Sunday, February 05, 2012

Part III—Zhiwei Tong (童之伟) Series: Perspective Study from Criminal Procedure Code to Modify Constitution (Part I)

 (Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
The  Zhiwei Tong (童之) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistant, YiYang Cao for his able work in translating these essays.


 (Pix (c) Larry Catá Backer 2012)

Part III—Zhiwei Tong (童之伟) Series: Perspective Study from Criminal Procedure Code to Modify Constitution (Part I) 
We lack the knowledge base to modify the criminal procedural law

September 25, 2011

The draft of the People’s Republic of China Code of Criminal Procedure Amendment states: China’s current criminal procedural code was enacted in 1979 and amended in 1996 at the Fourth Session of the Eighth National People’s Congress.  The practice has proved that the design and overall configuration of authority of Chinese criminal procedure have on the whole been scientific and reasonable.  So far, incompatible problems have propped up only in some areas and it is these areas that improvement is necessary.

The reality is quite different, according to Professor Tong.  The current criminal procedure and the overall configuration of authority does not meet adhere to the spirit of seeking truth from facts, and as a result cannot correctly reflect the relevant aspects of the truth.  The reality shows that the handling of criminal cases and proceedings by Chinese courts, procuratorate and public security agencies have been very unscientific and unreasonable.  As a result, fundamental reforms should be made. Unfortunately, the principal institution assigned to revise the Code of Criminal Procedure has failed to see these major drawbacks.  These drawbacks include:

1.     Too much police power granted and continually broadened beyond the framework of the Constitution and legal boundaries.

In the Constitution, the public security apparatus is only a departmental level entity, lower than the positions of the corresponding regional courts and procuratorates.  However, the reality is far different.  The political and party status of a head of a public security department is, in fact, above that of the president of a court and the head of the procuratorate.  This kind of situation is understood by all adult Chinese citizens and thus there is no need to enumerate the evidence.  We can see from the role of the public security apparatus in the handling of various disclosed criminal cases; from its role throughout the investigation process; from its role in the examination, prosecution and trial process; and from its role in the Chongqing anti-crime campaign and from the charade put on by the Beihai police department that a strong and unfettered public security apparatus is difficult to constrain.

In the world today, I do not know of any other country where a police department possesses as much authority and as capable of overpowering the authority of their counterparts in other departments to such a degree.  If you give me more time, I can find enough information to prove that:
a.     The drafting of the amendment of China’s Criminal Procedure Code and the legislative interpretation has largely been led by the police departments and its representatives.  Therefore, any legislative interpretation and changes reflect the hopes and wishes of the police departments.
b.     The phrase, “practice has proved that China’s Criminal Procedure Code and configuration of power is scientific and reasonable.”  This probably reflects the view of the police department.
A society and country governed by rule of law is incompatible with a police state or police community.

2.     The application of current Criminal Procedure Code over the past ten years has resulted in an extraordinary number of defendants have been unjustly sentenced to death.  This shows that the current focus of criminal procedure and authority is insufficient to protect the lives of citizens from illegal deprivation by organizations with public authority.

Over the last decade, an extraordinary number of defendants have been unjustly sentenced to death.  The common people have found out about the injustices within a number of sensational cases
a.     She Xianglin “wife murder” case
b.     the Zhao Zuohai “murder and dismemberment” case
c.     Niu Shubin “rape and murder” case
There are other cases that the author has verified one by one, written papers studying death penalty injustice cases, including:
a.     Li Yongcai’s “intentional homicide” case in Liaoning
b.     Li Huawei “intentional homicide” case in Liaoning
c.     Wu Hesheng “intentional homicide” case in Wuhan
d.     Du Peiwu “international homicide” case in Kunming
e.     Yao Jing and Yao Li sister and brother “intentional homicide” case in Henan
f.      Jiang Ziran “burglary and murder” case in Hunan
g.     Ai Xiaodong “murder and necrophilia” case in Hubei
h.     Wang Hongchou and seven others “breaking and entering, robbery” case in Jilin
i.      Shi Yansheng “international homicide, robbery” case in Heilongjiang
j.      Yang Zhijie “murder using explosives” case in Hebei
k.     Chen Guoqing, He Guoqiang and 4 others “robbery and murder” case in Hebei
l.      Zhao Fenrong “murder using poison” case in Shaanxi 

In October 2010, I bookmarked a list published by Lin Zhaoliang on the internet called Injustices Exposed by the Media in the Last Few Years.  The list was later deleted, but on September 24, 2011, I found the list on the joneswell blog.  The list was populated by defendants and suspects facing unjust charges that could result in the death penalty.  Many of those on the list included individuals that I had not discovered I wrote my paper.  The list included cases that I had seen in the last few years and cases that had not been reported.  However, all of these cases are readily accessible online.  From my research, though I have not had the time to examine whether the details of the case is consistent with the reported characterization, I can almost completely confirm that all of these miscarriages of justice are listed truthfully.  These cases include:

a.     Teng Xingshan, an 18 year old boy from Hunan was  found guilty and executed for murder and dismemberment; 10 years after his death, the real murderer was captured
b.     Yang Mingying of Hunan’s 10-year imprisonment for murder was overturned
c.     Huang Aibin of Hubei was sentenced to death for intentional homicide, but was released after 4 years
d.     Sun Shaohua of Jilin was charged with killing three people and burning their bodies; was released after serving 11 years
e.     After 15 years of imprisonment for rape, Xu Jibin of Hebei was cleared of his charges
f.      Charged with raping a young girl, Song Baomin of Hebei died in prison
g.     After 8 years of imprisonment for raping and murdering a young woman, Xu Dongchen of Hebei was released
h.     After suffering from 2 years of torture, Li Jiuming of Hebei was  cleared of an intentional homicide charge
i.      After 10 years of imprisonment for raping a female teacher, Meng Cunming of Hebei was acquitted and released
j.      Hao Jin’an of Henan was on death row for ten years for robbery and murder before being reprieved
k.     Zhang Congming from Henan was imprisoned for 6 years for robbery and murder before being acquitted
l.      Xu Jingxiang of Henan was imprisoned for 13 years for robbery and theft before being released
m.   Qin Yanhong of Henan was in custody for rape and murder of young woman for four years before acquittal
n.     Wang Haijun of Jilin was unjustly imprisoned for 19 years for murder before being acquitted
o.     Huang Yaquan and Huang Shengyu were imprisoned for 10 years for robbery before being acquitted
p.    Tu Jingxin of Jiangxi was on death row for 7 years for corruption before being acquitted
q.     Ye Lieyan of Jiangxi was acquitted and released from long-term detention on the charge of criminal explosion
r.      Chen Shijiang of Shandong was acquitted of intentional homicide after eight years of imprisonment
s.     Tan Junhu and Lan Yongkui of Guangxi were imprisoned for 4 years for robbery and murder before being acquitted
t.      Tong Limin of Chongqing was imprisoned for 4 years for raping, murdering, and mutilating the nanny before being acquitted
u.     Gao Jinfa of Shaanxi was on death row for three years for raping and murdering a young girl before being acquitted
v.     Li Jiedeng and four others of Sichuan were imprisoned for 8 years for intentional homicide before being acquitted
w.   Yang Yunzhong of Heilongjiang was wrongfully imprisoned for 7 years for intentional homicide before being acquitted
x.     Sun Wangang of Yunnan was on death row for 8 years for rape, murder, and dismemberment before being reprieved
y.    Chen Jinchang of Yunnan was on death row for two years for robbery and murder; was released after the real murderer was arrested
z.     Wang Shuhong of Yunnan was arrested for raping and murdering a prostitute; tortured while imprisoned, he was crippled by electric shocks

In general, most of these unjust cases involved homicide and initial guilty verdicts were overturned upon the discovery of the “actual murderer” or the alleged murder victim reappears. However, the likelihood of these two situations is not high.  As a result, it can be concluded that the number of miscarriages of justice is high not only in capital cases, but also in other criminal acts as well.

3.     Existing criminal procedure and configuration of authority is unable to constrain police from acting illegally, therefore is not enough to protect the safety and freedom of citizens from abuse of police power.

There are many local police departments that arbitrarily arrest and jail people, including incidences of mass arrests and arrest first and ask questions later all are rarely constrained, while the use of torture to force confessions has largely become universal.  In this regard, I believe that a Chinese adult citizen have seen and heard too many stories about the police.  From a longer term perspective, in the case of Mr. She Xianglin, it was not only that he was wrongfully arrested and given a suspended death sentence, but because his mother appealed, she was imprisoned for nine months, while his brother was imprisoned for forty-one days.  A fellow villager who gave evidence in support of Mr. She was also imprisoned for three months.  From such a case, we can see that the personal rights and freedoms of four individuals have been illegally infringed upon.  Taking a shorter term perspective, this is similar to the infamous “lump of feces” case in Chongqing, where in a clear miscarriage of justice, Mr. Fang Hong spent a year in a labor reeducation camp.  According to the Chongqing police department dealing with the case, Fang Hong’s son, wife and daughter “disappeared” after they were released.  Even now, no one knows if they had actually been released (though logically, they should have been released already).  Even individuals who hold a degree of international attention are arbitrarily arrested and deprived of their personal freedoms.  This article only speaks to a number of well-known cases.  The reality is that these kinds of cases occur almost daily and hourly.

In particular, the use of torture to force confessions or the use of torture to change confessions (an illegal practice largely extinct in other countries and regions under rule of law) and barbarous methods of interrogation have become largely universal in many regions of the country.  The Chinese use of torture to force confessions is not only a topic of concern to international human rights organizations, but also a daily topic of concern amongst its citizens.  People can see from a variety of media sources that behind almost every instance of injustice, wrongful prosecution or cases that result in public discontent all there is one or more stories about torture.  The 1.3 billion citizens of China all but ignore media reports of individuals brought up on torture under Chinese criminal law.  In fact, they treat those instances where charges of torture are brought up as nothing more than faking for the public.  We are supposed to protect citizens’ personal rights and freedoms and protect the innocent from prosecution, and yet we can neither curb the universalization of torture nor ensure that those individuals who commit torture are prosecuted.  From this point alone, we can clearly see that the design of the current Criminal Procedural Code is neither “scientific” nor “reasonable.”

4.     Existing criminal procedure and configuration of authority does not effectively protect the courts to allow it to exercise judicial power independently and does not allow for mutual constraint to be exercised between the courts, procuratorate and public security agencies that handle criminal cases.

The Constitution provides that the court, the procuratorate and the public security departments shall divide responsibilities, coordinate, and mutually constrain each other when handling criminal cases in order to ensure the correct and effective enforcement of the laws.  Over the last several years, people have only seen these three working together in a complementary fashion to ensure that a suspect or a defendant is convicted.  There is very little to no mutual restraint.  As a result, the court basically almost never finds for the defendant.  In addition, when the procuratorate handles its own cases, it has the authority to decide to arrest the suspect.  This kind of arrangement is in direct violation of the tripartite arrangement of mutual restraint.  Although the reasons for these conditions are complex, at least it gives the people a reason to believe that the existing Criminal Procedure Code is unable to curb these kinds of unconstitutional actions from occurring.

Because of the lack of mutual restraint, the out of control use of technical investigation and analysis has created a situation where no one is safe and secure.  For years, China’s approach has been to rely upon the police departments to conduct their investigations entirely based on its own needs and without court or procuratorate approval.  Intellectuals all know that China’s police departments have the power to unilaterally conduct all kinds of surveillance activities.  And because of this lack of constraints, there are no time limits on how long a police department can conduct its investigation into the crimes committed by a suspect.  In order to ensure the guilt of a suspect or defendant, even when the case has reached the courts, the police departments has the power to conduct and engage in virtually unlimited supplementary investigations.  Furthermore, this lack of mutual restraint leads to an imbalance of power between the prosecution and the defense with judges accustomed to standing on the side of the prosecution when considering issues.

5.     Other problems

In addition to the aforementioned four major issues, the existing Criminal Procedure Code and configuration of authority has other severe drawbacks, which are briefly described here:

a.     The behavior of the long-term deprivation of citizens’ personal freedom by assigning them to labor reeducation camps, a form of punishment that is not included and is not adjustable by the existing Criminal Procedure Code.  From a constitutional perspective, this kind of behavior has long been criticized as allowing the existence of a form of punishment that is incompatible with building a country governed by rule of law and the basic constitutional requirements of respecting and protecting human rights.  By itself, the existence of such a measure shows that the existing Criminal Procedure Code and configuration of authority is outdated, a throwback to the pre-capitalist era.  The personal rights and freedoms of Chinese citizens should be protected by a judicial process.
b.     Shuanggui system should be included in the judicial process, as party members should have the right to equal protection under the Criminal Procedure Code.  Currently, however, existing criminal procedure is not designed to protect these individuals’ personal rights and freedoms.
c.     Lawyers often cannot or do not dare to provide adequate legal defense to those being criminally prosecuted.  The number of lawyers willing to serve as a defense attorney is decreasing as they face difficulties from multiple fronts.  Criminal defense lawyers are not offered the safety guarantees that would enable them to seriously investigate and collect evidence.  Attempts to meet their clients and witnesses are often with obstacles.  Worse, they do not play a part in the punishment phase of a trial.  This is a situation that the entire society has witnessed over the last decade.
d.     There are no guarantees for a public trial.  The more attention a case receives from the people and the community, and the more serious the case, the more likely that the trial will not be public.  A public trial is one of the best ways of ensuring oversight over how courts, procuratorates and public security departments handle criminal cases.  In practice, the behavior over the past decade has rendered this constitutional provision bogus.

Ultimately, the agencies and officials drafting the Code of Criminal Procedure Amendment are seriously divorced from reality.  Only those with courage to stand up and face these inadequacies will be able to restrain them.  Only through truthful and factual examination will it be possible to amend the Criminal Procedure Code.

 (Pix (c) Larry Catá Backer 2008)

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