November 2006 China Human Rights and Subscribe Rule of Law Update View PDF Version United States Congressional-Executive Commission on China Senator Chuck Hagel, Chairman | Representative Jim Leach, Co-Chairman Message From the Chairmen Reform of the Death Penalty Review Process The Commission commends the recent positive steps that China's leaders have taken to help minimize wrongful executions and provide greater procedural due process to criminal defendants. In September, the Supreme People's Court and Supreme People's Procuratorate issued reform measures that establish concrete guidelines for death penalty appeals. On October 31, the Chinese government passed an amendment that requires all death sentences to be reviewed by the Supreme People’s Court. The new amendment brings the primary law governing China's judiciary into conformity with other laws governing the criminal process and incorporates into law policy goals that the Supreme People's Court established in October 2005, when it issued a new five-year reform program for the Chinese judiciary. As a next positive step, the Commission urges the Supreme People’s Court to give full effect to its October 2005 commitments, by issuing a judicial interpretation to settle unresolved issues in the death penalty review process and to clarify its own procedures for review. Announcements Translation: Reform of the Death Penalty Review Process The Congressional-Executive Commission on China has prepared translations of the Decision on Amending the PRC Organic Law of the People's Courts, issued by the National People’s Congress Standing Committee on October 31, and the Trial Provisions on Several Issues Regarding Court Hearing Procedures in Death Penalty Appeals Cases, jointly issued by the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) on September 21. For more information on these measures, see Law Amended To Require SPC Approval of All Death Sentences and SPC, SPP Issue Joint Interpretation on Death Penalty Appeals. The Commission previously prepared translations of the SPC Circular on Further Improving Open Court Session Work in Second Instance Death Penalty Cases and Second Five-Year Reform Program for the People's Courts. For more information on these reform measures, see Supreme People’s Court Calls for Hearings in Death Penalty Appeals and SPC Incorporates Reform of Death Penalty Review into New Five-Year Program. Roundtable: China's National and Local Regulations on Religion: Recent Developments in Legislation and Implementation The Congressional-Executive Commission on China will hold another in its series of staff-led Issues Roundtables, entitled "China’s National and Local Regulations on Religion: Recent Developments in Legislation and Implementation," on Monday, November 20, from 2:00 PM - 3:30 PM in Room 2200 of the Rayburn House Office Building. The witnesses are: ● Eric R. Carlson, Attorney, Covington & Burling LLP. ● Bob (Xiqiu) Fu, President, China Aid Association. ● James W. Tong, Associate Professor of Comparative Politics, University of California—Los Angeles and Editor of the journal Chinese Law and Government. Translation: Supreme People's Court Interpretations on Commercial Arbitration The Commission has prepared a translation of the Interpretation Regarding Certain Issues Relating to the Application of the "People's Republic of China Arbitration Law", issued by the Supreme People's Court on August 23, 2006, as well as a translation of Chapter Six of the Minutes of the Second National Work Meeting on Adjudications Involving Commercial and Maritime Affairs issued by the Supreme People's Court on December 26, 2005 addressing foreign arbitrations. For additional information regarding the Interpretation, see Supreme People's Court Provides Clarification on Arbitration Law below. CECC China Human Rights and Rule of Law Update Update on Rights and Law in China Human Rights Updates Rule of Law Updates All Updates Law Amended To Require SPC Approval of All Death Sentences The Supreme People's Court (SPC) submitted a new amendment to the Organic Law of the People's Courts to require that all death sentences be approved by the SPC, according to an October 28 China Daily report (reprinted in Xinhua). The National People's Congress Standing Committee (NPCSC) issued a decision on October 31, making the amendment effective as of January 1, 2007, according to a Xinhua report (reprinted in China Daily) on the same date. Xinhua quoted Xiao Yang, President and Chief Justice of the SPC, as saying that the new amendment will "give the defendants in death sentence cases one more chance to have their opinions heard." Xiao explained that reclaiming the power of death penalty review from provincial-level high courts will allow the SPC to separate review and approval of a death sentence from the appeals process at the local level. Xinhua notes that the practice of allowing provincial-level high courts to handle both the appeal and the final review of a death sentence has generated increasing criticism "for causing miscarriages of justice." A September 30, 2005, Southern Daily editorial (in Chinese) pointed out that provincial-level high courts typically combine the appeals process with the review process, therefore making the review process meaningless. Moreover, the ability of local administrative bodies to control the finances and staffing of provincial-level high courts makes those courts more susceptible to outside pressures than the SPC. The new amendment brings the primary law governing China's judiciary into conformity with other laws governing the criminal process. The China Daily report comments: "In fact, a revision to the Criminal Procedure Law in 1996 and the Criminal Law amendment in 1997 both had clear stipulations requiring death sentences to be approved by the Supreme People's Court. But such stipulations have not been officially implemented." The SPC first shifted the legal authority to review and approve certain death sentences to provincial high courts in 1980, and the NPCSC incorporated this devolution of authority into law with a 1983 Amendment to the 1979 Organic Law of the People's Courts. The 1983 Amendment changed the requirement that the SPC decide or approve all death penalty cases to create the following carve-out: The Supreme People's Court, when necessary, may authorize high people's courts of provinces, autonomous regions, and municipalities directly under the central government to exercise the authority to review and approve cases in which the death penalty is imposed for homicide, rape, robbery, causing explosions, and other crimes seriously endangering public security and social order. Beginning in 1997, Article 48 of the Criminal Law and Article 199 of the Criminal Procedure Law again imposed the requirement that the SPC approve all death sentences. The government has allowed the outdated 1983 Amendment to remain effective until January 1, 2007. The new amendment also incorporates into law policy goals that the SPC established in October 2005, when it issued a Second Five-Year Reform Program for the People's Courts to highlight reform of the death penalty review process as a priority topic for the Chinese judiciary. On September 21, the SPC and Supreme People's Procuratorate issued a joint interpretation to establish specific guidelines for how local courts and procuratorates should handle death penalty appeals. The SPC has not yet issued a judicial interpretation to settle unresolved issues in the death penalty review process and to clarify its own procedures for final review. For more information on Chinese law governing the review and approval of death sentences, see the CECC's topic paper on The Execution of Lobsang Dondrub and the Case Against Tenzin Deleg: The Law, the Courts, and the Debate on Legality. See also information on "Capital Punishment," in Section V(b) of the CECC's 2006 Annual Report. SPC, SPP Issue Joint Interpretation on Death Penalty Appeals The Supreme People's Court (SPC) and Supreme People's Procuratorate have jointly issued a judicial interpretation that establishes concrete guidelines for the handling of death penalty appeals (ershen, or "second instance" cases) by local courts and procuratorates, according to a September 25 Xinhua report (in Chinese). The Trial Provisions on Several Issues Regarding Court Hearing Procedures in Death Penalty Appeals Cases (Trial Provisions) were issued on September 21 and went into effect on September 25. The Trial Provisions help clarify policy goals that were established by the SPC in its Second Five-Year Reform Program for the People's Courts and its Circular on Further Improving Open Court Session Work in Second Instance Death Penalty Cases, both issued in late 2005. Specifically, the Trial Provisions provide guidance on the following issues, among others: ● When an appellate (or second instance) court should conduct a hearing in a death penalty case (Articles 1-2). ● Whether procuratorate personnel should appear in court (Article 9). ● Which appellate court personnel should be present to hear the case (Article 11). ● Which other individuals should appear in court for the hearing and under what circumstances (Article 13). ● What tasks the appellate court and procuratorate should complete prior to the hearing and what issues they should focus on (Articles 5, 8, 10, and 12). ● What specific protocol should be followed at each hearing (Article 14). November 2006 Page 2 of 16 CECC China Human Rights and Rule of Law Update The Trial Provisions reform the death