Thursday, June 10, 2010

In China, new rules, but it's all in how they are applied

EACH year, the human rights report on China makes gloomy reading. Each year, we are told "the government's human rights record remained poor" and, not infrequently, that the situation had deteriorated.
Next year, hopefully, there will be at least one bright spot. This is because China has just announced that evidence obtained through torture will no longer be admissible in court cases, especially in death-penalty cases.

Previously, torture was supposedly illegal but evidence obtained through duress was routinely accepted so there was little reason for the police to stay their hand in order to obtain confessions and to force reluctant witnesses to provide the required statements.

Actually, China, in theory, outlawed torture in 1996. But its definition of illegal acts was so narrow that interrogators could employ a wide range of techniques that contravened standards set by the United Nations.
Manfred Nowak, the United Nations rapporteur on torture, visited China in 2005 and was allowed to go to prisons, detention centres and "re-education through labour" camps in Beijing as well as Tibet and Xinjiang.

He said he observed a "palpable level of fear and self-censorship" among the prisoners that he had not seen in other countries.

Nowak said he "believes the practice of torture, though on the decline -- particularly in the urban areas -- remains widespread in China".

This finding was immediately rejected by China, which pointed out that Nowak had only been to three cities -- Beijing, Lhasa (the Tibetan capital) and Urumqi in Xinjiang.

However, the new regulations on the inadmissibility of evidence obtained through torture implicitly acknowledge that torture remains a serious problem in China.

Two new rules on evidence were jointly issued 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 rules relate to evidence review in death-sentence cases and to excluding illegal evidence in criminal cases.

The new rules were issued in the aftermath of widespread indignation over disclosure of a murder conviction in Henan province where the alleged murderer, Zhao Zuohai, had spent 11 years in prison before the supposed murder victim, Zhao Zhenshang, showed up alive and well.

The murder suspect said he was tortured into confessing to a non-existent murder.

It turned out that the two men had had a fight in 1997 during which Zuohai was struck on the head.

The other man then ran away for fear of prosecution and remained away for 11 years.

After Zuohai went to prison, his wife remarried and two of his children were adopted by the new husband.

A Henan court has designated May 9 -- the day Zuohai was released -- as "Wrongful Conviction Warning Day" for the province. The warning should not be confined to Henan but given to judges across the country.

The Zhao Zuohai case was not the first time something like this had happened. In 2005, another man, who had confessed to killing his wife, was released when she returned home after 11 years. She had run away with another man.

In both cases, police had misidentified a body.

In a sense, the men in these two cases were fortunate. At least, they were still alive when exonerated. Others wrongfully convicted were executed before the mistakes were discovered.

That is why China is now putting special emphasis on death-penalty cases. The country executes more people a year than the rest of the world combined.

The new rules mark a significant step forward both for the legal system and for the protection of human rights. Making prosecutors responsible for showing that evidence used was not obtained illegally is a change in the legal mindset.

It means that instead of the emphasis on not allowing the guilty to escape punishment, the new thinking is not to allow innocent people to be convicted. However, it remains to be seen how these new rules are applied.

Chinese law books -- not to say the Chinese constitution -- are full of nice-sounding laws that are only selectively applied.

Moreover, the Chinese legal system still has a long way to go. For example, the basic right of each defendant to a lawyer has yet to be recognised.

And, of course, as long as judges work under the leadership of the Communist Party, there will be no independent judiciary and no true rule of law.

But the vast majority of cases are not political, so the credible dispensing of justice by courts in nonpolitical cases would be a big step forward. Frank Ching for the New Straits Times

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