2003年12月29日 下午12點47分00秒FINALLY .........!I know u're not going to...

FINALLY .........!I know u're not going to read this! Just wanna show u MY TORTUREEEEE for the past week! btw. NO Copyright.go ahead and put it in ur diary.. 

THE DEATH PENALTY IN CHINA:

Human rights and law reform 

Table of Content

Introduction......................................................................................................................... 2

Part I............................................................................................................................................ 3

A.    International Views on Death Penalty...................................................................... 3

B.    Death Penalty in China................................................................................................. 4

Pessimistic View.................................................................................................................. 5

Optimistic View................................................................................................................... 7

Part II.......................................................................................................................................... 8

A.   The Scope and Practice of the Death Penalty............................................................. 8

1. Wide Scope of Capital Offences........................................................................................ 8

2. Application in Actual Practice............................................................................................ 9

B.   The Criminal Justice System......................................................................................... 10

1. International Standards.................................................................................................... 11

2. Independent, Competent and Impartial Judiciary.......................................................... 12

Judicial Independence....................................................................................................... 13

Competence of Judges....................................................................................................... 14

3. Presumption of Innocence................................................................................................ 15

4. The Right to Legal Counsel............................................................................................. 16

5. The Right to Appeal......................................................................................................... 18

Conclusion............................................................................................................................ 19

Introduction

        The death penalty is one of the most concerned areas of human rights. It is about the fundamental right to life which is closely related to the criminal justice system of a country and the social and cultural values of its people. China, an authoritarian country with poor records of human rights, has always been severely criticized by human rights groups for adopting a wide scope of capital offences and for falling short of international standards in the safeguard of the rights of the accused. China has adopted an open door policy since late 1970s and has thence made some significant legal reforms to incorporate some measure of the rule of law. Of recent China signed the International Covenant on Civil and Political Rights (ICCPR) in 1998 and entered into the World Trade Organizations in 2001. It might seem more likely that China will have to cave in to make more developments on the issue of death penalty. The most crucial point is that the judiciary in China has no autonomy and there exists a wide gap between the revamped statutory provisions and the actual practice. The purpose of this essay is to examine, on a utilitarian rather than a moral basis, the death penalty in China and the impact of its reform on the criminal justice system.       

        This essay comprises two parts. Part I examines the relevant international treaties and the stance of China. Part II looks into two areas concerning the death penalty in China, namely, a wide scope of capital offences and the criminal justice system. The written law and the actual practice will also be examined.

Part I

A.    International Views on Death Penalty

Article 6 of the ICCPR states that “every human being has the inherent right to life”[1].  The right to life is also stated in Article 3 of the Universal Declaration of Human Rights[2] and Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) [3]. While the right to life is protected, the treaties do not rule out the taking away of life by capital punishment. As a matter of fact death penalty is explicitly accepted as an exception to the right to life in Article 2 of the ECHR[4].

Article 6 (2) – (5) of the ICCPR lays down restrictions about the imposition of death penalty. Article 6 (2) provides that death penalty is to apply only to “the most serious crimes”. United Nations Safeguard No.4 states that “capital punishment may be imposed only when the guilt of the person charged is based on clear and convincing evidence leaving no room for an alternative explanation of the facts”.  Safeguard No. 5 further links the death penalty to Article 14 of the ICCPR which stipulates the right to fair trial[5].

As for the abolition of death penalty, the United Nations is set on restricting the number of capital offences “with a view to its eventual abolition”[6]. On 15 December 1989, the United Nations General Assembly adopted the Second Optional Protocol to the ICCPR with a view to abolishing the death penalty. The Second Optional Protocol affirms that the abolition of the death penalty would contribute to the enhancement of human dignity and the progressive development of human rights[7]. More and more countries have come forward to abolish death penalty: one country a year during the period 1965-1988 but three a year between 1989 and 2001[8]. By the end of 2001, 89 states (73 in 1995) have abolished death penalty either for all crimes or for all ordinary crimes in peacetime[9]. Of course not all states are in favour of abolition. At present, 38 states in the United States, Middle East, North Africa and Asia[10] still practice death penalty -- countries with poor records on human rights such as China and Iran as well as democratic countries such as the United States and Japan. Their argument is invariable that criminal justice system is a matter of national sovereignty which reflects their cultural and religious values[11]. And some countries, Singapore for instance, do not even regard the death penalty as a human rights issue[12].

        It should be mentioned that human rights groups are another force which actively seeks to abolish death penalty in all cases without reservation. Amnesty International views that death penalty is contrary to Article 7 of the ICCPR which states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and because it is “the ultimate cruel, inhuman and degrading punishment that violates the right to life”[13].

B.    Death Penalty in China

China’s death penalty encompasses a much wider scope. In 2001, China executed 2,467 accused which were more than the rest of the world combined[14] and, as comparisons, there were 139 cases in Iran, 79 in Saudi Arabia and 6 in the US[15]. Since the Chinese government has always kept the execution figures as a state secret, the actual number could be much higher[16]. China has also given rise to much international concern in regard to fair trial afforded to the accused but the Chinese government is adamant about the death penalty. In signing the ICCPR in September 1998, it stated its reservations that “in the current stage of social and economic development the death penalty cannot be abolished and that the restrictions mentioned in Art 7 of the International Covenant regarding the use of cruel, unusual and degrading punishment cannot be understood as prohibiting the imposition and enforcement of the death penalty”[17]. As for the future development in death penalty, there are two different views as elaborated in the following.

Pessimistic View

        The pessimistic view holds that the process of abolishing death penalty will go slow as ever mainly owing to the ingrained support of the Chinese people as well as the government. During China’s long history with dynasties succeeding one another, the use of death penalty is a common and deeply-entrenched customary practice[18]. Many feudal forms of capital punishment were employed and the cruelty was well renowned and chilling[19] and examples are “Ling ci” [20] (putting to prolonged death by dismembering the body piece by piece), “che lie” [21] (tearing a person asunder by five carts) and “yao zhan” [22] (cutting the accused into two at the waist). In the Qing Dynasty, the Qing Code contained 840 capital offences[23] which were enforced with great frequency[24]. For modern China, the number of capital offences in the 1979 Criminal Code once dropped to a new low of 28[25]  but then in the 1980s, the government had found it expedient to resort to capital punishment in various anti-crime campaigns and, as a result, many new capital offences were created and sanctioned by the National People’s Congress[26]. Presently, there are 68 capital offences listed out in the 1997 Criminal Code[27]. This is a matter of grave concern and as Professor Michael Palmer puts it “China is unlikely to cast off easily its traditions of, and ideological commitment to, capital punishment”[28].

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