Reforming China's Criminal Procedure: An Introduction to this Symposium


REFORMING CHINA'S CRIMINAL PROCEDURE:
AN INTRODUCTION TO THIS SYMPOSIUM
Jerome A. Cohen

Author
Professor of Law, New York University School of Law; Of Counsel, Paul, Weiss,
Rifkind, Wharton & Garrison LLP; Co-Director, U.S.-Asia Law Institute;
Adjunct Senior Fellow, Council for Foreign Relations. J.D., Yale Law School.

PREFATORY NOTE 214

1. THE CONTEXT FOR CRIMINAL PROCEDURE REFORM 214

II. THE SYMPOSIUM ESSAYS 219

III. INTERNATIONAL IMPLICATIONS OF CRIMINAL PROCEDURE REFORM 225



214 Columbia Journal ofAsian Law, Vol. 24, No. 2 (2011)

PREFATORY NOTE

On August 30, 2011, the Standing Committee of China's National People's
Congress published comprehensive and significant draft amendments to the
nation's Criminal Procedure Law and sought public comments on the
proposed revisions. According to China's legislative process, it is likely that the
National People's Congress will vote on some version of these proposed
amendments during its annual meeting in March 2012.

The articles in this volume reflect, analyze, and discuss the state of
Chinese criminal procedure law before the publication of the proposed
amendments. Accordingly, they set the stage for the current round of
legislative reform, which has aroused great interest both within China and
abroad.

Once the amendments become law, this will no doubt create an
opportunity and perhaps an imperative to revisit the issues examined in this
volume and to evaluate what has and has not been amended and the effect of
those changes. We are happy to play a role in this important process.

I. THE CONTEXT FOR CRIMINAL PROCEDURE REFORM

The dramatic "peaceful rise" of the People's Republic of China (China or
PRC) has made the world more attentive than ever to its achievements in
political, economic, military, and diplomatic affairs. Yet China's leaders want
more-they want their country also to be recognized for its contemporary
quality of life, for being a humane and cultured society that is the deserving
heir to a great civilization. Thus, the PRC's "soft" power has become a matter
of concern to its leadership. That is why it has established over three hundred
"Confucius Institutes" on foreign campuses. That is also why China has
committed itself to the United Nations Convention Against Torture;' the
International Covenant. on Economic, Social and Cultural Rights; 2 the
International Covenant on Civil and Political Rights (signed but not yet

'United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted Dec. 1o, 1984, 1465 U.N.T.S. 85 (entered into force
June 26, 1987). China signed the Convention on December 12, 1986 and ratified it on
October 4, 1988. United Nations Treaty Collection, Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg-no=IV-9&chapter= 4&lang=en# 5 (last updated
Aug. 26, zon).
2 International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16,
1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976). China signed the Convention on
October 27, 1997 and ratified it on March 27, 2001. United Nations Treaty Collection,
International Covenant on Economic, Social and Cultural Rights, http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsgno=IV-3&chapter=4&Iang=en#6 (last updated
Aug. 26, 2011).



Symposium Introduction: Reforming China's Criminal Procedure

ratified);' and many other international "human rights" agreements. In recent
decades the Chinese Government has increasingly come to realize that its
stature and influence in the world community depend in important part on
foreign perceptions of China's human rights record, including its treatment of
alleged anti-social offenders. I

A similar situation prevails at home. With the passing of the revolutionary
era and the declining attraction of Communist ideology and government, the
Communist Party has had to seek continuing legitimacy not only in China's
growing international prowess but also in the results of its domestic
administration, especially the significant economic and social benefits that it
has brought to most of the Chinese people. Yet its accomplishments have
come at great economic and social cost. The gap between rich and poor is now
generally thought to be greater than at any other time in PRC history, and it is
reportedly expanding. Similarly, official and business corruption and collusion
seem to be greater than ever and are on public display in both countryside and

city as the demands of economic development inexorably, and often unfairly,
deprive ordinary people of their farming and housing rights. The consequences
of massive environmental neglect are also daily more apparent, adding to

growing social unrest. The failure to meet the needs of some two hundred
million rural people who have migrated to the cities is another source of
resentment among long-term urban residents as well as newcomers. So too are
inadequate protections against unsafe food and medicines and faulty products
and construction. In many places, forced abortions and sterilizations add fuel

to the fire. And arrogant behavior by police and other officials is ubiquitous.
Without democratic freedoms of expression, representative political

institutions, uncensored media, an effective system for persuading officials to
alleviate individual and collective grievances, and consistently available,
trusted courts, large numbers of ordinary Chinese have been voicing their
dissatisfaction through alternative channels. Mass public protests, often
violent, appear to be increasing. Attempts to ventilate grievances by using the
Internet, activist non-governmental organizations, the system for petitioning
officials, and even the courts to ventilate grievances have often offended the
authorities. Efforts to establish political associations or mere discussion groups
continue to be prohibited, and seeking solace in unapproved religious
institutions is frequently deemed to be anti-social.

Although the government seeks to remedy the causes of dissatisfaction
and social conflict, its measures are insufficient and slow to take effect. In
these circumstances, the temptation for it to meet manifestations of social
unrest with enhanced police surveillance and criminal punishment has proved
irresistible. The PRC's national budget for internal security now exceeds that
for national defense, despite the defense budget having more than doubled in

International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999
U.N.T.S. 171 (entered into force Mar. 23, 1976). China signed the Convention on October

5, 1998 but has not yet ratified it. United Nations Treaty Collection, International
Covenant on Civil and Political Rights, http://treaties.un.org/Pages/ViewDetails
.aspx?src=TREATY&mtdsg-no=IV-4&chapter=4&lang=en (last updated Aug. 26, zon1).

215



Columbia Journal ofAsian Law, Vol. 24, No. 2 (20n)

the past decade.' Yet this repression aggravates the situation by fostering the
sense of injustice that appears to be growing among the populace. To be sure,
this is hardly the first time since the PRC's founding in 1949 that repression
has been a dominant instrument of social control, but now it is being imposed
on a more open, educated and complex society, and through a legal system
that is more sophisticated in terms of norms, institutions, personnel and
experience, than earlier in PRC history.

Moreover, popular demands to effectively protect society against common
crimes, coupled with public outrage at highly-publicized wrongful convictions,
have increasingly focused domestic attention on the criminal process. The
death penalty remains an ideological hornets' nest in the country that every
year executes far more offenders than all the other countries in the world
combined. That fact is so internationally embarrassing to China's leadership
that it treats the actual statistics as a state secret, despite capital punishment's
evident domestic popularity. Nevertheless, the Chinese public is also
concerned about the accuracy and fairness of the nation's criminal procedure
as well as the equal treatment of like offenders in sentencing. China, like other
countries, is striving for the right balance between the crime control and due
process models made famous in the West by the late Herbert L. Packer., It
needs to develop its version of "due process" consistent with the country's-
and the world's-evolving basic values, including those that call for protection
of individual accused against arbitrary official action.

As a result, there is a continuing struggle in China between those who
preside over the Party/police state that governs the country and those law
reformers and legal experts who strive to subject government and Party
officials to-some meaningful degree of legal control and accountability and to
provide the targets of official punishment with a fair opportunity to defend
themselves. This struggle is waged at many levels-in political-legal theory,
appointments to public office, legislation, and practice.

Political-legal theory sets the Party line and the tone for appointments to
the many key jobs in the various police organizations, the procuratorate, the
courts, the Ministry of Justice, and the Party institutions that control them in

4 This fact was reported by Radio France Internationale (RFI) on March 5, 2011, and by
Reuters on March 7, 201. [This Year, China's Stability
Maintenance Budget Exceeds Military Spending for First Time], RADIO FRANCE
INTERNATIONALE (Mar. 5, 2on), http://www.chinese.rfi.fr/node/609 56; cP m # #$R
U 6;244 Z, $ R [This Year, China's Stability Maintenance Budget 624.4 Billion
Yuan, Exceeds Military Spending for First Time], REUTERS (Mar. 7, 201),

http://cn.reuters.com/article/chinaNews/idCNnCN1650833zono3o7. In response, Xinhua
News released a report on April 6, 2011, specifying among other things that in 2011 the
budget for "public security" (gonggong anquan) (MA>2i4) is about 624.4 billion RMB.
fY it " q [ I P Y g" $ [To Fabricate "China's Stability Maintenance
Budget" Lacks Basic Common Sense], fR1 [XINHUA NET] (Apr. 6, 2011), http://news
.xinhuanet.com/politics/2011-o4/o6/c_121272130.htm. The 2on budget for national
defense is 6oi. billion RMB, as reported by RFI above.

' Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1 (1964).

216



Symposium Introduction: Reforming China's Criminal Procedure

administering the criminal justice system. It also establishes the parameters of
possible legislation and provides the guiding light for implementation of
promulgated norms. Party General Secretary Hu Jintao's introduction of the
doctrine of the "Three Supremes" in December 2007, not long after the r7 th
Communist Party National Congress awarded him a second term, signaled an
end to the optimism about law reform that had peaked in 2002-2003, at the
start of Hu's first term, and had gradually declined. In the spring of 2008, the
new President of the Supreme People's Court, Wang Shengjun, a career police
official who never studied law but spent fifteen years administering the Party's
Central Political-Legal Commission, began to spell out the implications of the
new line. He made clear that the efforts of his predecessor to introduce more
autonomy and professionalism into the judicial system by reducing the role of
the Party in decision-making were coming to an end.' I was at a conference of
judges and legal scholars in Beijing the morning after Wang delivered one of
his important early speeches and saw the chill that overcame many of the
participants around the table as they circulated relevant excerpts reported on
the Internet.

The new Party line and the appointments that accompanied it inevitably
affected the criminal justice work of the National People's Congress as well.
For example, efforts to enact a law abolishing "re-education through labor,"

6At the December 25, 2007 meeting attended by senior judges and prosecutors serving
as delegates to the National Political-Legal Work Conference (
(quanguo zhengfa gongzuo huiyi), Party General Secretary Hu Jintao said the people's
courts must "always insist upon the supremacy of the Party's tasks, the supremacy of
the people's interests, and the supremacy of the Constitution and the laws" ('M!tl#

[The People's Courts Must Persist in the Guiding Thought of the "Three Supremes"), A
TICI [XINHUA NET, QINGHAI BRANCH] (Aug. 4, zoo8), http://www.qh.xinhuanet.com/
qhpeace/2008-o8/04/content 14o20362.htm (Chinese); Media Dictionary, Three

Supremes E I1, CHINA MEDIA PROJECT, http://cmp.hku.hk/2olo/11/1z/6603/ (last
visited Aug. 26, 2011).

' The Supreme People's Court's Party study group for communist theory held an
important meeting on May 8, 2008, at which the new SPC President, Wang Shengjun
(:Etfk{), delivered a speech specifying five aspects in which courts should advance
with the times. When talking about the first aspect, "holding high the great banner of
socialism with Chinese characteristics," Wang said the "Three Supremes" is the
"important guiding theory that must always be followed in the work of the People's
Courts in the new era." iJf [Chen Yonghui], i
451 A RM 9 R I f' 4 1 M A] [Lift High the Great Flag of Socialism with Chinese
Characteristics; Diligently Realize the Advancement of the Work of the People's Courts],
+ ARR [CHINA COURTS], (May 8, 2008), http://www.chinacourt.org/html/article/

2oo805 /08/ 3 00410.shtml. Wang later reiterated the "Three Supremes" as the guiding
theory for courts at a meeting attended by presidents of high courts on June 22, zoo8.

-1 Wk: [R KWifi i Wang Shengjun: The Courts Should
Pay More Attention to Protecting the People's Livelihood and Unblocking the Mechanism
for Public Opinion Expression], FR@ [XINHUA NET] (June 23, 2008), http://news

.xinhuanet.com/legal/2008-o6/23/content_8 4 2o 389.htm.

217



which undermines the protections of the Criminal Procedure Law by
authorizing the police to incarcerate people for up to several years without
having to seek the approval of either prosecutors or judges, were reportedly on
the brink of success at the start of Hu's first term.8 The Ministry of Public
Security (MPS), however, is always a formidable legislative foe. When, at the

r7 th Party Congress, the MPS Minister, Zhou Yongkang, was promoted to
become a member of the Standing Committee of the Politburo and placed in
charge of the Party's Central Political-Legal Commission, any remaining

excitement about the impending end of the much-feared laojiao (9 O)
dissipated.

The most shocking example of the implications of the new Party line for
criminal justice has been the increasingly severe attack on defense lawyers, on
not only the small but courageous group of civil liberties lawyers known as
"rights protection lawyers," but also a larger number of "non-political" lawyers
whose work on behalf of a range of clients has sometimes made them persona
non grata with the government and the Party. Many members of these two
groups have been subjected to both illegal and legal intimidation designed to
silence them and stop their vigorous use of existing laws to protect their
clients. Moreover, some lawyers who have never taken part in criminal defense
but who have assisted clients in civil and administrative actions challenging a
broad range of government actions have also been persecuted through a range
of informal and formal sanctions, including criminal prosecution, that have
neutralized many but radicalized others. The Ministry of Justice, which should
be attempting to protect lawyers against this disgraceful attack, is instead one
of the major attackers. Now led by another Party-police official, Ms. Wu
Aiying, it presides over the local judicial bureaus that refuse to renew the
licenses of many "rights lawyers" on spurious grounds, that threaten and

There were heated debates about the possible abolition of reeducation through labor
(MA) (laojiao) in 2003. In that year, 127 people's representatives to the National
People's Congress proposed motions to reform laojiao, and the NPC Legislative Affairs
Commission began to produce a draft law titled "Law for the Education and Correction
of Illegal Conduct" (weifa xingwei jiaozhi fa) (ih fh MM) that would have
eliminated laojiao as an administrative punishment. '
ITt- 0 [China's "Reeducation Through Labor" System Faces Reform; Law for the
Education and Correction of Illegal Conduct will be Drafted], ARIA [PEOPLE'S WEB],

http://legal.people.com.cn/GB/42735/3212393.html (last visited Aug. 26, 2011); $1* 4

*AJ'F$M8*MMWi -15339 (ai&t~k.) [Repeal
the Reeducation Through Labor System, Build a Rule-of-Law Nation; 15,339 Chinese
Citizens Propose a Law for the Education and Correction of Illegal Conduct (Citizens'
Proposed Draft)], rP I 4iV'TliT af [CHINA HUMAN RIGHTS LAWYERS CONCERN GROUP]

(July 7, 2008), http://www.chrlcg-hk.org/?p=3o6. It was said that many legal experts
regarded laojiao as one of the areas in which China's judicial reform was likely to
achieve a breakthrough. However, the momentum for judicial reform slowed down in
the second half of 2003. gfi--git] SA l lki4 [A New Round of Judicial Reform
Begins], k!# #R [CAIJING] (Jan. 5, 2004), http://magazine.caijing.com.cn/2oo4-o1-o5/
11005 8971.html.

218 Columbia Journal ofAsian Law, VOL. 24, No. 2 (2on1)



Symposium Introduction: Reforming China's Criminal Procedure

occasionally close down their law firms, and that usually restrict the local bar
associations under their control from aiding lawyers who are being abused.'

II. THE SYMPOSIUM ESSAYS

Each of the five splendid essays in this symposium demonstrates that,
despite the current depressing climate for improvements in the conduct of
China's criminal justice system, law reform is far from dead. Year after year, an
admirable group of not only legal scholars and lawyers but also judges,
prosecutors, legislative staff, and government officials quietly continue their
research, publication, and drafting of proposed laws, amendments,
interpretations, and regulations as well as consultations, conferences, and
other cooperation promoting improvements in criminal justice. Moreover,
they gradually get rule-making results, as these essays confirm. The studies by
Professor Chen Ruihua of Peking University Law School and Mr. Ira Belkin of
the Ford Foundation's Beijing office help us understand the meaning and
significance of the two landmark regulations relating to evidence jointly
promulgated in June 20o by the Supreme People's Court, the Supreme
People's Procuratorate, the Ministry of Public Security, the Ministry of State
Security, and the Ministry of Justice (the Evidence Rules). Those measures, if
implemented in good faith by the law enforcement departments, promise to
put real flesh on the bare bones of the principle of excluding illegally obtained
evidence from criminal cases, a formidable and controversial goal for any legal
system.

Just three months later, the same five institutions that promulgated the
Evidence Rules jointly put info effect another major document: the Opinion
on Certain Issues of Standardized Sentencing. This was accompanied by a
fourth document-the Directive on Sentencing in the People's Courts-issued
by the Supreme People's Court (SPC) alone. Both of these latter documents
(the Sentencing Opinions), although not legally binding like the Evidence
Rules and merely tentative, represent the PRC's most serious nationwide
attempt to articulate criteria for curbing the largely unlimited sentencing

Jerome A. Cohen, The Suppression of China's Human Rights Lawyers: Do Foreign
Lawyers Care?, U.S.-AsIA LAW INSTITUTE (June 6, 2011), http://www.usasialaw.org/?p=

5543, available in Chinese at http://www.usasialaw.org/wp-content/uploads/zon/o6/
2011.o6.o9.pdf, http://www.usasialaw.org/?p=5551. Paul Mooney, Silence of the

Dissidents, S. CHINA MORNING POST, July 4, 2on, at A4, available at http://www
.pjmooney.com/en/MostRecentArticles/Entries/z011/7/4_Silenceof TheDissidents.
html; Fu Hualing & Richard Cullen, Climbing the Weiquan Ladder: A Radicalizing
Process for Weiquan Lawyers, SOCIAL SCIENCE RESEARCH NETWORK (Oct. u1, 2009),

http://ssrn.com/abstract=1487367; Eva Pils, The Practice of Law as Conscientious

Resistance: Chinese Weiquan Lawyers' Experience, in THE IMPACT OF CHINA'S 1989
TIANANMEN MASSACRE 109-24 (Jean-Philippe Bja ed., 2010), available at

http://ssrn.com/abstract=1564447; Eva Pils, The Dislocation of the Chinese Human

Rights Movement, in A SWORD AND A SHIELD: CHINA'S HUMAN RIGHTS LAWYERS 141-59
(Stacy Mosher & Patrick Poon eds., 2009), available at http://ssrn.com/abstract='564171.

219



220 Columbia Journal ofAsian Law, Vol. 24, No. 2 (2011)

discretion allowed the courts by existing law. They are a response to the long-
felt need for greater rationality, fairness and equality in the meting out of
punishments. As Professor Ye Xiaoqin of Wuhan University Law School points
out in her thoughtful and balanced analysis, these guidelines offer a general
framework that requires detailed implementing rules at various court levels
and that will be modified and refined in light of experience over the next few
years. They can eventually be expected to evolve into binding norms through
legislation or SPC interpretation. Sentencing, after so many years of avoiding
the spotlight, has finally begun to receive the attention of law reformers that it
deserves.

To be sure, China's most famous, indeed infamous, sentencing problems
concern the death penalty, and Professor Margaret K. Lewis of Seton Hall
University Law School gives us a stimulating and comprehensive examination
of recent efforts to improve the criminal process in capital cases. This is not an
easy task. It is not only the number of executions that is shrouded in secrecy.
Although the government has focused its propaganda on the recent Eighth
Amendment to the Criminal Law that reduced the number of offenses for
which one can be sentenced to death from sixty-eight to what is still a mind-
boggling fifty-five, it has revealed surprisingly little about the actual operation
of the highly-touted 2007 return to the SPC of final review power in individual
capital cases. We are occasionally treated to unverifiable claims that the new
review procedure has reduced the number of executions by this percentage or
that, but this is reminiscent of the ridiculed claims of the former Soviet Union
that industrial production figures were fifty percent over last year, without
ever revealing last year's production figures.

Perhaps most noticeable and frustrating to outside observers is the extent
to which the policies that purport to guide capital sentencing are
encapsulated, at least in public, by slogans and clich6s that appear to have
little concrete meaning. Yet Professor Lewis knows that judges in China, like
the rest of us, live by symbols, and she admirably probes the implications of
subtle linguistic shifts from "combine punishment with leniency" to "execute
few and execute cautiously" to "appropriately combine leniency and severity."
She also highlights the increasing importance of China's unique suspended
death sentence, which is usually modified to a life sentence if the defendant
does not commit another offense within two years after his conviction. It was
recently reported that these "reprieved death sentences," as Professor Lewis
calls them, have now come to outnumber sentences to immediate execution,'o
and this has caused alarm among some proponents of retaining the death
penalty, as she notes.

10 AJA iWAR& [Number of Postponed Death
Sentences Exceeds the Number of Immediate Executions in China this Year for the First
Time], PEM MR [CHINA COURTS] (Nov. 23, 2007), http://www.chinacourt.org/html/
article/200711/23/275910.shtml. This observation was based on statements made by the
Supreme People's Court at the National Conference for the Work of Judicial Reform in
the Courts (gMi M BIff iR) (quanguo fayuan sifa gaige gongzuo huiyi)
held in Beijing on November 23, 2007.



Symposium Introduction: Reforming China's Criminal Procedure 221

In addition, Professor Lewis touches on one of the most sensitive issues
confronting China's criminal justice, not only in capital cases but in all. That is
the extent to which the sentence should be affected by the willingness and
ability of the defendant to compensate, and thereby placate, the victim or the
victim's family for the harm inflicted by his crime. Even many opponents of
the death penalty become uncomfortable at the spectacle of the rich using
their wealth to buy an exemption from a punishment they otherwise are
thought to deserve, while those without sufficient resources are executed. By
allowing this, China's widespread, practically-motivated "criminal reconciliation"
policy conflicts with perhaps the most basic precept shared by Chinese and
American societies-"equal justice under law"-which, as Professor Lewis
recognizes, is frequently dishonored in both countries.

In the concluding section of her essay, Professor Lewis introduces another
major issue that might eventually affect all criminal cases: whether China
should expand direct public participation in judicial decision-making. Despite
recurring efforts to bolster the role of "people's assessors," two of whom
frequently sit together with a single judge to form the collegiate tribunal that
deals with first-instance trials, there appears to be growing interest among
some Party leaders and judges, as well as some segments of the public, in
broadening direct popular participation in adjudication rather than continuing
to rely only on the media, the Internet, and other channels of indirect
influence to add popular input. The courts of Henan Province and a few other
places have already experimented, in various kinds of criminal cases, with a so-
called "people's jury" that does not formally make any decision but that is
informally "consulted" by the trial court before the court makes its decision
about both guilt and sentencing." Professor Lewis urges that serious consideration
now be given to instituting a formal jury role, not for the purpose of deciding
guilt but "for the limited purpose of deciding whether to issue a death
sentence." She acknowledges that this may require China to adopt a
bifurcated, two-phase procedure, separating determination of guilt from
sentencing. Although proposals for bifurcation have thus far been resisted, it
seems to be desirable and may prove to be inevitable. Presumably, the
sentencing jury, if it rejects both an immediate and reprieved death sentence,
would be authorized to impose any lesser punishment that appeared warranted.

Would a sentencing jury, at least for capital cases, prove to be effective
and feasible? What supporting measures might it require? What institutional,
professional, and political problems might it confront? This proposal is a
perfect illustration of the need for the type of demonstration project that Mr.
Thomas Stutsman's essay advocates as a major complement to the traditional
theoretical and comparative law research on which most Chinese criminal
procedure reforms have been based. According to Stutsman, an outstanding
young scholar of law and social science, a demonstration project is "an applied

" Jerome A. Cohen, A "People's Jury" Trial for China's Criminal Defendants?, U.S.-ASIA
LAW INSTITUTE (Mar. 15, 2011), http://www.usasialaw.org/?p=52n, available in Chinese at
http://www.usasialaw.org/wp-content/uploads/2o11/o3/20.03.i7.pdf, http://www.usasialaw
.org/?p=5226.



222 Columbiajournal ofAsian Law, Vol. 24, No. 2 (2011)

form of empirical research characterized by the organized implementation and
systematic evaluation of a new practice in the justice system to assess the
merits of adopting the reform on a larger scale." He points out that empirical
research itself is a relative newcomer to Chinese legal circles, and its
application for the purpose of testing suggested criminal justice reforms by
carrying out pilot projects in cooperation with government institutions is even
a more recent arrival. Yet, by reviewing the impressive contributions to law
reform that have already been made by demonstration projects during the past
decade by a small group of China's leading criminal procedure scholars
working with law enforcement officials, Stutsman makes a persuasive case that
the added expense and time required by the complexity of such projects return
very substantial dividends. He cites innovative experiments by Professors Fan
Chongyi and Gu Yongzhong and their distinguished colleagues as examples of
how these fact-focused projects, if properly designed, conducted and
evaluated, can help to eliminate many objections to criminal procedure reform
that are grounded in speculation, ideological preferences and concern for the
loss of institutional and personal prerogatives.

So I say full speed ahead for a pilot project on sentencing juries. The data
derived will be of interest not only to the PRC but also to its neighbors, as
South Korea soon concludes its own five-year experiment with consultative
criminal juries, Taiwan begins to consider something similar, and Japan
continues with its distinctive mixed decision-making tribunals of three
professional judges and six lay assessors initiated in 2009."

Fortunately, the authors of these fine, reformist essays are all constructive
realists. Each of them recognizes the challenges to implementing criminal
procedure reforms presented by long-established institutional arrangements
and political pressures. After calling the 2010 Evidence Rules "a revolutionary
development in the history of China's system of judicial review," one that gives
"courts their first formal authority to review the legality of criminal
investigations, and take procedural measures against unlawful investigations,"
Professor Chen Ruihua understandably doubts whether judges are adequately
prepared for this "extreme test of their intelligence and will." He notes that,
until now, the police and the procuratorates as well as other agencies have
proved more powerful than the courts and that the additional pressures of
public opinion, petitions by victims or their families against a "not guilty"
verdict, the negative evaluations of judges' performance that such a verdict is
likely to bring from court superiors, and the judges' own inculcated values and
legal training make it unlikely that they can carry out their duties under the
Evidence Rules in good faith. In light of the perceived failure of the courts
adequately to implement the protections enshrined in the 1989 Administrative

1 Jerome A. Cohen, South Korea's Evolving Citizen's jury: A Model for China and
Taiwan?, U.S.-ASIA LAW INSTITUTE (July 19, 20u1), http://www.usasialaw.org/?p=5720,
available in Chinese at http://www.usasialaw.org/wp-content/uploads/20n1/0 7 / LMA4
WillI - W Ui i1- ? I IT *J I lit li4 F 4.pdf, http://www.usasialaw.org/

?p=5739; Makoto Ibusuki, Quo Vadis? First Year Inspection to Japanese Mixed jury Trial,
12 AsIA-PAC. L. & POL'Y J. 24, 28 (2010).



Symposium Introduction: Reforming China's Criminal Procedure

Litigation Law and the 1996 Criminal Procedure Law, he asks, almost
rhetorically: "Will judges really be able to ... return a judgment of not guilty,
decisively and without regard for the consequences, only because illegal means
have been used to gather the evidence?" His somewhat inscrutable answer to
this question is that, unless the courts can devise a policy that will result in
"institutions that will allow beneficial cooperation" among investigators,
prosecutors, defense lawyers, and judges, the new legal rules are likely to be
ignored to the same extent as earlier legislation has been, leaving matters,
once again, to the control of what he delicately terms "unspoken rules."

In his impressive review of China's attempts to end torture and coerced
confessions, Ira Belkin comes to much the same conclusion as Professor Chen.
A highly-experienced American federal prosecutor before he specialized in the
study of China's criminal justice system, Belkin too sees the historic
significance of the 2010 Evidence Rules; they for the first time establish a
procedure for litigating the lawfulness of confessions, in certain circumstances
placing the burden of persuasion on the prosecution and requiring the in-
court testimony, subject to cross-examination, of those investigators who
interrogated the accused. Yet, even more strongly than Chen, Belkin not only
questions whether those rules are likely to be effectively implemented but also
argues that, unless other protections urged by many Chinese experts are
adopted, "there will be no significant progress made in addressing the
fundamental problem of how to change police behavior and prevent coerced
confessions." Those protections he specifically mentions include the adoption
of legal principles, such as the presumption of innocence, the right to silence
and the privilege against self-incrimination; the requirement of new
procedures that permit lawyers to be present at all investigative interrogations
and that audiotape and videotape all such interrogations; and the alteration of
the ideology and values of law enforcement officials in order to give equal
weight to fighting crime and human rights and to substantive and procedural
justice.

Professor Ye Xiaoqin too is very realistic about the obstacles to
implementing the national standardized sentencing reforms. She foresees
especial difficulty in persuading prosecutors to take on the extra burdens
involved in their recommending sentences for judicial consideration. Also, this
new obligation cannot be successfully carried out, she maintains, without
adding to the duties of the police, who handle most investigations and will
have to do the extra work of gathering the evidence needed for meaningful
sentencing recommendations.

Understandably, since she is dealing with China's death penalty debate,
Professor Margaret K. Lewis shows great caution in predicting the future of
reform in that area. Although the recent Eighth Amendment to the Criminal
Law reverses the trend toward adding to the number of death-eligible offenses,
one infers that Professor Lewis is not sanguine about prospects for eliminating
the death penalty for other, more frequently-committed, non-violent crimes,
particularly those involving corruption. Also, she notes that the recent

progress toward sentencing reforms, discussed by Professor Ye, has not yet
spelled out concrete sentencing guidelines for capital cases. Nor, she points
out, can we even take for granted-despite the assurances of many Chinese

223



scholars-that the 2010 Evidence Rules, which have legal effect because they
constitute judicial interpretations, will be integrated into the next revision of
the Criminal Procedure Law. A rising tide of popular concern that too many
capital prosecutions are resulting in reprieved death penalties may, at least for
a time, inhibit further procedural reforms unless, like the sentencing jury she
proposes, they are seen to offer a better outlet for public opinion than
currently exists.

Thomas Stutsman also tempers his enthusiasm for criminal procedure
demonstration projects with realism. He warns of the difficulties that
academics have encountered in winning and keeping the effective cooperation
of Chinese law enforcement officials, a warning confirmed by two of my own
research experiences several years ago. In the present, less welcoming political
climate, any participation of foreign specialists makes research cooperation
especially sensitive. Stutsman also emphasizes that even the best-conducted
demonstration projects cannot be expected to sell themselves to the political
class that makes the final determination about legislating and implementing
law reforms. He urges legal scholars and the officials who cooperate with them
to act "as policy entrepreneurs to maximize the impact of their findings" on
policymakers. Otherwise the best efforts can fall flat.

The criminal procedure reforms espoused in these essays cannot possibly
succeed without the active participation of skilled and independent lawyers.
As the Evidence Rules and the Sentencing Opinions illustrate, China's criminal
justice system has become increasingly complex and cannot properly function
in the absence of lawyers. Yet lawyers generally appear in fewer than thirty
percent of criminal trials and many fewer participate in the crucial pre-trial
stages. Moreover, those lawyers who are retained at the outset of a case have
no right to be present at pre-trial interrogations of their clients or even to
meet their clients until after the first interrogation by investigators. To make
matters worse, as Mr. Belkin reports, despite the provisions of the 2oo8 Law on
Lawyers, "police have continued to resist allowing lawyers to visit their clients
during the investigation stage of a case," and usually insist on monitoring and
limiting all such conversations. The content of lawyers' conversations with
suspects during the investigation stage is restricted by law, and in practice
lawyers face difficulties in both conducting their own investigations and
obtaining the evidence collected by official investigators. Most alarmingly, as
indicated earlier in this Introduction, criminal defense lawyers have
increasingly come under attack. As Professor Lewis puts it, they currently
suffer "many constraints in their work" and "are heavily restricted in their
ability to be zealous advocates for their clients." Criminal defense lawyers who
show too much zeal are often prosecuted for fostering the falsification of
evidence. They often say that they operate "under the sword of Damocles" and
envy the situation of their counterparts in Taiwan, Hong Kong, South Korea,
Japan, and other non-authoritarian jurisdictions.

224 Columbia Journal ofAsian Law, Vol. 24, No. 2 (20n1)



Symposium Introduction: Reforming China's Criminal Procedure 225

III. INTERNATIONAL IMPLICATIONS OF CRIMINAL PROCEDURE REFORM

The beginning of this Introduction pointed out that the reputation of
China's criminal justice system is an important factor affecting the country's
stature and influence in a world that gives considerable weight to the
protection of human rights. Before closing, I should emphasize that its
criminal justice system also affects China's ability to achieve more concrete
goals. The recently-concluded eleven-year struggle between Canada and the
PRC over Beijing's insistence on the return to China of Mr. Lai Changxing,
alleged by the Chinese Government to have been the greatest smuggler in PRC
history and a massive briber of PRC officials, offers a vivid illustration of this
proposition. Lai, it should be said, is only the best-known of many Chinese
fugitives who their government claims have illegally fled the country with the
equivalent of tens of billions of U.S. dollars. China wants them back in order to
vindicate national honor and sovereignty and to demonstrate to a skeptical,
and indeed cynical, public that no Chinese perpetrator of corruption can
escape punishment by fleeing abroad. Yet its criminal justice system has
proved to be a significant obstacle to achieving this goal. Awareness of its
inadequacies has prevented many democratic countries, including Canada and
the United States, from concluding extradition treaties with China, and even
Hong Kong, although a special administrative region of China, has failed to
reach an agreement for the "rendition" of criminal suspects to mainland China.
In the absence of such agreements, China's ad hoc repatriation efforts have
often been blocked, as they were in the Lai case for a long time.

Lai failed in his attempt to gain political asylum in Canada as a supposed
refugee from political persecution in China. Yet, for a decade thereafter, with
the help of able, dedicated counsel and Canadian courts concerned with the
protection of human rights, he staved off removal back to China by
immigration authorities who were trying to put an end to Canada's serving as
a favored refuge for alleged economic criminals from China. Lai's principal
defense against deportation was China's criminal justice system. In the many
administrative and judicial hearings that considered his case, he managed to
put that system on trial, and for a time it appeared that he might succeed. In
the spring of 2on, however, the Conservative government of Prime Minister

Stephen Harper decided that Canada's overall relations with China should no
longer suffer because of this festering dispute, and in July 2011, largely on the
basis of recent, detailed "assurances" from the Chinese Government, the
relevant immigration hearing officer decided that the barriers to Lai's removal
no longer existed. Surprisingly, the reviewing court found that the case no
longer presented any serious legal issue and that the removal could take place.
Since no appeal from that decision was possible, Lai was immediately sent
back to China."

3 Jerome A. Cohen, Canada Rids Itself of Lai Chang Xing, U.S.-ASIA LAW INSTITUTE (Aug.

4, 2011), http://www.usasialaw.org/?p=5776; Jerome A. Cohen, In Safe Hands?, S. CHINA
MORNING POST, Aug. 3, zon, at Ai7, available at http://www.usasialaw.org/wp-
content/uploads/2011/8/20uo8O3-NEWSINSIGHT.pdf.



Columbia Journal ofAsian Law, Vol. 24, No. 2 (2011)

The "assurances" given by the Chinese government to Canada after
protracted bilateral diplomatic negotiations should interest students of
China's criminal justice not only because they may affect the fate of other
suspected Chinese offenders who are resisting repatriation, but also because
they may have more general implications for China's criminal procedure.
Canadian courts and human rights advocates had one basic concern in the Lai
case: whether the Chinese Government would honor its promises, first made
in 2001 in a formal diplomatic statement to the Canadian Government, that, if
returned to China, Lai would not receive the death penalty, nor would he be
subjected to torture. Canadian law forbids the removal, extradition or
,deportation of anyone if that is likely to result in the person's execution or
torture. More broadly, Lai's counsel argued, as part of his torture claim, that
China is unlikely to accord Lai a fair trial. By 2007, it seemed clear that the
Canadian courts were willing to accept the credibility of China's pledge not to
execute Lai, but, without reliable arrangements for independently monitoring
his continuing welfare if detained, the courts did not seem confident about the
promise not to torture him. That and the related issue of the fairness of the
trial he would receive then became the focus of diplomatic negotiations that
quietly dragged on until China strengthened its assurances on March io, 2010

and set the stage for resolving the dispute.
After repeating earlier promises not to impose the death penalty or inflict

torture, the March io assurances made six specific new pledges. The first
promised to inform the Canadian side about where Lai will be held and to
arrange, upon Canada's request, for Canadian officials to visit him "as swiftly
as possible" at his place of detention, including his living quarters. The second
new assurance was related to the first but more distinctive. It provided that, at
the request of Canada, China will, "if necessary," make available video
conferencing facilities so that Lai can contact Canadian embassy or consular
officials residing in China. The third assurance confirmed that Lai has the
rights to retain a lawyer "to defend him" and to replace the original lawyer if
he wishes. More significantly, it also stated that Lai would have the right to
meet with his lawyer "without being monitored." The fourth assurance
provided that, whenever a court holds an "open hearing" of the smuggling
charges against Lai, resident Canadian officials may attend. The fifth assurance
promised that the "judicial authorities" will make synchronized audio and
video recordings of the court hearings and pre-trial interrogations and record
the identities of all court officials present at Lai's trial and of all pre-trial
interrogators. Upon request, the Canadian side will be able to "consult" these
materials. The final assurance provided that, if Canada submits "a reasonable
request," China will allow "an independent medical establishment legally
qualified in China to examine Lai medically" and, with Lai's consent, allow the
Canadian side to see the contents of the examination report.'

Any experienced observer can immediately see the many ambiguities and
omissions in these assurances and the possibilities for disputes to arise in their
interpretation. The assurances and the entire case deserve detailed analysis

4 Id.

226



Symposium Introduction: Reforming China's Criminal Procedure

and a book-length study." Here I simply want to note China's recognition of
the relevance of its criminal procedure to an increasingly important aspect of
its international relations and the impact that the needs of international
relations are gradually making upon China's criminal procedure. The
"assurances," although less than comprehensive and far short of what
international standards require and what Lai's counsel requested, are
nevertheless significant. For example, a detained suspect's use of video
conferencing to facilitate contact with concerned persons outside the
detention center is an idea that should be built upon, as should the guarantee
that a detainee has the right to unmonitored meetings with his lawyer. Plainly
relevant to the challenge of effectively enforcing the Evidence Rules discussed
by Messrs. Chen and Belkin is the promise that all pre-trial interrogations will
be recorded and, together with the names of all interrogators, made available
for consultation. This should be done in all China's criminal prosecutions.

Indeed, one hopes that cases such as Lai's-and essays such as those in
this Symposium-will stimulate the Chinese government to finally adopt more
comprehensive measures of general applicability to bring the country's
criminal justice system in line with international standards. Ratifying the
International Covenant on Civil and Political Rights and revising the nation's
Criminal Procedure Law in accordance with that treaty would be the best way
to launch this effort. In the end, however, China must practice what it
preaches. Unless its law enforcement personnel consistently implement the
new norms, their adoption will only widen the gap between legislation and
reality.

15 Lai Changxing himself is already the subject of several books. See, e.g., OLIVER AUGUST,
INSIDE THE RED MANSION (2007). For the New York Times review, see Janet Maslin, A
Tycoon Who Ate the 'New China'for Breakfast, N.Y. TIMES, July 30, 2007, at E6, available
at http://www.nytimes.com/2007/o7/31/arts/3]iht-bookwed..69ui89o.html. Other reviews
are excerpted at Reviews: Inside the Red Mansion, OLIVERAUGUST.COM, http://www
.oliveraugust.com/mansion-reviews.htm (last visited Aug. 18, 2011). An excerpt of the
book is available at Excerpt: Inside the Red Mansion, OLIVERAUGUST.COM,
http://www.oliveraugust.com/mansion-excerpt.htm (last visited Aug. 18, 2011). A book
on Lai in Chinese by Sheng Xue (92T) was published by Mirror Books (19ILP&1±)

(Mingjing Chubanshe) in July 2001 in Hong Kong. & [Sheng Xue], !S*AV [DARK
SECRETS OF THE YUANHUA CASE] (2001). Another book in Chinese about the Yuanhua
smuggling operation, by Hai Yuan, was published in 2001 by the China Customs Press

(r12%AMER) (Zhongguo Haiguan Chubanshe) in mainland China. MM [HAl
YUAN], E [DOCUMENTARY OF THE GREAT YUANHUA CASE] (2001).

227