By Stanley Lubman, The Wall Street Journal, China Real Time Report
Stanley Lubman, a long-time specialist on Chinese law, teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).
A tragic but true story has been used to support a change in Chinese criminal procedure. Zhao Zuohai was acquitted after serving 10 years in jail for murdering a neighbor. He had confessed to the crime, was sent off to jail but, ten years later, his “victim” turned up alive. Three policemen who had obtained his confession – which turned out to have been coerced — have been arrested. Now, new rules have been announced limiting the use of torture, one of the most offensive human rights violations common in Chinese criminal procedure.
Late last month two guidelines that promise to limit the use of torture by police and prosecutors in criminal cases were issued by no less than five Chinese organizations concerned with law enforcement, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice.
They are welcome reforms in practices that were long forbidden under the Criminal Law (Section 247) and Criminal Procedure Law (Section 43) adopted in 1997, which forbid the use of torture, but without addressing the consequences for the use or exclusion of evidence obtained through torture. Although China is a nation in which a legal system is being created in remarkably short time, criminal law and criminal procedure remain the branches of the law most in need of reform, and the process of reform has been painfully slow.
One of the new guidelines, for use in capital cases, provides that evidence obtained illegally, involving ”torture, violence or threats, undocumented physical evidence, and evidence certified by unqualified organizations” may not be used to convict defendants. (“Evidence guidelines ban torture in capital cases,” South China Morning Post, May 31, 2010) Professor Bian Jianlin of the China University of Political Science and Law was quoted as noting that” no previous law or regulation clearly stated that when evidence may have been acquired through forced confession it must be excluded.” The same guideline also states that “every fact must be supported by evidence,” the first time that this principle has been clearly articulated in a legal norm.
The second new guideline, which applies to non-capital cases, does not go as far. In these cases, defendants can request a pretrial hearing in which they may dispute the legality of evidence; if they can show that torture is involved, the rule shifts the burden of proof to prosecutors, who must provide records and readings of interviews to demonstrate that the evidence was obtained legally.
A thoughtful blog, China Law and Policy, “A Paper Tiger? China Issues New Regulations to Exclude Illegally Obtained Evidence,” raises some questions, including the following:
1. Although defendants can raise the issue of admissibility in a pretrial hearing, since most defendants are not represented by counsel, how will the defendant learn of his or her right to attempt to exclude a coerced confession? Neither the police nor prosecutor will have an interest in invalidating the confession they have obtained from the defendant. The rule does not require the judge to inform the defendant, nor does it address the likelihood that the judge who conducts the pretrial hearing is also likely to be the judge ultimately deciding on the guilt or innocence of the defendant.
2. Further, the new rules do not address the issue of admissibility of physical evidence discovered as a result of an illegal search or interrogation. Under U.S. law, such “fruit of the poisonous tree” is excluded. The blog I am quoting states that there is a provision that “In regards to illegally obtained physical evidence, if the illegally obtained evidence has the potential to influence the fairness of the trial, then it should be excluded unless there is a reasonable reason for the illegality or it can be corrected.” The rule does not, however, indicate what is meant by “reasonable reason” or how the illegally obtained evidence can be “corrected.”
The new rules illustrate some familiar characteristics of Chinese law-making: They are vague in some places, and do not address some obviously foreseeable problems that could arise in implementation. Professor Bian Jianlin, quoted above, after noting the failure of the new guidelines to address the “fruit of the tree” issue, comments that the reform of criminal procedure has to take place “one step at a time.”
Criminal law and procedure are so politically sensitive that reform is being carried out slowly and cautiously. It is difficult to reform one set of institutions, however, without encountering obstacles presented by defects in the operation of related institutions. For example, more criminal lawyers are needed to step forward to defend clients—but risk being viewed as threatening social stability by representing elements of Chinese society seen as dangerous. Criminal lawyers need greater access to their clients than the system presently allows. There is constant pressure on courts to adjudicate cases according to current policy and to instructions from local Party-directed Political-legal Committees.
In addition, there are basic structural barriers in the Chinese systems for maintaining public order that present obstacles to the energetic enforcement of the new guidelines. Law professor Chen Ruihua of Beijing University, commenting on one issue not addressed by the new rules, mentioned the rates at which criminal cases are “cleared” by the police. Clearance rates are used to assess performance, with clear consequences for police advancement and salaries, and makes them “eager to be seen as solving cases.” Chen was said to call for “effective measures to solve the issue of clearance rates leading police to use improper methods to gather evidence.” “China adjusts law system after torture scandal,” Xinhua May 30 , 2010
A major issue related to the police is the extent to which they are controlled by local governments, often causing deviation from laws and policies established by the central government. Two American China scholars, (one, Murray Scot Tanner, has been studying the Chinese police for many years) have recently written that China has “a relatively decentralized and feudal system of law enforcement and state coercion that constitutes a major obstacle to building rule by law in China. These obstacles, moreover, would still be difficult to overcome even if the current or future central leadership had a higher level of commitment to establishing rule by law than it does.” Murray Scot Tanner and Eric Green, “Principals and Secret Agents: Central versus Local Control over Policing and Obstacles to ’Rule of Law’ in China,” China Quarterly No. 191, September 2007, 644 at 645.
In the face of the systemic problems that mark the Chinese criminal process, will the new rules prevent cases like Mr. Zhao’s from reoccurring? The new guidelines mark a step forward and express a genuine desire to advance reform, but they only represent a step that is really part of a long, slow march.