{"id":192335,"date":"2016-03-14T22:12:23","date_gmt":"2016-03-15T05:12:23","guid":{"rendered":"http:\/\/chinadigitaltimes.net\/?p=192335"},"modified":"2016-06-10T12:48:17","modified_gmt":"2016-06-10T19:48:17","slug":"lawyers-proposals-raised-rebutted-two-sessions","status":"publish","type":"post","link":"https:\/\/chinadigitaltimes.net\/2016\/03\/lawyers-proposals-raised-rebutted-two-sessions\/","title":{"rendered":"Lawyers’ Proposals Raised & Rebutted at Two Sessions"},"content":{"rendered":"

When Finance Minister Lou Jiwei criticized China\u2019s Labor Contract Law<\/a> for protecting workers too thoroughly at this year\u2019s Two Sessions<\/a> in Beijing, Xinhua reported that \u201cthe widely held belief that the Great Hall of the People had little room for spontaneous dissent crumbled.\u201d The official backlash against delegate Jiang Hong\u2019s calls for free speech<\/a> suggests that this space remains tightly constrained, but Lou\u2019s 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 torture and obstruction of legal representation during pre-trial detention.<\/p>\n

First, a member of the advisory Chinese People\u2019s Political Consultative Conference and deputy chairman of the All-China Lawyers Association Zhu Zhengfu called for reforms including an end to televised confessions<\/a>. This is the second year that Zhu has questioned the practice, which has also prompted wider criticism<\/a> and calls for a boycott of participating broadcasters<\/a>. Chinese Human Rights Defenders summed up objections to the confessions<\/a>, including suspicions of coercion, in a statement issued on Saturday. A senior judge has now echoed Zhu\u2019s protest over the issue<\/strong><\/a>, Josh Chin reported at China Real Time on Tuesday:<\/p>\n

\u201cOutside of a court, no one has the right to decide whether someone is guilty of a crime,\u201d said Zhang Liyong, chief judge of the High People\u2019s Court in central China\u2019s Henan province. \u201cThe police aren\u2019t qualified to say someone is guilty. Prosecutors aren\u2019t qualified to declare someone guilty. News media are even less qualified to determine guilt.\u201d<\/p>\n

Mr. Zhang made the comments in response to a question from China Real Time on the sidelines of China\u2019s annual legislative sessions, waving off handlers who insisted he was late for a meeting.<\/p>\n

[\u2026] Mr. Zhang, known in legal circles for championing more public involvement in court trials through jury-like groups of \u201cpeople\u2019s assessors,\u201d was not as directly critical of the confessions on Mr. Zhu. But as the president of a provincial High People\u2019s Court, his words carry weight in legal and political circles.<\/p>\n

\u201cAll 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\u2019s investigation and deliberation,\u201d <\/a>he said, noting that legal authorities had been tasked by the Communist Party with undertaking reforms that promote trial-centered litigation. \u201cThere is no other way to see it.\u201d [Source<\/strong><\/a>]<\/p><\/blockquote>\n

Zhang did, though, express approval of reforms to the process of filing cases.<\/p>\n

As UC Berkeley law professor Stanley Lubman explained at China Real Time, Zhu Zhengfu\u2019s suggestions extended well beyond televised confessions<\/strong><\/a>:<\/p>\n

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.<\/p>\n

A few days later, just as the CPPCC meeting was beginning, Mr. Zhu criticized the dominant influence of the \u201cpresumption of guilt\u201d among Chinese \u201claw enforcers.\u201d This presumption, he said, prompts the use of torture, which accelerates the process from arrest to confession. Mr. Zhu observed: \u201cYou can imagine how much pressure the court is under if it wants to pass an innocent verdict.\u201d<\/p>\n

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 \u201cproper 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.\u201d<\/p>\n

This comment highlights one of the most distinctive defects of the Chinese criminal process, expressed vividly by a Chinese judge: \u201cAs you may know, the police, the judge and the prosecutor are in one family,\u201d quoted in the most authoritative English-language book on Chinese criminal law, \u201cCriminal Justice in China: An Empirical Inquiry,\u201d by Mike McConville et al (p.404, Edward Elgar, 2011). [Source<\/strong><\/a>]<\/p><\/blockquote>\n

Meanwhile, Guangdong lawyer and National People\u2019s Congress delegate Zhu Lieyu<\/a> explained a proposal to prevent abuses during pre-trial detentions to Caixin<\/a>. He suggested that a stream of overturned convictions, as well as deaths in custody from \u201cdrinking water<\/a>\u201d or \u201cplaying hide and seek<\/a>,\u201d 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<\/a>, Zhao Zuohai<\/a>, and Nian Bin<\/a>. 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<\/a>. Media outlets were barred from independently reporting on the case in a 21-point directive issued for the Two Sessions<\/a> and published by CDT.<\/p>\n

The problem, Zhu told Caixin, is that the public security organs are responsible for both investigating and holding suspects. His proposed solution is \u201cseparation of investigation and detention,\u201d by reassigning responsibility for pre-trial detention to the Ministry of Justice. This, he argues, could address three difficult problems. It could help basic prevention of forced confessions and excessive detention, safeguarding detainees\u2019 personal rights. It could also protect their rights to meet with lawyers, which Zhu said are often obstructed in order to avoid complicating investigations. \u201cEven if you can meet,\u201d he explained \u201cit\u2019s hard to ensure that you\u2019re 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\u2019 difficulty in meeting with clients would naturally be resolved.\u201d Finally, it would help accelerate the progress of rule of law in China, which Premier Li Keqiang announced last week should be \u201cbasically in place\u201d by 2020<\/a>.<\/p>\n

Caixin described Zhu\u2019s views as representative of the consensus among legal scholars, noting that Hou Xinyi, a Chinese People\u2019s 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.<\/p>\n

Similarly, the work reports from the Supreme People\u2019s Court and Supreme People\u2019s Procuratorate submitted to the NPC on Sunday indirectly rebutted<\/strong><\/a> many of the two lawyers\u2019 complaints. From Xinhua:<\/p>\n

\u201cWe tried our best to make sure every case processed through the judicial system was fair and justice was served,\u201d Chief Justice Zhou Qiang said when delivering the SPC work report to the National People\u2019s Congress (NPC).<\/p>\n

[\u2026] Prosecutors have strived for \u201cconstructive interaction with lawyers,\u201d said Procurator-General Cao Jianming, when delivering the SPP work report at the NPC session.<\/p>\n

[\u2026] In about 1,000 cases, prosecutors stopped authorities from hindering the work of lawyers.<\/p>\n

[\u2026] 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.<\/p>\n

A number of high-profile wrongful convictions 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<\/a>.]<\/p>\n

[\u2026] 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<\/strong><\/a>]<\/p><\/blockquote>\n

The 1,039 \u201cnot guilty\u201d verdicts touted by Zhou compare, the AFP reports, with 1.232 million found guilty, giving a conviction rate of 99.92%<\/a>. Caixin reported last month that according to Peking University law professor Chen Yongsheng, \u201cChina\u2019s not-guilty ratio should not be much lower than 1 percent<\/a>. The fact that it was so low and had become even lower over the years is \u2018abnormal\u2019 and reflects the inability \u2013 and even unwillingness \u2013 of judges to find and correct the mistakes of police and prosecutors.\u201d In a subsequent blog post at China Law Translate, Jeremy Daum cautioned that \u201cacquittal rates at court [\u2026] are only a very small piece of understanding the criminal justice environment<\/a>.\u201d For example, they exclude punishments for offenses such as drug use and prostitution, which can be imposed by police without trial.<\/p>\n

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<\/a> 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<\/a>. For the most part, officials involved have escaped serious consequences<\/a>. An article in China Daily recently claimed that although physical torture was \u201ccommonplace during interrogations in the 1980s and \u201990s,\u201d it has now been substantially eliminated<\/a>. But Human Rights Watch<\/a>, Amnesty International<\/a>, and the United Nations Committee Against Torture all reported last year that the practice remains prevalent<\/a>. The China Daily piece also acknowledged concerns that psychological coercion such as threats and sleep deprivation are still \u201ca hot, urgent issue.\u201d<\/p>\n

Authorities describe the introduction of mandatory recording of interrogations as a central reform towards torture reduction. Seton Hall Law School\u2019s Margaret Lewis recently wrote at the University of Nottingham\u2019s China Policy Institute Blog, though, that it \u201cis not significantly changing the culture of extreme reliance on confessions<\/a> as the primary form of evidence in criminal cases. [\u2026] 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.\u201d Human Rights Watch claimed that although the measures appeared to have been helpful, police are often able to circumvent them<\/a>. Zhu Lieyu\u2019s policy of separating detention and investigation could substantially reduce the opportunities to do so.<\/p>\n

With the recent ban on \u201cimproper discussion<\/a>\u201d of central policy and insistent demands for the ruling class to fall in line<\/a>, some have expressed concern at possible repercussions for critics like the two lawyers. The Globe and Mail\u2019s Nathan Vanderklippe reported on fears for Zhu Zhengfu<\/strong><\/a>:<\/p>\n

\u201cIn this climate of thought control and so on imposed by Xi Jinping, it takes a lot of courage to make that kind of criticism,\u201d said Willy Lam, an authority on Chinese elite politics.<\/p>\n

[\u2026] Mr. Zhu\u2019s 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.<\/p>\n

\u201cAs a CCPCC delegate, Mr. Zhu\u2019s opinions are more or less protected, at least in the month of March,\u201d 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.<\/p>\n

\u201cBut it is significant that the press is covering this. There\u2019s no doubt a certain degree of unhappiness over the televised confessions and the recent push to stress the media\u2019s position as part of the \u2018party family.\u2019 This is a way to push back a bit,\u201d he said. [Source<\/strong><\/a>]<\/p><\/blockquote>\n

Rosenzweig later told The Financial Times that \u201cto the extent that the Two Meetings have any importance, it\u2019s as a moment where the bounds of free expression and reporting become more elastic<\/a>. If you\u2019re left with few other options, this is the one chance you get.\u201d Indeed, a commentary in China Daily welcomed Zhu\u2019s comments, arguing that \u201cthe thornier the topics, the more candid the discourse needs to be<\/a>.\u201d<\/p>\n

The FT\u2019s Ben Bland added, though, that \u201cChina\u2019s news organisations and social media outlets are under heavy and growing pressure not to give publicity to those deviating from the party line\u201d at the Two Sessions. At South China Morning Post, Nectar Gan reported that tea break sessions at which reporters and delegates had previously mingled<\/a> were reined in on Friday and Saturday<\/a>, with journalists reprimanded for keeping representatives from their meetings. Bloomberg reported on Monday that \u201cparticipants have been cautioned against impromptu discussions with foreign media<\/a> in which they might stray from the script.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

When Finance Minister Lou Jiwei criticized China\u2019s Labor Contract Law for protecting workers too thoroughly at this year\u2019s Two Sessions in Beijing, Xinhua reported that \u201cthe widely held belief that the Great Hall of the People had little room for spontaneous dissent crumbled.\u201d The official backlash against delegate Jiang Hong\u2019s calls for free speech suggests […]<\/p>\n","protected":false},"author":962,"featured_media":192265,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":"","_links_to":"","_links_to_target":""},"categories":[34,10,14744,14745,14746,100,5,1051],"tags":[16567,8247,4902,15901,836,3041,8063,17141,2110,16578,619,4614,1235,16492],"class_list":["post-192335","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-human-rights","category-law","category-level-2-article","category-level-3-article","category-level-4-article","category-politics","category-society","category-top-article","tag-criminal-detention","tag-detention","tag-forced-confessions","tag-justice-system","tag-legal-reform","tag-legal-system","tag-ministry-of-justice","tag-npc-2016","tag-supreme-peoples-court","tag-televised-confessions","tag-torture","tag-two-sessions","tag-wrongful-convictions","tag-zhou-qiang","et-has-post-format-content","et_post_format-et-post-format-standard"],"yoast_head":"\nLawyers' Proposals Raised & Rebutted at Two Sessions<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"http:\/\/chinadigitaltimes.net\/2016\/03\/lawyers-proposals-raised-rebutted-two-sessions\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lawyers' Proposals Raised & Rebutted at Two Sessions\" \/>\n<meta property=\"og:description\" content=\"When Finance Minister Lou Jiwei criticized China\u2019s Labor Contract Law for protecting workers too thoroughly at this year\u2019s Two Sessions in Beijing, Xinhua reported that \u201cthe widely held belief that the Great Hall of the People had little room for spontaneous dissent crumbled.\u201d The official backlash against delegate Jiang Hong\u2019s calls for free speech suggests […]\" \/>\n<meta property=\"og:url\" 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