26 December 2013

Translation: Police Indictment Opinion for Guo Feixiong & Sun Desheng


(N.B.: Yang Maodong is more commonly known to the public as Guo Feixiong.)

Guangzhou Municipal Public Security Bureau, Tianhe District Branch
Opinion Recommending Indictment

GZ PSB Tianhe Indict. (2013) No. 03990

Criminal suspect Yang Maodong, male, born 2 August 1966, Han ethnicity, undergraduate university education, ID number: 42010219660802****, place of household registration: [redacted], Hanyang District, Wuhan, Hubei Province, currently lives at [redacted], Tianhe District, Guangzhou, no party affiliation. Placed under criminal detention on 8 August 2013 on suspicion of gathering crowds to disrupt order in public places. On 12 September 2013, the Guangzhou Municipality Tianhe District People’s Procuratorate approved arrest on suspicion of gathering crowds to disrupt order in public places, and the arrest was carried out on 12 September. On 25 October 2013, a request was approved to extend the custodial period for one month. Criminal suspect Yang Maodong is currently being held in the Tianhe Detention Center.

Defense lawyer is Chen Guangwu, a lawyer with the Shandong Chenhao Law Firm.

Criminal suspect Sun Desheng, a.k.a. Sun Sihuo, male, born 4 December 1981, Han ethnicity, elementary school education, ID number: 42112619811204****, place of household registration: [redacted], Juzilin Village, Qingshi Town, Qichun County, Huanggang, Hubei Province. Placed under criminal detention on 13 August 2013 on suspicion of gathering crowds to disrupt order in public places and placed under residential surveillance in a designated location on 11 September 2013. On 16 October 2013, the Guangzhou Municipality Tianhe District People’s Procuratorate approved arrest on suspicion of gathering crowds to disrupt order in public places, and the arrest was carried out on 16 October. Criminal suspect Sun Desheng is currently being held in the Tianhe Detention Center.

Defense lawyer is Ge Wenxiu, a lawyer with the Guangdong Lüchengdingbang Law Firm, license number: [redacted].

The case of gathering crowds to disrupt order in public places involving criminal suspects Yang Maodong and Sun Desheng was discovered through work carried out by the Public Order Management Division of our bureau on 7 January 2013 and 17 April 2013, respectively. Following review by our bureau, cases were filed for investigation on 7 January and 17 April 2013. Criminal suspect Yang Maodong was taken into custody on 8 August 2013 and criminal suspect Sun Desheng was taken into custody on 13 August 2013. The investigation into the case of gathering crowds to disrupt order in public places involving criminal suspects Yang Maodong and Sun Desheng has now concluded.

Investigation in accordance with law has ascertained: At approximately 5 p.m. on 5 January 2013, criminal suspect Yang Maodong organized more than 10 individuals including Yuan Xiaohua and Yuan Bing (both of whom have been arrested by [police in] Chibi, Hubei Province) to gather for a meal at the Fuhua Hotel in Tianhe District, Guangzhou, where criminal suspect Yang Maodong suggested they discuss their doubts over tampering with the Southern Weekly’s New Year greeting and expressed his own opinions. They discussed raising signs in the street to express support for Southern Weekly, which received the support of criminal suspects Yuan Xiaohua, Yuan Bing et al. Criminal suspect Yang Maodong instructed someone to write posters saying “If Tuo [Zhen’s] Poison is not Eliminated, Guangdong Castrates Itself, Press Freedom, Constitutional Democracy,” “Support Southern Weekly, Defend Press Freedom,” and “The Chinese Dream is a Dream of Constitutionalism” and divided up the work with Yuan Bing et al. and came to an agreement about what to do in case of being taken into custody.

Criminal suspect Yang Maodong arranged for more than 10 individuals including Yuan Bing and Yuan Xiaohua to go one after another from 6 January to 9 January 2013 to the gate of the Southern Weekly offices at 289 Guangzhou Avenue Central, where they raised signs and gave speeches to attract a large group of onlookers and gathered crowds to disrupt order in a public place. On the afternoons of the 7th, 8th, and 9th criminal suspect Yang Maodong went to the gate of the Southern Weekly offices, where he gave speeches or carried out “on the spot inspections.” At its largest, the gathered crowd numbered several hundred, and they obstructed police from enforcing the law and seriously disrupted order in the public space at the entrance to the Southern Weekly offices. Afterwards, criminal suspect Yang Maodong published several items on overseas media sites commenting on the “Southern Weekly New Year’s Greeting Incident.”

In early April 2013, criminal suspect Yang Maodong conspired with criminal suspects Sun Desheng and Yuan Bing in the room where he was living in Changsha, Hunan, where they plotted to go from the origin of the 1911 Revolution in Wuhan, Hubei, and follow the Wuhan-Guangzhou rail line southward, carrying out “sign protests in the streets” in the cities of Wuhan, Yueyang, Changsha, Zhuzhou, Hengyang, Chenzhou, Shaoguan, and Guangzhou, demanding that officials make their assets public and calling on the National People’s Congress to ratify the International Covenant on Civil and Political Rights. Criminal suspect Yang Maodong prepared the items necessary for this action, including banners, a plan for the sign-raising activity, sign-raising times, an itinerary, and the names and contact information for contacts in each city.

Beginning on 12 April 2013, criminal suspects Yuan Bing and Sun Desheng followed Yang Maodong’s instructions and carried out and photographed “sign protests in the streets” in the cities of Wuhan, Yueyang, Changsha, Zhuzhou, Hengyang, Chenzhou, Shaoguan, and Guangzhou in which they demanded that officials make their assets public and called on the National People’s Congress to ratify the International Covenant on Civil and Political Rights. In each of the eight cities, they gathered crowds to disrupt order in public places and blocked police from enforcing the law. After raising signs in the streets of each city, criminal suspects Sun Desheng, Yuan Bing et al., under instruction from criminal suspect Yang Maodong, posted related photographs on overseas websites.

Criminal suspect Sun Desheng has confessed to all of the the facts stated above, while criminal suspect Yang Maodong refuses to confess.

The evidence affirming the facts stated above is as follows: collateral evidence, records of on-site investigation, records of remote investigation, witness statements, documentary evidence, on-site video recordings and photographs, and the statements and defense arguments of criminal suspects Yang Maodong and Sun Desheng.

The aforementioned criminal facts are clear, and the evidence is clear and reliable; this is sufficient to convict.

In summary, criminal suspects Yang Maodong and Sun Desheng gathered crowds to seriously disrupt order in a public place, thereby violating Article 291 of the Criminal Law of the PRC, involving the crime of organizing a crowd to disrupt order in a public place. In accordance with the provisions of Article 160 of the Criminal Procedure Law of the People’s Republic of China, this case is hereby transferred for review for indictment.

Sincerely submitted to:

Guangzhou Municipality Tianhe District People’s Procuratorate

Guangzhou Municipal Public Security Bureau,
Tianhe District Branch
[seal]
10 December 2013

Attached:
1. [Blank] volumes, totaling [blank] pages, of case files
2. Three compact discs related to the case

(Thanks to anonymous friends for help with finalizing this translation.)

03 December 2013

Chinese Human Rights Lawyers: Appeal to Safeguard Human Rights and Realise Constitutional Government

http://wqw2010.blogspot.hk/2013/12/blog-post_6186.html 

On the occasion of the 31st anniversary of the proclamation and enactment of the current Constitution of the People’s Republic of China, we as legal professionals and citizens make the following appeal based on our consciences and in accordance with the Constitution and laws:

I. Human rights and freedoms must be safeguarded

We must reaffirm Article 2 of the Constitution of the PRC, which reads, ‘All power of the People’s Republic of China belongs to the People [renmin]’; Article 33, which reads, ‘All persons who have the nationality of the PRC are PRC citizens. Citizens of the PRC are equal before the law. The State respects and protects human rights’; Article 35, which reads, ‘PRC citizens enjoy freedom of speech, press, assembly, association, procession and demonstration’; and Article 36, which reads, ‘Citizens of the PRC enjoy freedom of religious belief.’

We must also reaffirm Article 18 of the Universal Declaration of Human Rights, ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’; as well as its Article 19, ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’; and Article 20, ‘(1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association.’

On the basis of the Constitution of the PRC and the Universal Declaration of Human Rights, we believe that the following three points may be regarded as a basic consensus amongst the people of this nation:

  1. If they do not have the basic rights of citizens, 'the people' will always be subjects, never citizens. 
  2. A ‘State’ that does not protect its citizens’ basic rights is never a People’s Republic but always a dictatorship. 
  3. A ‘Constitution’ that cannot protect the citizens’ basic rights it not a ‘Constitution’ but, rather, waste paper.

II. Immediately release Liu Ping, Xu Zhiyong, Guo Feixiong, Wang Gongquan, Liu Hu and other citizens

According to incomplete statistics, 44 citizens, namely Liu Yuandong 刘远东, Yuan Dong 袁冬, Ma Xinli 马新立, Zhang Baocheng 张宝成, Li Wei 李蔚, Wang Yonghong 王永红, Ding Jiaxi 丁家喜, Sun Hanhui 孙含会, Zhao Changqing 赵常青, Qi Yueying 齐月英, Liu Ping 刘萍, Wei Zhongping 魏忠平, Li Sihua 李思华, Yuan Bing 袁兵 (Yuan Fengchu 袁奉初), Huang Wenxun 黄文勋, Yuan Xiaohua 袁小华, Gu Yimin 顾义民, Zheng Qiuwu 郑酋午, Yang Lin 杨林, Zhang Xiangzhong 张向忠, Ding Hongfen 丁红芬, Shen Aibin 沈爱斌, Yin Xijin 殷锡金, Qu Fengsheng 瞿峰盛, Shen Guodong 沈果冬, Shi Gaohong 施高洪, Li Gang 李刚, Li Huanjun 李焕君, Song Guangqiang 宋光强 (Song Ze 宋泽), Xu Zhiyong 许志永, Zhang Lin 张林, Liu Jiacai 刘家财, Guo Feixiong 郭飞雄 (Yang Maodong 杨茂东), Li Huaping 李化平, Sun Desheng 孙德胜, Yang Tingjian 杨霆剑, Liu Hu 刘虎, Yao Cheng 姚诚, Cheng Yulan 程玉兰, Zhou Weilin 周维林, Lu Xueqin 陆雪琴, Zhao Haitong 赵海通, Wu Guijun 吴贵军, and Wang Gongquan 王功权 were detained or arrested on various charges between the beginning of this year and 13 September 2013 because they had exercised their rights as citizens.

According to information available to us and based on our professional legal understanding and basic human conscience, we can make the assessment that they have not committed the crimes they are accused of: they are merely people who exercised the rights they enjoy in accordance with the Universal Declaration of Human Rights and the PRC Constitution. They are seekers and promoters of fairness and justice and excellent, law-abiding citizens. They are not only innocent of any crimes but have performed meritoriously. They are the nation’s conscience and the country’s backbone, and they ought not to be thrown into prison.

III. Immediately release without charges all other citizens who have been detained, arrested, or even convicted of crimes merely for exercising their freedom of speech, freedom of religion and other citizens’ rights

On the basis of the constitutional principles and provisions of the UDHR reaffirmed above sub § I, detaining, arresting or convicting citizens for exercising their basic citizens’ rights such as freedom of speech or religion is not only contrary to the UDHR and the Constitution but also constitutes an abuse of basic human rights.

IV. A special investigative commission ought to be appointed by the National People’s Congress Standing Committee to carry out an investigation into the legal liability of those criminals who, in violation of the law, led and implemented massive abuses of citizens’ constitutional rights

It is entirely irregular and uncommon for the exercise of constitutional citizens’ rights and basic human rights to meet with such cruel and massive repression. Given the seriousness of this problem, we call on the National People’s Congress (NPC) Standing Committee, State Council, Supreme People’s Court and Supreme People’s Procuracy to immediately and publicly respond in a positive way to such serious abuses of the constitutional rights of citizens and basic human rights, to set the record straight and to eliminate suspicions and concerns in society.

We strongly urge the NPC Standing Committee to set up an investigative commission in accordance with Article 71 of the Constitution, ‘The National People’s Congress and its Standing Committee may, when they deem it necessary, appoint a commission of investigation into specific questions and adopt relevant resolutions in the light of their reports,’ in order to carry out an investigation into these massive abuses of citizens’ constitutional rights and human rights violations and to punish severely and in accordance with law those responsible.

V. Establishment of a Constitutional Court specially tasked with constitutional review, rigorous limitation of the power of the government and the protection of citizens’ rights

The Constitution is the standard on which a country’s political operation is based and the basis for protection of people’s rights. If there is no respect for the Constitution, people’s rights will never be protected and political chaos will inevitably ensue.

The final section of the Preamble of the Constitution states clearly: ‘This Constitution, in legal form, affirms the achievements of the struggles of the Chinese people of all nationalities and defines the basic system and basic tasks of the State; it is the fundamental law of the State and has supreme legal authority. The people of all nationalities, all State organs, the armed forces, all political parties and public organizations and all enterprises and institutions in the country must take the Constitution as the basic standard of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation.’

Many national leaders have on multiple occasions and in various places affirmed the need to protect the authority of the Constitution and safeguard its implementation.

The Constitution has provisions for this, and national leaders frequently emphasise it; yet, there are frequent large-scale violations of citizens’ basic rights. This situation is closely related to the fact that, at present, legislative powers in China are extremely decentralised and complex, while there is no effective constitutional review:

  1. Apart from the NPC and its Standing Committee, the following all possess their own legislative powers: the State Council and its Ministries and Ministry-level Committees; the People’s Congresses and their respective Standing Committees in each province, autonomous region provincial-level municipality and larger city; the People’s Congresses of each autonomous region, autonomous prefecture and autonomous county; and the People’s Governments of each province, autonomous region, provincial-level municipality and larger city. Their legislation is in many ways in violation of the Constitution and of citizens’ rights: for example, the Law on Assemblies and Demonstrations, as well as low-level legislation like the Regulations for Registration and Management of Social Organisations, the Regulations on the Management of Publications, the Regulation on Radio and Television Management, and the Regulation on the Management of Films have drawn criticism from society for many years. These laws and regulations require prior approval and registration for speech, publication, association, assembly, and demonstration without regard for international standards; in so doing, they undermine the Constitution and deprive citizens of their rights. They are patently unconstitutional and must be corrected. 
  2. At the same time, the Law on Legislation makes each of these bodies responsible for reviewing the constitutionality and legality of legislation passed by its subordinates, but this vague and decentralised authority leads in practice to the terrible situation in which no body or agency can truly carry out constitutional review aimed at upholding the authority of the Constitution. A good example of this is the bad legislation surrounding re-education through labour, which despite being clearly unconstitutional was left unrectified for many years.

In light of how commonly these types of lower-level legislation violate the Constitution and the seriousness of the threat this poses and adopting the international experience in establishing constitutional courts, we hereby make the following public appeal: revise the Constitution to add to the institutions of the State a “constitutional court” with exclusive responsibility to handle constitutional review of matters involving abstract principles, concrete individual cases, and constitutional petitions by citizens in order to ensure the legal supremacy of the Constitution of the PRC and safeguard citizens’ constitutional rights.

Only when human rights are supreme can there be a republic; only when the Constitution is supreme can there be constitutional government; only when the law is supreme can there be rule of law.

The tide of constitutional government is enormous and mighty. The common aspirations of the people cannot be thwarted.

Chinese Human Rights Lawyers:

Wang Cheng 王成 (Zhejiang,lawyer)
Jiang Tianyong 江天勇 (Beijing, lawyer)
Tang Jitian 唐吉田 (Beijing, lawyer)
Zhang Lei 张磊 (Beijing, lawyer)
Liu Weiguo 刘卫国 (Shandong, lawyer)
Li Heping 李和平 (Beijing, lawyer)
Pang Kun 庞 琨 (Guangdong, lawyer)
Li Subin 李苏滨 (Beijing, lawyer)
Wang Quanping 王全平 (Guangdong , lawyer)
Tong Chaoping 童朝平 (Beijing, lawyer)
Li Fangping 李方平 (Beijing, lawyer)
Chen Jian’gang 陈建刚 (Beijing, lawyer)
Ge Yongxi 葛永喜 (Guangdong, lawyer)
Wu Kuiming 吴魁明 (Guangdong, lawyer)
Sui Muqing 隋牧青 (Guangdong, lawyer)
Chen Keyun 陈科云 (Guangdong, lawyer)
Liu Zhengqing 刘正清 (Guangdong, lawyer)
Liu Shihui 刘士辉 (Guangdong, lawyer)
Wu Zhenqi 吴镇琦 (Guangdong, lawyer)
Liang Xiaojun 梁小军 (Beijing, lawyer)
Zhang Keke 张科科 (Hubei, lawyer)
Lan Zhixue 兰志学 (Beijing, lawyer)
Xie Yang 谢 阳 (Hunan, lawyer)
Chang Boyang 常伯阳 (Henan, lawyer)
Fu Yonggang 付永刚 (Shandong, lawyer)
Xu Can 徐灿 (Beijing , lawyer)
Luo Xi 罗茜 (Hunan, legal worker)
Ge Wenxiu 葛文秀 (Guangdong, lawyer)
Chen Wuquan 陈武权 (Beijing, lawyer)
Teng Biao 滕彪 (Beijing, scholar)
Hu Guiyun 胡贵云 (Beijing, lawyer)
Zhao Yonglin 赵永林 (Shandong, lawyer)
Zhang Chuanli 张传利 (Beijing, lawyer)
Liu Wei 刘巍 (Beijing, lawyer)
Tang Jingling 唐荆陵 (Guangdong, lawyer)
Liu Jinbin 刘金滨 (Shandong, lawyer)
Zhou Lixin 周立新 (Beijing, lawyer)
Chen Jinxue 陈进学 (Guangdong, lawyer)
Fan Biaowen 范标文 (Guangdong, lawyer)
Long Yuanfu 龙元富 (Guangdong, lawyer)
Liang Xiubo 梁秀波 ( Henan, lawyer)
Li Weida 李威达 (Hebei, lawyer)
Yu Quan 于全 (Sichuan, lawyer)
Liu Wei 刘伟 (Henan, lawyer)
Wang Zongyue 王宗跃 (Guizhou, lawyer)
Li Xiongbing 黎雄兵 (Beijing, lawyer)
Xiao Fanghua 肖芳华 ( Guangdong , lawyer)
Li Jinxing 李金星 (Shandong, lawyer)
Shi Yongsheng 石永胜 (Hebei, lawyer)
Li Guobei 李国蓓 (Beijing, lawyer)
Zhang Guo 张国 (Hunan, lawyer)
Wang Liao 汪廖 (Zhejiang, lawyer)
Jiang Yuanmin 蒋援民 (Guangdong, lawyer)
Guo Lianhui 郭莲辉 (Jiangxi, lawyer)
Guo Xinrong 郭新嵘 (Beijing, lawyer)
Li Changming 李长明 (Beijing, lawyer)
Wei Youyuan 魏友援 (Jiangxi, lawyer)
Feng Yanqiang 冯延强 (Shandong, lawyer)
Jiang Yongji 蒋永继 (Gansu, lawyer)
Liang Lanxiang 梁澜馨 (Hebei, lawyer)
Tian Yuan 田园 (Hunan, lawyer)
Li Dawei 李大伟 (Gansu, legal worker)
Chen Nanshi 陈南石 (Hunan, lawyer)
Shi Zhenggang 施正刚 (Jiangsu, lawyer)
Li Changqing 李长青 (Beijing, lawyer)
Liu Jinxiang 刘金湘 (Shandong, lawyer)
Chen Yixuan 陈以轩 (Hunan, lawyer)
Zhang Zhongshi 张重实 (Hunan, lawyer)
Xue Rongming 薛荣民 (Shanghai, lawyer)
Wang Xing 王兴 (Beijing, lawyer)
Lin Qilei 蔺其磊 (Beijing, lawyer)
Huang Yizhi 黄溢智 (Beijing, lawyer)
Wang Bijun 王必君 (Guangdong, lawyer)
Zhang Xiaodan 张潇丹 (Hubei, lawyer)
Qin Yongpei 覃永沛 (Guangxi, lawyer)
Qin Chenshou 覃臣寿 (Guangxi, lawyer)
Dong Qianyong 董前勇 (Beijing, lawyer)
Zhang Ying 张颖 (Sichuan, lawyer)
Wen Yu 闻宇 (Guangdong, lawyer)
Lu Siwei 卢思位 (Sichuan, lawyer)
Li Ruyu 李如玉 (Jiangsu, law PhD)
Xu Xianghui 徐向辉 (Guangdong, lawyer)
Gan Weidong 干卫东 (Xinjiang, lawyer)
Zheng Enchong 郑恩宠 (Shanghai, lawyer)
Cai Ying 蔡瑛 (Hunan, lawyer)
Liu Lianhe 刘连贺 (Tianjin, lawyer)
Zhang Jinhong 张锦宏 (Henan, lawyer)
Wang Yu 王宇 (Beijing, lawyer)
Wang Yajun 王雅军 (Beijing, lawyer)
Xiao Guozhen 肖国珍 (Beijing, lawyer)
Wei Liangyue 韦良月 (Heilongjiang, lawyer)
Ding Xikui 丁锡奎 (Beijing, lawyer)
Shao Zhenzhong 邵振中 (Shandong, lawyer)
Huang Jian 黄建 (Sichuan, lawyer)
Yang Xuan 杨璇 (Hunan, lawyer)
Yan Wangli 燕旺利 (Hunan, lawyer)
Liu Ming 刘明 (Hunan, lawyer)
Xiao Yunyang 萧云阳 (Guizhou, lawyer)
Wen Haibo 温海波 (Beijing, lawyer)
Liu Sixin 刘四新 (Beijing, law Ph.D.)
Shu Xiangxin 舒向新 (Shandong, lawyer)
Xu Zhong 徐忠 (Shandong, lawyer)
Wamg Shengsheng 王胜生 (Guangdong, lawyer)
Huang Simin 黄思敏 (Hubei, lawyer)
Zhu Yingming 朱应明 (Jiangsu, lawyer)
Xie Yanyi 谢燕益 (Beijing, lawyer)
Yang Zaixin 杨在新 (Guangxi, lawyer)
Song Xiaowen 宋效文 (Chongqing, lawyer)
Zhang Jiankang 张鉴康 (Shaanxi, lawyer)
Zhou Houyou 周后有 (Hunan, lawyer)
Wang Quanzhang 王全璋 (Beijing, lawyer)
Zhu Yukun 储玉昆 (Beijing, lawyer)
Hou Lingxian 候领献 (Heilongjiang, lawyer)
Wang Yan 王衍 (Shaanxi, legal worker)
Li Qin 李琴 (Shaanxi, lawyer)
Zhang Weiyu 张维玉 (Shandong, lawyer)
Li Zhiyong 李志勇 (Guangdong, lawyer)
Qin Lei 秦雷 (Shanghai, lawyer)
Zhou Shimin 周世敏 (Jiangxi, lawyer)
Yin Dan 尹丹 (Beijing, lawyer)
Mo Hongluo 莫宏洛 (Henan, lawyer)
Zheng Xiang 郑湘 (Shandong, lawyer)
You Feizhu 游飞翥 (Chongqing, lawyer)
Zhang Guo 张国 (Hunan, lawyer)
Yao Fei 姚飞 (Sichuan, lawyer)
Xu Hongwei 徐红卫 (Shandong, lawyer)
Wang Guangqi 王光琦 (Beijing, lawyer)
Zhang Junjie 张俊杰 (Henan, lawyer)

Signatures are in the process of being collected...

Human Rights Lawyers Group Contact Persons
Lawyer Wang Cheng (王成) Mobile Phone +86 13616501896
Lawyer Tang Jitian (唐吉田) Mobile Phone +86 13161302848
Lawyer Jiang Tianyong (江天勇) Mobile Phone +86 13001010856
Contact email: renquanlawyer --AT-- gmail --DOT-- com

(Translation courtesy of a team of translators who wish to remain anonymous)

19 November 2013

Statement on the Abolition of Re-education Through Labour (RTL) and Related Problems by Chinese Lawyers for the Protection of Human Rights


http://weibo.com/1669764455/AjqDf9gYD


Statement on the Abolition of Re-education Through Labour (RTL) and Related Problems by Chinese Lawyers for the Protection of Human Rights

中国保障人权律师团律师对劳教制度废止相关问题的声明



 
On 15 November 2013, in its ‘CCP Central Committee Resolution Concerning Some Major Issues in Comprehensively Deepening Reform,’ debated and passed at the 18thCongress Third Plenary Meeting, the CCP announced that it would ‘abolish the Re-education Through Labour System, perfect the laws for punishment and correction of unlawful and criminal acts, and strengthen the community correction system.’ Thus, at the level of the ruling Party, an end has been proclaimed to the RTL system that has been in operation for the past 56 years.

Without any doubt, the RTL system is the product of a particular time and particular circumstances and contrary to rule of law. It is in direct conflict with Article 89 of the PRC’s 1954 Constitution, ‘No citizen may be arrested without approval by a People’s Court or People’s Procuracy;’ therefore, it has never been a legally effective system. The RTL system has played a most ignominious role in a number of historical phases including the anti-rightist movement, the strike-hard campaigns, and the stability preservation campaign. Especially from 1999 onward, in order to suppress a particular group, RTL measures were used even more widely.  The present decision of the ruling Party to proclaim its ‘abolition’ is a result brought about in response to forceful, joint efforts on the part of people in China, of the many victims of the RTL system, of all kinds of human rights defenders and of the international community. 

Even though an end has been proclaimed to the RTL system, the Chinese people, in particular those in legal circles, ought to remember it and reflect on the disaster it has brought upon rule of law and human rights and its further negative impact.

We acknowledge and support the decision to ‘abolish Re-education Through Labour,’ but concerning its statement that it would ‘perfect the laws for punishment and correction of unlawful and criminal actsand strengthen the com then it must fully safeguard the constitutional principles guiding the respect for and protection of basic human rights munity correction system,’ we maintain a high degree of vigilance and concern. We therefore wish to make the following statements concerning the future of corrective legal systems in the ‘post-RTL era:’

1.  We propose that the National People’s Congress Standing Committee explicitly repeal the ‘Decision Concerning Problems of the Re-education Through Labour System,’ thereby giving a response to the whole nation’s citizens from the supreme State organ;

2. After abolition of RTL, all judicial departments should make active efforts to handle its aftermath and handle requests for state compensation made in accordance with law by former RTL inmates according to the provisions of the law.

3. Given that the Supreme People’s Court has already clearly stated that it will actively cooperate with RTL reform, and explore and improve mechanisms for the quick adjudication and decision of minor criminal cases, we believe that there is no longer a need for new legislation concerning the punishment and correction of illegal and criminal behaviour; 

4. If there is insistence on enacting legislation on ‘perfecting the laws for punishment and correction of illegal and criminal conduct,’ then it must fully safeguard the constitutional principles guiding the respect for and protection of basic human rights, strictly limit the potential targets of such legislation and ensure that strict legal procedures are followed throughout, so as to prevent an arbitrary widening of targeted persons; and there ought to be safeguards ensuring that targeted persons can obtain timely judicial remedies.

5. As long as Legislation on ‘perfecting the laws for punishment and correction of illegal and criminal conduct’ involves the deprivation of liberty of the person, we advise as a precautionary measure that this legislation ought to be debated and enacted by the National People’s Congress and not by its Standing Committee. Such legislation ought to be made through open circulation for comments and discussion, a public hearing and with participation from all segments of society, so as to satisfy the requirements of the right to know and to participate.

6. After RTL has been abolished, detention places used for the illegal deprivation of liberty that have all along been operated outside the legal system, such as so-called ‘legal education bases,’ ‘legal education centres’, ‘training and warning places,’ all types of ‘black jails’ and other covert RTL facilities where citizens in fact become victims of crimes of false imprisonment must be immediately shut down and removed, and the legal responsibility of any person in authority for such illegal and criminal acts must be pursued. 


Signatories:

Signatures are in the process of being collected. We invite Chinese lawyers to join Chinese Lawyers for the Protection of Human Rights and to add their signature to this statement.

Human Rights Lawyers Group Contact Persons

Lawyer Wang Cheng (王成) Mobile Phone +86 13616501896
Lawyer Tang Jitian (唐吉田) Mobile Phone +86 13161302848
Lawyer Jiang Tianyong (江天勇) Mobile Phone +86 13001010856
Contact email: renquanlawyer@gmail.com

03 July 2013

China's National Verdict Database and the Death Penalty

As someone who researches the Chinese criminal justice system and has been involved in the collection of information on individual cases, I have long awaited the day when all of China’s court decisions might become publicly available online. As this article points out, the push for online publication of court verdicts has been ongoing in China for nearly a decade. One of the main motivations is the idea that publication will raise the quality of court decisions because they will be subject to wider scrutiny by the public. Other motivations include a simple desire to increase the degree of transparency in the judicial system and make the public more aware of courts’ work and judicial procedures.

China’s courts have made much progress over the years, but we’re nowhere near universal publication—even in well-off provinces and municipalities where information technology infrastructure should be no problem. Now, however, there seems to be a renewed interest in creating a centralized database of court decisions to be managed under the auspices of the Supreme People’s Court (SPC). The court has now put a new web-based platform on line for accessing this database, and the Xinhua News Agency has circulated some interesting information about the database and its purpose.

This new platform is clearly still in its early stages. As of today, only a few dozen SPC judgments are available, though it appears that there are plans to include decisions from courts at the provincial level at least in future. It is notable, however, that the three criminal cases selected for publication on the website are death penalty review decisions, because currently the death-penalty-review stage is perhaps the least transparent of any stage in the criminal process.

According to an official from the SPC, the current thinking is that publishing selected death penalty review decisions can serve to “guide” the public’s understanding of China’s policies with respect to capital punishment and help lower courts develop more consistent standards for applying the death penalty. In the future, the official promised, death penalty decisions will also be published in certain “hot button” capital cases that have attracted public attention.

So, it seems that, as far as death penalty cases are concerned, the SPC’s intent is something significantly less than full transparency. This policy of selective publication of death penalty review decisions departs substantially from what the SPC official says about the need to publish all court decisions, regardless of quality or type. But the provisional measures governing the SPC’s publication of decisions clearly states that all of its decisions will be published online once they take legal effect, “except where the law makes special provisions.”

I assume that these “special provisions” are particularly directed at protecting so-called “state secrets.” In this light, the choice to publish only selected death penalty decisions makes certain sense, given that publishing all death penalty review decisions would essentially be equivalent to revealing the number of executions carried out in China each year. This number, currently estimated to be well into the thousands, has long been treated as a closely held state secret, and there is no indication that this policy will change anytime soon.

The publication of three death penalty review decisions—one from each of the past three years—is a far cry from full transparency. (Just for reference, Chinese press accounts confirm the execution of over 40 individuals last month alone, each of which was carried out after conclusion of the review process by the SPC.) It will be interesting to watch how open the SPC will become when it comes to revealing more about its work related to the death penalty. This database could turn out to be an invaluable resource for researchers and those concerned about how capital punishment is carried out in China. That fact, however, might be a good reason not to expect too much, too soon, from this particular promise of transparency.

02 July 2013

Tang Hui Reveals Attempt to Mediate Compensation Claim

Earlier today, the Hunan High People's Court heard the appeal of "Petitioning Mother" Tang Hui in the matter of her compensation claim against the Yongzhou Re-education Through Labor (laojiao) Committee. According to an announcement from the court, the hearing concluded with a decision, which will be announced at a later date.

Tang Hui's case and the public furore it created in August 2012 were instrumental in a chain of events leading up to official announcements earlier this year about the government's intention to reform the profoundly problematic laojiao system. (A very comprehensive, if not completely error-free, summary of the Tang Hui case can be found here.)

In advance of this morning's hearing, an interesting article published in the Beijing Youth Daily revealed that court officials had attempted to resolve the case out of court through mediation. (I have translated the relevant excerpt below.)

This is an illustrative account, told from Tang's perspective, of the way in which authorities attempt to use "mediation" to resolve controversies between parties without resorting to a formal judicial process. It seems that court officials nearly had an agreement from Tang (who apparently had no legal counsel in her talks with officials from the provincial high court and local public security bureau). She was willing to concede key demands—having the police put forth evidence that she had actually broken the law, for instance—but the authorities' insistence on keeping the compensation deal private was a non-starter.

It will be interesting to see whether the court is able to produce a comparable outcome by following a more open and adversarial process based in law. Even if the court ruled that the Yongzhou laojiao committee's original decision had been unlawful—a step the lower court had been unwilling to take—it would likely be unable to find legal basis for matching the 100,000-yuan "allowance" offered as part of the mediation settlement.

For Tang Hui, it seems, a non-judicial, negotiated settlement would be considered a just outcome. So would a much smaller judicial decision. The sine qua non of a justice for Tang Hui can be summed up by transposing a famous legal aphorism to slightly different circumstances: "Not only must Justice be done; it must also be seen to be done."

* * * *

Beijing Youth Daily (BYD): After your appeal, did anyone from the Hunan High Court come to talk with you?

Tang Hui (TH): Yes. At the end of May, someone from the High Court called me and asked if I’d be willing to participate in out-of-court mediation. At first, I said that if they weren’t sincere I wasn’t interested. The person from the court urged me, saying that they were sincere otherwise they wouldn’t call. I thought it over then agreed.

BYD: When did they begin the mediation with you?

TH: At that time they asked me over the phone if I wanted to go to the provincial court or did I want them to come to Yongzhou for the mediation. I said that you are all officials, and I’d feel uncomfortable making you come to me, so I’ll go to you. After ten minutes or so the person from the court called again to say that they’d come to me. They called in the morning and by four or five in the afternoon, they arrived in Yongzhou.

BYD: How many times did you meet in total?

TH: We met four times over three days. The first day was at about 5 p.m. We met in a UBC Coffee. Five people came from the Hunan High Court. I heard that one of them was the chief judge of the administrative division, two were deputies, one presiding judge, and a court clerk. I asked along some relatives and friends. We met until around 7 p.m. At the time, I wanted to see whether the laojiao committee would hand over evidence that I’d obstructed traffic and insulted officials—didn’t they say that they sent me to laojiao because I’d broken the law? The judges urged me, telling me that it was enough for them to admit their mistakes. So, later I accepted this and didn’t ask them to provide evidence. The next morning, someone from the court called me again and said they only wanted to meet with me, not with my relatives. That time I met with the chief judge and a woman who was a deputy. They said they would get the laojiao committee to apologize to me and promised  me the more than 2000 yuan in compensation that I had requested plus 100,000 yuan as a living allowance. That afternoon, Luo Gongjun, head of the Yongzhou Laojiao Committee General Office, came and said he was there representing the public security bureau and that he had no personal grudge with me. He basically agreed to the three demands, but he mostly wanted to talk with me about the specific wording of the apology. He never said so explicitly at the time, but deep down I felt that he didn’t want me to make public the substance of the mediation.

BYD: Why, after meeting several times, did you not agree to the mediation?

TH: Before meeting on the third day—that day it was Luo Gongjun and someone from the provincial court. Originally, they said that the laojiao committee would show me the wording of the written apology on that day so that I could have a look before deciding on whether to accept the mediation. But that day, the person from the laojiao committee came empty-handed and I didn’t get to see a word. His explanation was that he didn’t bring [the apology] because Director Jiang from the laojiao committee was at a meeting and he hadn’t had a look to sign off on it yet. I knew that this was only an excuse, so I didn’t agree to the mediation.


BYD: Were there other reasons why you didn’t agree to the mediation?
  
TH: On the third day, before Luo Gongjun arrived, the chief judge from the high court administrative division explicitly told me that I shouldn’t go public about the money I was being given. I said I wasn’t interested. If they were giving me money because they were truly concerned about me and wanting to help me, well that’s something they should be praised for and something that people should know about. I couldn’t accept their money in this murky way.



22 May 2013

Brief Thoughts on Ai Weiwei's Music Video, "Dumbass"

Together with the brilliant lightning storms and torrential rains that doused Hong Kong, for me this morning brought the release of a new music video entitled "Dumbass" (the Chinese title is much more raw) from Chinese artist Ai Weiwei.




As with almost everything Ai touches these days, "Dumbass" is a polarizing piece of work. Those who like his brand of (increasingly) political performance art will probably like it, while those who tend to see his facility with the foreign media as his primary talent are unlikely to change their views upon listening to this latest project.

I'll admit that, musically, "Dumbass" is not my cup of tea (though I've heard far, far worse). I think the video is visually quite stunning, which shouldn't be a surprise given that it was filmed by Christopher Doyle, cinematographer for some of my favorite films--Edward Yang's That Day, on the Beach, the best works of Wong Kar Wai, and Philip Noyce's lovely Rabbit Proof Fence.

What struck me most viscerally about the video is the way it depicts Ai Weiwei's 81-day detention in "designated-location residential surveillance" back in the spring of 2011. Almost every shot of the first half of the video--the constant surveillance by guards, the ordeal of trying to sleep with light shining down on you all night, the humiliation of being watched as you shower and use the toilet, the effort to retain some semblance of activity in a confined space shared with captors--vividly recreates aspects of what it is like to be held under this form of incommunicado detention. The repetition of many of these scenes (the endless pacing) adds an extra layer of discomfort.

Ai's portrayal of these experiences, which others who have been subjected to similar detention have also described in detail, is of course a more stylized depiction than the reality of "residential surveillance." This is, after all, not a documentary. My radar might be particularly attuned to these aspects, but I'd contend that there is still a kind of truth being conveyed in this performance--one that might be too hastily dismissed by some who are more focused on aesthetics.

Further reading:

08 May 2013

Translation: SPC Directive on Handling Suits Related to Internet "Management"

Several days ago, I came across this interesting document via a weibo post by Beijing lawyer Zhou Ze. Dating from 2009, it is an internal directive from the Supreme People's Court instructing lower courts on how to handle lawsuits arising from Internet "management" (which, if it wasn't already clear, is a euphemism for censorship).

I think this directive is interesting for a number of reasons. First, it exemplifies the way in which Chinese courts are in many respects more administrative bodies than they are judicial bodies. Rather than having individual courts exercise discretion over whether or not a suit merits adjudication, the central court sets (non-public) rules essentially prohibiting all suits related to censorship that lower courts are expected to follow.

The directive also shows how, particularly under the leadership of the previous SPC president, Wang Shengjun, a political calculus can often decide what cases are heard and how cases are decided. The concern for achieving "unity in legal, social, and political results" and "negative social impact" is illustrative in this regard.

A third thing I find interesting about this document is the way it reveals just how many layers of oversight, guidance, and coordination Chinese courts are subject to. In sensitive cases like these, courts are expected to report upwards to a higher-level court as soon as the case is filed and maintain close contact with both the local party committee and its political-legal committee. Coordination with "relevant authorities" is also needed to "work with" (a better translation might be "work on") the suit-filer, presumably to convince him or her to drop the suit or work out some other kind of resolution.

As Zhou Ze put in his weibo post, making reference to recent comments by new SPC president Zhou Qiang about the need to increase public confidence in the judicial system: “If such places are allowed to continue to exist outside of the law and members of the public have no place to turn to protect their rights, boosting confidence in the legal system is idiotic nonsense.”


Notice Regarding Case-Filing Review Work in
Cases Involving Internet Management

In the interest of properly carrying out case-filing review work in cases involving Internet management from this day on, we are issuing the following notice regarding related questions:

I. Scope of Cases Involving Internet Management 

Cases involving Internet management include civil and administrative disputes that arise from Internet management. Civil disputes primarily take the form of disputes arising from the deletion of the deletion, pursuant to a request by a relevant management authority, of the suit-filer’s document, comment, or web page or closure, pursuant to a request by a relevant management authority, of the suit-filer’s blog, forum, chat forum, or website. The majority of those filing suit do so on the grounds that he or she established a contract for Internet service with a website and the web site unilaterally deleted documents or closed a website without his or her agreement or giving notice. Administrative disputes primarily take the form of a suit filed because the suit-filer does not agree with the administrative penalty decision or punitive action made by a relevant management authority to delete an article or comment posted on the Internet by the suit-filer or to close the suit-filer’s blog or website.

II. Basic Requirements for Case-Filing Review of Cases Involving Internet Management 

(1) Uphold the principle of filing cases appropriately and in accordance with the law, in order to achieve unity in legal, social, and political results. Do not accept suits involving Internet management and do not issue court documents. With respect to other civil disputes concerning the Internet, when review finds that the suit meets statutory conditions for accepting the case, the case may be accepted with discretion after first making an effort to thoroughly understand the background of the case, assess the social impact, and understand the issues involved and getting permission from the court above.

(2) When courts at all levels, including detached tribunals at the grassroots level, receive suits involving internet management, they must immediately report upward to the SPC and also report the situation to the local party committee and political-legal committee. Each higher-level [i.e., provincial] court must properly carry out case-filing guidance and lawsuit-information transmission for these types of cases in its jurisdiction.

(3) When handling problems regarding suits related to Internet management, courts must proactively seek the support of the local party committee and political-legal committee and coordinate with the relevant authorities to “work with” the parties to the case in order to avoid creating a negative impact. Unauthorized public comment is prohibited.

Supreme People’s Court of the PRC 
July 13, 2009


关于涉及互联网管理案件立案审查工作的通知

为做好今后涉及互联网管理案件的立案审查工作,现就有关问题通知如下:

一、涉及互联网管理案件范围

涉及互联网管理案件包括因网络管理引发的民事纠纷和行政纠纷。民事纠纷主要表现为因网站根据有关管理部门要求,删除起诉人发表在网络上的文章、言论以及网页等,或者关闭起诉人的博客、论坛、贴吧、网站等引发的纠纷。起诉人大多以其与网站建立网络服务合同,网站未经其同意或未通知本人单方删除文章、关闭网站为由提起诉讼。行政纠纷主要表现为起诉人不服相关管理部门删除起诉人发表在网络上的文章、言论或者关闭起诉人的博客、网站等行政处罚决定或者处罚行为而提起的诉讼。

二、对于涉及互联网管理案件立案审查基本要求

(一)坚持依法稳妥的立案工作原则,实现立案工作法律效果、社会效果和政治效果的统一。对于涉及互联网管理的案件不予受理、不出具法律文书;对于其他涉网络民事纠纷,经审查符合法定受理条件的,要充分了解案件背景、预测社会影响和涉及的问题,报经上级法院同意后予以慎重受理。

(二)各级法院,包括基层法院的派出法庭接到涉及互联网管理的起诉,要立即层报报告我院,同时向当地党委、政法委汇报情况。各高级法院要做好本辖区此类案件的立案指导工作和起诉信息接送工作。

(三)在处理涉及互联网管理的起诉问题时,要积极争取当地党委、政法委支持,协调相关部门共同做好当事人的工作,避免产生负面影响,并不得擅自对外表态。

中华人民共和国最高人民法院
二〇〇九年七月十三日 

SPC Directive image

28 March 2013

On Xi Jinping's "Shoe Theory"

Photograph: Ivan Sekretarev/AP
During Xi Jinping's first overseas trip since being named president of the PRC, there has been a lot of attention paid to the fashion and glamor of his famous wife, Peng Liyuan. (See here, here, and here.)

Not to be outdone by the first lady, though, Xi has dispensed some fashion advice of his own. In a speech at the Moscow State Institute of International Relations, Xi told the audience: "It is our position that each country and its people ought to enjoy respect. . . . Only the person wearing the shoe knows whether or not it fits. Only the people of a given country have the right to express their view on whether their country's path to development is appropriate."

In the days since his speech, Xi's "shoe theory" has attracted much Chinese comment. My favorite comes from Hu Ping, who has been an ardent advocate of free expression and democracy in China since the Democracy Wall movement in the late 1970s:

"We want to tell Xi Jinping: You're the shoe, Mr Xi, and we're the foot. It doesn't matter if you say the shoe doesn't pinch; we're the ones who ought to say whether it pinches. In this world, there is only the changing of shoes; whoever heard of cutting off part of your foot to fit the shoe?!"



02 March 2013

Post-Spectacle Commentary: "Be a Healthy Person"

Yesterday afternoon, "Mekong pirate leader" Naw Kham and three other foreign nationals were executed by lethal injection in Kunming. In unprecedented fashion, China's state television broadcaster carried special two-hour live reports in Chinese and English, including scenes of the condemned being transferred from detention and delivered to mobile execution facilities. (See the New York Times report; for excellent background on the case, see this Reuters report.)

I had the Chinese broadcast on in the other room, but I missed most of the relevant scenes. But between watching on TV and reading others' descriptions of what was being broadcast, I couldn't help wonder why such a broadcast was authorized in the first place.

Public executions and the parading of prisoners in the streets has a long tradition in China, as it did in many other countries. In the 1980s, China found itself torn between two conflicting interests: displacing mass politics and class struggle with rule-based norms and legality on the one hand and, on the other, imposing social order through a bloody, nationwide "Strike Hard" campaign.

It was during this period, in 1984, that Chinese authorities issued a directive prohibiting the filming of execution grounds and the parading or public display of the condemned. That directive, which was issued by the CCP Propaganda Department together with China's main judicial and law-enforcement bodies, cited a recent Newsweek article, which included photos of an execution in Guangxi together with a report from Amnesty International criticizing China's campaign against political prisoners and prisoners of conscience. Preventing hostile overseas media from using execution images to "spread rumors" and "slander" China was the primary motivation for curbing the practice of parading the condemned and holding public executions.

This prohibition was subsequently written into China's Criminal Procedure Law, and the relevant Supreme People's Court interpretation on implementation of the death penalty also prohibits "other acts that degrade the personality of criminals" (其他有辱罪犯人格的行为).

It's hard to see how China's live broadcast leading up to the executions doesn't violate the spirit, if not the letter, of those prohibitions. I saw many Chinese people making the same observations yesterday and wondered whether any of those voices would make it into print.

I found one in this morning's Changjiang Daily, the official "organ" of the party in Wuhan (which, incidently, held its own executions yesterday). In it, commentator Liu Min reminds us that by degrading the dignity of other human beings, we degrade ourselves as well.

Be a Healthy Person
Liu Min
Changjiang Daily, 2 March 2013

A Chinese court decided on the death penalty for Naw Kham and the others. Yesterday, CCTV broadcast live Naw Kham being transported to the execution ground. This initiated a great debate online.

Initially, many netizens believed that CCTV would broadcast live from the scene as Naw Kham was being executed. Later, CCTV commentator Yang Yu posted to Weibo, clarifying: “CCTV reported on some of the procedures as Naw Kham and the others were taken out of the detention center but never broadcast live the execution process.” Chinese laws state that executions should not be public.

I watched the video, and indeed that was the case. However, I found watching the more than four minutes as they were being transferred [from the detention center] very uncomfortable and hard to bear. CCTV’s live broadcast showed in full detail how the special police tied up Naw Kham with thick rope. Naw Kham’s grimacing, pained expression as he was tied up and led out was also perfectly clear on the screen.

I know, of course, about the violence committed by Naw Kham and the others that resulted in 13 Chinese crewmen losing their lives. No amount of condemnation for this violence would be too great. I also know that those who commit violence must be punished by the law in order to restore justice, bring comfort to the living, and allow the dead to rest in peace.

I think, however, that any person with normal feelings would find it hard to bear and feel uncomfortable watching another person suffer, no matter whether that other person is good or bad. That is why, in many American dramas, when those, including the victim’s family members, gather in that small room to watch as the criminal is given lethal injection they often turn their heads or lower their eyes. That is because this is the normal psychological and physical reaction of a normal person, one that proves that we are humans, rather than animals.

Perhaps it is not illegal in China to broadcast live as the condemned are transferred to the execution ground, but I still oppose broadcasting live. Before, China used to have so-called public sentencing rallies and parade bound criminals in the streets for public viewing. Now, live broadcast of the transfer is no different in any real sense and is even more repulsive. Why?

It is because the live broadcast voluntarily and consciously revived these kinds of backward, barbaric scenes lacking in any modern notion of rights or rule of law. The live broadcast even delivered these scenes right in front of your eyes, so that you didn’t even need to go out of doors or be in the streets: you could see the barbarity and backwardness from your own home. You could say, in other words, that this live broadcast was itself barbaric and backwards, displaying no progress at all.

I saw many people online who praised the live broadcast and even some who “criticized” CCTV for not airing scenes of the executions. Not only that, but whenever anyone expressed opposition or doubt about the live broadcast, they were immediately attacked by those in favor, who asked: “Why don’t you think about the 13 dead Chinese crewmen?”

Yes, I also heard a CCTV commentator utter the word “retribution.” I don’t understand the relationship between legal sanctions and retribution—they seem worlds apart to me, two completely different concepts. Legal sanctions are an expression of the spirit of rule of law; they have nothing to do with retribution and do not demand that criminals suffer retribution. Retribution—lightning strikes from heaven or a blade delivered to avenge the enemy—is not the sanction of law, but rather mass revenge or a mental curse. When this kind of language appeared on the state television of a nation that continually proclaims the modern spirit of rule or law, it is more than just disappointing.

The live broadcast and the debate it inspired allow us to see the state of modern values in China. Actually, it’s unnecessary to repeat the words “rule of law” and “human rights” over and over in talking about this matter. One only needs to start from a direct standpoint, one unmediated by any jargon, and think about how to be a healthy person, one with basic rationality and normal feelings.

29 January 2013

Translation: Li Yan and Reconsidering the Death Penalty

The most recent death penalty case to capture the attention of the Chinese public is the case of Li Yan, a 41-year-old woman sentenced to death for killing her abusive husband. (For more on this case, see this article by Tania Branigan at The Guardian.)

Li's sentence has been approved by the Supreme People's Court, but last week, a group of lawyers, legal academics, and others called on the court to stay the execution. Time is running out, since an execution is required to be carried out within seven days of being approved by the SPC unless grounds for halting the execution are uncovered in the meantime. (See Amnesty International's urgent appeal on the case here.)

In this morning's edition of the Shanghai newspaper Oriental Morning Post (东方早报), lawyer Zhang Peihong argues that there are sufficient reasons to stay Li's execution and reconsider the punishment she's been given. He urges Chinese judges to take a new attitude towards imposing the death penalty, one that would consider every possible argument against imposing the death penalty rather than treating capital punishment as a tool for eliminating harm from society.


Zhang Peihong
Oriental Morning Post
29 January 2013

Until complete abolition of the death penalty, strict control over its use is the crucial issue—this means, in fact, finding every excuse and reason not to impose the death penalty.

The legal process has now come to an end in the case of Li Yan, the woman from Zizhong County, Sichuan, convicted of killing her husband. In recent days, the Supreme People’s Court approved the death sentence for Li Yan. According to the relevant procedures, Li Yan’s execution will be carried out within seven days, bringing an end to her tragic life.

The death sentence against Li Yan has prompted a huge debate among the public. On January 25, more than 100 scholars, lawyers, and members of society convened a seminar calling on the Supreme People’s Court to spare Li’s life.

There seem to be sufficient grounds for a stay of execution: After marrying her husband Tan Yong in 2010, Li Yan suffered serious domestic violence. At the time of the incident on November 3 of that year, a drunk Tan Yong had even tried shooting her in the rear end with an air gun. So, in a fit of rage, Li Yan used the gun barrel to beat her husband to death.

In this respect, the clear fault of the victim should have a corresponding effect on the sentence given to the defendant. Therefore, it is completely possible to sentence Li Yan with a suspended death sentence or life imprisonment. Moreover, after the incident Li Yan had someone telephone the police and waited at home for police to take her into custody. This meets the legal standard for voluntary surrender, which, in accordance with the law, may bring lenient or mitigated punishment.

However, the courts of first- and second instance sentenced her to death and the Supreme People’s Court approved the death sentence, maintaining that Li Yan’s crime had serious consequences and was committed in a brutal fashion. She not only killed her husband but also cut up the body and cooked it. Also, the court rejected the claims of domestic violence on the grounds of insufficient evidence and rejected that Li had voluntarily surrendered. In this way, a sentence of death with immediate execution becomes a choice based on a well-reasoned argument.

Any close look at this case must include reflecting upon and examining the death penalty as a punishment. Past death penalty cases have given us many controversial cases, ranging from the earlier cases of Du Peiwu in Yunnan, Liu Yong in Shenyang, She Xianglin in Hubei, Zhao Zuohai in Henan, and Nie Shubin in Hebei, to the more recent cases of Li Changkui in Yunnan, Yao Jiaxin in Shaanxi, Xia Junfeng in Shenyang, Wu Ying in Zhejiang, Wu Changlong in Fuqing, Nian Bin in Fuzhou, and then to the most recent exposure of the injustice done in a case in Xiaoshan, Zhejiang. These cases are not only controversial because of their substantive outcomes; they are also flawed procedurally. Some involve serious use of torture to extract confessions, others involved the interference of public opinion in the judicial process, others involved blatant miscarriages of justice, and others were simply controversies over whether the death penalty was the appropriate punishment.

Of these, the Liu Yong and Li Changkui cases are worth reflecting upon. Both of these cases went through the first- and second-instance trial process without imposition of death with immediate execution. But because of surging public opinion, the Supreme People’s Court directly retried Liu’s case and executed him that same day and the Yunnan Higher People’s Court initiated retrial proceedings that led to Li being re-sentenced to death with immediate execution.

These are two extremely terrible precedents, ones that not only undermine the courts’ formal independence but also, to a certain degree, damage the credibility of the judicial process. Worst of all, these two cases are examples of “light sentences made heavier.”

But in Li Yan’s case, the public outcry is different. First, before carrying out the execution the condemned has a final opportunity to make a petition. If Li Yan puts forth new evidence that can prove that the victim did actually commit serious domestic violence (ultimately, such evidence shouldn’t be hard to find), she may request a stay of execution. Second, the goal of the calls by the public and academic community is to make a “heavy sentence lighter.” This accords with the basic spirit of civilized administration of justice. (To put it more popularly, it is the “willingness to let a thousand go rather than kill one in error.”)

Of course, resolving the issue of the death penalty cannot rely only on individual cases. As long as the death penalty exists, there will be controversy. This is a result of the persistent problems of the death penalty itself.

First, there is no way to repair an [improper] death sentence. We all have only one life, and once someone is executed, there’s no way to fix that even if it is later discovered to be a huge miscarriage of justice. Because of the limits of people’s capacity for understanding, miscarriages of justice are not something that people can control. They are inevitable and cannot be completely prevented by any review procedure.

Second, there is no way to measure the death penalty. A death sentence is a death sentence. There’s no way to distinguish on the basis of circumstances or degree. If you take “an eye for an eye” to be a principle of the death penalty, then a killing necessitates a life be taken in return. But what if two are killed or even more? Wouldn’t this necessitate taking more lives? What about distinguishing between intentional and accidental homicides? What about distinguishing between robbery, kidnapping, drug trafficking, and weapons smuggling? Should we consider voluntary surrender and meritorious service or the faults of the victim? In fact, general consideration of these things is made in judicial practice, but this is precisely the issue in Li Yan’s case: Why is it still necessary to sentence her to death with immediate execution?
  
Moreover, the death penalty lacks a theoretical or ethical basis. Our current legal system, whether in terms of the texts or the institutions, comes from the west. The formation of the western legal system originates in deep religious traditions: life is a special, inalienable gift and if people cannot kill others then clearly the government cannot kill others. Therefore, abolition of the death penalty has become a legal principle in developed countries.

China lacks similar religious traditions, meaning that our road to abolishing the death penalty remains long and hard. When considering whether to apply the death penalty, judges must consider not only the details of the case itself but also give more weight to the emotions of the victims. In Western countries, there are even special organizations made up of victims’ family members that urge judges not to impose the death penalty on those murderers who harmed their relatives. The Pfrang case in Nanjing and the later case of the Canadian model in Shanghai are both examples of this. (Editor note: in April 2000, a German entrepreneur named Juergen Pfrang and his three family members were murdered in their Nanjing home by youths from Shuyang County, Jiangsu. Their friends established a foundation to aid children in the murderer‘s hometown.)

As long as the death penalty exists, there will be debate. Until complete abolition of the death penalty, strict control over its use is the crucial issue—this means, in fact, finding every excuse and reason not to impose the death penalty. This requires the judges who impose and review death sentences to maintain a “life-saving mentality” in ruling on cases, rather than adjudicating on the basis of a “harm-eliminating mentality.”