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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 Yaxue Cao
Published: July 2, 2013
“If a lawyer doesn’t interact with petitioners, he or she would not really know how sick the society is.” – Tweet from lawyer Tang Jitian (@tjitian)
Her name is Ma Yongtian (马永田), a slender, brisk-mannered middle-aged woman. She is a Chinese petitioner. That’s right, one of those poor souls, we see in the news, who look sad and beaten-down and who have all sorts of tragic stories to tell. The only difference is that she has brought her petitioning to the United States.
Starting July 1st, Ms. Ma is staging a protest outside the Chinese embassy in Washington, DC, indefinitely, as a new action of the Sparrow Initiative.
I learned about the “Sparrow Initiative” from Dr. Yang Jianli, former political prisoner and president of Initiative for China, an advocacy group based here in DC for democracy in China. The first action of the initiative was a sit-in protest staged in 2010 in front of UN headquarters in New York by three Chinese petitioners and victims of forced eviction and demolition, and lasted for about a year. Ms. Ma’s son, a US citizen, participated in that protest on behalf of his mother. The other two participants have since secured settlements with the Chinese authorities and have returned to China. Now Ms. Ma herself has travelled to the US to stage her own protest.
Ms. Ma told me her story Wednesday afternoon in Dr. Yang’s office. In the late 1980s and early 1990s, when the waves of economic reform swept across China from the south to the north, the 26-year-old Ma Yongtian bought a 500-square-meter (about 5,400 square feet) property in her native, northeastern city of Changchun (长春), in Jilin province, and opened up a family business that, eventually, hired 50 workers and manufactured Tang tri-colored glazed pottery (唐三彩). Her main product was urns for ashes, and it proved to be lucrative, because, as she put it, “as long as it’s a refined product, no one would want to buy it cheap, or bargain, out of respect for the dead.” Making pottery wasn’t easy, nor was it a local tradition. The plant had technical difficulties in its early days. To solve them, Ms. Ma spent six months in Jingdezhen, Jiangsu province, the capital of Chinese pottery and porcelain, to learn the techniques. From Jingdezhen, she also hired a seasoned technician to oversee production in her plant.
When she explained to me the difference between ceramic and porcelain, the physical and chemical transformations that occur during firing, the layout of her plant, the acquisition of raw materials and her sales network across the country, I was struck in awe by the raw energy, the determination, and the managerial smarts of an ordinary Chinese woman.
She told me her trouble. I must promptly admit that I got lost in the labyrinth of government offices, developers, courts, mayors, party secretaries, heads of the province, heads of the Changchun municipality, Beijing, black prisons through her 12-year odyssey that began in 2001 and is still ongoing. She had a written summary of her case, from which I was able to get to the main points, but figuring it out, I felt my head was swollen, entangled in thick, sticky and repulsive stuff.
While I had trouble sorting out her case, I’m all too familiar with this feeling of mind-boggling tiredness and helplessness. It is an inseparable part of one’s Chinese experience. If on top of it, you are disempowered and wronged by a chain of corrupt officials, but you decided to put up a fight, then that feeling of frustration is only the easiest, and the least painful, of your Chinese experiences.
Her case, in summary, goes like this: In March, 2001, a developer obtained a permit from the Changchun municipal Property Demolition and Relocation Office (D & R Office hereafter) without meeting requirements for such a permit. In May, water and electricity were cut off at Ms. Ma’s plant by the developer to force her out. In June, the developer fulfilled all the requirements for the permit and in July it negotiated compensation with Ms. Ma. She rejected the offer because, while her plant was industrial property, the developer was compensating her at the price of residential property, a significant difference. On top of that, about 50 square meters (about 538 square feet) was excluded from the compensation deal. In September, the D & R Office secured a court order to evict her plant “unconditionally without any compensation and arrangements.” In October, a crowd of people descended on the plant, drove everyone out, demolished the property, took away hundreds pieces of her products while breaking others in the process.
Ma Yongtian sued the developer and lost. She appealed. This time, she won. The appeal court quashed the original verdict, recognizing Ms. Ma as a victim of wrongdoing during the forced demolition, and ordering the D & R Office to take administrative measures to resolve the dispute.
Strangely though, the court rejected her filing for compensation on grounds that her dispute was ongoing and had to be resolved first before seeking compensation. Without an order of compensation, no party in the dispute had to do anything to “resolve” the issue. When Ms. Ma confronted the judge, demanding that he explain the logic of his two rulings, he admitted that the mayor had instructed him to deny the compensation request. Ms. Ma asked the judge whether he was bound by the law or by the mayor, the man couldn’t give her an answer.
From 2001 to 2004, Ma Yongtian trudged among provincial and municipal Construction Committees, courts, the Party’s Disciplinary Committees, and procuratorates. She made appeals to the provincial Party Secretary, the governor, the municipal Party secretary, the mayor, to no avail. She once fell on her knees to plead help from the mayor. She got upbraided by the mayor’s chauffeur and secretary as the mayor looked on, only to watch them driving away.
Starting in 2005, Ma Yongtian brought her petitioning to Beijing. She became one of the thousands of petitioners captured, and locked up, in Jiujingzhuang (久敬庄), Majialou (马家楼) and the black jails operated by the untold number of “Beijing Offices” of local governments.
She succeeded in obtaining a letter from the State Bureau for Letters and Calls and returned to her hometown with it. A local official brandished it in front of her face. “This is worse than toilet paper, too rough for the butt.”
Two years of petitioning in Beijing yielded hopeful results. The CCP’s Politics and Law Committee in 2007 instructed the local government to address Ms. Ma’s issue. Two hearings were held, but they merely resulted in “separating” her case from the court system involving only the government offices. That way the local court was able to report to its higher court that the case had been resolved.
On August 6, 2008, two days before the Beijing Olympics opened, Ms. Ma Yongtian was interviewed by Deutsche Welle in which she revealed the cruelties and hardships endured by petitioners in Beijing. Perhaps her outcry caught the attention of some high-level officials of the state, because the local government sent officials to Beijing, made promises to her, and took her back to Jilin. Once home, she was placed under house arrest.
At the end of 2008, the central government once again instructed the local governments to resolve a list of wronged cases, Ms. Ma’s among them. Changchun municipal government was ordered to satisfactorily resolve Ma’s case by the end of March, 2009. The solution, it turned out, was a concerted falsification of documents by multiple functionaries. They altered the address of her property in all the documents. Ma Yongtian pulled a stack of papers out of a red plastic bag and showed them to me. Even in photocopies, the tampering was too obvious to miss: Neighborhood #6, Group #80 (6委80组) was blatantly, and shoddily, altered into Neighborhood #4, Group #80 (4委80组). Several entities and individuals gave false statements that contradicted the facts established in earlier proceedings.
In a statement, for example, Judge Jiang Liping (蒋丽萍) of the People’s Court of Nanguan District stated that “When the court arrived at the property of the enforcee Ma Yongtian on October 12, 2001, the enforcee had already vacated her property, under a court order for demolition, of her own accord.” In another statement provided to the city’s Construction Committee, Changchun Municipal Taxation Bureau stated that Ma Yongtian’s company had never obtained tax registration from the Bureau, while it was every party’s knowledge that Ma’s company had registered with the local branch of the State Administration of Taxation.
My impression of petitioners is associated with black prisons, often brutal interception efforts by local governments, physical abuses and humiliation. In the streets of Beijing, they are most likely those who unfurl banners these days condemning corruption and calling for social justice.
Ms. Ma said she had experienced it all. In the fall of 2006, she was under house arrest in her brother’s home where she had been staying. She scaled the walls and escaped in the middle of the night. People hired by the court hunted her down in two columns toward Beijing. She succeeded in evading them only by transferring halfway from train to bus. But the third day in Beijing, she was captured by a dozen or so of her pursuers, thrown into a van, and taken to the “Beijing Office” of the court.
A local court has a Beijing Office too? I didn’t know that before. And the image of a hot chase was simply surreal.
In Beijing in 2007, she had been rounded up in Majialou, and she had been locked up in a black prison run by Changchun municipality’s Beijing Office located in Runhua Guesthouse (润华宾馆) at Caihuying (菜户营). The black jail had two rooms, each having a long, raised platform that accommodated many petitioners without separating men and women. A day’s meal consisted of two buns and one large bowl of cabbage shared by all. It was still very chilly in March, and the black jail had no heating. She woke up in the middle of the night, and kept herself warm by running back and forth in the room. After three days, she and a few dozen petitioners were sent back to Jilin where they were locked up until the Two Sessions were over.
I asked her if she had written down all these episodes. She grinned, “There are too many of them, and I wrote only a couple of them in the early days.”
Her husband had not been a supporter of her quest for justice, and he divorced her in an attempt to stop her (they had since resumed their marriage). Like most Chinese, his belief was that she was not going to win, that the longer she fought, the more she would be hurt—both mentally and financially, and that she should swallow her anger and humiliation and move on. But that’s not how Ms. Ma looks at it.
During the World Expo in 2010, Ma Yongtian and a group of petitioners made a trip to Shanghai. To avoid being tailed and rounded up, they had declared in a statement that their trip was merely for sightseeing and she said they had really meant it. But on the train, they soon found they were surrounded by police from each end of the car, and when they arrived in Shanghai, they were cordoned off by over a hundred policemen and ushered onto a bus. She was again taken back to Changchun where she was given a 10-day detention. She said she would have been sent to a labor camp for two years if it wasn’t for her son who, around that time, joined the Sparrow Initiative in front of the UN headquarters in New York and made her story into headlines of many Chinese media outlets and websites. A neighborhood police officer said to her privately, “Damn, this is so evil! You know what? We (the police) are nothing more than their dogs!”
During her detention, she scuffled with the guards/police officers. She refused to squat when ordered to. When a guard asked what her offense was, she told him to ask the policemen who had taken her there. While filling in a form, a guard came up with the charge of “disrupting social order,” she demanded that they tell her how she disrupted social order. In the detention center, she told me, petitioners were those who put up a fight to defend themselves because they were not criminals and often refused to obey. They were punished harshly because of their defiance.
In 2011, another sympathetic local police officer told her that Jilin province’s ranking in the number of petitioners jumped from the 14th to the 7the nationwide, and Changchun mayor Cui Jie (崔杰) ordered that the city’s petitioners be detained in Weizigou Detention Center. When the policemen came to get Ma Yongtian, she holed up in her home without opening the door for them. She got away, but as she put it, “they can take you away even if you are just sitting in your own home doing nothing.”
A local Public Security chief once cursed her, “You are just a shameless scum!” “How am I shameless? What did I do?” As she recounted it to me, tears welled up in her eyes and coursing down her cheeks in two curved lines. Up to that point, she had been matter-of-factly displaying determination and cogency. She wiped the tears with her hand, but more came.
During the Two Sessions in 2012, Ma Yongtian was again in Beijing to petition. She and others were intercepted and herded onto a bus that took them to a black jail. The front of the facility was the Beijing Office of Jilin Province’s Public Security Department, and behind it was a row of one-story houses that served as the jail. Ms. Ma avoided being thrown into the cell by threatening suicide. They left her outside it. Toward midnight, she ran away as the gate opened to let vehicles in and out. Only when she made her escape, did she find out where the black jail was – it was in the area of Marco Polo Bridge (卢沟桥).
I asked her why petitioners like to converge in Beijing during the Two Sessions, and she said, “At home, no officials will meet us. I go to the court, the chief judge won’t meet me; I go to the municipal government, the mayor won’t see me. By coming to Beijing, we raise the stakes for our officials in order to seek a possible chance to speak with them.”
The fact is, “seeking a chance to speak with officials” has become a highly dangerous act.
She once asked the people who intercepted and guarded her: “Why spend all the money on tracking me down everywhere I go? Why not spend the money, probably only a fraction of it, instead on settling my compensation dispute?” The reply: “We can spend money on maintaining stability, because we must do everything to make sure you don’t cause any trouble for us.”
Ms. Ma and I talked about fear. “It seems to me that the long-suffering, hard-fighting petitioners are people who have overcome their fear,” I said. “No,” Ms. Ma corrected me. “We are very, very scared. When we go out of the door every morning, we don’t know what that day holds for us, and we don’t know whether we will be returning safely or not in the evening. We are walking on a tight rope every day. Until you become a petitioner, you don’t know how black black is, and what liars our officials are.”
This much I know: Many petitioners, over the course of their futile struggle, have become someone more than just a petitioner. Some have become conscious political dissenters and activists, and others legal experts keen on the idea of rights.
“Violence will be inevitable in China,” Ms. Ma said firmly. My heart skipped a beat. “I would give my life if there would be no more injustice.”