Lawyers’ Proposals Raised & Rebutted at Two Sessions

When Finance Minister Lou Jiwei criticized China’s Labor Contract Law for protecting workers too thoroughly at this year’s Two Sessions in Beijing, Xinhua reported that “the widely held belief that the Great Hall of the People had little room for spontaneous dissent crumbled.” The official backlash against delegate Jiang Hong’s calls for free speech suggests that this space remains tightly constrained, but Lou’s have not been the only critical comments. Legal professionals have challenged various aspects of criminal justice practice in China, particularly the broadcasting of confessions on state television, and and obstruction of legal representation during pre-trial .

First, a member of the advisory Chinese People’s Political Consultative Conference and deputy chairman of the All-China Lawyers Association Zhu Zhengfu called for reforms including an end to televised confessions. This is the second year that Zhu has questioned the practice, which has also prompted wider criticism and calls for a boycott of participating broadcasters. Chinese Human Rights Defenders summed up objections to the confessions, including suspicions of coercion, in a statement issued on Saturday. A senior judge has now echoed Zhu’s protest over the issue, Josh Chin reported at China Real Time on Tuesday:

“Outside of a court, no one has the right to decide whether someone is guilty of a crime,” said Zhang Liyong, chief judge of the High People’s Court in central China’s Henan province. “The police aren’t qualified to say someone is guilty. Prosecutors aren’t qualified to declare someone guilty. News media are even less qualified to determine guilt.”

Mr. Zhang made the comments in response to a question from China Real Time on the sidelines of China’s annual legislative sessions, waving off handlers who insisted he was late for a meeting.

[…] Mr. Zhang, known in legal circles for championing more public involvement in court trials through jury-like groups of “people’s assessors,” was not as directly critical of the confessions on Mr. Zhu. But as the president of a provincial High People’s Court, his words carry weight in legal and political circles.

“All the evidence needs to be presented in court, all the arguments need to be made in court, and the final judgement should be based on the court’s investigation and deliberation,” he said, noting that legal authorities had been tasked by the Communist Party with undertaking reforms that promote trial-centered litigation. “There is no other way to see it.” [Source]

Zhang did, though, express approval of reforms to the process of filing cases.

As UC Berkeley law professor Stanley Lubman explained at China Real Time, Zhu Zhengfu’s suggestions extended well beyond televised confessions:

Mr. Zhu also proposed nine judicial reforms that would include expanding bail, allowing lawyers to be present when suspects are interrogated, and articulating conditions for a judge to declare a suspect innocent. Mr. Zhu is criticizing a system with a conviction rate above 99 percent, and in which political influence and people who have not even listened to arguments in court often determine findings of guilt.

A few days later, just as the CPPCC meeting was beginning, Mr. Zhu criticized the dominant influence of the “presumption of guilt” among Chinese “law enforcers.” This presumption, he said, prompts the use of torture, which accelerates the process from arrest to confession. Mr. Zhu observed: “You can imagine how much pressure the court is under if it wants to pass an innocent verdict.”

He further proposed that a law be enacted to protect the right of accused persons to be presumed innocent until proven guilty. More broadly, he urged “proper checks and balances between the work of the police, procurators and the courts, instead of the current practice of close cooperation, which could lead to abuse.”

This comment highlights one of the most distinctive defects of the Chinese criminal process, expressed vividly by a Chinese judge: “As you may know, the police, the judge and the prosecutor are in one family,” quoted in the most authoritative English-language book on Chinese criminal law, “Criminal Justice in China: An Empirical Inquiry,” by Mike McConville et al (p.404, Edward Elgar, 2011). [Source]

Meanwhile, Guangdong lawyer and National People’s Congress delegate Zhu Lieyu explained a proposal to prevent abuses during pre-trial detentions to Caixin. He suggested that a stream of overturned convictions, as well as deaths in custody from “drinking water” or “playing hide and seek,” show that the handling of criminal suspects currently lacks effective supervision. Excessively extended detentions and the extraction of confessions through torture are rife, he claimed, citing cases like those of She Xianglin, Zhao Zuohai, and Nian Bin. Another is that of Huugjilt, an Inner Mongolian teenager executed in 1996 based on a forced confession to rape and murder, and posthumously exonerated 18 years later. Media outlets were barred from independently reporting on the case in a 21-point directive issued for the Two Sessions and published by CDT.

The problem, Zhu told Caixin, is that the public security organs are responsible for both investigating and holding suspects. His proposed solution is “separation of investigation and detention,” by reassigning responsibility for pre-trial detention to the . This, he argues, could address three difficult problems. It could help basic prevention of and excessive detention, safeguarding detainees’ personal rights. It could also protect their rights to meet with lawyers, which Zhu said are often obstructed in order to avoid complicating investigations. “Even if you can meet,” he explained “it’s hard to ensure that you’re not monitored. But if detention centers were neutral ground, separated from Public Security, they would no longer be in direct opposition to legal defense, and lawyers’ difficulty in meeting with clients would naturally be resolved.” Finally, it would help accelerate the progress of rule of law in China, which Premier Li Keqiang announced last week should be “basically in place” by 2020.

Caixin described Zhu’s views as representative of the consensus among legal scholars, noting that Hou Xinyi, a Chinese People’s Political Consultative Conference member and associate dean of the Nankai University law school, has been advocating such reforms since 2008. But the Ministry of Public Security, he said, has always claimed that detention centers are already improving, and laughed off the proposal.

Similarly, the work reports from the Supreme People’s Court and Supreme People’s Procuratorate submitted to the NPC on Sunday indirectly rebutted many of the two lawyers’ complaints. From Xinhua:

“We tried our best to make sure every case processed through the judicial system was fair and justice was served,” Chief Justice said when delivering the SPC work report to the National People’s Congress (NPC).

[…] Prosecutors have strived for “constructive interaction with lawyers,” said Procurator-General Cao Jianming, when delivering the SPP work report at the NPC session.

[…] In about 1,000 cases, prosecutors stopped authorities from hindering the work of lawyers.

[…] Courts have upheld the principle of innocence till proven guilty and worked to protect the legal rights of defendants, Zhou said, adding that a total of 1,039 suspects were found not guilty in 2015.

A number of high-profile were corrected last year while the courts reviewed about 1,300 cases. One such case involved Chen Man, 53, who had spent 23 years in prison for murder and arson. Last month a court overturned his conviction after a 16-year appeal process. [Read more at CDT.]

[…] The number of suspects, placed in custody for more than three years without being charged, reduced from 4,459 in 2013 to six by 2015. [Source]

The 1,039 “not guilty” verdicts touted by Zhou compare, the AFP reports, with 1.232 million found guilty, giving a conviction rate of 99.92%. Caixin reported last month that according to Peking University law professor Chen Yongsheng, “China’s not-guilty ratio should not be much lower than 1 percent. The fact that it was so low and had become even lower over the years is ‘abnormal’ and reflects the inability – and even unwillingness – of judges to find and correct the mistakes of police and prosecutors.” In a subsequent blog post at China Law Translate, Jeremy Daum cautioned that “acquittal rates at court […] are only a very small piece of understanding the criminal justice environment.” For example, they exclude punishments for offenses such as drug use and prostitution, which can be imposed by police without trial.

The number of overturned wrongful convictions does appear to have made some impression among the public: in an informal street survey on trust in the justice system conducted by The Wall Street Journal, several respondents cited them favorably. But while official media have celebrated them as evidence of progress, others have questioned whether real lessons have been learned. For the most part, officials involved have escaped serious consequences. An article in China Daily recently claimed that although physical torture was “commonplace during interrogations in the 1980s and ’90s,” it has now been substantially eliminated. But Human Rights Watch, Amnesty International, and the United Nations Committee Against Torture all reported last year that the practice remains prevalent. The China Daily piece also acknowledged concerns that psychological coercion such as threats and sleep deprivation are still “a hot, urgent issue.”

Authorities describe the introduction of mandatory recording of interrogations as a central reform towards torture reduction. Seton Hall Law School’s Margaret Lewis recently wrote at the University of Nottingham’s China Policy Institute Blog, though, that it “is not significantly changing the culture of extreme reliance on confessions as the primary form of evidence in criminal cases. […] The value of recordings is further limited if the court does not view the interrogation process with a skeptical eye, if the defense has a difficult time accessing the recordings, or if there simply is no defense lawyer, which is true for most criminal cases.” Human Rights Watch claimed that although the measures appeared to have been helpful, police are often able to circumvent them. Zhu Lieyu’s policy of separating detention and investigation could substantially reduce the opportunities to do so.

With the recent ban on “improper discussion” of central policy and insistent demands for the ruling class to fall in line, some have expressed concern at possible repercussions for critics like the two lawyers. The Globe and Mail’s Nathan Vanderklippe reported on fears for Zhu Zhengfu:

“In this climate of thought control and so on imposed by Xi Jinping, it takes a lot of courage to make that kind of criticism,” said Willy Lam, an authority on Chinese elite politics.

[…] Mr. Zhu’s public declaration may also put him at some risk, although his political standing is likely to give him some protection, as will the fact that he has not directly challenged Mr. Xi or the party.

“As a CCPCC delegate, Mr. Zhu’s opinions are more or less protected, at least in the month of March,” said Joshua Rosenzweig, an independent human rights researcher in Hong Kong. He expressed doubt that the proposal, one of many the body will consider, would accomplish much.

“But it is significant that the press is covering this. There’s no doubt a certain degree of unhappiness over the and the recent push to stress the media’s position as part of the ‘party family.’ This is a way to push back a bit,” he said. [Source]

Rosenzweig later told The Financial Times that “to the extent that the Two Meetings have any importance, it’s as a moment where the bounds of free expression and reporting become more elastic. If you’re left with few other options, this is the one chance you get.” Indeed, a commentary in China Daily welcomed Zhu’s comments, arguing that “the thornier the topics, the more candid the discourse needs to be.”

The FT’s Ben Bland added, though, that “China’s news organisations and social media outlets are under heavy and growing pressure not to give publicity to those deviating from the party line” at the . At South China Morning Post, Nectar Gan reported that tea break sessions at which reporters and delegates had previously mingled were reined in on Friday and Saturday, with journalists reprimanded for keeping representatives from their meetings. Bloomberg reported on Monday that “participants have been cautioned against impromptu discussions with foreign media in which they might stray from the script.”