Jerome Alan Cohen, an expert in China



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The Beijing Olympics will offer a wide array of track events in the National Stadium or “Bird’s Nest,” from the frantic 100 meter dash to the exhausting 50 kilometers walk where endurance will determine the winner. If legal reform in China were an Olympic event, the pace of judicial change could only be called a long march. The criminal justice system is hampered chiefly by the fact the Communist Party is above the law, along with extrajudicial tools like “reeducation through labor” that are used to repress critical voices. Yet there are grounds for cautious optimism, including recent efforts by the Supreme People’s Court to assert authority and bring down the number of state executions.
Jerome Alan Cohen, an expert in Chinas legal system, is a law professor at New York University where he is a co-director of the U.S.-Asia Law Institute. Professor Cohen is an Adjunct Senior Fellow for Asia at the Council on Foreign Relations, and has written and edited several books including China’s Legal Tradition. He is the author of numerous articles on the Chinese judicial system and frequently cooperates with Chinese criminal defense lawyers in human rights cases.
A Slow March to Legal Reform

By Jerome Alan Cohen

Just as the Tokyo and Seoul Olympics respectively focused the world’s attention on Japan in 1964 and on South Korea in 1988, the Beijing Olympics of 2008 are meant to showcase the progress of the People's Republic of China (PRC) and confirm its acceptance as a proud and prominent member of the civilized world. Having failed to win the right to host the 2000 Olympics because of the tragic Tiananmen slaughter of June 4, 1989, Chinese government negotiators, in order to assure a better outcome for their second effort to host the world's greatest athletic spectacle, promised the International Olympic Committee that awarding the Torch to Beijing would enhance the country's respect for human rights.


A nation's criminal justice system is, of course, a major index of its civilization. In recent years, influential Chinese legal officials and scholars have privately expressed the belief that China's notoriously deficient criminal justice system would be brought closer to minimal international standards by the time the Torch reached Beijing. This was to be accomplished in two ways.
The road to reform
The first way would be for the PRC to finally ratify the United Nations International Covenant on Civil and Political Rights (ICCPR), which, among other obligations, commits adhering states to implement the fundamental elements of due process of law when determining criminal punishment. The PRC signed the ICCPR in 1998. Many experts expected PRC ratification of the Covenant, with or without limiting reservations or declarations, by the tenth anniversary of its signature, which coincides with the holding of the Olympics. This was to be an important symbol of China's readiness to assume international responsibilities that go far beyond the sports world.
The second way to assure compliance with minimal international standards was for the National People's Congress (NPC) or its Standing Committee to enact new legislation. This legislation was to revise the Criminal Procedure Law of 1996 by belatedly adopting many of the reforms that had been considered at that time, but were ultimately deferred as too radical.
To be sure, the 1996 Criminal Procedure Law made many improvements in principle to China's initial CPL of 1979. For example, it allowed lawyers to interview and advise suspects from the moment of their detention and interrogation by the police and other investigators; it granted the accused the right to confront and cross-examine witnesses who testified at trial; and it required appellate courts generally to hold a formal hearing when reviewing a criminal conviction rather than merely scrutinizing the records and briefs of the original conviction. Unfortunately, such reforms, by and large, have only been haltingly implemented, if at all. Moreover, the 1996 legislation had left certain proposed reforms, such as the presumption of innocence, unclarified, and others, such as a suspect's privilege against self-incrimination and even broader right to silence, were actually rejected.
Reeducation Through Labor”
The price of winning the acquiescence of police and prosecutors even to those reforms that were adopted in 1996 proved to be very high--legitimating, for example, the power of investigators to detain criminal suspects for as long as 37 days before obtaining the prosecutor's approval of "arrest" that leads to much longer detention pending completion of the investigation. The reformers of 1996 were also unable to restrict the long-standing power of the police entirely to circumvent the Criminal Procedure Law's restraints by imposing "administrative" punishments, especially "Reeducation Through Labor," which authorizes the police to send people off to a labor camp for three or four years without the scrutiny of even the prosecutor's office, not to mention that of the courts.
By 2008, ratification of the ICCPR and revision of the Criminal Procedure Law in accordance with the demands of the Covenant were supposed to have significantly improved China’s criminal justice. Yet, as of October 2007, it seems unlikely that these maximum expectations will be vindicated. For many years Chinese experts have been carefully studying the difficult issues involved in their government's ratification of the ICCPR. Many academic specialists have favored ratification, but no consensus appears to have emerged among law enforcement agencies, which are fully aware of the profound impact that ratification would have upon the administration of justice.
The Covenant, for example, prohibits governments from sentencing people to criminal-type punishment without the approval of an independent court. Chinese government ratification, in the absence of a reservation that would emasculate this major guarantee of freedom of the person, would therefore create an international obligation to end Reeducation Through Labor. This would reinforce existing provisions of China’s Constitution and recent legislation that should be construed also to prohibit the extra-legal practice. For more than half a century, however, Reeducation Through Labor has remained a key weapon in the police arsenal employed against political and religious dissidents, hooligans, suspects against whom sufficient evidence is lacking to sustain a criminal conviction and all others whose conduct is deemed to be "anti-social" but not "criminal."
Most influential Chinese scholars would like to terminate the unfettered power of the police to whisk people off to labor camp for several years. Many leading judges and prosecutors agree that the final decision regarding so substantial a deprivation of personal freedom should be the exclusive province of the judiciary, but thus far the political power of the Ministry of Public Security has prevailed.
Powerful minister
After all, for the past five years, it has been Minister of Public Security Zhou Yongkang–not the President of the Supreme Court, the Procurator General or the Minister of Justice–who has served on the Communist Party Politburo, and at the 2007 Party Congress, Minister Zhou was promoted to the Politburo's inner sanctum, its Standing Committee. He is now in charge of the Central Party Political-Legal Committee that decides all policies relating to the legal system and "coordinates" the operations of the courts, the procuracy, the police, the justice departments and even the nation's lawyers. He may also become chief of the Central Party Discipline and Inspection Committee that investigates significant misconduct, especially corruption, of Party members and determines whether they should be prosecuted and convicted by formal criminal processes or dealt with by administrative or informal means. CONFIRMED AT PARTY CONGRESS?
Given the leadership's preoccupation with attaining "stability and harmony", Minister Zhou is unlikely to favor ICCPR ratification. It would even cast doubt on the consistency with China’s international obligations of the 2005 Law on Public Security Administration Punishments, since the law permits the police alone to punish people with up to 20 days of administrative detention for a broad range of minor offenses too petty to be deemed "criminal." Invalidation of the Law on Public Security Administration Punishments for failing to require court approval of its punishments would itself vastly increase the burden on judicial and law enforcement resources because each year perhaps eight times as many people are punished under the Law on Public Security Administration Punishments as are punished under both the Criminal Law and Reeducation Through Labor.
This is undoubtedly why the Law on Public Security Administration Punishments has not been seriously challenged, as it might be, under China’s Constitution and domestic legislation. Moreover, ICCPR ratification would also highlight other types of detention that are plainly not authorized by law, such as the “shuanggui” imposed on suspects by the Party Discipline and Inspection Commission and it would affirm the Chinese government's obligation to cease the brutal abuse of human rights lawyers by Chinese police and their hired thugs.
While the ascension of Minister Zhou does not bode well for ICCPR ratification, it does not rule out the possibility that there may well be, prior to the Olympics, new legislation that may effect significant improvements in the criminal process or at least improve the rules to be applied in this process. Indeed, criminal justice experts of the National People’s Congress Legislative Affairs Commission have been working long and hard to prepare draft revisions of the 1996 Criminal Procedure Law.
Further reforms?
Just as NPC legislation recently confirmed interpretations by the Supreme People's Court reclaiming for itself the exclusive power to conduct final review of all death penalty adjudications, it may soon also confirm other reforms initiated by the Supreme People's Court, such as the top court’s assertion that criminal convictions should not be based on confessions alone and that coerced confessions and other illegally-obtained evidence must be excluded from judicial consideration. The National People’s Congress may also clearly endorse the presumption of innocence and, following the Supreme People's Court's lead, eliminate the loopholes in legislation that have permitted prosecutors and judges to keep most witnesses from testifying at trial, thus frustrating the defendant's right to confront and cross-examine his accusers.
This widely anticipated next round of Criminal Procedure Law reforms is not likely to do more than give vague lip service to a privilege against self-incrimination, and it is almost certainly not going to endorse an absolute right to silence. These principles do not yet enjoy strong support from Chinese society and officialdom, not only because of deeply-held traditional beliefs about the importance of confession but also because of widespread desire not to unduly hamper police efforts to deal with rising crime rates and social instability. In the present conservative Chinese political climate, there also does not appear to be popular support for abolishing Reeducation Through Labor. Draft legislation to abolish it or to significantly "improve" it by giving it a blander name, reducing its duration, diluting its harshness and injecting a few procedural protections, such as a role for defense counsel, has been on the NPC calendar for five years, but enjoys no current momentum. This does not mean that some outrageous Reeducation Through Labor tragedy resulting in a nationwide scandal could not spark its long-awaited annulment or reform, just as the 2003 killing of university graduate Sun Zhigang in police custody led to the abolition of "shelter and repatriation", another of the frequently-abused administrative punishments relied on by the police.
The death penalty
This account of criminal justice at the time of the Party Congress and the Olympics makes clear the major role currently played by the Supreme People's Court. Although the Supreme People's Court has not been allowed to relieve the government's repression of freedoms of expression and organization, it has been permitted to moderate some of the worst aspects of that other principal branch of human rights -- the administration of criminal justice. Because the Chinese government’s astounding, promiscuous resort to the death penalty is the most prominent symbol of law enforcement that cries out for reform, it is here that the Supreme People's Court has chosen to focus its reformist energy. Although it has faithfully complied with the Party's insistence that the number of annual executions remain a state secret–the best evidence of the shame felt by the regime on this score–the SPC in recent years has boldly and consistently tried to bring down the numbers and to increase public confidence in the accuracy of death penalty adjudications.
The Supreme People's Court has frequently admonished the lower courts and local authorities to restrain their zeal for imposing capital punishment, even while the Politburo oscillates between calls to “strike hard against crime” and calls to "combine leniency with suppression." Because the National People’s Congress has made little progress in reducing the number of offenses for which the death penalty can be imposed -- at last count there were no fewer than 68 -- the SPC has been seeking reform on a case by case basis by urging the lower courts to sentence defendants to immediate execution only when "absolutely necessary." In effect, it has been pleading with them, in the vague language that so often characterizes China's criminal process, to “kill fewer, kill with restraint,” and seriously consider whether it would not be preferable to invoke China's vaunted and unique alternative of sentencing the defendant to death but suspending execution for two years in order to allow the condemned to demonstrate his capacity for rehabilitation. In practice, at the end of the two-year period, virtually all those who receive suspended death sentences have their punishment commuted to life imprisonment or a long, fixed term.
In order to make suspended death sentences more attractive to "hanging judges," Chinese experts are beginning to consider adding to the present panoply of sentencing options a new possibility -- "life imprisonment without parole." One of the reasons that Chinese judges frequently opt for immediate execution is their belief that the current punishment of "life imprisonment" does not guarantee that dangerous and heinous criminals will indeed remain behind bars for the rest of their lives. Instead, their original life sentence is often commuted to a term of years that eventually enables them to win their release. Thus, some experts have argued for the addition of "life imprisonment without parole" to the judicial arsenal in an effort to stimulate courts to spare the lives of many offenders who might otherwise be executed. This would be not only a humanitarian measure but also a practical one to prevent the possibility of sending them to a fate that might later be discovered to have been unjust.
The major emphasis of the Supreme People's Court 's recent reforms, however, has been on procedure. Reclaiming the exclusive final review power over death sentences has been only the first step in what has become a persistent campaign to improve fairness and accuracy in such cases. How to make this reassertion of judicial power meaningful has itself proved to be a formidable challenge. So huge is the annual number of death sentences that literally hundreds of new judges have had to be recruited to carry out the Supreme People's Court's new duties. It has proved difficult for the court to find a sufficient number of suitable new judges without depriving the provincial high courts and intermediate courts of their best talent. Some able law professors and lawyers have been selected to expand the group. Moreover, once on the scene, the new arrivals have had to be trained in appropriate new review procedures since previous procedures were acknowledged to be inadequate. Yet it has not been easy for reformers to agree on the content of the new procedures.
Should Supreme People’s Court review be confined to study of the case records and any written briefs submitted by the prosecution and defense, plus a final private interrogation of the defendant by one or two judges or their staff? Or should the SPC, in addition, grant an opportunity for oral argument by representatives of the parties? Or should it hold a broader hearing to confirm relevant facts that appear to be in doubt as well as legal issues? If judicial resources are too scarce to allow a fact-based hearing or even oral argument by counsel, how should the SPC's limited scrutiny be conducted? Should it take place in Beijing or in the provincial capital where the high court had affirmed the original sentence? Should SPC judges be stationed in the provinces or regions to promote review efficiency or would efficiency be enhanced by keeping all final reviews under the closer supervision permitted if all reviews are conducted in the capital?
If all final reviews are to be Beijing-based, should the accused be brought to the capital for a last, albeit private, judicial interrogation or should one or two SPC judges handling the case be dispatched to the site of his detention? Finally, what standards should the final review judges observe in determining whether the facts and the law are "sufficiently clear" and capital punishment "absolutely necessary" to warrant conviction and immediate execution? This last challenge has already led SPC draftsmen to develop a list of aggravating and mitigating circumstances that resembles those considerations taken into account by death penalty law in the United States.

The SPC has construed its reformist mandate to go beyond radical revamping of the final review process. It has also revised provincial high court procedures for carrying out the preceding appellate review of the original death penalty trial. Thorough, competent and confidence-inspiring appellate review can do much to ease the Supreme People's Court 's final review burden. Until recently, these provincial high courts generally conducted their appellate scrutiny of death cases on the basis of the trial record and any briefs submitted by prosecution and defense counsel, plus a private interrogation of the condemned person. They seldom granted an oral hearing to fully explore disputed facts or to hear argument about legal issues.


Beginning in 2006, the Supreme People's Court changed this situation by requiring an oral hearing to be held in every death case appellate review. This does not mean, as the foreign media sometimes suggest, that the required hearing will always be open to the public. Hearings allegedly involving "state secrets," a broad and often-abused term, as well as certain personal matters remain closed. But even in such cases there must be a formal, oral hearing in the courtroom that allows an opportunity to confirm the facts and clarify both the application of the law and the appropriateness of the death sentence. Yet this reform at the provincial court level, like its counterpart at the SPC, poses many new and difficult questions. What should be the scope of the oral review hearing? For example, will important witnesses be required to testify in court so that the accused and his counsel are guaranteed the right in practice as well as in principle to confront and cross-examine them? The judges themselves benefit from actually seeing and hearing the witnesses, and even asking them any questions they deem necessary, rather than merely relying on written out-of-court statements that often may be imprecise or mistaken. Should the appellate review consider all the issues that the court believes are involved in the case or only those raised by defense counsel and defendant? How great a role should defense counsel be permitted in the review process?
A work in progress
As in the case of final Supreme People's Court review, the answers to such questions are a work in progress. China is a vast, diverse, developing country, and judicial reforms in China have always taken considerable time to implement on a nationwide scale. Yet it seems certain that these changes will make a significant improvement in death penalty review procedures and substantially reduce the number of executions ordered. Indeed, SPC spokesmen have already claimed important, albeit vague, progress in this respect. It also seems certain that judicial reforms in capital cases will not be limited to review by the appellate courts and the Supreme People's Court. The reform process appears to be inexorably marching toward the trial itself and even to the crucial pre-trial investigation/interrogation and indictment stages on which trials rest.
These major advances cannot be confined to capital cases but will inevitably extend to all serious criminal cases. Can someone who may be sentenced to life imprisonment or a term of 15 or 20 years be denied protections that are now recognized as essential to the fair and accurate handling of a death case? Although "death is different" and in every country that retains the death penalty capital cases require special judicial care, most of the reforms that are under way in China’s capital cases will soon be required in order to legitimate any serious punishment.
Of course, we must always keep in mind the often gaping chasm between centrally-promulgated norms, whether approved by the National People's Congress or the Supreme People’s Court, and the realities on the ground. Perhaps the best litmus test of reality in the administration of justice in any country is its treatment of its legal profession. One has to note with both regret and shock that, even under the intense scrutiny to which foreign media  are subjecting Chinese government actions in the run-up to the Olympics, China's police, including agents of both the Ministry of Public Security and the Ministry of Public Security, continue to restrict, threaten, harass, assault, detain, arrest and recommend prosecution of not only human rights lawyers who dare to defend criminal accused but also those who give legal assistance to ordinary people who challenge arbitrary government actions.
Moreover, the Ministry of Justice continues to take away the license to practice law and to close down the law firms of those lawyers who refuse to heed its warnings to cease a broad range of public interest lawyering activities. The prolonged and severe beating of Beijing human rights lawyer Li Heping by a dozen plainclothes police agents, who put a bag over his head, forced him to a remote basement and then assaulted him for hours, with electric cattle prods and other weapons, because of his refusal to follow earlier police "suggestions" to leave Beijing is only one of many recent reminders that central law reform can be accompanied by lawless "law enforcement".
The continuing severe restrictions imposed on the freedom of former Shanghai lawyer Zheng Enchong, after losing his license, serving three years in prison and completing his subsequent one-year deprivation of political rights, is daily public testimony to the fate of lawyers bold enough to help local residents seeking to protest the arbitrary seizure of their homes by corrupt officials in cahoots with real estate developers. And the sentence to over four years in prison of the blind "Barefoot Lawyer" Chen Guangcheng illustrates the regime's determination to crush even ordinary farmers and other members of the masses who have never formally studied law but who strive to invoke it to end unlawfully-imposed abortions and sterilizations, unauthorized taxation, illegal discrimination against the disabled and repression of local religions.
Nevertheless, although we should not underestimate the possibility that both centrally-promulgated legislative and judicial reforms may be frustrated in practice, as the Olympics brings the world to Beijing, there is some ground for hoping that China may gradually, if incompletely, continue the process of introducing international standards concerning the administration of justice. Implementation will inevitably take longer, but law reform is the first step in China's long march toward true criminal justice.

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