China Law and Governance Review
    A Publication of China Law and Development Consultants
December 2006 Issue No. 3   
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Recent Developments at China's Legal Forefront

Returning Death Penalty Review to the Supreme People’s Court: How will the Court Staff the New Death Penalty Review Divisions?

On October 31, 2006, the Standing Committee of the National People’s Congress (全国人民代表大会常务委员会) adopted an amendment proposed by the Supreme People’s Court (SPC, 最高人民法院) to revise Article 13 of the Law on the Organization of People’s Courts (人民法院组织法) so that the SPC will have exclusive jurisdiction over the final review and approval of all death penalty cases. (See Guangming Daily 《光明日报》, November 1, 2006.) This amendment replaces the existing language in Article 13 which requires the SPC to delegate its authority to review certain death penalty sentences (those relating to serious crimes such as murder, rape, robbery and the criminal use of explosives) to provincial-level high people’s courts when necessary. The change has been anticipated for some time. In October 2005, the SPC announced that it would reinstate its authority to review and approve such death penalty sentences from the provincial high people’s courts within the next five years. (See “The Second Five-Year Reform Outlines for the People’s Court” 《人民法院第二个五年改革纲要》, October 26, 2005.) The legislative amendment is seen as removing a major legal hurdle to SPC’s plan.

In the early 1980’s, the SPC delegated its authority to review such death penalty sentences to provincial high people’s courts, the highest court at the provincial level, in response to increased workload resulting from a series of nationwide government campaigns to crack down on crimes and maintain social order. This move, deemed “temporary” at the time, continued for more than 20 years. The inconsistent application of the death penalty by different provincial high courts, along with a number of well-publicized wrongful convictions, has drawn considerable criticism both from within and outside of China. Amnesty International estimates that based on public reports available, at least 1,770 people were executed and 3,900 people were sentenced to death in China during 2005. (See Amnesty International 2006 Report.) Foreign non-governmental organizations believe the actual number is much higher. In addition, because provincial-legal high courts also serve as appellate courts for appeals of death penalty sentences, the prevailing practice at many such courts is to rubber-stamp their own appellate decisions. (See the Beijing News 《新京报》, November 3, 2005.)

This lack of oversight by provincial high courts, combined with the inconsistent review standards adopted in different provinces, appears to have been the chief factors behind the large number of wrongful convictions handed down by local courts. In delivering the SPC Working Report to the National People’s Congress in 2004, Xiao Yang, the President of the SPC, reported that of the 300 cases reviewed by the SPC during the previous year, 94 cases were reversed by the SPC and 24 cases were ordered to be retried by lower courts. Based on such statistics, legal experts in China predict that the SPC’s reclaiming its death penalty review power will decrease death penalty cases overall by one third. (Beijing News, id.)

Currently, 90% of the death sentence review cases are handled by the provincial high courts. (The Beijing News, id.) To shift such review to the SPC would substantially increase its criminal case workload. This anticipated increase has prompted plans to establish three new criminal divisions (刑事审判庭) at the SPC to handle exclusively death penalty review (see People’s Net 人民网, September 26, 2006) and will necessitate the hiring of 300-400 new personnel, including judges, judge’s assistants and court clerks. (The Beijing News, id.)

Despite official discussions about reinstating the SPC’s full death penalty review authority for a number of years, one of the main reasons for the SPC delay in making the change apparently was due to insufficient staffing. Until the recent announcement, the SPC had only two criminal divisions. Given that this change will require significant reorganization at the SPC and will likely involve a large increase in personnel allocation (编制) within the government bureaucracy, the proposed change shows a major commitment by the party leadership to make improvements in death penalty application.

In the past, many judges in China were drawn from the ranks of decommissioned military personnel or court clerks, most of whom lack formal legal education. As recently as the early 1980’s, one did not need any formal education become a judge. (See 1978 People’s Court Organization Law.) Any Chinese citizen over the age of 23 and who has not been deprived of his or her political rights was eligible. Beginning in the mid-1990s, there was a push to professionalize the judicial ranks and improve the quality of judges. The Judges Law 《法官法》, revised in 2001, now requires judicial candidates to have a law degree or to have passed the state judicial examination. To become a judge of the SPC, one must now have at least an undergraduate degree in law and a minimum of three years of legal professional experience. (See Judges Law, art. 9.)

To recruit the large number of judges needed for its three new criminal divisions, the SPC has mounted unprecedented recruitment efforts. According to Nanfang Weekend 《南方周末》, the new SPC judges will primarily come from three sources: (1) judges from the provincial-level court systems who have at least an undergraduate law degree and five years of adjudication experience; (2) recent law graduates with at least a master’s degree, who are then required to undergo a one-year training program in the provincial-level court systems before assuming their posts; and (3) lawyers and law professors.

Recruiting judges, especially SPC judges directly from the ranks of practicing lawyers, is still extremely rare for China’s judiciary. This group likely will represent only a small percentage of the SPC’s new recruits, even though government agencies at many levels have experimented with recruiting outside experts to fill certain high-level technical posts. (See China Law and Governance, Issue 2, “Provincial Governments Hire High-Priced ‘Contract Advisors’”).

Between 1999 and 2000, the SPC had flirted with the idea of recruiting judges from academia but the effort appeared to have fizzled without much fanfare. (See Jing Hanchao (景汉朝), “Judicial Threshold” “从法院的围城说起”.) It will be interesting to see this time how many practicing lawyers (most likely experienced criminal defense lawyers) eventually will sit on the SPC death penalty review panels and what perspective they may bring to the court given their experience and insights from the other side of the bench. While some lawyers based outside of Beijing might be attracted to the SPC’s physical location in the nation’s capital, it is unlikely that more accomplished lawyers will be willing to give up their private practice to become SPC judges. Although private lawyers in China do not have nearly the same prestige as legal academics or judges, the country’s exploding economic growth has generated significant business opportunities. Judges, on the other hand, are paid as civil servants according to a strictly hierarchical scale. Becoming a judge, even at the SPC level, would mean a dramatic pay cut for experienced private lawyers. (Jing Hanchao) As one scholar observed, “Given that the pay for judges is low and that some local courts even have to rely on court fees…to pay for salaries and benefits due to the lack of funding from local governments, the judicial profession in our country does not nearly garner the respect and social status it deserves”. (See Zhong Jian (钟坚), “Lawyers Becoming Judges” “从律师到法官”.) In addition, there is still a gulf between being a lawyer who has the freedom to decide how to pursue his or her practice and being a judge at the SPC where there is little judicial independence.

One potential draw for lawyers to join the judiciary may be the higher status offered by top leadership positions at various levels of the courts. For example, there have been reports of rare instances in which lawyers were appointed as vice presidents in the provincial high people’s courts (e.g., the Shannxi and Anhui Provincial High People’s Courts 陕西省和安徽省最高人民法院). (See Legal Daily 《法制日报》, September 22, 2004.) Given that this apparently is not the intent behind the SPC’s current recruitment effort, nor does it appear to be offering salaries and benefits commensurate with private practice, it will be a challenge for the SPC to draw the most experienced and talented lawyers to the bench. Nevertheless, even if a small number of lawyers do take up positions in the newly created criminal divisions, it still would be a noteworthy departure from past practice.

Research memo in Chinese contributed by Mr. Zhang Zheng (张铮), formerly a program officer at China Law & Development Consultants.


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