Written by Margaret Lewis.
When visiting Washington DC in November 2014, Chinese President Xi Jinping stated that “China has made enormous progress in human rights. That’s a fact recognized by all the people of the world.” The statement is true when viewed against the glaring human rights abuses committed under Mao Zedong. Yet the December 2015 United Nations report on China’s compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment presents a bleak view of the realities on the ground in China today.
To be fair, the Chinese government has introduced discrete reforms that could decrease the prevalence of torture. The Committee against Torture flagged a number of these positive aspects in its Concluding Observations. Yet each of these reforms needs to be analyzed with a critical eye because, as Teng Biao, a Chinese human rights lawyer, astutely explained, “The major problem with rule of law in mainland China is not establishing legal provisions but rather implementing laws.” And here lies the key problem: the Chinese government places perpetuating one-party rule above a robust commitment to the rule of law and human rights.
For example, the 2012 amendments to the Criminal Procedure Law that introduced procedures for excluding illegally obtained evidence were welcomed with great fanfare. Four years later, use of these procedures is extremely limited. Courts should rarely have to exclude evidence if police and prosecutors are doing their jobs correctly and not relying on illegally obtained evidence. That said, ongoing concerns about the courts’ unwillingness and even inability to stand up to the police coupled with personal accounts of coerced confessions stretch the bounds of credulity that the careful work of police and prosecutors accounts for the rare invocation of these rules.
One of the most exciting recent developments in criminal procedure reforms has been the use of audio and video recordings of interrogations. This reform was initially aimed at major criminal cases, such as when a defendant faces life imprisonment or the death penalty. China has since broadened use of recordings with statements by the Ministry of Public Security in late 2015 that videotaping would be expanded to all criminal cases. The hope is that recording interrogations will both provide evidence of how individual cases are handled and encourage a change in police culture away from coercive practices.
Preliminary indications are, however, that recording interrogations is not significantly changing the culture of extreme reliance on confessions as the primary form of evidence in criminal cases. When viewing an interrogation room in a Beijing police station this past October, the staff was keen to point out the videotaping technology. What I could not help but notice was the slogan “truthfully confess and your whole body will feel at ease” that was literally embedded in the floor in front of the metal, constraining interrogation chair, otherwise known as a “tiger chair.” Faced with this slogan during prolonged questioning makes crystal clear to the suspect that there is no right to silence in Chinese law. The primacy of confessions as evidence was accentuated when I was fortunate to view part of a criminal trial in Beijing in December. The case largely turned on whether the defendant threatened the alleged robbery victim, but the alleged victim was not called as a witness. In fact, the court announced that no witnesses would be called, which is the case in nearly every criminal trial. The judges focused almost solely on statements made by the defendant while in custody.
The Chinese government has introduced procedures to keep interrogators separate from suspects outside the interrogation room, to medically examine detainees upon arrival at police stations, and for recordings to be transferred promptly to the courts. What are lacking are additional reassurances that these procedures are sufficiently rigorous to prevent tampering with the process. The Committee against Torture noted the lack of independent medical examinations, the lack of independence of the officials charged with investigating allegations of torture, and the lack of independence of the auditing system to verify the recordings’ accuracy.
The value of recordings is further limited if the court does not view the interrogation process with a skeptical eye, if the defense has a difficult time accessing the recordings, or if there simply is no defense lawyer, which is true for most criminal cases. Suspects need lawyers in order to understand their rights and then have someone advocate for those rights. No recording, even if completely accurate, can ever replace these fundamental functions. The Chinese government is increasingly intolerant of defense lawyers who zealously advocate for clients’ rights leading to reprisals against the lawyers rather than praise for their contributions to the rule of law. The Committee against Torture expressed deep concern for the recent crackdown on defense lawyers stating, “This reported crackdown on human rights lawyers follows a series of other reported escalating abuses on lawyers for carrying out their professional responsibilities, particularly on cases involving government accountability and issues such as torture, defence of human rights activists and religious practitioners.”
The plight of defense lawyers is epitomized by the December conviction of renowned civil rights lawyer Pu Zhiqiang on charges of inciting ethnic hatred and “picking quarrels and provoking trouble” through comments on his microblog. Among the issues raised in the Committee against Torture’s Concluding Observations were prolonged pre-trial detention, restrictions to the right to access a lawyer, and prosecution based on broadly defined offenses, all of which directly apply to Mr. Pu’s case.
Further connecting Mr. Pu’s case to the Committee’s observations, one of the many sensitive cases for which he provided representation prior to his detention was that of a cadre who was tortured to death while in the hands of the Chinese Communist Party’s disciplinary system. The nearly 90 million Party members are subject to a disciplinary process called shuanggui (sometimes translated as “double designation”), which requires them to appear for interrogation at a designated time and place. The almost complete lack of transparency makes it difficult to evaluate the extent to which the Party’s procedures comply with international human rights norms though reports have documented severe physical and mental abuse while Party members were detained.
All citizens are subject to a number of detention methods outside of the formal criminal justice system despite the December 2013 decision to end the longstanding practice of reeducation through labor. This welcome step brought China a step closer to compliance with the International Covenant on Civil and Political Rights, which China signed in 1998 but still has yet to ratify. Examples of continuing methods of arbitrary detention include the use of psychiatric facilities to detain people who do not necessarily have mental health conditions, compulsory drug treatment centers to detain drug addicts, and “custody and education” centers that are largely used against sex workers and sometimes their customers. Each of these measures has at least some basis in Chinese law but does not satisfy international legal requirements for the legal review that must precede long-term deprivation of a person’s liberty.
The Chinese government also takes actions without any legal basis to silence voices perceived as threatening to the existing political structure. Measures range from home confinement (sometimes called “soft detention” for the Chinese term ruanjin) to holding people at secret detention sites known as “black jails.” The very fact that these are extralegal measures and thus not officially recognized by the Chinese government complicates efforts to estimate their prevalence. Nonetheless, repeated, credible accounts have surfaced with the Committee against Torture noting that it “remains seriously concerned at consistent reports from various sources about a continuing practice of illegal detention in unrecognized and unofficial detention places . . . .”
The PRC Foreign Ministry Spokesperson responded to the report by stating, “China is firmly opposed to torture . . . . We have noted that some opinions held by the UN Committed Against Torture are based on uncorroborated information.” One of the challenges is indeed that the lack of transparency makes it difficult to verify information. China has rejected the vast majority of requests by UN special rapporteurs who have asked to visit China, in part because of the highly critical report issued by the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment following his visit to China in 2005.
China is scheduled to submit its next periodic report to the Committee against Torture in December 2019. Allowing the international community greater access to China’s criminal justice system would be a significant step towards creating a less-contested factual record on which the Committee could base its conclusions. Unfortunately, such progress is unlikely in view of President Xi’s increasingly hostile stance towards international scrutiny of China’s human rights record. The international community’s unceasing requests for first-hand information have at least symbolic power even if China continues to block access, which in itself is telling of what international observers might find.
Professor Margaret Lewis’s research focuses on China’s legal system with an emphasis on criminal justice. She joined Seton Hall Law School as an Associate Professor in 2009. Image credit: CC by Can Pac Swire/Flickr.
Categories: Law and Justice