Coakley, Victoria --- "China Political Repression in the International Spotlight" [1996] HRightsDef 30; (1996) Human Rights Defender

Political Repression In China

By Victoria Coakley

China is in the international spotlight this year due to the tensions between China and Taiwan, the approaching handover of Hong Kong on 30 June 1997, the leadership uncertainties surrounding Deng Xiaoping's illness and the increasingly powerful political and economic role China is playing in the international arena. China's increasingly openness to the world through trade has not been matched by international cooperation on human rights. The Chinese government rejects the principle established by international law and the practice of all states working collectively at the UN, that human rights promotion and protection are matters of international concern relying on the notion of state sovereignty which has an increasingly limited scope for its legitimate use in this era of globalisation.

China's argument that no one has the right to interfere in its domestic affairs raises the complex question of to what degree, or in what context, is it desirable or undesirable for the nature of the national legal culture to be preserved under the pressure of harmonisation in the international arena. The states have been grappling with this international or global question, of the balancing of national law interests between developed and less developed countries. The difficulty this question poses to players in the arena is reflected in the absence of serious criticism of China at the international level, despite detailed reports of widespread torture, grossly unfair trials and thousands of political prisoners in China.

The United Nations Commission of Human Rights (HCR) failed to pass a resolution after the 1989 Tiananmen square massacre and until 1995, China had successfully avoided the Commission's scrutiny through sponsoring procedural motions to take "no action". In the 1995 the CHR rejected the "no action motion" and voted on the substance of the draft resolution entitled "Situation of human rights in China". The draft resolution was defeated by one vote. Most of the build up to the 52nd session of the CHR in March and April this year, which marked the 50th anniversary of the UN's principal human rights body, focused on the resolution. Australia co-sponsored the resolution which was again unsuccessful.

Signing and adhering to international conventions do not necessarily go hand in hand. At the 1993 UN World Conference on Human Rights, China joined the international consensus of states which adopted the Vienna Declaration and Program of Action which reaffirmed: "The universal nature of these rights and freedoms [in the UN Charter] is beyond question". China has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of Discrimination against Women and the Convention on the Rights of the Child.

Domestic Politics

Despite the inevitability of a diminution of nationalist sentiments linked to nation-states in the course of the development of globalised social relations, local national sentiments can be intensified which may strengthen resolve not to bow to outside pressure. The response of China's political leaders to international criticism has much to do with maintaining "face". They do not bow to foreign pressures if it involves a loss of "face" in public and no Chinese politician could survive if seen as weak towards an "interfering" foreign power. This highlights the problem of recognising that protection of human rights are a global problem often involving the transmission or transplanting of legal norms cross-culturally. China has been willing to surrender aspects of their sovereignty to the forces of modernisation in certain areas and not in others, trade and human rights respectively.

Domestic Law

The current human rights situation in China is, according to Amnesty International, the most serious it has been for a long time. Many of the abuses result from official policies and repressive legislation that curtail fundamental rights and freedoms. Others are committed in breach of Chinese law itself as officials exercise their power arbitrarily and, often, with impunity.

The Chinese legal system supports the established political and governmental institutions in a way that is inconsistent with the rule of law and fundamental human rights. The rule of law is subordinate to political goals, which includes suppression of any dissent or activity perceived as a threat to the established political order. The vagueness and contradictory provisions of the law lead to its arbitrary use and provides scope for the abuse of power. The system of administrative detention and repressive criminal legislation means that individuals in positions of power can detain anyone they so choose.

Criminal legislation was introduced in China during a period of "liberalisation" after the massive abuses of the Cultural Revolution in 1979. The Criminal Procedure Law (CPL) contains provisions for the protection of some human rights and the violation of others. The CPL contains a section on "crimes of counter-revolution", defined as all acts "committed with the goal of over-throwing the political power of the dictatorship of the proletariat and the socialist system". Most are prisoners of conscience. It provides for punishments ranging from "deprivation of political rights" to the death penalty.

An estimated 68 offences are punishable by death and increasing numbers of people are being executed for non-violent offences, such as bribery, illegal share speculation, "grave" cases of embezzlement, theft, arson, pimping, smuggling, hooliganism, spreading superstition, "giving away military secrets, gang fighting and 12 "counter-revolutionary" offences. Many are executed during crack-downs on crime and are often carried out without any legal safeguards against miscarriage of justice. Amnesty International monitored 2,780 death sentences and 2,050 executions in 1994 and in the first 6 months of 1995, 1865 death sentences and 1313 recorded executions. Amnesty believes these figures are below the actual number as statistics about the death penalty are treated as "state secrets".

Administrative Detention

There are two major forms of administrative detention which cause widespread human rights violations in China: "shelter and investigation" (shourong jiancha) and "re-education through labour" (laodong jiaojang). Both breach international human rights principles:

• no-one may be kept in detention without being given an effective opportunity to have their case heard promptly by a judicial or similar authority (principle II of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment);
• the right to be held according to the law; and,
• the right of access to lawyers and families.

Lawyers can only take part in a lawsuit during the actual trial, and the accused person is informed seven days before the trial starts that they are entitled to engage a defence lawyer. So during the period of investigation the accused's lawful rights and interests are not protected.

"Shelter and investigation" allows the police, on their own authority, to detain people without charge for up to 3 months, merely on the suspicion that they may be involved in crime. This contravenes Principles 10 of the Body of Principles and Article 9(2) and 14(3)(a) of the ICCPR. It bypasses the procedures for arrest and detention provided for in the CPL and is imposed by the police without any judicial supervision or review. The majority of those held under this provision are rural migrants and workers who are often detained by corrupt officers who ask for heavy fines as a condition of release. Political dissidents are also targeted and can be assigned a term of "re-education through labour", a punishment imposed by local government committees for up to 3 years, renewable by 1 year. These people are not charged with a crime or tried, have no access to a lawyer and thus, no chance of defending themselves. Due to challenges by some Chinese legal scholars and judicial officers of the legality of these provisions, a new law was introduced in 1990 allowing an appeal before the courts. In practice it is inaccessible to many detainees involving a long and cumbersome process. The law does not prevent arbitrary detention without charge or trial and does not act as a preventative to the widespread system of administrative detention.

Presumption of Innocence

The right to be presumed innocent before being proved guilty is a fundamental principle of international law. The elements that make up a fair trial are elaborated in article 14 of the ICCPR. International standards require a trial without too much delay that is open to the public except in very limited circumstances (Article 10 of the UDHR and Article 14(l) of the ICCPR), adequate time and facilities for the accused to prepare a defence and to consult a lawyer of the defendant's choice, and the right to cross-examine witnesses and hear evidence from defence witnesses.

Fair Trials

Trials in China are often a formality with court verdicts being almost verbatim reproductions of the indictments presented by prosecutors. There is no presumption of innocence (contravening Article 11(l) of the UDHR and Article 14(2) of the ICCPR) and the burden of proof is on the defence which is impossible considering lawyers have limited access to the accused (contravening Principle 18 of the Body of Principles), have access to only a part of the file concerning the accused and usually cannot confront prosecution witnesses. The main role lawyers play in the proceedings is to call for mitigation of the sentence. This contravenes Principles 17 and 18 of the Body of Principles and Article 14(3)(b) of the ICCPR.

The determination of guilt and sentence is usually decided outside the trial court by committees subject to political interference. "All major and difficult cases" are submitted for discussion and decision to the court's "adjudication committee" when the court president deems it "necessary" (Article 107). The adjudication committees make decisions on the basis of files and without the presence of the accused or defence lawyers. Such interference is systemic in political cases.

Torture

Torture is common in detention centres and prisons, causing many deaths each year according to Amnesty International. It is used to extract confessions, or to punish, coerce or intimidate political and criminal prisoners. Some forms of torture are prohibited in the CPL, but the authorities have failed to introduce the most basic safeguards to prevent torture or punish those in breach of the CPL despite China being a signatory to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against torture) in 1988. This suggests that torture often results from institutionalised practices and official policies.

Under the Convention against torture, China is legally bound to criminalise all acts of torture but the legal provisions against torture have not been amended since 1980. Chinese law prohibits 2 specific offences: "torture to coerce a statement" (Article 136) and "corporal punishment and abuse" (Article 189). These are so narrowly defined that many acts which constitute torture or ill-treatment but so not fit the legal definition, are not regarded as offences and remain unpunished.

To put an accused on trial there must be a "confession". "Confessions" are often extracted under torture or other forms of duress. The reliance on confessions in the judicial process is related to the lack of presumption of innocence. Under the Convention against torture, China is obliged to investigate whenever there are reasonable grounds to believe torture has taken place (Article 12) and to prosecute those responsible (Article 7). However, few judicial investigations into allegations are instigated by the authorities compared with the high incidence of torture that is reported. A variety of factors may explain this: the restrictive definition given to torture and ill-treatment in law; frequent cover-ups by superior officers or other authorities, the lack of independence of the institutions responsible for investigating cases of torture, and the lack of public scrutiny over the procedures followed during investigation. The inadequacy of the punishments provided by law for serious acts of torture and, generally, the lack of public accountability in China also contribute to encourage a climate of impunity.

Revisions of the CPL

On 17 March 1996, the Forth Session of the Eighth National People's Congress of China adopted the "Decision Regarding Revision of 'the Criminal Procedure Law of the People's Republic of China"'. This is the first time that criminal procedural law has been revised since it took effect in 1980. The amendments are aimed to bring China's CPL closer to the requirements of international standards. The amendments or revisions are to have effect from January 1997. The main points are:

• no-one can be determined guilty without trial, and if after a court examination there is insufficient evidence to prove a defendant guilty, the court must give a "not guilty" verdict;
• to improve coercive measures in criminal law and cease to use the measure "shelter and investigate" by stipulating the conditions and limitations of bail and residential surveillance, and to change the basic procedural condition for arrest from "the main facts of the crime are clear", to the condition "there is evidence to prove the facts of the crime";
• to allow lawyers to take part in criminal proceedings at an earlier stage;
• change trial methods and make the roles of prosecution and defence more effective, judges will not have comprehensive preview of the case before the trial begins in order to avoid prejudgements and the public prosecutor and defense lawyers may make statements concerning the evidence and the case, and make cross-examinations;
• to further safeguard victims' rights by allowing them to raise a challenge, authorising a representative to take part in the proceedings and the right to request a public prosecutor to appeal; and,
• to strengthen legal supervisory function of the people's procuratorate in order to prevent and reduce the occurrence of illegal acts during lawsuits.

These revisions in relation to trial procedures are more conducive to clarifying the facts of a crime and to safeguarding the rights of the participants in the proceedings. The role of the defense lawyer has been considerably expanded which will hopefully improve the quality of trials. However, defense lawyers are few due to the poor status attached to the job and the inadequacy of law enforcement. Zhao Xiaolu, Vice president of Beijing Lawyers Association believes that the number of experienced criminal defense lawyers which will be required when the new CPL comes into effect "is far from enough to satisfy the vast need for lawyers in 1997".

Although these revisions in theory make a great improvement in guaranteeing human rights it remains to be seen just how substantively effective they will be. Hopefully the Director of the Human Rights Research Centre at the Chinese Academy of Social Sciences (CASS), Wang Jiafu's response when asked if case of China's best known dissident, Wei Jingsheng, would have been handled differently if the amendments had gone into effect before he was detained, is not indicative of the road yet to travel for China in adopting effective guarantees for the protection and promotion of human rights. Wang Jiafu stated: "Everybody knows Wei Jingsheng is a criminal. His case was handled according to the law. The changes are designed to protect innocent people and to crackdown on criminals in a timely manner".

Victoria Coakley is a lawyer at Tress Cocks and Maddox and works with the Australian Section of Amnesty International.