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A striking contradiction of the reform era of the People’s Republic of China (PRC) since the late 1970s has been the coexistence of dramatic changes in the social and economic field and the sustained stagnation of political and legal institutions. The Chinese Communist Party (CCP) has insisted upon adherence to both the existing political system and to continuous economic reform. This contradictory doctrine has resulted in divergence between political conservatism and economic liberalization. Legal dualism has emerged as a result of the divergence. Public law, including laws regulating China’s criminal process, lags far behind private law. Civil and commercial law, spearheaded by foreign investment legislation, is, in general, more certain, predictable and liberal, and has made real progress over the past twenty years. Criminal law, on the other hand, remains characterized by, inter alia, political interference in the legal process, arbitrary police power, wanton use of the death penalty, and so on.
Continuing economic reforms have placed increasingly heavy pressure on the political and legal system. Political institutions have undergone significant changes during the reform years, but today these political and legal institutions are strained and barely able to adapt to the vibrant economy and society. The criminal justice system is confronting the tension between the demand for social and political liberalization and the demand for political stability. Social and economic progress in China has given rise to an increasing demand for professionalism and procedural justice in the criminal justice system and a growth in the general public’s cognizance of its rights. In contrast, the deterioration in social order and the perceived threat to political stability requires the criminal justice system to play an instrumental role in controlling crime and disorder. Reform of the criminal law and criminal justice system should be seen within this larger political context.
Concept of Crime
Classification of Crime
China enacted its Criminal Law (CL) in 1979 and substantially amended it in 1997. The law defines crime as any act that endangers society and is subject to punishment. An act that endangers society is not deemed a crime, however, where ‘‘the circumstances are obviously minor and the harm done is not serious’’ (CL, Art. 13). An act that endangers society but with minor circumstances or consequences is referred to as an unlawful act. PRC criminal law draws a clear distinction between a criminal and an unlawful act. A criminal act is defined by the Criminal Law, investigated and prosecuted according to the procedures set out in the PRC Criminal Procedure Law (CPL) and subject to criminal penalties. An unlawful act is defined by administrative laws and regulations, punished by administrative organs according to administrative procedures, and subject to administrative penalties.
The PRC’s legislature, the National People’s Congress (NPC), or its Standing Committee determines the threshold separating a criminal act from an unlawful act by specifying the extent of seriousness of the consequences and circumstances to which an act warrants a criminal penalty. The legislature may define the seriousness of the consequences by setting a fixed amount enumerated in Chinese currency, renminbi, or use other criteria to determine the consequences of the offense, which will trigger application of the Criminal Law. For example, accepting a bribe will only be considered an offense if the amount of the bribe exceeds 5,000 yuan (CL, Art. 383). The Criminal Law applies if the amount reaches the specified minimum. Otherwise, such acts are considered ‘‘unlawful’’ and thus subject only to administrative penalties. The triggering amount, while a key determinant for criminal liability, is not conclusive. A crime may still be declared, even if the minimum amount has not been reached, where aggravating circumstances exist.
Increasingly, the legislature has defined the parameters of criminal acts more clearly by specifying a trigger amount. Yet, the Criminal Law largely continues to set only general standards, applying ambiguous terms such as light, serious, or very serious in relation to various circumstances and large, huge, and especially huge in relation to their consequences. The Criminal Law leaves detailed criteria to be determined by the Chinese courts and other institutions in the application and enforcement of the Criminal Law. The Supreme People’s Court (SPC) and the Supreme People’s Procuracy (SPP), severally, jointly, or in conjunction with other executive institutions, are principally responsible for filling the lacunae left by the legislature. The ministries under the State Council, the Ministry of Public Security (MPS) in particular, have played an active role in constructing China’s criminal law regime, though this role seems to have declined in recent years.
Politicization of Crime
The ideological foundation of this duality is the doctrinal classification of social conflict as among the people or between the people and their enemy. The former is antagonistic, the latter is nonantagonistic. This doctrine was formed in 1957 by the CCP and still applies to a large degree. China continues to be a state under the people’s democratic dictatorship, which has been interpreted as democracy for the people and dictatorship against the enemy. The criminal justice system occupies a unique position in the Communist theory of the state, and is instrumental in this dictatorship/ democracy dichotomy. Criminal Law in general is identified with dictatorship against the enemy, and the criminal justice system stands in the front line of this struggle.
Enemy is a key but fluid concept. In the early years of the Communist rule, the enemy included spies, saboteurs, career criminals, landlords, and capitalists who were hostile to the new government. Once they were eliminated, their positions were replaced by counter-revolutionaries, bad elements, and rightists. During the economic reform of the 1980s, new enemies, including serious criminal offenders, political dissidents, separatists, and religious cults have become targets of the CCP dictatorship. Whoever challenges the CCP leadership and undermines the socialist system can be treated as an enemy of the state.
As the two contradictions are fundamentally different, the methods for solving them also differ. The CCP’s ideology provides a bifurcated system. Criminal law is reserved to suppress the enemy. A crime is not simply a violation of criminal law but a challenge to the established political order. A guilty verdict means more than a mere conviction; it transforms the convicted person into an enemy of the state. Consequently the police, the procuracy and the court are not merely places to enforce the law, they are also places of dictatorship. Criminalization principally means repression.
But the repressive approach does not apply to the people. Conflicts among the people were to be dealt with by the methods of democracy, that is, didactic, informal, and rehabilitative methods, which would be accomplished through criticism, persuasion, and mediation, backed by administrative penalties.
Crime and Punishment
There are five types of principal punishment in China’s criminal law:
- Public surveillance
- Criminal detention
- Fixed term imprisonment
- Life imprisonment
- Death penalty of immediate execution and death penalty with a two-year stay.
The figures for criminal convictions have gradually increased since the early 1980s. In 1987, Chinese courts tried approximately 300,000 criminal cases, and convicted more than 300,000 persons. In 2000, courts tried more than half a million criminal cases and convicted more than 600,000 persons. It has been a general practice for Chinese courts to sentence approximately 40 percent of the offenders to five or more years’ imprisonment, life imprisonment, or death.
The death sentence has been most controversial. The number of capital offenses in China has grown since 1979. There were twenty-eight capital offenses in the 1979 Criminal Law. By 1983, there were forty-two capital offenses, and the figure grew to nearly seventy by 1993. There were three new death penalty offenses added to the statute book each year on average from 1981 to 1993. The 1997 amendment to the criminal law limited the use of the death penalty for a number of offenses, such as theft and robbery, to more serious circumstances, but the number of capital offenses remained the same.
Since death penalty statistics are classified as a top state secret by the Supreme People’s Court, the number of offenders executed each year is unknown. Informed estimates vary from four thousand to forty thousand per year. The vast majority of the death penalties were imposed for five types of offenses: murder, robbery, rape, serious assault, and serious theft. In the latter half of the 1990s, capital drug offenses have been on the rise due to the seriousness of the problem in China and the tough stance the government is taking.
Minor Offenses and Administrative Penalties
The police punish minor offenses that are not regarded as having breached the criminal law. Those punishments are referred to as administrative because the police make the decisions. There is no public hearing and no defense is available. There are a variety of legislative and administrative regulations that authorize different types of administrative penalties. The police have great discretion in imposing such sanctions. A court can only subsequently review administrative penalties.
There are two main types of administrative penalties. One is the public order punishment, authorized by the Regulations on Penalties for Public Security 1957 (the Regulations). The Regulations are administrative in nature, punishing petty theft and other activities disrupting public order. Punishment is administered by the police and may include a warning, a fine, or administrative detention of not more than fifteen days. Over three million public-order offenses are handled by the police each year.
The other type of administrative punishment is Reeducation Through Labor (RTL), an administrative penalty with no clear legislative authority. The police control the intake process and also administer the RTL institutions. The government created the RTL in 1957 ‘‘to reform into self-supporting new persons those persons with the capacity to labor who loaf, who violate law and discipline, or who do not engage in proper employment’’ (The State Council Decision on the Problem of Re-education through Labor). It has been gradually expanded to include minor offenses, where the circumstances or consequences are not serious. As a result, a great variety of offenders, ranging from thieves to prostitutes, drug addicts, and political dissidents, have received RTL penalties. Approximately 150,000 offenders are incarcerated under the RTL regime each year.
The term of incarceration was indefinite until 1979 when the government set a limit of three years’ incarceration, with a possible extension of one year. The target population of RTL is restricted to residents of large and mediumsized cities.
The Institutions of Criminal Justice
One needs to look into the relations between criminal justice institutions and the CCP and the interrelations between those institutions to understand the structure of criminal justice in China.
The Chinese Communist Party
China is still a one-party state. The CCP is the leading political party; its policies dominate the criminal justice system. Institutionally, the CCP exercises its immense power in three principal ways. First, it appoints and removes persons, most of them being CCP members, to and from senior positions in criminal justice institutions at each level. Key positions, including the presidents of the people’s court and of the people’s procuracy and chiefs of police are tightly controlled by the CCP. The appointment and removal, as a rule, is approved by the respective people’s congress.
Second, the CCP has a vast array of powerful institutions with specific political responsibilities to which the government is accountable. Two CCP institutions have had great effect on the criminal justice system, the Political and Legal Commission (PLC) and the Commission of Disciplinary Inspection (CDI). The PLC at the central and local levels is the ultimate authority to which the court, procuracy, and police and other law-related institutions are responsible. The PLC makes criminal justice policies, determines work priority, coordinates different legal institutions and settles their internal conflict. PLCs at the local level in particular frequently intervene in the daily operation of the criminal justice institutions.
The third control is the exclusion of the criminal justice institutions from investigating crimes perpetrated by CCP officials. It is longstanding policy that the CCP is above the law in many aspects. Where a CCP official commits a crime in the course of executing his or her duty, corruption in particular, the CCP, through its CDIs at the national and local levels, has the power to investigate the offense, and to determine whether the criminal law should be applied. Therefore the police cannot initiate a criminal investigation into the CCP or its ranking members, the prosecution cannot authorize the arrest of a ranking CCP member without the prior approval of a competent CCP authority, and the courts have been compliant to the demands of the CCP. In relation to this type of offense, the CCP is effectively beyond the reach of the criminal law, and the criminal justice system merely performs a legal formality, giving legal effect to the CCP’s decision.
The CCP leadership is fragmented, however. China does not have a centralized legal leadership, and the power of central criminal justice authorities—the MPS, the SPC, and the SPP—are limited. There is always a tension between the local CCP committee and the central criminal justice authorities over the control of local criminal justice institutions.
Local criminal justice institutions are accountable to both the central criminal justice authorities and the local CCP committee. This particular system of accountability is referred to as a combination of line and area, the latter taking priority. The central criminal justice authorities exercise the professional leadership (the line) and determine the structure, function, and redistribution of power inside the institutions. However the professional leadership is restricted by the control of the local CCP Committee (the area), which controls the budget, personnel, and other financial sources of the local criminal justice institutions.
The vertical system and dual leadership create a fragmented structure of authority in the criminal justice system. But given the political and financial dependence of local criminal justice institutions on the local CCP committee, the control exerted by the local CCP committee is more substantial and indeed overwhelming, negating the centralized command at a national level.
Institutional Mutual Independence
While the criminal justice institutions are dependent on the CCP and compliant to its demand, they are independent from each other. Governing the relations among the criminal justice institutions is the Criminal Procedural Law (CPL), enacted in 1979, and substantially amended in 1996. Under the CPL, one institution does not have legal supremacy over the other in the criminal process. They have the equal authority to interpret and enforce laws in relation to their own rights and duties, largely without external supervision.
Criminal process in China is divided into three legal steps: investigation, prosecution, and trial. There are three corresponding institutions in charge of each step: the investigative organs (mainly the police), the procuracy, and the courts. The police, the procuracy, and the courts exercise their respective powers independently in accordance with the law and are meant—in theory, at least—to operate free of any interference by any administrative organ, public organization, or individual (CPL, Art. 5). The relationship between the three organs is that they ‘‘shall divide responsibilities, coordinate their efforts and check each other to ensure the correct and effective enforcement of law.’’ (CPL, Art. 7).
The judiciary is not supreme in the criminal process, it is one of the government departments. Where a conflict occurs between the different institutions, those involved have to reach a consensus through negotiation, otherwise the dispute has to be settled by the PLC. There is a clear tendency for the criminal justice institutions to avoid confronting each other.
Powers and Process of The Criminal Justice Institutions
The Police and Police Powers
The police is the most powerful institution in China’s criminal process for three reasons. First, the police hold a special place in Chinese politics. Until the late 1970s, the Minister of Public Security maintained close, even personal, ties with top CCP and state officials, and played the role of a leader in China’s legal institutions. While the role of the MPS in national politics was substantially diminished during the reform era largely due to the rising power of the SPP and the SPC, police at the regional levels continue to dominate the criminal justice system.
The chief of police, as part of the local political elite, generally holds three key positions: member in the Standing Committee of the local Party Committee; chairman of the local PLC; and deputy mayor/governor in the regional government. He is the law of the place. China has been searching for a proper balance between the powers of the police, procuracy, and the court to ensure checks and balances. A development since the mid-1990s is the requirement that the chairman of the PLC at the local and national levels hold no position in legal institutions. Notwithstanding this change, the CCP will continue to lead the local legal system through the police, given its political influence.
Second, the criminal process is structured in such a way that the police play a dominant role. There are few procedural requirements within the investigative process, and there are few measures to protect a suspect’s rights. The law encourages the police to ascertain the true facts of an offense with little regard to procedural rectitude. Once the police have found the truth, as they perceived it, all the subsequent processes become a mere verification of that determination. The files prepared by the police become central to the entire prosecuting process, and the only issue at stake is whether the files can withstand the scrutiny of prosecutors, judges, and lawyers.
Finally, the police can bypass the criminal procedures and avoid accountability by utilizing administrative penalties. Punishment for public order offenses and RTL can be imposed by the police summarily and with little external supervision. The police powers in this regard are extremely broad, and also severe, leading to one to three years’ incarceration. Administrative penalties offer the police sufficient scope to dispose of most minor offenses.
The procuracy is a unique institution in Chinese law. It is equal to the court in its constitutional status. The procuracy performs multiple functions as an investigative, prosecutorial, supervisory, and judicial body.
It investigates crimes, mostly corruption, committed by state functionaries in executing their duty. The procuracy has been criticized for its lack of action against government corruption and blamed for its rampage. But given the relationship between the CCP and China’s legal system, and the role of the CDIs in investigating crimes by CCP members, the procuracy’s authority to investigate crimes committed by the CCP officials is limited.
Second, the procuracy institutes public prosecution against all crimes in court. After the investigators conclude their investigations, they transfer the case to the procuracy for public prosecution. Where the procuracy considers the facts to be clear, the evidence reliable and complete, and the offense serious enough to warrant criminal sanction, it shall initiate a public prosecution in a court with competent jurisdiction, unless the case is ‘‘obviously minor’’ or where other statutory conditions exist. Where a case is not prosecuted, the police, the victim, and the suspect can apply to the procuracy to review the decision. Alternatively, the victim may institute a prosecution in court directly (CPL, Arts. 144–146).
Third, the procuracy supervises the application and enforcement of law by other legal institutions. In relation to the police, the procuracy has the power to demand that the police initiate a criminal investigation over a complaint; to review and approve arrests to be made by the police; and, after the police completes its investigation, to request the police to conduct supplementary investigations if the evidence is insufficient, and to decide not to prosecute if the police are unable to supply additional evidence. In relation to the court, the procuracy supervises the legality of judicial work including reviewing the legality of criminal and civil trials. In the case of criminal trials, the supervisory role necessarily creates a conflict in a criminal trial between procurators as prosecutors before the court and procurators as supervisors above the court.
Finally, the procuracy performs a limited judicial function. Before the 1996 CPL reform, the procuracy had the power to find a suspect guilty of an offense without initiating a public prosecution. Under the law, the procuracy was able to grant an exemption from prosecution where the procuracy deemed it unnecessary to impose a criminal punishment, while simultaneously finding the person guilty of a criminal offense. The exemption system was finally abolished in 1996. The only existing judicial function of the procuracy is that the SPP has the authority to interpret laws in its procuratorial work. As it happens, most of the judicial interpretations of criminal law are given by the SPC and the SPP, either severally or jointly.
Chinese courts are composed of several chambers according to the subject areas of the law. Criminal law chamber may be further divided according to the nature and seriousness of the offenses. Heading each chamber is a chief judge, who is responsible for allocating cases to judges in the chamber and supervising their work.
Once the prosecution initiates proceedings against a suspect, and transfers the case to a particular chamber, the chamber forms a collegial panel, composed solely of judges or of judges and lay judges (referred to as people’s assessors) at the discretion of the court. The chief judge of the chambers is responsible to the president of the court and the adjudicative committee of the court. The adjudicative committee is the power center of a court. It is chaired by the president of the court, and composed of vice-presidents of the court, chief judge of the chambers and heads of political and services departments of the courts.
Criminal trials in China have been referred to as inquisitorial, and since the 1996 CPL reform, the criminal trial has been in a gradual transformation from an inquisitorial model to an adversarial model. Before the CPL reform, the prosecution was required to submit all the evidence to the court once it finished its investigation, and the trial judges were required to investigate the case thoroughly, including interviewing the accused and examining evidence, before the case was tried. Where the court found prosecution evidence to be insufficient, it was bound to remand the files to the procuracy for supplementary investigations. A case would not be tried unless the trial judge was certain about the facts and the law. Naturally, the trial was merely an occasion to announce a decision made before the trial started, and a ‘‘not guilty’’ verdict was a near impossibility.
The 1996 CPL reform abolished the use of pretrial judicial investigation. Under the new procedures, the prosecution provides a Bill of Prosecution and a list of evidence to be produced in court; the court will decide to try the case if there is prima facie evidence of criminal wrongdoing. Without pretrial judicial investigation, the prosecution now bears the burden of proof. The defense is able to play a more meaningful role. It can cross-examine the prosecution evidence and produce its own evidence to challenge the allegation. The defense can make strong arguments on behalf of the accused without necessarily challenging the authority of the court. Judges are now expected to be more neutral and passive arbitrators, evaluating evidence and arguments presented before the court. ‘‘Not-guilty’’ verdicts have become a real possibility in Chinese courts.
The implementation of reform has been difficult and confusing, however. For the most part, the former inquisitorial trial style remains unchanged. Most witnesses still do not testify in court, and the trial continues to be based on affidavits. Trial judges remain active during the trials and interrogate defendants as frequently as in the past. Judges found themselves unable to decide without first reading the files prepared by the prosecution; the trial itself is too brief to provide solid factual and legal bases for a proper decision. The court now reads the files after the trial. The consequence of the reform is that the decision-making process is postponed from before the trial to after the trial. The court hearing is still a formality.
Another issue concerns the actual decisionmaker in a trial. Chinese law emphasizes the independence of the court as an institution, not that of the judge as an individual. A judge is part of the judicial hierarchy and is bound to follow orders from the chief judge, the president, and the adjudicative committee. There are doubts as to who in a court is entitled to decide a trial. In ordinary cases, it is the collegial panel that ‘‘shall render a judgment’’ after the hearings and deliberations. However, in ‘‘difficult, complex or major cases’’ in which the collegial panel finds it difficult to make a decision, the collegial panel should refer the case to the president of the court. The president will then decide whether to submit the case to the judicial committee for discussion and an eventual decision (CPL, Art. 149). The collegial panel is bound to execute the decision of the judicial committee. Given the vagueness of the phrase ‘‘difficult, complex or major case’’ and given the hierarchical nature within a people’s court, the fact remains that those who hear a case might not decide its outcome.
The Trend of Liberalization and Its Limits
There are a number of amendments to China’s substantive criminal law that are of significant symbolic value. They include the abolition of counterrevolutionary crimes, replacing them with crimes endangering state security; and the abolition of the principle of analogy, which allowed a court to punish an act or omission according to the most closely analogous article in the criminal law where the act or omission was not expressly prohibited by the law. Both counterrevolutionary crimes and the principle of analogy were notorious concepts in Chinese criminal law and their abolition is regarded as a major step forward in developing the rule of law in China.
Another important change of great important symbolic value is the acceptance in the Criminal Law of the principles of no crime except in accordance with law and equality before the law (CL, Arts. 3 and 4). But it is the changes in the criminal procedure that have more practical implications.
Controlling Police Powers
Two major developments in ensuring police accountability are the restriction of police power to detain and arrest and the development of judicial review on police administrative decisions.
Abolishing Shelter for Examination
Chinese criminal law is characterized by the use of extralegal measures in the criminal process, effectively sidelining procedural requirements and accountability. Where legal procedure is deemed to be adversely affecting crime control, extralegal processes will be created. When the CPL was enacted in 1979, it created certain procedural requirements for detention and arrest. But the procedures were regarded as having rendered law enforcement impossible and even contributing to the increase in crime. As a result, the police used an extralegal measure, called Shelter for Examination, effectively bypassing the procedural limits on detention and arrest.
Under Shelter for Examination, the police were able to shelter a suspect for examination for a period of not more than three months for those suspected of committing an act falling within a specific category of crime in accordance with the MPS internal rules. It was estimated that the police held in custody the vast majority (more than 80%) of the accused without regard to the criminal procedure requirements. Moreover, the Shelter for Examination was itself abused by the police, who had not only used it to detain persons indefinitely, but also extended it to detain all types of criminal suspects.
Since 1996, the police have stopped using Shelter for Examination in lieu of detention and arrest. The abolition is, however, partial. Certain elements of the Shelter for Examination have been legalized and merged into the formal criminal process. In that sense, it can be argued that the police will be able to do legally what they were doing illegally. The law, to a certain extent, has legalized what it intended to abolish.
The Rule of Law and Judicial Scrutiny of Police Power
Law and legality have become increasingly relevant for the police since the late 1970s. The recurring emphasis on ‘‘socialist legality’’ is expected to alleviate the crisis faced by the party and justify its continuing rule during the post-Mao period. The elementary requirement of socialist legality is that police power has to be derived from law and is exercised through properly defined legal procedures. Since 1979, police powers have been increasingly given a legislative basis and incorporated into the legal process. While there is a very large gap between the formal law and police practice, legalization has provided a mechanism to highlight police abuse of powers and made the exercise of police power more public and visible.
One of the most important legal developments is to subject certain acts of the government to limited judicial review. As a result, the wide range of police administrative powers is now subject to review by the courts. Judicial review of police decisions has passed down a tortuous road in China since its authorization by the NPC Standing Committee in 1986. The initial police reaction was hostile. The police were concerned that judicial review would promote judicial authority, destabilizing the balance of power between the police and the court. More importantly, if a court found a police decision unlawful and invalid, it would damage the image and status of the police. By the time the NPC enacted the Administrative Litigation Law in 1989, the power of a court to review police administrative decisions was widely recognized and reluctantly accepted by the police.
Judicial review has made important contributions in controlling police behavior by imposing administrative penalties and ensuring the legality of police work. The courts have overruled or changed a significant percentage of police decisions in judicial review cases. The external supervision by the court also forces the police to strengthen its internal review and quality control. One major limitation of judicial review is that it is restricted to reviewing the legality of a concrete administrative act (i.e., the application of laws and regulations); the courts cannot review the lawfulness of an abstract administrative act (i.e., the laws and regulations themselves).
In response to the increasing attack on the lack of transparency in judicial decision-making and judicial corruption, the SPC has initiated a number of reforms, such as increasing the entry standard for judges, improving their judicial skills through training, and implementing public trial as required by law. However, the reforms are limited to the court itself, and do not affect their relations with external institutions. Importantly, they do not touch upon some of the fundamental aspects in relation to a fair trial.
Presumption of Innocence
Chinese law is silent on the presumption of innocence and the burden of proof. Indeed, the concept itself was criticized as bourgeois. Since China’s socialist legal system practiced the principle of ‘‘deciding a case according to facts,’’ presumptions and any procedural rules were not allowed a place in the criminal law. In the rigorous pursuit of ‘‘truth,’’ rules protecting the rights of the accused were often swept aside. The 1996 CPL amendment gives the court the exclusive authority to determine the guilt or innocence of an accused. Article 12 of the CPL provides that no one is guilty of a crime without a people’s court rendering a judgment according to law. While the increasing authority of the court in the criminal process and trial reform in China may be the first step toward developing the presumption of innocence in China, the existing law provides no remedies on this principle.
The Right to Silence
Under Chinese law, a suspect has no right to remain silent. A suspect has the duty to answer questions truthfully when asked by investigators, but may refuse to answer questions that are irrelevant to the case (CPL, Art. 93). There is no penalty if the suspect refuses to answer and, moreover, there is no legal duty to assist the police under Chinese law. It is an offense only when a person knowingly gives false testimony in criminal proceedings, which is punishable by a maximum sentence of three years’ imprisonment (CL, Art. 305). It is routine practice for police to administer physical punishment on suspects to obtain confessions.
The police and procuracy at local levels have been experimenting with pilot projects equivalent to the right to silence, often without the authorization of central authorities. In 2000, the procuracy in a small city in a northeastern province started, on a trial basis, utilizing a mechanism referred to as zero confession. It is intended to eliminate reliance upon confessions in criminal investigations and requires the investigators to search for other evidence. While the rules have received wide support from judges, lawyers, and academia in public debate, the central authority, that is, the SPP, has not given its blessings to the local invention.
Exclusion of Evidence
Under the CPL, unlawfully obtained evidence is not excluded in court. Article 43 of the CPL prohibits extortion of confessions through threat, enticement, deceit, or other unlawful means, but there is no effective and sufficient remedy for breach of this rule, unless the circumstances are serious enough to amount to a criminal offense. Given the equal legal status of the police and the procuracy, there is little a court can do when facing allegations of torture by the police or by the procuracy. In practice, the standard court procedure is to do nothing except to declare the allegation of torture as unfounded.
The SPC, however, has attempted to exclude certain types of unlawfully obtained evidence, and issued rules in 1994 prohibiting the use of any statement obtained through unlawful means. When the CPL was amended in 1996, this exclusionary rule was not consolidated into the CPL.
Nevertheless, the SPC restated its rules on the admissibility of unlawfully obtained statements in the 1998 SPC Interpretation, according to which statements of witnesses, victims, and the accused obtained through torture, threat, enticement, fraud, or other unlawful means should not be used as evidence in adjudicating a case (SPC Interpretation of the CPL, Art. 61).
Right to Counsel
Defense counsel had little role in the criminal process before the 1996 CPL reform. First, political interference in criminal defense was frequent. As state legal workers, lawyers were bound to accept orders from the government in carrying out their defense. For example, lawyers were frequently admonished not to direct their mind to trivial matters and technicalities, and they were not allowed to raise not-guilty defenses without the prior approval of the government.
Second, judges’ involvement in the pretrial investigation seriously diminished the role of defense counsel. After reading through the prosecution files and verifying the evidence, trial judges would necessarily have formed a prejudiced view on the case. They had difficulties accepting alternative views from the parties. A challenge to the charge was not so much a challenge to the prosecution’s case as a direct attack on the court’s credibility.
Third, the law did not allow any involvement of a defense counsel at the investigation and prosecution stages of a criminal case. In other words, a defense lawyer had no right to enter a police station and the prosecutor’s office to obtain information or meet with and correspond with the accused. Practically, no legal representation was allowed until a week before the trial.
Legal reform since the mid 1990s has expanded the right to counsel. In the Lawyers Law 1996, the NPC Standing Committee changed the status of lawyers from state functionaries to members of a more autonomous All China Lawyers Association. The legislative change reflects the independent nature of the legal profession and reinforces the tendency of lawyers to become more independent. The importance of this change is that, despite the criticism against Chinese lawyers for their lack of ethics and competence, they have become independent from the state, economically, and to certain extent, politically.
There has been less political interference in lawyers’ defense work in criminal trials during the 1990s, and the legal profession, essentially a private business, cannot be tightly controlled by the government. One indication of such a development is the frequent use of a not-guilty plea in a criminal trial, even in the politically sensitive cases of political dissidents. Chinese lawyers are representing interests that may not be synonymous with those of the CCP.
The introduction of some adversarial elements into criminal proceedings means, if anything, that the prosecutors have the burden of proof and of leading evidence under a relatively neutral panel of judges. Defense counsel has the opportunity to put up a rigorous defense and play a more meaningful role. More importantly, defense counsel is no longer limited to defending an accused at the trial stage. Defense counsel duties now extend to providing legal advice and assistance at the early stage of criminal investigation (CPL, Art. 96).
The right to counsel at the investigative stage is closely regulated by the police, however. First, a lawyer needs to give notice to the police of such a meeting, and the police have forty-eight hours to make the necessary arrangements. In serious and complicated cases, the meeting may not be arranged until five days after an application is made (MPS Procedural Rules, Art. 44). Second, where a case concerns state secrets, a meeting between a lawyer and client requires police approval (CPL, Art. 96). Finally, the police have the discretion to be present during the meeting according to ‘‘the necessity and circumstances’’ of the case. An officer present has the power to limit the content of the conversation and even to stop the meeting if it appears to him that legal procedures and police rules have been violated during the meeting (MPS Procedural Rules, Art. 48). Because of these rigid limitations, the police are able to make the right to counsel at the investigative stage virtually impossible.
The Routine and Arbitrary Criminal Process
There is a tension between the demand for order and stability and the demand for reform and liberalization. This tension has created a dual criminal justice system in China. On the one hand, there is the routine and institutionalized criminal process, in which legal bureaucrats process criminal cases within their perspective institutions according to legal procedures, institutional position, and personal interests. This routine system, despite the drawbacks and abuses, is characterized by increasing professionalism and relative institutional autonomy.
On the other hand, there is the arbitrary criminal system, which is periodically superimposed by the CCP on the routine criminal process. When that occurs, the criminal justice institutions lose their institutional autonomy, and the institutional mandate gives way to the political imperative. There is a sudden political takeover of the criminal justice system. This arbitrary system is characterized by periodic campaigns against crime, commonly referred to as hard strikes ( yanda).
Common crimes and the public’s fear of them have been perceived as threats to the party’s political order and a challenge to the party’s legitimacy. To restore public confidence, the party resorted to yanda. In July 1983, the former paramount leader Deng Xiaoping ordered the police to launch several mass campaigns against violent crimes and to solve the crime problem within three years. Under political pressure, the police rendered swift and brutal justice to ensure political stability. It was expected that the legitimacy deficit could be compensated for by effective crime control. Yanda did not stop in 1986; it continued and has become a permanent feature of China’s criminal justice system.
Over the last decade, yanda has become more aggressive. The term campaign has been replaced by war or battle. The soldiers and armed police have become more visible in the operation. The period of the operation is prolonged to a campaign with different battlefields and well-planned phases. It took three years to accomplish the national war on theft. The war expands; there are different battles on different crimes organized by different levels of government, often carried out simultaneously. Rights of the accused and legal procedural requirements are routinely bypassed and ignored by the police during yanda. Police, prosecution, and judges are required to work in a streamlined fashion in order to expedite the process. Criminal defense is virtually suspended and capital punishment is encouraged. Justice is rendered as speedily and as severely as possible. Those who committed violent crimes are regarded as the enemy of the state and treated as such.
While the yanda approach to crime can temporarily suppress the impetus of crime and reassure the public, the police have paid a high price for this problematic method of crime control. The military style of policing results in high casualties among the officers, prolonged work hours for the front-line officers, and degeneration of public relations, and, more importantly, has subverted routine law enforcement. The success in controlling crime is highly exaggerated. Each yanda creates a wave of arrests and convictions. But when it is over, another crime wave is soon recorded, causing another yanda. The periodic crackdown on crime created a vicious circle of crime and policing in post-Mao China.
Each yanda leads to a detection of a great number of crimes and the arrest of a great number of suspects. It demonstrates the seriousness of crime, the urgent need for a solution and the indispensable position of the police. The criminal justice institutions have strategically used crime statistics to bargain for more powers and resources, and at the same time to prove their effectiveness in combating crime. Streets are safer immediately after a terror of yanda, and the public feel more satisfied with social order. Yanda thus becomes the self-fulfilling prophecy that the police are indispensable to the legitimacy of the CCP and the security of the state.
By the late 1980s, it became abundantly clear to the police that yanda was not the solution to the problem of crime and public disorder. Without yanda, society becomes ungovernable, but yanda relies on destructive internal warfare to maintain order. China is addicted to this type of crime control, and it appears to be very difficult to break the habit.
Reform in the criminal process in China should be seen in the light of a conflict between the political need for stability on the one hand, and the domestic and international pressures to liberalize the criminal justice system on the other. China remains a one-party state under the dominance of the CCP despite economic liberalization, and the primary concern of the CCP has been the maintenance of social and political order. ‘‘Stability overwhelms everything,’’ as the CCP has insisted. Whenever the CCP perceives that crime is posing a threat to stability and challenging its legitimacy, it will mobilize the criminal justice system to strike hard at crime, disregarding most of the legal requirements. Gradual and piecemeal reform and liberalization have been interrupted by periodical campaigns against crime. Criminal law and criminal justice are fundamentally political.
At the same time, a progressive force is taking root in China, pushing for liberalization of criminal law and the criminal justice system and the implementation of rights already existing in Chinese law. The growth in the economy is creating a middle class and a vibrant society that demands its rights. International pressures, especially China’s pending participation in the World Trade Organization (WTO) and the possible ratification of the International Covenant of Civil and Political Rights, will add momentum to the liberation of China’s criminal justice system.
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