
severe than some criminal punishments such as fines, surveillance, and
criminal detention.
<bullet> Inconsistent with Administrative Punishment Law. The
Administrative Punishment Law requires all administrative punishments
that restrict personal freedom to be prescribed by ``laws,'' which,
under Chinese law, must be promulgated by the National People's
Congress and its Standing Committee. Although RETL is such type of
administrative punishment, it is only prescribed by three decisions
either made by the State Council or the Ministry of Public Security.
The Standing Committee of the National People's Congress's approval of
two of these decisions has not transformed them into ``laws.''
<bullet> Lack of Effective Supervision. RETL is not a type of
criminal punishment and is thus not subject to any human rights
safeguards embodied in the Criminal Law and Criminal Procedure Law.
Aggrieved parties facing RETL may resort to protections granted under
the Administrative Litigation Law. Unfortunately, the courts' role in
reviewing the legality of administrative sanctions such as RETL has
been limited by aggrieved parties' fear of suing administrative organs
and limited access to lawyers as well as administrative organs'
interference with the process.
In light of these problems, many Chinese scholars call for
abolishing RETL. Even if it is not abolished, they suggest that it
should be reformed. The maximum detention period should be reduced from
four to one or 2 years. Courts, as opposed to public security organs,
should decide whether the punishment can be imposed and such decisions
can be challenged on appeal. Further, RETL should be incorporated into
criminal law.
These reform measures would not effectively resolve the human
rights problems presented by RETL. Although Chinese courts are
undergoing a 5-year reform program, extra-judicial interference will
not disappear soon. The Criminal Procedure Law only offers limited
human rights protections and has not yet been fully implemented since
its revision in 1996. RETL should be abolished.
The Chinese government is planning to enact a law on RETL to
improve the system. It appears to have ruled out abolition. While the
government's intent of not abolishing RETL is disappointing, its
determination of improving the system is welcome. The government must
understand that any reforms that fall short of addressing the problems
discussed here will negate its efforts in establishing a rule-of-law-
based criminal system.
I. Punishment of ``Minor Crimes''
a. ``minor crimes''
In Chinese criminal law, both criminality and punishment of a
particular act depend on whether the ``circumstances'' of the act are
``serious'' or ``minor.'' \1\ The Criminal Law, however, does not
clearly define the term ``minor crimes'' even though the distinction
between the ``serious'' and the ``minor'' pervades the legislation.
---------------------------------------------------------------------------
\1\ See Criminal Law of the People's Republic of China, promulgated
on July 1, 1979, revised on Mar. 14, 1997, Dec. 25 1999, Aug. 31, 2001,
and Dec. 29, 2001 [hereinafter Criminal Law].
---------------------------------------------------------------------------
Article 13 of the Criminal Law defines crimes as all acts that
``endanger the sovereignty, territorial integrity and security of the
state; split the state, subvert the political power of the people's
democratic dictatorship and overthrow the socialist system; undermine
the social and economic orders; encroach upon property owned by the
State or collectively owned by the laboring masses; infringe upon
citizens' privately owned property; infringe upon citizens' rights of
the person, democratic rights, and other rights; and other acts that
endanger society and should, according to law, be criminally
punished.'' The provision, however, states that these acts are not
deemed crimes ``if the circumstances are clearly minor and the harm is
not great.''
Even if an act is deemed a crime, Article 37 provides that
``[w]here the circumstances of a person's crime are minor and do not
require criminal punishment, the person may be exempted from criminal
sanctions, but he may, according to the different circumstances of each
case, be reprimanded or ordered to make a statement of repentance or
formal apology or make compensation for losses, or be subjected to
administrative sanctions by the competent department.''
The word ``circumstances'' is not defined in the law but scholars
have generally agreed that it has a very broad meaning. It includes
``all the aspects of a specified act that are thought relevant but are
not expressly provided for in the written law governing that act.'' \2\
In particular, it can refer to ``the subjective blameworthiness of a
particular actor'' or ``external social and political effects of a
crime.'' \3\
---------------------------------------------------------------------------
\2\ Note: Concepts of Law in the Chinese Anti-Crime Campaign, 98
HARV. L. REV. 1890, 1901 n.52 (1985). See also Fang Huicheng, [Do Not
Punish Multiple Crimes as a Single Crime Committed Under ``Serious
Circumstances''], FAXUE [JURISPRUDENCE], No. 3, 1984, 24; Wen Jing, [My
Humble Opinion on the Circumstances of a Crime], FAXUE JIKAN
[JURISPRUDENCE QUARTERLY], No. 1, 1984, 44.
\3\ Id.
---------------------------------------------------------------------------
A scholar points out that ``the `circumstances' need common
knowledge to be understood'' \4\ but acknowledges that ``it does not
usually work well'' and, therefore, it is necessary for the Supreme
People's Court and the Supreme People's Procuratorate to issue judicial
interpretations to provide clarifications.\5\ The Supreme People's
Court is authorized to interpret ``any problems of the concrete
application of laws or regulations in the course of litigation''
whereas the Supreme People's Procuratorate has the power to interpret
only ``questions involving the specific application of laws and decrees
in the procuratorial work of the procuratorates.'' \6\
---------------------------------------------------------------------------
\4\ Shizhou Wang, The Judicial Explanation In Chinese Criminal Law,
43 AM. J. COMP. L. 569, 575 (1995).
\5\ Id.
\6\ Resolution of the National People's Congress Standing Committee
on Strengthening Legal Interpretation Work, adopted on June 10, 1981.
---------------------------------------------------------------------------
Numerous judicial interpretations have been issued to provide
guidance as to whether or not the circumstances of a particular crime
are minor. Two examples are illustrative. Article 294 of the Criminal
Law states, inter alia, that
Whoever organizes, leads, or actively participates in an
organization with characteristics of a criminal syndicate,
which carries out lawless and criminal activities in an
organized manner through violence, threat, or other means, with
the aim of playing the tyrant in a locality, committing all
evil things, bullying and harming the masses, and seriously
undermining economic and social orders shall be sentenced to
fixed-term imprisonment of not less than 3 years nor more than
10 years. Other participants shall be sentenced to fixed-term
imprisonment of not more than 3 years, criminal detention,
surveillance, or deprivation of political rights.
The Supreme People's Court's Interpretation on Several Questions
Concerning the Concrete Application of Laws in Adjudicating Criminal
Syndicate Cases\7\ clarifies that participating in a criminal syndicate
is not deemed a crime if the circumstances are minor, such as the
participant did not carry out any criminal activity or was deceived or
coerced to join the syndicate.\8\
---------------------------------------------------------------------------
\7\ Supreme People's Court's Interpretation on Several Questions
Concerning the Concrete Application of Laws in Adjudicating Criminal
Syndicate Cases, adopted on Dec. 4, 2000 and effective on Dec. 10,
2000.
\8\ Id. art. 3(2).
---------------------------------------------------------------------------
Article 264 of the Criminal Law provides, inter alia, that
``[t]hose who steal relatively large amounts of public or private money
and property . . . shall be sentenced to fixed-term imprisonment of not
more than 3 years, criminal detention, or surveillance, and may in
addition or exclusively be subject to fines.'' The Supreme People's
Court's Interpretation on Several Questions Concerning the Concrete
Application of Laws in Adjudicating Theft Cases\9\ defines ``relatively
large amounts'' as amounts of 500-2,000 yuan (US$60-250) and above. The
Higher Level People's Court of each province, autonomous region, or
municipality directly under the Central Government adopts, after
considering the economic development and social order of its locality,
an appropriate figure within this range as the standard to be applied
in the locality.\10\ Stealing of this amount of money and property is,
however, not deemed a crime if the circumstances are minor.\11\ The
Interpretation does not provide an exhaustive list of minor
circumstances but refers to several situations as examples: the
stealing was committed by a person who has reached the age of 16 but
not the age of 18, the stolen property and money have been completely
returned, the person surrendered himself or herself to the police, or
the person was coerced to steal and shared none or a relatively small
amount of the stolen property.\12\
---------------------------------------------------------------------------
\9\ Supreme People's Court's Interpretation on Several Questions
Concerning the Concrete Application of Laws in Adjudicating Theft
Cases, adopted on Nov. 4, 1997 and effective on Mar. 17, 1998.
\10\ Id. art. 3.
\11\ Id. art. 6(2).
\12\ Id.
---------------------------------------------------------------------------
Although judicial interpretations help clarify the Criminal Law and
are thus hailed as an ``indispensable'' source for understanding
Chinese law,\13\ the broad and indeterminate language found in these
interpretations, as illustrated in the above two examples, create wide
scope of discretion in interpretation.\14\ Each of the cited
interpretations defines ``minor'' as ``minor,'' and the resulting
tautology fails to provide genuine clarification and guidance to the
courts and administrative agencies.
---------------------------------------------------------------------------
\13\ See Wang, supra note 4, at 569. Wang writes that judicial
interpretations play an important role in the Chinese criminal justice
system because they have six functions: (1) ``indicating how to
correctly understand the meaning of the law;'' (2) ``explaining the
issues of the law;'' (3) ``indicating the concrete standard of
sentencing within the statutory punishments;'' (4) ``clarifying the
guilty line and line for giving a heavier punishment when the law
requires `serious circumstances' or `especially serious
circumstances';'' (5) ``clarifying the limitation of time for a
particular law;'' and (6) ``explaining how to implement laws.'' Id. at
572-77.
\14\ For detailed discussion of Chinese legislative drafting, see
Perry Keller, Legislation in the People's Republic of China, 23 U.
BRIT. COLUM. L. REV. 653 (1989); PETER HOWARD CORNE, FOREIGN INVESTMENT
IN CHINA: THE ADMINISTRATIVE LEGAL SYSTEM, 95-104 (1997); Claudia Ross
& Lester Ross, Language and Law: Sources of Systemic Vagueness and
Ambiguous Authority in Chinese Statutory Language, in THE LIMITS OF THE
RULE OF LAW 221 (KAREN G. TURNER, JAMES V. FEINERMAN, AND R. KENT GUY,
eds. 2000).
---------------------------------------------------------------------------
B. Punishment
When the circumstances of a person's act are so minor that the act
is not deemed a crime, or when the circumstances of a person's crime
are so minor that the crime does not require criminal punishment, the
person may still be subjected to administrative sanctions. The re-
education through labor, which is to be discussed in Part II, and those
prescribed by the Security Administration Punishment Regulations
(``SAPR'')\15\ are the most prominent administrative sanctions.
---------------------------------------------------------------------------
\15\ Security Administration Punishment Regulations, adopted on
Sept. 5, 1986, effective on Jan. 1, 1987, revised on May 12, 1994
[hereinafter SAPR].
---------------------------------------------------------------------------
Article 2 of the SAPR provides that ``[w]hoever disturbs social
order, endangers public safety, infringes upon a citizen's rights of
the person or encroaches upon public or private property'' shall be
punished in accordance with the SAPR ``if such an act is not serious
enough for criminal punishment'' and ``security administration
punishment should be imposed.'' \16\ Penalties under the regulations
include a warning, a maximum fine of 5,000 yuan (US$625), and
administrative detention of not more than 15 days.\17\ The public
security organs have exclusive responsibility for imposing these
penalties.
---------------------------------------------------------------------------
\16\ Articles 19-32 of the SAPR specify the circumstances under
which the SAPR is violated and the corresponding punishments.
\17\ SAPR, supra note 15, art. 6.
---------------------------------------------------------------------------
II. Re-Education Through Labor
a. legal background
Re-education through labor (``RETL'') is imposed on people whose
act is not serious enough to warrant criminal punishment but too
serious to be dealt with under the SAPR. RETL is mainly governed by
three legislative documents. According to the 1957 Decision of the
State Council Regarding the Question of Re-education Through Labor
(``1957 Decision''),\18\ the purposes of establishing RETL are ``to
reform into self-supporting new persons those persons who are able to
work but insist on leading an idle life, violate law and discipline, or
do not engage in honest pursuits'' and ``to further maintain public
order, thus facilitating socialist construction.'' \19\ The sanctions
should be imposed on the following four categories of people:
---------------------------------------------------------------------------
\18\ Decision of the State Council Regarding the Question of Re-
education Through Labor, approved by the Standing Committee of the
National People's Congress on Aug. 1, 1957, promulgated and effective
on Aug. 3, 1957 [hereinafter 1957 Decision].
\19\ Id. preamble.
(1) ``those who do not engage in honest pursuits, involve
themselves in hooliganism, commit larceny, fraud or other acts for
which they are not criminally liable, or violate public security rules
and refuse to mend their ways despite repeated admonition;'' \20\
---------------------------------------------------------------------------
\20\ Id. para. 1(1).
---------------------------------------------------------------------------
(2) ``counterrevolutionaries and anti-socialist reactionaries who
commit minor crimes and are not criminally liable and who have been
given sanctions of expulsion by government organs, organizations,
enterprises or schools, and as a result have difficulty in making a
living;'' \21\
---------------------------------------------------------------------------
\21\ Id. para. 1(2). When the Criminal Law was revised in 1997, the
term ``counterrevolutionary'' was replaced with the term ``crimes
against state security.'' The term ``counterrevolutionary'' found in
the 1957 Decision has not been amended accordingly.
---------------------------------------------------------------------------
(3) ``employees of government organs, organizations, enterprises
and schools who are able-bodied, but have refused to work for a long
period, violated discipline or jeopardized public order, and have been
given sanctions of expulsion, and as a result have difficulty in making
a living;'' \22\ or
---------------------------------------------------------------------------
\22\ Id. para. 1(3).
---------------------------------------------------------------------------
(4) ``those who refuse to accept the work assigned to them or the
arrangement made for their employment or who decline to take part in
manual labor and production despite persuasion, keep behaving
disruptively on purpose, obstruct public officials from performing
their duties and refuse to mend their ways despite repeated
admonition.'' \23\
---------------------------------------------------------------------------
\23\ Id. para. 1(4).
Various bodies may apply for imposition of RETL on anyone who falls
into one of the above four categories. These include ``civil affairs
and public security departments or the government organ, organization,
enterprise, school or other units to which the person belongs; or his
or her parents or guardians.'' \24\ The applications have to be
approved by the ``people's committees of provinces, autonomous regions,
and municipalities directly under the Central Government or by organs
authorized by these people's committees.'' \25\ The 1957 Decision
stipulates that agencies in charge of RETL will be established ``at the
level of provinces, autonomous regions, municipalities directly under
the Central Government'' or established ``with the approval of the
people's committees of provinces, autonomous regions, and
municipalities directly under the Central Government.'' \26\ It also
states that the work of these agencies will be jointly directed and
managed by the departments of civil affairs and public security.\27\
---------------------------------------------------------------------------
\24\ Id. para. 3.
\25\ Id. para. 3.
\26\ Id. para. 5.
\27\ Id.
---------------------------------------------------------------------------
In 1979, the State Council issued the Supplementary Decision Of The
State Council For Re-education Through Labor (``1979 Decision'') to
provide more details about RETL.\28\ Under the 1957 Decision, a person
can be subject to RETL for indefinite periods but the 1979 Decision
confines these periods to one to 3 years, with 1-year extension
``whenever it is necessary.'' \29\ The 1979 Decision clarifies that
RETL Administrative Committees shall be established by ``the people's
governments of the provinces, autonomous regions, and municipalities
directly under the Central Government, and of large and medium-sized
cities.'' \30\ These committees shall be composed of ``persons who are
in charge of civil affairs, public security and labor departments'' and
these persons shall be responsible for directing and managing the work
of RETL.\31\ Further, the 1979 Decision states that RETL can only be
imposed on ``those people in large and medium-sized cities who need to
be re-educated through labor.'' \32\ The RETL Administrative Committees
of provinces, autonomous regions, and municipalities directly under the
Central Government, and of large and medium-sized cities, are
responsible for examining and approving those who need such re-
education.\33\ In other words, RETL is not applicable to the rural
populace.
---------------------------------------------------------------------------
\28\ Supplementary Decision of the State Council for Re-education
Through Labor, approved by the Standing Committee of the National
People's Congress on Nov. 29, 1979, promulgated and effective on Nov.
29, 1979.
\29\ Id. para. 3.
\30\ Id. para 1.
\31\ Id.
\32\ Id. para 2.
\33\ Id.
---------------------------------------------------------------------------
In 1982, the Ministry of Public Security passed, with the approval
of the State Council, the Trial Methods for the Implementation of Re-
education Through Labor (``1982 Trial Methods'').\34\ Under this
document, RETL can be imposed not only on the four categories of
persons listed under the 1957 Decision, but also on anyone who ``joined
others to commit a crime such as murder, robbery, rape, and arson'' or
who ``abetted others to commit a crime'' and the circumstances
surrounding these crimes are not serious enough for criminal
punishments.\35\ Moreover, RETL is also applicable to the rural
populace if the person committed crimes ``in cities, along railways,
and in large-scale factories and mines.'' \36\
---------------------------------------------------------------------------
\34\ Notice of the State Council on Re-Issuing the Ministry of
Public Security's Trial Methods for the Implementation of Re-Education
Through Labor, promulgated and effective on Jan. 21, 1982.
\35\ Id. art. 10(2) and (6).
\36\ Id. art. 9.
---------------------------------------------------------------------------
b. legal and human rights problems of re-education through labor
1. Extensive use
The expansion of the scope of RETL, as shown in the 1957 Decision,
the 1979 Decision, and the 1982 Trial Methods, has drawn criticisms
from Chinese legal scholars that these documents are conflicting\37\
and that RETL has been turned by the public security organs into a
``crime control mechanism,'' \38\ which is different from the
legislative intent stipulated in the 1957 Decision.
---------------------------------------------------------------------------
\37\ See Shen Fujun, [Some Thoughts about the Abolition of Re-
education Through Labor System], FAXUE [JURISPRUDENCE], No.7, 1999, 18,
at 18; Chen Ruihua, [Historical Examination of Re-education Through
Labor and Reflections], ZHONGWAI FAXUE [PEKING UNIVERSITY LAW JOURNAL]
Vol. 13. No. 6 (2001), 657; Chen Xingliang, Research on China's Re-
education Through Labor System: From the Perspective of Criminal Rule
of Law, ZHONGWAI FAXUE [PEKING UNIVERSITY LAW JOURNAL] Vol. 13. No.
6(2001), 689, 693-94.
\38\ Hualing Fu, Criminal Procedure Law, in INTRODUCTION TO CHINESE
LAW 129, 134 (Chenguang Wang and Xianchu Zhang eds., 1997). See also
Chen Xingliang, supra note 37, at 694.
---------------------------------------------------------------------------
Numerous reports about the extensive use of the system have also
led to widespread human rights concerns. RETL is imposed by RETL
Administrative Committees that are dominated by public security
organs,\39\ and these organs have reportedly abused the system to take
actions against suspected offenders so as to avoid the procedural
requirements or supervisory mechanisms presented under the Criminal
Procedure Law.\40\ In particular, it has been reported that public
security organs have imposed RETL on offenders against whom they lack
sufficient evidence to support a charge even though the circumstances
of the crime committed are not minor.\41\
---------------------------------------------------------------------------
\39\ See Tao Jigang, [Some Thoughts on Laws Relating to Re-
education Through Labor], ZHONGGUO RENMIN JINGCHA DAXUE XUEBAO [JOURNAL
OF THE CHINA UNIVERSITY OF PEOPLE'S POLICE], No. 3, 1995, 12, at 12; Ma
Kechang, Strengthen the Reform Efforts, Revise and Perfect the Criminal
Law], FAXUE PINGLUN [LAW REVIEW], No. 5, 1996, 1, at 7-8; Chen
Xingliang, Re-education Through Labor: Analysis Based on International
Bill of Human Rights, FAXUE JURISPRUDENCE], No. 10 (2001), 49, 51-52;
Chen Ruihua, supra note 37, at 668.
\40\ Criminal Procedure Law of the People's Republic of China,
promulgated on July 1, 1979, revised on Mar. 17, 1996 [hereinafter
Criminal Procedure Law]. See LAWYERS COMMITTEE FOR HUMAN RIGHTS,
CRIMINAL JUSTICE WITH CHINESE CHARACTERISTICS: CHINA'S CRIMINAL PROCESS
AND VIOLATIONS OF HUMAN RIGHTS, 69-79 (1993); Amnesty International,
Open Letter To The President Of The People's Republic Of China, M2
PRESSWIRE, Sept. 28, 1999, available in LEXIS, News Library, News Group
File.
\41\ See Fu, supra note 38, at 134; Chen Xingliang, supra note 39,
at 52.
---------------------------------------------------------------------------
Official sources reveal that about 3.5 million people have been re-
educated since its establishment in the 1950's.\42\ At present, 300,000
people are being held in the country's nearly 300 RETL camps,\43\ at
least 1000 of whom are there because they are Falun Gong followers.\44\
Torture\45\ and maltreatment such as banning family visits and
censoring inmates' personal correspondence\46\ are alleged to be
commonly practiced in RETL camps. Of all the current inmates, a third
are punished by RETL because they were drug addicts, prostitutes,
brothel visitors; another third are offenders of minor crimes such as
larceny, fraud, and assault. The rest comprises of other types of
inmates.\47\
---------------------------------------------------------------------------
\42\ See China--Government Re-education System on Legal Basis,
CHINA DAILY, Nov. 2, 1998; Beijing to Introduce Re-education Through
Labor Law This Year, ZHONGGUO TONGXUN SHE NEWS AGENCY, BBC SUMMARY OF
WORLD BROADCASTS, Feb. 19, 2001, available in LEXIS, News Library, News
Group File.
\43\ See Minister Says 1.7 Million Held In Prisons, Labour Camps,
XINHUA NEWS AGENCY, BBC SUMMARY OF WORLD BROADCASTS, May 22, 2000,
available in LEXIS, News Library, News Group File; John Leicester,
China Gives Reporters Glimpse of Labor Camp Dubbed `Living Hell' by
Critics, THE ASSOCIATED PRESS, May 23, 2001, available in LEXIS, News
Library, News Group File.
\44\ China has not disclosed the exact number of Falun Gong
followers held in re-education through labor camps. But it confirmed in
January 2001 that at least 470 followers were held at the Masanjia
Education-Through-Labour Education Institution in Liaoning Province and
the official media reported in August 2001 that ``th[is] camp has also
succeeded in `re-educating' more than 90 per cent of the 1,000 female
Falun Gong members housed there.'' See Forty-Seven Former Female Falun
Gong Followers Released After Reform, XINHUA NEWS AGENCY, BBC SUMMARY
OF WORLD BROADCASTS, Jan. 27, 2001, available in LEXIS, News Library,
News Group File; China Rejects Report of Hunger Strike by Jailed Falun
Gong Members, AGENCE FRANCE PRESSE, Aug. 30, 2001, available in LEXIS,
News Library, News Group File. The Hong Kong-based Information Center
for Human Rights and Democracy estimated that about 10,000 Falun Gong
followers have been sent to these camps since the Falun Gong movement
was banned in July 1999. See Nearly 500 Falun Gong Were Held At Just
One Labour Camp: China, AGENCE FRANCE PRESSE, Jan. 18, 2001, available
in LEXIS, News Library, News Group File.
\45\ See Amnesty International: China--Torture In China Under The
Spotlight At The United Nations, M2 PRESSWIRE, May 5, 2000, available
in LEXIS, News Library, News Group File; Released Chinese Dissident
Speaks of Horrors of Labor Camp Life, AGENCE FRANCE PRESSE, Feb. 15,
2002, available in LEXIS, News Library, News Group File.
\46\ See Fong Tak-Ho, Dissident Threatens Legal Action, HONG KONG
STANDARD, July 10, 1997, available in LEXIS, News Library, News Group
File.
\47\ See Chen Xingliang, supra note 37, at 694, 697.
---------------------------------------------------------------------------
2. Severe punishment
Although couched in terms of leniency, the 1979 Decision and the
1982 Trial Methods allow a person to be detained in a labor camp for up
to 4 years. This punishment is far more severe than some criminal
punishments, which include five types of ``principal punishments''
(zhuxing)\48\ and three types of ``supplementary punishments'' (fujia
xing).\49\ The five types of principal punishments are:
---------------------------------------------------------------------------
\48\ Criminal Law, supra note 1, art. 33.
\49\ Id. art. 34.
(1) Surveillance (guanzhi) (from 3 months to 2 years)\50\
---------------------------------------------------------------------------
\50\ Id. art. 38.
---------------------------------------------------------------------------
(2) Criminal detention (juyi) (from 1 month to 6 months)\51\
---------------------------------------------------------------------------
\51\ Id. art. 42.
---------------------------------------------------------------------------
(3) Fixed-term imprisonment (from 6 months to 15 years and up to 20
years when the death penalty is commuted to fixed-term imprisonment or
in cases of combined punishment for more than one crime)\52\
---------------------------------------------------------------------------
\52\ Id. arts. 45, 50, and 69.
---------------------------------------------------------------------------
(4) Life imprisonment
(5) Death penalty
Supplementary punishments, regardless of the opposite meaning
conveyed by its name, may be imposed independently.\53\ They include:
---------------------------------------------------------------------------
\53\ Id. art. 34.
(1) Fines (the amount of the fine imposed depends on the
circumstances of the crime)\54\
---------------------------------------------------------------------------
\54\ Id. art. 52.
---------------------------------------------------------------------------
(2) Deprivation of political rights\55\
---------------------------------------------------------------------------
\55\ Deprivation of political rights refers to deprivation of the
following rights: (1) the right to elect and the right to be elected;
(2) the right to freedom of speech, of the press, of assembly, of
association, of procession, and of demonstration; (3) the right to hold
a position in state organs; and (4) the right to hold a leading
position in a state-owned company, enterprise, or institution or
people's organization. Id. art. 54.
---------------------------------------------------------------------------
(3) Confiscation of property Critics argue that because RETL is
more severe than criminal punishments such as fines, surveillance, and
criminal detention, application of the sanction violates the rationale
behind RETL: the system should be applied to cases whose level of
severity does not merit any criminal punishment.\56\
---------------------------------------------------------------------------
\56\ See Chen Zexian, [Re-education Through Labor System and
Educational Reform of Prisoners in China], in [HUMAN RIGHTS AND
ADMINISTRATION OF JUSTICE] 30, 33-4 (Liu, Li and Kjaerum. eds., 1999);
Chen Ruihua, supra note 37, at 669; Chen Xingliang, supra note 37, at
694.
---------------------------------------------------------------------------
3. Inconsistent with administrative punishment law
The RETL system has also been challenged as inconsistent with the
Administrative Punishment Law.\57\ The statute specifically requires
all administrative punishments that restrict personal freedom to be
prescribed by ``laws.'' \58\ Administrative regulations and rules can
only prescribe other punishments such as warning, fines, confiscation
of illegally gained income and property, and provisional suspension or
revocation of permits or licenses.\59\ According to the hierarchy of
Chinese legislative authorities, only the National People's Congress
and its Standing Committee can promulgate ``laws.'' \60\ RETL, which is
a type of administrative punishment that restricts personal
freedom,\61\ is prescribed not by a ``law'' but by decisions made by
the State Council or the Ministry of Public Security, and the legality
of this system is therefore questionable.\62\
---------------------------------------------------------------------------
\57\ Administrative Punishment Law of the People's Republic of
China, promulgated on Mar. 17, 1996 and effective on Oct. 1, 1996.
\58\ Id. art. 9
\59\ Id. arts. 8, 10 and 11.
\60\ See XINGZHENG FAXUE JIAOCHENG [TEXT OF ADMINISTRATIVE
JURISPRUDENCE] 205 (Ying Songnian, ed., 1988).
\61\ This point was in dispute in the past. See Chen Xingliang,
supra note 39; Chen Ruihua, supra note 37, at 669; Jiang Jinfang,
[Legal Developments of Re-education Through Labor System and Practical
Problems], ZHONGWAI FAXUE [PEKING UNIVERSITY LAW JOURNAL] Vol. 13. No.
6(2001) 674, 682.
\62\ See Shen Fujun, supra note 37, at 19; Chen Zexian, supra note
56, at 34-35; JIANFU CHEN, CHINESE LAW: TOWARDS AN UNDERSTANDING OF
CHINESE LAW, ITS NATURE, AND DEVELOPMENT 193 (1999).
---------------------------------------------------------------------------
Those who disagree with the above view may argue that the Standing
Committee of the National People's Congress's approval of the 1957 and
1979 Decisions has effectively transformed them into ``laws.'' \63\
This view is debatable. But even if it is correct, the same argument
cannot be applied to the 1982 Trial Methods because the Standing
Committee of the National People's Congress has never approved the
document. Among the three documents, the 1982 Trial Methods has the
most extensive and controversial coverage.
---------------------------------------------------------------------------
\63\ See supra notes 18 and 28. Chen Xingliang argues that they are
not ``laws;'' they are ``pre-laws'' (zhun falu), at the very most, see
Chen Xingliang, supra note 37, at 689, 692.
---------------------------------------------------------------------------
4. Lack of effective supervision
As an administrative, rather than criminal, sanction, RETL is not
subject to any human rights safeguards, however limited they are,
contained in the Criminal Law and Criminal Procedure Law.
The Chinese Criminal Law was promulgated in 1979 and amended four
times from 1997 to 2001. The 1997 amendment was particularly
remarkable. It abolished the provision on analogy\64\ and adopted
certain fundamental principles of justice such as equality before the
law\65\ and proportionality (zuixing xiang shiying yuanze).\66\ But it
did not adopt the principle of double jeopardy as far as crimes
committed outside China are concerned.\67\
---------------------------------------------------------------------------
\64\ Article 79 of the 1979 Criminal Law provided that ``[a] person
who commits crimes not explicitly defined in the Specific Provisions of
this Law may be convicted and sentenced, after obtaining the approval
of the Supreme People's Court, according to the most similar article in
this Law.'' After the 1997 amendment, the Criminal Law provides that
``[a]ny act deemed by explicit stipulations of law as a crime shall be
convicted and given punishment by law and any act that no explicit
stipulations of law deem a crime shall not be convicted or given
punishment.'' Criminal Law, supra note 1, art. 3.
\65\ ``Anyone committing crimes shall be treated equally in
applying the law. No one shall have any privileges outside the law.''
Id. art. 4.
\66\ ``The punishment shall be proportional to the criminal acts
committed by the offenders and the criminal responsibilities that the
offenders shall bear.'' Id. art. 5.
\67\ For detailed discussion of the amendment to the Criminal Law,
see LAWYERS COMMITTEE FOR HUMAN RIGHTS, WRONGS AND RIGHTS: A HUMAN
RIGHTS ANALYSIS OF CHINA'S REVISED CRIMINAL LAW (1998); JIANFU CHEN,
supra note 62, at 174-183.
---------------------------------------------------------------------------
The revision of the Criminal Procedure Law in 1996 brought the
legislation closer to international human rights standards by adopting
the presumption of innocence, expanding the right to counsel, and
increasing the role of the courts so as to eliminate the prior practice
of pre-trial determination of guilt. Despite these improvements, the
revised Criminal Procedure Law still has various deficiencies.\68\ For
example, it allows long period of pre-arrest detention. The public
security organs can detain for a period of 30 days those ``strongly
suspected of wandering around committing crimes, of committing multiple
crimes, or of forming gangs to commit crimes.'' \69\ The requirement
for the public security organs to inform detainees' families of the
reasons for detention and the place of custody within 24 hours after
the detention may be waived if this ``may hinder the investigation or
there is no way of notifying them.'' \70\
---------------------------------------------------------------------------
\68\ For detailed discussion of the amendment to the Criminal
Procedure Law, see Fu, supra note 38; LAWYERS COMMITTEE FOR HUMAN
RIGHTS, OPENING TO REFORM?: AN ANALYSIS OF CHINA'S REVISED CRIMINAL
PROCEDURE LAW (1996); JIANFU CHEN, supra note 62, at 200-16; Daphne
Huang, The Right to a Fair Trial in China, 7 PAC. RIM. L. & POL'Y 171
(1998).
\69\ Criminal Procedure Law, supra note 40, arts. 61(7), 69(2).
\70\ Id. art. 64.
---------------------------------------------------------------------------
As these limited human rights protections are beyond the reach of
those who are punished by RETL, aggrieved parties may only resort to
protections granted under the Administrative Litigation Law.\71\ The
statute stipulates that anyone who believes that his or her legitimate
rights and interests have been infringed by administrative acts such as
administrative sanctions may bring lawsuits to courts.\72\ Should the
court find the challenged administrative act illegal, it may revoke
(chexiao) the act.\73\
---------------------------------------------------------------------------
\71\ Administrative Litigation Law of the People's Republic of
China, promulgated on Apr. 4, 1989 and effective on Oct. 1, 1990.
\72\ Id. arts. 1-2.
\73\ Id. art. 54.
---------------------------------------------------------------------------
Based on documentary sources and empirical research, I have noticed
some improvements in administrative litigation such as growing respect
for procedural requirements. However, the existing problems as
discussed below appear to have limited the courts' role in reviewing
the legality of administrative sanctions such as RETL.\74\
---------------------------------------------------------------------------
\74\ See also Chen Ruihua, supra note 37, at 671; Chen Xingliang,
supra note 37, at 695-96.
---------------------------------------------------------------------------
a. Fear.--According to interviewees, aggrieved parties dare not sue
administrative organs, especially public security organs, which have
wielded extensive power over the populace for decades in China. They
fear reprisals resulted from direct confrontation with these organs.
Nevertheless, official statistics show that during the years from 1991
to 2000, a significant portion (ranging from 15 to 30 per cent) of
administrative cases accepted by first-instance courts were ``public
security'' (gongan) cases, which cover ``social order'' (zhian) cases,
RETL (laojiao) cases, and ``others'' (qita).\75\ (See Table One). If
this fear exists, why do public security cases account for such
significant portion?
---------------------------------------------------------------------------
\75\ In China, administrative cases are classified into about 30
categories including public security (gongan), industry and commerce
(gongshang), land use (tudi), forestry (linye), city construction
(chengjian), customs (haiguan), environmental protection (huanbao),
patent (zhuanli), and tax (shuiwu) cases. Public security cases are
further categorized as social order (zhian), re-education through labor
(laojiao), or others (qita). Interviews with judges in Guangdong, Dec.
1998-Jan. 1999.
Table One.--Number of First-Instance Administrative Cases Accepted in
China, 1991-2000\76\
------------------------------------------------------------------------
Administrative Public Security Percentage
Year Cases Cases (percent)\77\
------------------------------------------------------------------------
1991 25,667 \78\
1992 27,125 7,863 28.99
1993 27,911 7,018 25.14
1994 35,083 8,624 24.58
1995 52,596 11,633 22.12
1996 79,966 15,090 18.87
1997 90,557 14,171 15.65
1998 98,350 14,288 14.53
1999 97,569 14,611 14.98
2000 85,760 13,173 15.36
------------------------------------------------------------------------
\76\ CHINA LAW YEARBOOK 1992-2001.
\77\ This column lists the percentage of the total number of
administrative cases that public security cases account for.
\78\ No data could be found to indicate the number of ``public
security'' cases accepted in 1991. However, it was reported in CHINA
LAW YEARBOOK 1992 that 7,720 ``social order'' (zhian) cases were
accepted, accounting for 30.08 per cent of all first-instance
administrative cases accepted in 1991.
Interviewees explained that the relatively high percentage of
``public security'' administrative cases simply reflected public
security organs' possession of enormous power affecting a wide range of
citizens' daily activities. Regardless of their fear, some aggrieved
parties finally resorted to administrative litigation because they
considered their grievances too grave to endure.
Some other evidence corroborates this explanation. According to a
survey conducted in 1992, 51 of 90 plaintiffs interviewed said that
they filed suits under the Administrative Litigation Law because they
felt this was their last resort.\79\ In 1993, an abstract painter
reportedly sued Beijing's Haidian District Police after three officers
beat him for arguing with a bus conductor. The painter won his case.
However, the police arrested him two weeks later and charged him with a
trumped-up bicycle theft. He was then sent, without trial, to 2 years
in a labor camp. When interviewed in 1997, the painter recalled, ``My
vision was too optimistic. From now on, I will express myself through
my art.'' \80\ In fact, police misconduct was considered a ``grave''
problem by then--Supreme People's Court president Ren Jianxin in
December 1996 and he criticized some law-enforcement officials ``[who]
have taken advantage of legal loop-holes, intentionally misinterpreted
the law, distorted evidence and broken the law they enforce.'' \81\
---------------------------------------------------------------------------
\79\ FAZHI DE LIXIANG YU XIANSHI [THE IDEAL AND REALITY OF THE RULE
OF LAW] 322 (Gong Xiangrui et al. eds., 1993).
\80\ George Wehrfritz and Michael Laris, Rules Are the Law,
NEWSWEEK (ATLANTIC EDITION), Sept. 29, 1997, available in LEXIS, News
Library, News Group File.
\81\ Id.
---------------------------------------------------------------------------
b. Limited Access to Lawyers.--The fee for retaining a lawyer
varies in accordance with individual lawyer's experience and
competence. On average, the fee can amount to at least 2,000-3,000 yuan
(US$250-$375) for a case tried by a basic level court and 5,000 yuan
(US$625) for one by an intermediate level court.\82\ The average
monthly income of an ordinary worker is below 1,000 yuan (US$125).\83\
---------------------------------------------------------------------------
\82\ Interviews in Guangdong, Dec. 1998-Jan. 1999 and Chongqing,
Dec. 1999-Jan. 2000.
\83\ Id.
---------------------------------------------------------------------------
Free legal service is available but its effectiveness in
administrative litigation is doubtful.\84\ Legal aid rules generally
require eligible applicants' monthly income to be less than a fixed
amount ranging from 200-400 yuan (US$25-$50).\85\ Few people except
those living below the poverty line or those who are unemployed can
meet this requirement.\86\ Besides, priorities of legal aid are given
to criminal defendants facing the death penalty as well as the blind,
deaf, dumb, aged, and minors to assist their claim for compensation in
personal injury cases.\87\ Administrative cases do not seem to have
attracted legal aid providers' attention. From its opening in 1995 to
January 1999, the Guangzhou Legal Aid Center has only handled two
administrative cases.\88\ By contrast, within the year of 1998, 700
criminal and economic cases were handled.\89\ Legal aid centers in the
entire Chongqing handled about 2,400 criminal cases and 3,500 civil
cases in 1999. Only about ten cases were administrative cases.\90\
---------------------------------------------------------------------------
\84\ For discussion of legal aid practices in China, see generally
David Lee, Legal Reform in China: A Role for Nongovernmental
Organizations, 25 YALE J. INT'L L. 363 (2000); Benjamin L. Liebman,
Legal Aid and Public Interest Law in China, 34 TEX. INT'L L. J. 211
(1999).
\85\ Guangzhou Legal Aid Center adopted ``340-380 yuan'' as the
standard. See Pamphlet issued by Guangzhou Legal Aid Center, Jan. 1999
(on file with author).
\86\ Interview with Director, Guangzhou Legal Aid Center, Jan.
1999; Interview with Directors, Chongqing Legal Aid Center, Jan. 2000.
\87\ See Backgrounder: Qualifications for Chinese Citizens to
Receive Legal Aid, XINHUA GENERAL NEWS SERVICE, JUNE 16, 2000,
available in LEXIS, News Library, News Group File.
\88\ Interview with Director, Legal Aid Center in Guangzhou, Jan.
1999.
\89\ Id.
\90\ Interview with Directors, Legal Aid Center in Chongqing, Jan.
2000.
---------------------------------------------------------------------------
Even if aggrieved parties can afford to retain lawyers, they may
encounter difficulties because lawyers are not enthusiastic about
handling administrative cases. Unlike economic and civil cases, the
amount in dispute in an administrative case is low and thus lawyers
cannot charge high fees. Moreover, most lawyers are reluctant to stand
up to the government, which has power to decide whether or not a
lawyer's license should be renewed.\91\
---------------------------------------------------------------------------
\91\ Interviews in Guangdong, Dec. 1998-Jan. 1999 and Chongqing,
Dec. 1999-Jan. 2000.
---------------------------------------------------------------------------
c. Interference.--The majority of interviewees identified
interference by administrative organs and the Chinese Communist Party
as the greatest difficulty encountered in administrative litigation.
Such interference may occur during the entire course of handling an
administrative case, but is especially common before the case is
accepted. At subsequent stages, judges may be pressured to uphold the
administrative act and aggrieved parties and/or courts pressured to
have the case withdrawn.
In some administrative cases where public security organs are
defendants, the organs have reportedly manipulated the blurred
distinction between their dual roles of conducting criminal
investigations and imposing administrative sanctions. When these organs
intend to bypass the human rights protections provided under the
criminal justice system, they often claim that whatever sanctions
imposed on suspects are administrative sanctions. When these sanctions
are challenged in court through administrative litigation, the public
security organs often influence judges to reject the cases on the
ground that the court lacks jurisdiction because the sanctions are not
administrative acts but acts of criminal investigation.\92\
---------------------------------------------------------------------------
\92\ Dong Hao, [Some Thoughts about Reforming Multiple
Responsibilities System of Our Country's Judicial Organs, ZHONGGUO
FAXUE CHINA'S LEGAL STUDIES], No. 4, 1997, 24, at 26.
---------------------------------------------------------------------------
Chinese judges are susceptible to pressure exerted by
administrative organs and the Chinese Communist Party because courts'
financial arrangements including courts' budgets, judges' salaries and
welfare benefits as well as appointment and dismissal of judges are
determined by people's governments at corresponding levels, which are
ultimately controlled by the local party committees.\93\
---------------------------------------------------------------------------
\93\ For discussion of constraints on judicial autonomy, see
Stanley Lubman, Bird in a Cage: Chinese Law Reform After Twenty Years,
20 J. INTL. L. BUS. 383, 394-98 (2000); He Weifang, [The Realization of
Social Justice Through Judicature: A Look at the Current Situation of
Chinese Judges], in [TOWARD A TIME OF RIGHTS: A PERSPECTIVE OF THE
CIVIL RIGHTS DEVELOPMENT IN CHINA] 209 (Xia Yong ed., 1995).
---------------------------------------------------------------------------
III. The Future of RETL and Concluding Remarks
In light of the legal and human rights problems of RETL, many
scholars call for abolition or fundamental reform of RETL.\94\ Some of
those who support abolition of RETL suggest amending the SAPR to
increase the maximum period of administrative detention from 15 days to
a month.\95\ Offenders of ``minor crimes'' may be detained for up to a
month under the SAPR whereas other offenders may be punished under the
Criminal Law, which provides that criminal detention should last from 1
month to 6 months.\96\ As there is no gap between these two types of
detention, there is no need to have RETL.\97\
---------------------------------------------------------------------------
\94\ See e.g. Shen Fujun, supra note 37; Tao Jigang, supra note 39,
at 12; Ma Kechang, supra note 39, at 7-8; Chen Zexian, supra note 56;
Chen Xingliang, [Dual Tasks for Criminal Revision: Change of Value and
Adjustment of Structure], ZHONGWAI FAXUE [PEKING UNIVERSITY LAW
JOURNAL], No.1, 1997, 55, at 56-60; Chen Guangzhong and Zhang Jianwei,
[The UN's International Covenant on Civil and Political Rights and Our
Country's Criminal Litigation], ZHONGGUO FAXUE [CHINA'S LEGAL STUDIES],
No. 6, 1998, 98, at 108; Chen Ruihua, supra note 37, at 669-73.
\95\ See supra Part I.B.
\96\ Criminal Law, supra note 1, art. 42.
\97\ See Shen Fujun, supra note 37, at 19; Chen Zexian, supra note
56, at 36; Chen and Zhang, supra note 94, at 108. See also Chen
Xingliang, supra note 37, at 700.
---------------------------------------------------------------------------
If the RETL is not abolished, the system should be fundamentally
reformed. The maximum detention period should be reduced from 4 years
to one\98\ or 2 years.\99\ Imposition of these punishments should not
be decided by public security organs but by courts whose decisions are
subject to appeal.\100\ If possible, the system should be incorporated
into the Criminal Law by establishing a new type of punishment called
``police orders'' or ``public safety orders'' which are similar to
community-based orders in western countries.\101\
---------------------------------------------------------------------------
\98\ See Chen and Zhang, supra note 94, at 108.
\99\ See Chen Zexian, supra note 56, at 35.
\100\ See Chen and Zhang, supra note 94, at 108
\101\ See Ma Kechang, supra note 39, at 7-8; JIANFU CHEN, supra
note 62, at 193; Chen Xingliang, supra note 94, at 56-60; and Chen and
Zhang, supra note 94, at 108.
---------------------------------------------------------------------------
The reform measures stated in the preceding paragraph, although
they would alleviate some of the problems in the current system, would
not effectively resolve the human rights problems presented by RETL.
Designating courts as the authorities to decide whether or not RETL
should be imposed will be an effective reform measure if and only if
the courts can make these decisions independently. Although the Chinese
courts are undergoing a 5-year reform program, the problem of extra-
judicial interference will not be resolved in the near future, because
the solution is necessarily linked to both political reform and changes
in Chinese legal culture.\102\
---------------------------------------------------------------------------
\102\ The Supreme People's Court launched a Five-Year Court Reform
Plan in October 1999. See China's Supreme Court Plans Greater Autonomy
For Judges, CHINAONLINE, Oct. 26, 1999, available in LEXIS, News
Library, News Group File.
---------------------------------------------------------------------------
The revisions of the Criminal Law and the Criminal Procedure Law
marked the continued maturing of Chinese legality to reflect changed
social and economic conditions. Yet the current Criminal Procedure Law
only offers limited human rights protections, and it remains unknown
when the legislation will be completely brought in line with
international norms. The recognition of criminal suspects' right to
keep silence, expressed in a regulation issued in Liaoning Province,
gives hope of a trend toward greater incorporation of international
human rights norms into the Chinese criminal justice system.\103\
Integration of RETL into the Criminal Law would at least have the
advantage of subjecting RETL to human rights protections already
provided in the Criminal Procedure Law.
---------------------------------------------------------------------------
\103\ See China: New Regulation Sees Introduction of Criminal
Suspects' Right to Silence, XINHUA NEWS AGENCY, BBC WORLDWIDE
MONITORING, Nov. 22, 2000, available in LEXIS, News Library, News Group
File.
---------------------------------------------------------------------------
The incorporation of RETL into the Criminal Law ought not obscure
the problems that it would continue to present, especially in light of
the need to implement even the existing safeguards against official
arbitrariness that are contained in the Criminal Procedure Law. After
extensive investigations in six selected provinces, autonomous regions
and cities, namely, Tianjin, Inner Mongolia, Heilongjiang, Zhejiang,
Shaanxi and Hubei, the National People's Congress Standing Committee
concluded that the Criminal Procedure Law has not been fully
implemented since its revision in 1996. Over-extended detention of
criminal suspects and forced confession are still ``salient problems''
in many parts of the country. Judges, procuratorates, and public
security organs restrict defense lawyers' activities by obstructing the
lawyers to meet with their clients and to access court files relating
to their cases. The National People's Congress Standing Committee
attributed this unsatisfactory implementation to law enforcers'
``erroneous understanding'' of the law. These enforcers regard the law
as ``too advanced'' for China.\104\ Against this backdrop,
incorporating RETL into the Criminal Law would only subject the system
to minimal human rights protections that are only available at the
discretion of law enforcers. RETL is such a major anomaly in a legal
system that is supposed to be ruled by law, that, the mechanism should
be abolished.
---------------------------------------------------------------------------
\104\ See Official Admits Detention, Forced Confessions A Major
Problem, XINHUA NEWS AGENCY, BBC SUMMARY OF WORLD BROADCASTS, Dec. 30,
2000, available in LEXIS, News Library, News Group File.
---------------------------------------------------------------------------
I expressed the above views at the Seminar on Punishment of Minor
Crimes, which was jointly organized by the Chinese government and the
United Nations Office of the High Commissioner for Human Rights in
February 2001. Since then, the Chinese government has announced its
plan of drafting a law on RETL to improve the name, targets, and
implementation mechanisms of RETL.\105\ But it appears to have ruled
out abolition. Wang Yunsheng, Director of the Ministry of Justice's
Bureau of Re-education Through Labor, explained, ``For such a populous
Nation as China, the [RETL], which aims at stopping those on the verge
of committing serious crimes, is an effective one for reducing crime.''
\106\
---------------------------------------------------------------------------
\105\ See Speed Urged for Judicial System Laws, CHINA DAILY, Dec.
24, 2001; Beijing to Introduce Re-education Through Labor Law This
Year, supra note 42.
\106\ See China Reviews ``Re-education Through Labor'' System,
DEUTSCHE PRESSE-AGENTUR, Feb. 5, 2001, available in LEXIS, News
Library, News Group File.
---------------------------------------------------------------------------
While the Chinese government's intent of not abolishing the RETL
system is disappointing, its determination of improving the system is
welcome. But the government must understand that any reforms that fall
short of addressing the problems discussed here will negate its efforts
in establishing a rule-of-law-based criminal system.
I thank you again for inviting me to speak today and I look forward
to answering any questions you may have.
-