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The Schellenberg Affair: Chinese Lawyers and Law Professors Opposing Court’s Handling of Robert Schellenberg’s Case
China Change, January 16, 2019
On January 14, a court in Dalian, northeastern China, sentenced Canadian Robert Lloyd Schellenberg to death for drug smuggling at a one-day retrial. It appears that China, after detaining two Canadians recently, is escalating the diplomatic clash with Canada over the arrest of Meng Wanzhou (孟晚舟), Huawei CFO, which the US requested pursuant to its extradition treaty with Canada, to the United States for suspected violation of Iran sanctions. The bizarre re-sentencing of Schellenberg seems to indicate how far China is willing to go to pressure Canada for the release of Meng, and how it is betting on Canada to give in by using the Schellenberg case as further leverage. To help clarify the legal controversy surrounding the retrial of Schellenberg, China Change gathered and translated the views of Schellenberg’s defense attorneys and several other Chinese lawyers and law professors who opposed the re-sentencing. As for opinions supporting the Chinese court’s decision, you can find them in China’s state media such as the Global Times and China Daily. — The Editors
Lawyer Ma Gangquan (马纲权) — A death sentence handed down with mysterious haste, January 16, Beijing Time, WeChat post:
1. It took about four years from Schellenberg’s detention to his being sentenced to 15 years in prison by the e court of first instance.
Schellenberg was apprehended on December 1, 2014, and his case was heard by the Dalian Municipal Intermediate People’s Court i (大连市中级人民法院) on March 15, 2016. On November 20, 2018, at the court of first instance, he was found him guilty of trafficking illicit drugs. He was sentenced to 15 years in prison to be followed by expulsion from China, as well as a fine of 150,000 RMB. Schellenberg appealed the sentence.
2. The time it took for the case to be returned to the first-instance court with supplemental prosecution was just four days.
On December 29, during the review of Schellenberg’s case, the Liaoning High People’s Court (辽宁省高级人民法院) ruled that the original sentence was overly lenient and “obviously inappropriate” [in consideration of the crime], and sent the case back to the Dalian Intermediate Court for retrial.
On January 2, 2019, the Dalian Municipal Procuratorate (大连市检察院) submitted a supplementary indictment to the Dalian Intermediate Court.
3. On January 14, 2019, the Dalian Intermediate Court began the retrial at 8 a.m., with proceedings lasting until around 7 p.m., at which time the court adjourned for one hour. After the collegial panel deliberated and submitted its decision to the adjudication committee for discussion, at around 8 p.m. the court resumed the hearing, at which time it, it announced Schellenberg’s death sentence. This was all done in less than a day, deftly and expediently.
Lawyer Zhang Dongshuo (张冬硕), Schellenberg’s defense attorney, January 15, 2019, Chinese-language interview with Deutsche Welle:
DW: Robert Lloyd Schellenberg’s case was retried and a new verdict was announced in no more than 15 days. What is your view on this?
Zhang: This is indeed a very unusual situation — though the proceeding is in accordance with the law. But it is indeed quite unusual for a case involving the death penalty to finish in just 15 days from court proceedings to delivering the sentence.
DW: In increasing the sentence from a 15-year prison term to death, do you think that this verdict was made fairly and in accordance with the evidence?
Zhang: I can’t comment on whether or not it was fair. I can only say that in my view as a defense lawyer, the evidence available is insufficient to prove that Schellenberger engaged in smuggling of more than 222 kilograms of drugs in Dalian. This is the first point. Second, there is insufficient evidence to suggest that he participated in organized international drug trafficking. Third, the prosecution provided no new facts in its supplementary indictment about the alleged crime. Therefore, even if the charges are accepted by the court, they cannot be used to increase the severity of Schellenberg’s sentence. These are my three main arguments. But it is regrettable that the court completely disregarded the arguments of the defense.
DW: What remains now is for the case to be appealed, correct?
Schellenberg has the right of appeal. Only after he files an appeal — we have two lawyers, I am the primary defense attorney, and Zhong Qiang (钟强) is the secondary defense attorney — will we continue to defend him during the appeal period. I guess that he will formally file an appeal in the middle of next week.
[Note: Zhang Dongshuo is a lawyer with the Mo Shaoping Law Firm in Beijing; Zhong Qiang is senior partner of the Beijing Yingke (Nanning) Law Firm, Director of Criminal Legal Affairs Department, and Vice Chairman of the Drug Crime Defense Alliance.]
Lawyer Mo Shaoping (莫少平) — interview with Voice of America, January 16, 2019, Beijing time:
Mo Shaoping: As defense lawyers, we pleaded not guilty on his behalf. I believe that the evidence provided by the prosecution does not exclude all reasonable doubt, so he should be acquitted. However, the court did not accept this argument and claimed that there were so-called new criminal facts submitted. The defense attorneys believe that the so-called new criminal facts provided in the supplementary indictment are wholly nonexistent. However, if the prosecution did not supplement the indictment, the court would definitely not have issued a death sentence. Therefore, the so-called new criminal facts were meant to take advantage of the procedure of supplementary indictment and retrial to increase the severity of the crime, and warrant the death penalty.
Reporter: How did Schellenberg react to [the announcement of the verdict] in court?
Mo Shaoping: From beginning to end, Schellenberg denied the charges against him. He denied them then and denies them now. He says that his purpose for travelling to Dalian was purely for tourism, and has no knowledge of drugs. However, the witness Xu Qing (许清), who later appeared in court, may have indeed been involved in the crime. But the authorities considered him to be a witness, rather than a suspect. As attorneys we suspected that at one time this person may have been a public security agent. Later, the public security [Chinese police] produced evidence to show that he wasn’t their agent. So the facts regarding this case were unclear and inconclusive from the start. The evidence as provided could hardly substantiate the charge that Schellenberg was involved in drug smuggling activities.
Reporter: The court didn’t accept your arguments?
Mo Shaoping: It didn’t, the court issued the death penalty. We have never seen any precedent for this case, in which the death penalty was announced at the hearing. Usually, death sentences are announced on a later date after court has been adjourned and the adjudication committee has deliberated. I’ve never seen a case where the death penalty was announced right after the conclusion of the trial. It’s unprecedented.
Reporter:Many people have linked this matter to the case of Meng Wanzhou (孟晚舟). Do you think there was a political motivation in Schellenberg’s sentencing?
Mo Shaoping: I will leave the analysis to journalists. Schellenberg was held for more than four years, and the Dalian Intermediate People’s Court made a first-instance judgment and sentenced him to 15 years. Why did it take four years to sentence him? Because the court thought that the evidence was insufficient and sought instructions all the way up to the Supreme People’s Court (SPC). The SPC said Schellenberg could be convicted and the sentence should be 15 years. So Schellenberg was sentenced to 15 years in prison according to the SPC’s instructions, and he was also considered an accomplice.
As a general rule, after an appeal is filed, the court of second instance will not hold a court hearing; instead, the court rules just based on the written documents in the case. It’s very unusual that a second-instance court would suddenly hold a hearing, and then suddenly remand the case for retrial. It took the Dalian Procuratorate only one day to produce and submit the so-called supplementary indictment to the court after the retrial order had been made. Just 16 days later the court tried Schellenberg again and announced the death penalty right after the trial. Everything about the proceeding was unusual.
Lawyer Chen Youxi (陈有西), January 15, 2019, Beijing time, Sina Weibo:
It is clearly stipulated in law that there is to be no increase in punishment when a case is sent back for retrial. Without new facts or new evidence, there cannot be an additional penalty. If a new crime is discovered, after the original sentence has taken effect and the case remanded, then the new criminal facts should be re-indicted in accordance with the adjudication supervision procedures. Increasing the penalty on remand is not permitted, so as not to deter the defendant from appealing.
Article 237 of the PRC Criminal Procedure Law (CPL) stipulates that second instance people’s courts handling appeals submitted by the defendant, his legal representative, defender, or close relatives, must not increase the defendant’s punishment. Cases that second instance courts remand to first instance courts for retrial, except when there are the new criminal facts and the people’s procuratorate provides a supplemental indictment, the original people’s court must also not increase the defendant’s penalty. In instances in which the people’s procuratorate lodges an appeal or where there is a private prosecution appeal, the aforementioned restrictions do not apply.
Per the Interpretation of the Supreme People’s Court on the Application of the PRC Criminal Procedure Law, Article 327: After the defendant, or his legal representative or defender, or a close relative, files an appeal, and the second instance people’s court remands the case for retrial, except in cases where there are new criminal facts and the people’s procuratorate files a supplementary indictment, the original people’s court must not increase the defendant’s penalty.
Article 257 (5) of the Supreme People’s Court’s Interpretation of Several Issues Concerning the Implementation of the PRC Criminal Procedure Law provides: “… in the case where a change in the original sentence must be done according to law, the case shall be retried according to the adjudication supervision procedures after the second instance judgment or ruling becomes effective.”
When courts of second instance send various cases back for retrial on the grounds of unclear facts and insufficient evidence, purporting they have a new understanding of circumstances that were already discovered during the original trial, and result in supplemental prosecutions and an additional penalty for the defendant through retrial by the court of first instance, it is a disguised violation of the principle of “appeal without increased penalty.” The result is that the appeal system will inevitably be damaged the defendant’s right of appeal will be impaired and constrained; the second-instance final appeal review and correction mechanism will be forfeited.
There’s no way around this. Regardless of the case, it is very easy to find a few pages of new evidence, and have a new understanding of the details of the case. As long as a judge is allowed to remand a case with supplemental charges, a reason could be found in any case to support a sentence increase. Accordingly, defendants would not dare to appeal. The system of China’s second-instance final review would be fundamentally destroyed.
He Weifang (贺卫方), law professor at Peking University, January 15, 2019,Beijing time, WeChat:
The Canadian named Schellenberg was sentenced to 15 years in prison by the Dalian Intermediate People’s Court on November 20, 2018 after being detained for more than four years. In addition, the court confiscated 150,000 yuan of his assets and ordered his deportation. He insisted that he was not guilty, and filed an appeal.
It really was a strange coincidence that just at this point in time, in early December, the Canadian police arrested a high level Chinese business executive named Meng [Wanzhou] based on the extradition treaty between the United States and Canada. This move triggered an angry protest from China, which threatened Canada, telling Canada it would pay for what it had done.
Soon after, on December 29, the Schellenberg appeal was heard in the Liaoning High People’s Court. It is worth noting that the procuratorate did not file a protest after the trial in the court of first instance, but this did not prevent the High Court from remanding the case to the Dalian Intermediate People’s Court for retrial. Meanwhile, the New Year’s holiday intervened, and so it was on January 14, 2019, in less than ten work days, the Dalian Intermediate People’s Court unexpectedly and, in lightning speed, tried the case, and in a shocking move, changed the defendant’s sentence to the death penalty, and confiscated all his assets.
Some people have asked: Doesn’t China’s Criminal Procedure Law stipulate the norm of “appeal without an increase in penalty”? A local scholar who attended the retrial responded that the rule prohibiting an increase in penalty does not include cases in which the procuratorate discovers and raises new criminal facts after the defendant appealed, or cases in which the procuratorate did not lodge a protest.
However, as a result, as long as the defendant files an appeal, the procuratorate can counter-appeal on the grounds of having discovered certain new criminal facts or just communicate with the court to exert some pressure (which is very easy for the procuratorate to do in China), which will inevitably lead to the complete failure of the principle
“appeal without an increase in penalty.” As long as the defendant refuses to accept the original judgment and appeals, all that awaits the defendant is the procuratorate’s protest (even a protest is not actually necessary) and a subsequent increase in punishment. So who would dare to appeal?
Furthermore, now that the procuratorate produced new facts so quickly in such a short period of time after the first instance trial, one wonders why they didn’t discover these facts during the four years of Schellenberg’s detention, facts that have caused the outcome of the case to change so drastically? Even though the PRC’s Criminal Procedure Law does not have the “double jeopardy” clause that prohibits anyone from being prosecuted twice for substantially the same crime, we have reasons to expect that the procuratorate had learned all the facts and made all the preparation before the first trial, given that the investigation had gone on for four years and had been through all sorts of pretrial procedures. How could it be that as soon as the defendant appealed, the procuratorate “discovered new facts” and that the defendant changed from being an accomplice to the principal culprit? Isn’t that just bizarre?
In this country, administrative officials can make wrong decisions and diplomats can blatantly lie, but if judicial organs also take part in such a farce, succumbing to external interference and treating the law like a toy, that’s really a despairing and perilous situation.
Zhang Jianwei (张建伟), law professor at Tsinghua University, January 15, 2019, Beijing time, WeChat:
In the case of supplementary indictment, the court could alter the sentence and increase the penalty. Here, supplementary indictment should be understood to mean that the supplemental crimes are crimes in addition to what has already been tried; if the prosecutors supplemented certain facts that fall within the criminal facts that have already been tried in the first instance but may affect the penalty decision, it is still a violation of the principle of no increase of sentence on appeal.
The thinking behind the principle of no increase of sentence on appeal is to allay the defendant’s fear of a worse outcome on appeal. In Schellenberg’s case it was the defendant who appealed, and increasing the penalty through spurious reasons is a violation of the principle of no increase of sentence on appeal.
At the moment when China and Canada is locked in a diplomatic row, such a judicial re-sentencing rouses the suspicion that the judiciary in China is merely a servant of politics, and it hurts the international perception of China being a country governed according to the law. As such, there is more to be lost than gained. You may think you are doing good for the country, but you are in fact ruining it.
November 14, 2016
About one and a half hours ago, Chinese state media announced that Jia Jinglong had been executed this morning – they killed him faster than we had time enough to translate this appeal, which should still be read and contemplated. – The Editors
Respected president of the Supreme People’s Court Zhou Qiang (周强):
As law professors and attorneys long concerned with the development of the rule of law in China, we believe that the Supreme People’s Court’s review ruling in the Jia Jinglong (贾敬龙) case does not conform to the applicable standards and policies for the death penalty as determined by Chinese law, and that the review procedure did not fully safeguard the right to appeal of the defendant and defending counsel. We herewith issue a joint, solemn appeal that the review ruling of Jia Jinglong’s death penalty not be implemented, and that a collegiate bench be assembled to examine the case. We hope that this case will become an opportunity for improving the Supreme People’s Court’s review procedures for death penalty cases in order to uphold fairness in the judicial system and justice in society.
I. The review of Jia Jinglong’s case did not take into consideration the particular nature of the legal institutions surrounding village assets; it did not consider the impact of traditional customs; it did not consider the phenomenon of corrupt governance of local regimes in village areas — all of which led to serious errors in determining the basic facts of the case.
Regulations governing rural households and leaseholding farm households are a large portion of China’s civil law. In the case of Jia Jinglong, the usage right of the homestead implicated in the case, although registered in the name of household head Jia Tongqing (贾同庆), was controlled by the village’s “one residence per household” regulation, and the right to use the homestead actually resided in all members of the household. After Jia Tongqing tore down the single-storey home and rebuilt a multi-storey home, his son Jia Jinglong expended his own money and labor to personally decorate the second storey. Article 34 of the Property Law of the People’s Republic of China (《物权法》) stipulates: “Legally constructing or demolishing a house, or similar conduct, establishes or extinguishes property rights, effective from the point of the completion of the activity.” As such, title to the property should reside with the household collective of Jia Tongqing, Jia Jinglong and other family members. In rural areas there is a common custom for adult sons to only separate their assets from those of their parents upon marriage; given that Jia Jinglong had not yet married, his rights to a share in the family property are not affected. The village committee’s failure to obtain the consent of Jia Jinglong, instead forcing his father to sign an agreement and then demolishing the home that Jia Jinglong prepared for his marriage to his fiancée, is not only obviously illegal, but also violates the basic guidelines of the “General Principles of Civil Law” (《民法通则》) which call for adherence to public order and common custom (公序良俗).
During their rule a number of responsible individuals holding positions in both the village and Party committees acted in the absence of supervision and checks and balances, concealing public matters of the village from their superiors and deceiving their subordinates, intercepting, stealing and embezzling, doing as they pleased, and governing the village in a highly corrupt manner. Because there are no mechanisms for safeguarding the rights and interests of villagers, and the channels of legal redress are ossified, this sort of corrupt village governance often sparks grassroots grievances and rage, with constant mass petitions and violent protests across the countryside. In Jia Jinglong’s village of Beigaoying (北高营村), the village committee and Party committee, in the name of “remaking the old village,” coercively confiscated the rural residential land, designated a portion of it that had buildings demolished “clean land” for later government levies, and later used it for real estate development. This violated the set of legal institutions governing land management, and is a classic example of corrupt governance at the village level. The reason that the case received so much attention is because of how deeply felt the yearnings are for property rights and equal protection under the law by China’s vulnerable groups.
II. The Supreme People’s Court review ruling ignored Jia Jinglong’s forthright confession and guilty plea in evaluating the severity of punishment, violating Chinese criminal legal regulations about the standard for applying the death penalty, and the policy to “kill fewer and kill cautiously.”
Jia Jinglong’s commission of homicide took place for a reason; the means of the crime itself were not, compared to regular homicide cases, in any way special. Following the crime, Jia gave himself up, submitted himself to legal punishment, and there was no possibility of further criminal conduct. The “three extremes” determined in the Supreme People’s Court’s review ruling have no factual basis and are not based on objective evaluation.
Though Jia Jinglong’s self-confession was interrupted, after he was arrested and brought to trial he made a full confession of his crimes, admitting his guilt and repenting. According to Article 67, Section 3 of the Criminal Code (刑法典), he should be accorded lenient punishment. Article 36, Section 3 of the “Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases” (《关于办理死刑案件审查判断证据若干问题的规定》) issued by the Supreme People’s Court stipulates: “Circumstances that would make an evaluation of sentencing of the defendant more lenient cannot be excluded; extreme caution should be exercised in death penalty sentences.” Refusing to authorize the death penalty in this case is in complete conformance with the explicit stipulations in the law and the criminal justice policies of balancing leniency with severity in sentencing. As precedents in judicial practice dealing with weighing punishments of cases of homicide following forced demolition, there are, at least, the cases of Wang Maling’s (王马玲) homicide in Jiangsu, and Ding Hanzhong’s (丁汉忠) homicide in Shandong, both of whom were either not sentenced to death or did not have their death sentences authorized. Refusing to authorize the death penalty in these cases is a consensus in judicial practice.
Yet in the case of Jia Jinglong the Supreme People’s Court ignored the legal circumstances of the fault of the victim and the frank confession of Jia, artificially raising the evaluation of the severity of criminal conduct, hastily concluding a review ruling in favor of the death penalty. The absence of legitimate grounds for this decision has aroused questioning and criticism from the community of legal scholars, led to widespread attention from all walks of society, and impacted the judicial prestige of the Supreme People’s Court.
III. Supreme People’s Court Review Ruling Procedures Should Protect the Rights of the Defendant and the Defending Counsel
The Supreme People’s Court spent a mere 9 days in issuing its review ruling after defending counsel submitted its legal opinion; after providing defending counsel with the relevant case files, it allowed only 5 days for the submission of a written legal opinion. Such a short deadline prevents defending counsel from fully expressing its legal opinion, does not protect the right to be defended of the defendant, and as such fails to ensure that the case is being heard fairly and justly according to the law. Jia Jinglong also stated when meeting with his counsel that the judge presided over a rushed and hasty trial, and that prior to that point the court had not even received the letter of attorney entrustment.
We believe that the Supreme People’s Court should squarely face the specific problems in the work of death penalty review, reiterate the principle of judicial caution, abolish the provision and evaluative criterion that death penalty sentencing reviews be completed within three months, and substantially reform the practice of ignoring the rights of counsel to mount a defense.
IV. Our Account and Appeal
On the tenth anniversary of the Supreme People’s Court regaining control over review of death penalty sentences, we wish to give an account of this particular case, call for a stay on the application of the death penalty to Jia Jinglong, and urge that a new ruling be rendered. We hope that judicial organs will respect life, put the people first, place equal weight on the limits of applicability of the death penalty against corrupt officials as against ordinary defendants, and truly follow the principle of “equality before the law.” We recommend that the Supreme People’s Court attach importance to the role of the legal opinions of counsel in the death penalty sentencing review process, listen in-person to the opinions of defending counsel, and reform testimony procedures so that lawyers and prosecutors can all participate, and so that the legal opinions of lawyers can be more fully heard. We call for the Supreme People’s Court to further reform the death penalty sentencing review process to safeguard fairness in the judicial system, and to uphold the fundamental spirit of the rule of law.
November 14, 2016
Jiang Ping (江平), tenured professor, China University of Political Science and Law
Guo Daohui (郭道晖), consultant, Jurisprudence Research Group, China Law Society
Zhang Sizhi (张思之), nationally-prominent lawyer
Zhang Qianfan (张千帆), professor, Peking University School of Law
He Weifang (贺卫方), professor, Peking University School of Law
Xu Zhangrun (许章润), professor, Tsinghua University School of Law
Li Xuan (李轩), director, Legal Aid Center, Central University of Finance and Economics
Liu Zhiqiang (刘志强), professor of law, Guangzhou University
Wei Rujiu (魏汝久), director, Beijing Wei Rujiu Law Firm
Bi Wenqiang (毕文强), director, Beijing Shengting Law Firm
Zhang Peng (张鹏), partner, Beijing Zhongwen Law Firm
Ding Xikui (丁锡奎), lawyer, Beijing Mo Shaoping Law Firm
By Teng Biao, published: January 16, 2014
Throughout history, the death penalty has always been associated with famous people: from Socrates, Jesus, and Giordano Bruno to Joan of Arc, Madame Roland, and Dietrich Bonhoeffer; from Bi Gan (比干), Yue Fei (岳飞) to Yuan Chonghuan (袁崇焕), Tan Sitong (谭嗣同), Yu Luoke (遇罗克), Lin Zhao (林昭); from Li Si (李斯), Shang Yang (商鞅), Charles I, Louis XVI, Maximilien de Robespierre to Hermann Göring, Adolf Eichmann, Nicolae Ceaușescu, and Saddam Hussein. In all of these cases, the death penalty had more to do with politics than with law–much more so. But this article focuses on the politics of the death penalty in contemporary China.
“The Rule of Psychosis”
With the Hunan tycoon Zeng Chengjie (曾成杰) and the Shenyang street vendor Xia Junfeng (夏俊峰), the manipulators behind the curtains were determined to end their lives. Similarly and without suspense, Gu Kailai (谷开来), daughter of a general, and Liu Zhijun (刘志军), the former railway minister, had their death sentences commuted.
The Xinhua headline after Liu Zhijun was sentenced read, “Trial of Liu Zhijun Demonstrates Respect for the Rule of Law.” A netizen made a lively retort, “I really think the headline means to say ‘the Rule of Psychosis.’”
Isn’t there a psychosis in our rule of law? Liu Zhijun, accepting bribes of more than 60 million yuan and owning 374 houses, gets a commuted death sentence while so many other “upright officials” are executed merely for amounts of several million or even hundreds of thousands of yuan. Then, among those whose corruption exceeds 100 million yuan, Jiang Renjie (姜人杰) and Xu Maiyong (许迈永), former vice-mayor of Suzhou and Hangzhou respectively, were both put to death, whereas Sinopec CEO and Party Secretary Chen Tonghai (陈同海) and the Party Secretary of Shanghai Electric Corporation Wang Chengming (王成明) were given commuted death sentences. The commuted death sentence of Wang Shouye (王守业), the Navy’s deputy commander, was changed to life imprisonment. Yu Zhendong (余振东) got 12 years in prison for 482 million yuan. Public Security Minister Tao Siju (陶驷驹) got immunity from prosecution and was merely placed on Party probation for embezzlement of 700 million. Isn’t the law psychotic?
It is said that, if the law was strictly enforced, not that many delegates could have taken part in the Party’s 18th Congress. Charged with the same crime of corruption, why do some people die and others live, and still others live quite comfortably and even join the ranks of party and state leaders? Getting arrested or not, getting a light sentence or not, being executed or not, there are absolutely no rules to follow. Those who steal a small amount are put to death while those who plunder become princes of the state. Isn’t the law psychotic?
Some officials are partial to corruption, bribery and women, others like to murder. For the same crime of murdering or hiring murderers to kill, Shi Honghai (史洪海), Deputy Director of the Civil Affairs Bureau in Shangshui County, Henan Province; Xuan Xiong (宣雄), Chair of the Ocean and Fishery Bureau in Suixi County, Guangdong; and Chen Jinyun (陈锦云), Chair of Anyi County in Jiangxi Province, received commuted death sentences, but Duan Yihe (段义和), Chair of the People’s Congress in Jinan Province; Lu Debin (吕德彬), Vice Governor of Henan Province; and Li Changhe (李长河), Pingdingshan Municipal Committee Secretary were immediately executed. For premeditated murder, Gu Kailai (谷开来) got a commuted death sentence, but street vendor Xia Junfeng (夏俊峰) of Shenyang City was executed for legitimate self-defense that caused the death of two Chenguans, or urban management enforcers. Cao Haixin (曹海鑫), a citizen in Henan province, was also sentenced to death and shot dead for legitimate self-defense. In addition, there have been a large number of innocent citizens who have committed no crimes yet have been tortured until they “confessed” and then wrongly executed, such as Teng Xingshan, Nie Shubin, Qoγsiletu, Gan Jinhua and others. Isn’t the law psychotic?
Far from it.
Psychosis is frequently manifested by brain dysfunction, distortion of reality, abnormal mental activities, and problems with memory, motivation and behavior. Does the death penalty in cases such as Liu Zhijun, Gu Kailai and Zeng Chengjie show that the Chinese legal system is psychotic? No way. Not only is it not psychotic, but makes precise judgment and shrewd calculation in complex situations.
The Death Penalty as a “Tool of Revolutionary Politics”
To talk about the politics of the death penalty, let’s go back a little in time, to the “beginning of time” (as Hu Feng said), the founding year of the Communist reign. From the barrel of a gun, Mao Zedong and his comrades set up a communist totalitarian system with Chinese characteristics. Raising havoc on the masses in the name of mass movement is the core repertoire of totalitarian politics. “Politics takes command,” and everything else must be subordinate to the political struggle: whether it’s economics, religion, art and literature, childbirth or the law. Thus from the outset the death penalty was called the tool of revolutionary politics. Many were killed during the suppression of counterrevolutionaries and the massacre of the land owners; the indiscriminate extrajudicial killings were perpetrated after the public security apparatus was smashed up during the Cultural Revolution; and the death sentence was used gratuitously in the 1983 Strike Hard Campaign. In all these and more, the death penalty has always been a political tool, a move in the overall chess game, a sharp blade in the political arsenal, a political costume drama draped in the false clothes called justice.
At the start of the Campaign to Suppress Counterrevolutionaries, Mao Zedong, Liu Shaoqi and the CCP Central Committee gave a plethora of directives: “We expect to have a lot more suppression down the road. If we report each killing, there will be too much propaganda on killing people in the newspaper, and there may be a side effect.” “In cases where the blood debt is serious or when the masses demand that the death penalty be meted out, and when it is believed that the outcome of an execution would be more favorable than not executing, then the death sentence can be meted out.” After 1951 Mao clearly disliked the fact that overall in the country executions were carried out too few and too slowly. He repeatedly said he wanted “several mass killings.” In February 1951 in accordance with Mao’s urging, the Chinese Communist Party Central Committee specifically discussed the execution to population ratio and “decided to increase the rate of killings from one per thousand persons to 1.5 per thousand and then reassess the situation later.” Mao clearly directed cadres in charge of Shanghai: “Shanghai is a large city of six million people, given that Shanghai has arrested more than 20,000 people and only killed over 200, I think that in 1951 you should kill at least 3,000 people who have committed major crimes such as bandit leaders, hardened bandits, standover merchants, spies and secret society bosses. And in the first half of the year at least 1,500 people should be killed.” The Public Security Ministry demanded a “ferocious operation and enormous firepower” to execute criminals.
So, all over China a secret competition got underway on execution statistics. Shanghai executed nearly 2,000 people in six months. Some cities executed hundreds of people in a day. Fujian Province executed 2.4 people in every thousand. The number of executions nationwide, on the CCP ‘s own statistics, the most conservative, were as many as 712,000. There was a blind fury of murdering, and countless people were unjustly, or mistakenly, murdered.
When the death penalty got seriously out of control, Mao opened his mouth again: “My thinking goes along these lines: it’s okay to exceed one in a thousand, but not by too much, …… 13,000 have already been killed in Guizhou province with a population of ten million, and the Provincial Party Committee requested to execute another 22,000 to 25,000. We can allow them to kill a little over another 10,000, sparing more than 10,000. This is already more than the ratio of two per thousand.”
The political nature of the death penalty is clearest in the public trials and sentencing of counterrevolutionaries and landlords: thousands of gawkers, mass denunciations, public frenzy, political propaganda, live radio broadcasts, street parades, and public executions. Add to this the declarations of political correctness, the competition to be further left, execution quotas, torture by lynch mobs, wrongful killing of innocent people, and this period in the history of the death penalty is one of lawless and immoral totalitarian brutality.
As for the death penalty for corrupt officials, Zhang Zishan (张子善) and Liu Qingshan (刘青山) were the best known of the Mao era. Together their corruption totaled 17.6 billion yuan, in current terms a piffling 1.71 million. Among today’s officials they would be honest and upright officials. But the lives of the party cadre bosses, just like the lives of other ranks of Chinese people, depend on the requirements of each political campaign. Mao said, “We must execute them in order to redeem the 20, 200, 2000, and 20000 cadres who have made mistakes to various degrees.” Actually this was like the Cao Cao story of “I want your head on a platter.” After the fanfare and publicity of the sacrifice their orphaned children would be given a monthly allowance.
As for the death penalty for political prisoners and prisoners of conscience, it was by nature political. At the very forefront of the judgment handing down the death sentence for Lin Zhao (林昭) is one of the “Highest Directives” from Mao: “No matter where the counterrevolutionaries stir up trouble, they must be totally eliminated” and “There are certainly diehards who would rather meet their maker than change their minds, that will be fine and they will make no difference to the big picture.” The organ responsible for Lin Zhao’s verdict was “The Shanghai Military Control Commission of the Chinese People’s Liberation Army Combining the Public Security Bureau, Prosecutor’s Office and Court.”
Liu Wenhui (刘文辉), Yu Luoke (遇罗克), Wang Shenyou (王申酉), Li Lian (黎莲), Li Jiulian (李九莲), Lu Hongen (陆洪恩) …… the list goes on and on. As in the book “1984”, the death penalty is the destiny of those who resist. But George Orwell never imagined billing families for the cost of bullets, throat cutting, corpse mutilation, live organ harvesting, cannibalism and the like.
As soon as Mao died, the Gang of Four and others were secretly arrested by the upper echelon in a virtual palace coup (Chen Yun said: “This is the last; no more.”), but they were put on trial with a semblance of judicial process. Wheeling and dealing happened outside the courtroom, but they went through the motions of a judicial process: the core issue was how to pin the crimes of Mao and the Party Central Committee on a tiny assortment of conspirators. The Party must be right at all time, so those who had committed the errors had to be, by default, counterrevolutionaries who had enmeshed themselves within Party structures. Thus every mistake the party made actually presented itself with a glorious opportunity to strive for a correction and a return to the true path. Now we seem to have finally figured out why the party is so much into making mistakes. The commuted death sentences of Jiang Qing and Zhang Chunqiao in the end are probably the best known examples of Chinese Communist Party officials receiving such sentences. Unlike the Campaign to Suppress Counterrevolutionaries, this political trial painstakingly fashioned itself in many more of the trappings of judicial process. The slow process of “legalization” of political cases in China thus began.
Next we move onto “Strike Hard” (严打) in the 1980s. The 1983 crackdown saw 24,000 people executed by firing squads over a period of eight months. The Public Security Bureau, Procuratorate and Court coordinated to conduct the cases. It was a bloodbath of terror with confessions under torture followed by “swift and severe justice.” People were tied with ropes and paraded through the streets with placards hanging from their necks before public executions. To meet targets there were huge numbers executed for crimes which did not deserve the death sentence or for minor offences; everywhere there were cases of completely innocent people wrongly convicted and sentenced to death. During the crackdown, Zhu Guohua (朱国华), the grandson of Zhu De (朱德), was shot by firing squad for the crime of hooliganism. The directive handed down by Comrade Kang Keqing read: “A prince is punished for a crime just like anyone else!” Zhu’s grandson’s so-called crime of hooliganism was nothing more than a little excess while picking up girls. This is just one example of countless cases of unjust sentencing for common or garden variety thefts, robberies or touching up women. But it was probably the last time a descendant of a founding ruler was sentenced to death. In terms of mass mobilization, the “friend/foe” narrative, the atmosphere of terror, the disregard for procedures, and the extent of human rights violations, the 1983 “Strike Hard” campaign was a smaller version of the Campaign to Suppress Counterrevolutionaries. After this there were many similar campaigns creating havoc throughout the nation where politics steamrolled the administration of justice. The most terrifying was the suppression of the Falun Gong movement after 1999; but geographically, the most bloodthirsty has been the “Strike Black” campaign by Bo Xilai and Wang Lijun.
Politics of Anti-corruption
If the death penalty during the Land Reform campaign, the Campaign to Suppress Counterrevolutionaries, and the Three-anti and Five-anti Campaigns typified the manic methods of pathological bloodthirsty frenzy in an early stage of totalitarianism, then the “Strike Hard” campaign demonstrated pathological convulsion to rule the country through political campaigns in the late stage of totalitarianism. The later trials (or the absence of trials) and the death penalty (or the absence of the death penalty) for corrupt officials or greedy tycoons involved precise calculation by the new totalitarian system disguised in a socialist pseudo market economy; they involved punctilious judgments, shrewd dealings, and conscientious performances.
With Mao’s death the extreme “politics in command” reached its end. But this certainly did not mean that some form of political centralism was no longer practiced. The bloody class struggle gave place to the bureaucratic culture of economic plunder and bureaucratic infighting which hid beneath a transformation strategy of “let a few bigwigs get rich first.” At least on the surface, the country continued its process of governance under a legal framework. Although it was a million miles away from the rule of law, small steps towards a new governance model included: the restoration of the systems of public security, procuratorate, court and lawyers; the introduction of the Criminal Law and the Criminal Procedure Law; Document Number 64 of 1979 abolishing the system of direct review and approval of criminal cases by Party Committees; the trial of the Gang of Four; and the 1982 Constitution. In the end, apart from intermittent episodes of crackdown, there was a need after all for legalized routine governance to replace havoc-raising succession of political campaigns.
The powerful and their friends and families savored the fruits not only of the policy of reform and opening up but also of the lack of democracy and rule of law. The fruits include the dual-track system [of social security and benefits], bureaucratic profiteering, the use of public office for private gain, government-run media, and party control of justice. Corruption immediately became a major issue which the rulers had to face. Corralling corruption was a necessity, otherwise the Great, the Glorious and the Correct (伟光正) image of the party would be tarnished and discontent would boil over and threaten the regime.
But allowing corruption was even more of a necessity: Without corruption who would want to work for the party? In a village in Shanxi, the Party Secretary Wang Genping (王根平) spoke the truth: “What’s the point of being an official if I’m not corrupt!?” After the shootings of 1989 it was even more so. Opening fire on citizens and students on June 4th that year was actually akin to administering the death penalty in a state of emergency: Soldiers took the place of the court marshals; the square at night took the place of an execution ground in daylight; military orders took the place of written judicial processes and verdicts; expanding bullets and tanks took the place of ordinary bullets; random victims took the place of death row prisoners. As for the myth about the effectiveness of the politics of terror (“murdering 200,000 people would ensure two decades of stability”), it’s an expanded version of the myth that the death penalty is a deterrent.
A certain general said [online]: “There’s only one thing in the world that can defeat the Chinese army, and that’s corruption.” A reader retorted in the comment section: “There’s only one thing in the world that can safeguard such corruption, and that’s the Chinese army.” Corruption has become commonplace. In a system without formation of other political parties to contend for power, without separation of powers, without checks and balances, without an independent judiciary, without independent media, and without elected officials, to assume corruption can be curbed is to assume that every man under the sun would be the legendary Zhan Huo (柳下惠) of eminent virtue. Honest officials in China must be the crème de la crème. With few exceptions, the likelihood and extent of corruption is in direct proportion to the power of an official.
Officials benefit from being corrupt; the party benefits from “anti-corruption” campaigns. There are at least four benefits: buying popular support; giving jobs to one’s cronies; creating fear by taking revenge on your opponents; and, maintaining the same system in which corruption continues. Corruption is institutionalized, but fighting corruption is a long, long way from being institutionalized. At most it’s “semi-institutionalized.” The Central Commission for Discipline Inspection (CCDI), the CCDI Supervision Department, the Anti-graft and Anti-Bribery Bureau of the Supreme Procuratorate, and the “double designations (双规)” system for interrogating party officials, all operate outside the legal system. But more importantly, whether you are arrested or not, sentenced or not, die or not, seems totally a matter of whim without rules.
It seems there are no rules, but in fact it isn’t so. The likelihood and severity of being punished for corruption is inversely proportional to the real power of an official or his backers. Higher ranking officials are less likely to be sentenced to death. No one is going to believe that a system like China’s would constrain corruption rather than promote it. Institutionalization of corruption and the lack of institutionalization for fighting corruption are two important, complementary prerequisites for a system where officials obey their superiors and remain loyal to the Party.
Officials who come a cropper have basically bitten the dust in a political struggle. Behind every corruption trial there is a series of deals. It’s like a food chain in which bribes are both offered and accepted; the more complex the network the more benefits there are, the more secure you are. Once caught, if you confess too little, you would not have earned enough merit to have your sentence reduced; but if you confess too much, those above you will exterminate you to stop you from implicating them. It’s sure to go pear-shaped if you confess what you shouldn’t have confessed and didn’t confess what you should have confessed.
There is a skit that goes like this: A provincial governor was given a suspended death sentence for corruption. His son visited him in prison and said he couldn’t find work after graduating from university. The governor said, “I will write a note [to someone for help.” The son said, “Do you still have pull in here?” The governor said, “Of course I do. I can send anyone to jail if I want to!” As Bo Xilai revealed in the trial of the century, the CCDI told him two stories: the vice governor of Anhui province Wang Huaizhong (王怀忠) was executed for accepting bribes of five million but the Railway Minister Liu Zhijun got a commuted death sentence for bribes of sixty million. The former refused to admit his guilt while the latter read in court a tearful repentance, thanking the Party for nurturing him. “I am the organization’s man when I live and the organization’s ghost when I die.”
One of the secrets that enables a post-totalitarian system to continue to operate is using the death penalty in anti-corruption to enforce the loyalty (obedience) of officials and using the whole apparatus of the penal system, including the death penalty, and the spoil-sharing system to obtain the loyalty (obedience) of the masses. Totalitarian and post-totalitarian politics need the death penalty, the way they need enemies. Zeng Chengjie and Fan Qihang (樊奇杭) are dead; Wu Ying (吴英) escaped death narrowly. Businessmen seem to be frisking and frolicking but, in reality, they are walzting themselves bound and trussed into the arms of the authorities.” Powerless ordinary people —or Shitizens– are in even more precarious circumstances. No need to even use the public security organs; a chengguan, a police assistant, or even a day laborer can snuff out your life in a second and will snatch your dead body too.
Live or Die, Depending on Who You Are
For those who were once powerful, a commuted death sentence is a wonderful thing: in due time it will be changed to life in prison, life in prison will be changed to a set term, a set term will be reduced, and before long you’re out on bail, probation or medical parole. A few more years later a perfectly good man will be reinvented. Those who don’t come out are special prisoners, and can hold their heads higher than the others despite their broken lives. Compared to worthless shitizens, their lives are a million times richer and more comfortable.
It seems that a commuted death penalty has become the royal reserve punishment for large-scale corrupt officials and tycoons. A partial list of comrades given a commuted death sentence (in no particular order) include:
Li Jizhou (李纪周) – Vice Minister of Public Security;
Li Jiating (李嘉廷) – Governor of Yunnan Province;
Wang Zhaoyao (王昭耀) – Deputy party secretary of Anhui Province;
Cong Fukui (从福奎) – Executive Vice Governor of Hebei Province;
Chen Shaoji (陈绍基)- Secretary of the Guangdong Provincial Political and Judicial Committee;
Zheng Shaodong (郑少东) – Assistant to the Minister for Public Security;
Xu Zongheng (许宗衡) – Mayor of Shenzhen;
Wang Huayuan (王华元) – Secretary of the Zhejiang Provincial Discipline and Inspection Commission;
Mi Fengjun (米凤君) – Deputy Director of Jilin Province People’s Congress Standing Committee;
Guo Shenggui (郭生贵) – Judge of the Xicheng District Court, Beijing;
Li Baojin (李宝金) – Director of Tianjin People’s Procuratorate;
Wang Yi (王益) – Vice President of the National Development Bank
Getting a commuted death sentence has less and less to do with the size of the bribes. “People or Monsters“(《人妖之间》), Liu Bingyan’s investigative report about Wang Shouxin (王守信), describes how she was executed in 1980 for corruption because of “a personal slush fund of nearly 500,000 yuan in cash.” This was a travesty of justice like the Gourd Temple case in the Dream of the Red Chamber. Liu Yiping (刘伊平), a ticket seller at Guangzhou Baiyun Airport, embezzled 550,000. The money was recovered and he wrote a long and full confession, but the political necessities of “Strike Hard” saw his execution in 1991 at only 23 years of age. These days, to be sentenced to death for these amounts is almost unheard of. The policy of using death penalty with caution has been carried out in corruption cases first and most.
In ancient times there was “immunity for Ministers and above.” The so-called “Ba Yi” (八议), a privilege of legal immunity for the officials and aristocrats, applied to crimes committed by the Emperor’s relatives and old friends and Ministers who had given meritorious service, nobility of the former dynasty and their descendants, etc. Ordinary judicial organs had no power to put them on trial. These days the word on the street that “members of the Politburo Standing Committee can’t be convicted and given a sentence and Politburo members can’t be sentenced to death” is not utterly baseless. After the trial of the Gang of Four, no current or former members of the Standing Committee were convicted. It remains to be seen whether Zhou Yongkang will break this convention. And only three Politburo members have been convicted, and they were Chen Xitong (陈希同), Chen Liangyu (陈良宇) and Bo Xilai (薄熙来).
Officials have made fortunes profiteering and those with a lot of nerve and with patrons have become central or local leaders. Before 1997 when the death penalty was abolished for ordinary theft, there were many cases of people being executed by firing squad for stealing merely tens of thousands of yuan. In 1991, Wenzhou businesswoman Zheng Lefen (郑乐芬) was the last person to be executed by firing squad for the crime of “illegal speculation and profiteering.” Before that, many had been sentenced to death for speculation (China’s death penalty data is not public, so I have to use the vague formulation of “many”). In fact, these people were pioneers in the market economy. The death penalty as it is applied to the common man has really been gratuitous and arbitrary. But the logic is the same as ever: it’s certainly not that the law is psychotic: all the death penalty policies and practices are in line with the core logic of the political rule.
The Party Is the Judge
In the Liu Zhijun case in 2013, the prosecution called for leniency because of his full confession and because the losses had essentially been recovered; the defense lawyer said that Liu’s contribution to the economy was obvious to everyone; and the defendant tearfully thanked the authorities handling the case for teaching him his errors. In other words, the prosecution did the job of the defense, the defense did the job of a government mouthpiece, the judge did the job of a film director, and the defendant did the job of the Propaganda Department. This was all because the Party was doing the job of the judge.
In the Gu Kailai case in 2012, she appeared in court without handcuffs or leg irons, without an orange detention center vest, without being deprived of the right to defense, and of course without having been tortured into making a confession. Pro-government professors and government officials who were invited to the sentencing of Gu, said of the verdict that “the judicial organs adhered to the spirit of handling cases in accordance with the law” and that they had “carried out the principle of the rule of law which was that every single person was equal in the eyes of the law.” A Hefei Court news spokesman said that Gu Kailai undoubtedly had a mental disorder which weakened her self-control as she perpetrated the murder. Gu said: “I feel the decision is fair, it fully reflects the special respect our courts have for the law and for the facts on the ground. It specially shows their respect for life.”
Of course it is special. A special stay of execution for a special you.
On June 29, 2010, my client, Shenyang hawker Xia Junfeng (夏俊峰) appeared in court charged with murder. He had been forced to defend himself against two violent chengguan. He was manhandled into Liaoning Province Superior Court by two menacing and intimidating court police. He was wearing the yellow vest of the Shenhe District Detention Center, handcuffed and shackled. Both Xia Junfeng’s speech and my speech were constantly interrupted.
On December 7, 2010, my client Leng Guoquan (冷国权), a businessman from Dandong (辽宁丹东), was sentenced to death in the second trial in Dandong. Both the defendant and I were interrupted countless times while trying to speak. Leng Guoquan had many documents providing irrefutable evidence that he had been subject to brutal and inhuman torture: he had been “strung up and beaten, electrocuted with a cattle prod, tortured over a fire, punched and kicked, and continuously deprived of sleep.” But the court refused to initiate the procedure for excluding illegal evidence. The overwhelming majority of death penalty cases in which I have been the defense counsel have involved confessions extracted by torture.
On December 16, 2009, the Guangdong Provincial Higher People’s Court sentenced Gan Jinhua (甘锦华) to death. This was a case where a confession had been extracted under torture, the whereabouts of the murder weapon was unknown, and there were 22 major issues of doubt in the prosecution’s evidence. On the second day of Gu Kailai’s trial, on August 10, 2012, Gan Jinhua was secretly executed, without notice to family members or his lawyers.
In October, 2006, the Ankang Municipal Intermediate Court in Shaanxi Province (陕西安康) declared: “Qiu Xinghua (邱兴华) murdered deliberately and with clear purpose, was lucid in answering questions, was clear thinking, and showed no abnormal mental performance.” He was executed immediately. In fact, Qiu Xinghua’s mother and several close relatives suffer from mental illness. His neighbors also testified that Qiu Xinghua often behaved erratically. The defense counsel, psychiatrists, many lawyers, and renowned scholars all agreed that Qiu Xinghua had severe mental illness. They strongly urged that Qiu Xinghua undergo a forensic psychiatric examination, but the court refused.
Xia Junfeng was sentenced to death. He was a laid-off worker who became a street vendor. His father was a street sweeper, not a General. His spouse was also a laid-off worker who became a street vendor, not a Politburo member. Nie Shubin (聂树斌), Gan Jinhua, Qoγsiletu (胡格吉勒图), Teng Xingshan (滕兴善), Cao Haixin (曹海鑫) and Qiu Xinghua were all executed, and all of them farmers or herders, members of the lowest class of the society.
Yao Jiaxin (药家鑫), who was portrayed as a rich brat descendant of a government official, was executed. Triad leader Liu Yong (刘涌) was executed. Non-triad member Fan Qihang (樊奇航) was executed. Wealthy and healthy, Yuan Baojing (袁宝璟) was executed. Poor and sick, Qiu Xinghua was executed. Poor and innocent of murder, Gan Jinhua was executed. Rich and innocent of murder, Zeng Chengjie (曾成杰) was executed. Rich and murderous, healthy and treacherous, Gu Kailai was given a reprieve. I am opposed to the death penalty. Couldn’t all future cases be like that of Gu Kailai and Liu Zhijun? Couldn’t courts across China use a commuted death penalty in the place of all death penalties?
The hearing of Chen Liangyu’s case was “rehearsed for six months” by prosecutors and the court. “From the coordination and process on day one of the hearing, one senses that the pre-trial rehearsal was extremely tightly organized and the entire process was choreographed to perfection. It was said that there was even a strict timetable for when Chen could have a break or use the bathroom,” according to The Economic Observer. We saw the same in the vast majority of “special” death penalty trials for high-ranking corrupt officials or tycoons. In these trials, from venue to the presiding judge to the assignment of counsel, everything is meticulously selected; court observers are essentially hand-picked; the verdict is well discussed and decided beforehand; and all this has little to do with the judge. Much more is hidden than on display and more questions are left unanswered than resolved in these trials.
Criminal trials are a sporting arena, and Chinese judges have long ago reduced themselves from referees to a member of one of the competing teams. They stand side by side with the investigative organs and procuratorate, reaching secret agreements about how to deal with the defense — the criminal defendant and his lawyers. In some high publicity cases involving high-ranking officials, the Public Security Bureau, the Procuratorate and the court, together with the defendant, actually form a single team, sending a dazzling flurry of combination punches to their weakened opponent – Truth and Justice – in perfect coordination and understanding.
In the politicized judicial environment guided by the “Political and Judicial Committee,” the “Three Supremes (三个至上),” “Homicide Cases Must Be Solved,” and the “Mass Line (群众路线),” there are almost no “normal” death penalty cases. There are few death penalty cases where the Party and the Political and Judicial Committee do not interfere:the Yang Jia case (杨佳), the Chengde case where innocent men were sentenced to death, the She Xianglin case (佘祥林), the Teng Xingshan case, the Nian Bin (念斌) case in Fujian Province, cases involving terrorism, cases involving foreigners, and cases involving Police Officers. Once the death penalty becomes a political bargaining chip, death penalty trials can only result in a mad scramble to ring down the curtain, albeit with the utmost planning and meticulous rehearsal of political theatre.
Teng Biao (滕彪) is a legal scholar, human rights lawyer, a pioneer of China’s rights movement, and one of the founders of the Open Constitution Initiative (Gong Meng公盟) that offers legal assistance to the disempowered and the wronged. Dr. Teng Biao writes extensively about the death penalty in China. He is the recipient of several international human rights prizes.
Read more by Teng Biao:
(Translated by Kevin McCready)
Chinese original (link to be provided)
By Teng Biao
Xia Junfeng (夏俊峰) was a street vendor from Tieling county, Liaoning province (辽宁铁岭县). On May 16, 2009, while selling chicken strips, roasted sausages and other snacks with his wife Zhang Jing near a crossroads in Chenhe District, in the city of Shenyang (沈阳沉河区), Xia Junfeng was seized by urban enforcers known as Chengguan (城管) and taken to their office where he was beaten. During the course of the beating, Xia Junfeng fought back with a small knife he carried in his pocket, stabbing two Chengguans to death and injuring one. He was convicted of intentional homicide and sentenced to death during the first trial, and the second trial, held in July, 2010, upheld the verdict of the first trial. The case has garnered wide online attention in China since its onset. It is currently being reviewed by the Supreme Court in Beijing. Dr. Teng Biao was Xia’s defense lawyer in the second trial, and the following is an excerpt of his closing argument. Several volunteer translators, Yaxue included, have collaborated on a complete translation of Dr. Teng’s defense in the hope to shed light on, and call for attention to, the Xia Junfeng case and the ill system at its root. The Chinese original is here.
Since the Chengguan system was established in 1997, its drawbacks have been clear. The crimes it has committed have been many and have bred bitter resentment among the population. To date, there is no national “Urban Administration Law” or administrative statutes to govern it, and Chengguan “enforcement” has never had any legal basis. Nor has there been any consistency or standards in its enforcement approach as well as its leadership structure. It has had no legal oversight but still acts as law enforcement. Its members have no clear legal definition. Their personal qualities are as varied as to have thugs and hooligans in their midst. In many cases, they rob, and work for personal gain by harassing and harming citizens at will under the name of enforcement.
In this system of vague legal status and inadequate oversight, Chengguan’s violent habit becomes a necessity, and a part of the system. Extralegal violence, thus employed to compensate for inadequate regulation and an absence of authority and legal deterrence, is no longer individual behavior. Such violence exists everywhere with the permission of the authorities. It is needed because of an overriding concern for “city image” and “urban management.” Finally, when extralegal violence is not monitored by the people and the media, and not punished by the law, it is only natural for Chengguan members to feel justified. Using violence with impunity enables the Chengguans to see violence psychologically as their “privilege,” a sign of status and pride. Since the legal and political status of Chengguan is unclear, it is only natural for its members to seek personal gain, vent their anger, and prey on the citizens they were intended to protect. Once violence starts, it has its own momentum, and, with a specific system enabling it and Groupthink encouraging it, it eventually becomes a habit and an addiction.
I believe Zhang Xudong and Shen Kan would have never displayed their cruelty and gratuitous violence toward their wives and children, because in a family environment they adhered to the principles of love and decency. But in the milieu of the Chengguan’s collective enforcement, they were overtaken by the desire and passion to inflict violence. Although, for Xia Junfeng’s interest and for the sake of the case reaching a just decision, I as the defense lawyer must point out that Shen Kai and Zhang Xudong’s actions at the time broke the law. Still, I don’t just blame them. They were my countrymen, living in the same imperfect world as the rest of us. They were no doubt victims of the Chenguan system as well. I hold deep empathy toward them, and can feel their family’s loss and pain, which are also the misfortune of all society.
In this case, the Chenguan system has already destroyed two families; do we have to destroy a third one? We have lost Shen Kai and Zhang Xudong. Several dozen citizens have been beaten to death by Chengguans. We have already paid a heavy price for the brutal Chengguan system, and now, do we have to sacrifice justice in order to endorse an ill-conceived system and the brutality committed by its members? Must we make the judiciary an avenging hand that puts Xia Junfeng, a husband and father of a nine-year-old, to death?
Chief judge and judges,
In the worldwide trend against the death penalty, most countries have abolished it by law or in practice, and in the countries where it is still in use, it is reserved for the most egregiously violent crimes. It’s bad enough that we have been applying the death penalty in economic or non-violent criminal cases, are we now going to apply it in cases of excessive self-defense or justifiable self-defense as well? Cao Haixin was executed for self-defense, and the tragedy is a shame in the judicial history in Henan. Today, in the 21st century, are we going to repeat the same tragedy in Liaoning?
The death of two citizens is a tragedy for our society, but if Xia Junfeng were to be sentenced to death, it would be an obvious and gargantuan mistake, a tragedy unbearable and unacceptable to society that will cast a shadow on the Chinese judiciary for a long time to come. If Xia Junfeng were to be sentenced to death, many more innocent, helpless vendors will die at the hands of Chengguans. If one were to be sentenced to death for self-defense, he or she would be inclined to kill excessively and kill many more without qualms, because one can only die once. If one were to be sentenced to death for self-defense, there would be no boundaries between guilt and innocence, good and bad, life and death; and the power of the rule of law, already pathetically weak in our society, would be destroyed altogether by evil, chaos and brutality.
Without exaggeration, sentencing to death a citizen who was only defending himself will have disastrous repercussions for the whole society since it would embolden the attackers and intimidate those who resist unlawful violence. While evil-doers are encouraged, victims will be harmed the second time by the court after sustaining harm first from violent crimes. The act of self-defense in the face of unlawful harm is not only a virtue but an instinct. But instead of being protected and praised, if such an act is condemned with a sentence of death, then today’s verdict will hurt not only Xia Junfeng’s legal rights, but also the dignity of the law itself, social ethics, and the citizens’ sense of right and wrong.
It is my hope that the court’s decision today will indicate that our judiciary system is still able to uphold the basic sense of right and wrong and a modicum of independence. It is our hope that the judiciary process of Xia Junfeng’s case will show the world that the long-suffering Chinese people can draw lessons from their miseries and stand firm on the side of the rule of law and humanitarianism.