There really are “two Chinas” when it comes to criminal justice--and injustice. There is the China where thousands of law reformers--scholars, lawyers, legislative draftsmen, judges, prosecutors and officials--painstakingly labor for years to produce laws, interpretations and regulations designed to bring greater fairness and accuracy to a system that has long cried out for both.
This is the China where the National People's Congress is about to reduce by almost twenty percent the large number of offenses that can lead to the death penalty; where the Supreme People's Court (SPC) and central law enforcement agencies have just established procedural guidelines for excluding coerced confessions from all prosecutions and for granting special scrutiny to the evidence presented in death penalty cases; where the SPC has recently resumed the Herculean task of reviewing the many thousands of death sentences meted out each year by the lower courts; and where a relatively new Lawyers Law is supposed to empower defense counsel to protect the rights of suspects and defendants.
Spurred by domestic outrage over tragic police abuses and judicial mistakes and by foreign shock over the protean practice of torture and unknown, but undoubtedly huge, number of annual executions, China's political leadership has gradually begun to move the administration of criminal justice to a higher place on its agenda. It is not ready to make the profound commitment to due process of law required by the International Covenant on Civil and Political Rights, which China signed in 1998 but has not ratified. But the leadership does seem interested in fulfilling the obligations China assumed when it ratified the United Nations convention against torture in 1988. It has also authorized steps to further reduce the number of death sentences in the hope of bringing down to perhaps four thousand per year what had been as many as ten to twelve thousand or even more. Some informed sources believe that, if the number can ever be reduced to two thousand, the Chinese government might then abandon its embarrassing efforts to maintain this vital statistic as a “state secret.”
Yet will the other China--not the China of improved published rules but of harsh non-transparent reality--allow such goals to be achieved? This other China is a police-dominated legal system that, in confronting the country's very serious crime problems, does not comply with rules that restrict the pursuit of major investigation targets. This is especially true during periodic, high profile anti-crime campaigns such as the recurring “strike hard” movements or the recent effort to combat organized crime in the city of Chongqing.
The Chongqing government's very popular campaign to stamp out local “mafia” is the most current illustration of the clash between rules and reality. While the Supreme People's Court (SPC) and the central government law enforcement agencies were preparing new guidelines for the exclusion of confessions obtained in violation of the nation's long-standing prohibition against torture, Chongqing police were engaging in a systematic and lengthy torture program that coerced suspects caught up in the campaign against “gangsters” to confess even to crimes they may not have committed.
The case of Chongqing construction entrepreneur Fan Qihang, now before the Supreme People's Court for final death sentence review, gives the SPC a golden opportunity to demonstrate that the new exclusionary guidelines must be taken more seriously than previous attempts to ban coerced confessions. If the SPC should reverse Fan's conviction for murder and other offenses on the ground that it was based on evidence obtained through torture and send the case back for a fairer trial, this would be landmark progress in the administration of justice in China. If, on the other hand, it dispatches Fan to his death by allowing the conviction to stand, this will signal the continuation of business as usual.
Reversal of Fan's conviction would publicly confirm violations of China's Criminal Procedure Law by Chongqing's police, prosecutors and judges, not to mention the city's Communist Party chief, the powerful Bo Xilai. Bo has led the crackdown on mafia corruption but has dismissed accusations of accompanying human rights violations and belittled the defense lawyers who exposed them.
Fan's able Beijing lawyer, Zhu Mingyong, who failed to persuade Chongqing trial and appellate courts to exclude Fan's confession before the new exclusionary guidelines went into effect, recognized that, even now, success at the SPC would be unlikely if he contented himself with conventional advocacy. He therefore took extraordinary steps to publicize the five months of excruciating and professionally-administered torture suffered by Fan. In addition to media briefings that spared no gory details, Zhu submitted to the SPC and then released a video documentary that includes credible, secret footage of the detained Fan. It shows his still vivid months-old scars from the shackles that cut into his wrists as they were used, for days on end, to suspend him from the iron grille of his torture chamber. Fan also displays the injuries to his head and the damage to his tongue that resulted from three attempts to end his ordeal through suicide.
Zhu's imaginative lawyering and daring public relations tactic required courage and independence. Beijing lawyer Li Zhuang, who had the temerity to defend another alleged mafia leader, has already been scandalously imprisoned for supposedly inducing his client to make false torture allegations. Shortly after his sensational disclosures, lawyer Zhu vanished, perhaps to protect himself while the SPC deliberates. One hopes he has not been “disappeared” like China's most famous human rights lawyer, Gao Zhisheng.
What will the SPC judges do? Many Chinese lawyers and reformers want them to bring the law in action closer to that on the books by reversing Fan's conviction and launching a general investigation of Chongqing's torture campaign. Yet that would require courage and independence equal to that of Fan's missing lawyer.
Jerome A. Cohen is co-director of New York University School of Law's U.S.-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. Eva Pils is associate professor at the Chinese University of Hong Kong Faculty of Law.
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