China And The (Ab)Use Of The Death Penalty

May 24, 2021 Sartaz Billing

Ibn Khaldun, a 14th century Tunisian sociologist, was of the view that a “government prevents
injustice, other than such as it commits itself,” which accurately describes the use of the death
penalty in China. Amnesty International’s report on the use of the death penalty in 2020
revealed that at least 483 people were executed around the world last year. The report,
however, did not include any figures about death penalty’s use in the country that is infamous for
using it the most, China. The report alleges that “each year thousands of people are executed
and sentenced to death” in China, where the data concerning the use of the death penalty is
considered a state secret. This raises questions regarding how state killings are regulated in the
country and where that regulatory framework stands when put to test within the context of the
international human rights system.

THE CHINESE LEGAL FRAMEWORK

Article 48 of the Criminal Law of the People’s Republic of China (PRC) provides that “the death
penalty is only to be applied to criminal elements who commit the most heinous crimes”. It also
provides that if immediate execution is not necessary, a two-year suspension on the death
penalty may be announced. Further, article 50 states that if a person who has received the
two-year suspension period does not intentionally commit any crimes within the suspension
period, he is to be given a reduction of sentence to life imprisonment. Furthermore, article 49
establishes that people who committed the crime in question whilst younger than the age of 18
and women who are pregnant at the time of the adjudication shall not be given the death
penalty. Currently, 42 crimes carry the death penalty in China.

In terms of the trial process, it begins with the first trial taking place at an Intermediate People’s
Court. If found guilty and sentenced to death, the defendant can appeal in the High People’s
Court. The defendant cannot appeal the High People’s Court’s judgment. However, each case
involving the death sentence is sent to the country’s Supreme Court for review. Even if a
defendant does not appeal against the Intermediate People’s Court’s decision, it is still
automatically reviewed by the Supreme Court.

KEY ISSUES
The primary criticism regarding the death penalty laws in China consists of two points. First,
what makes a crime “heinous,” thus worthy of the death penalty, remains unclear. The lack of a
definition has led to an inconsistent interpretation in courts across China. For example, a man
who stole 14 cattle (Zhang Xizhong) and a man who murdered 11 women (Gao Chengyong)
were both given the death penalty, despite the severity of their crimes being poles apart in the
eyes of a reasonable person. The flexible interpretation has also allowed, as another one of
Amnesty International’s report alleges, intermediate courts to give “death sentences for
non-capital crimes” to come across as being tough on crime.

Further, the absence of a definition for the term “heinous” contributed to the death penalty being
imposed for economic crimes. Since economic crimes like illegal fundraising, tax fraud, or
stealing fossils do not involve the loss of human life, and their effects are, to some extent,
reversible unlike crimes like murder and rape, the logic behind considering them heinous is
inherently flawed. Even though China stopped using the death penalty for economic crimes in
2011 after realising that it failed in the “reversal of the spiralling trend of economic crime,” the
legislative experiment cost the lives of at least 23 people who had been executed for offences
like tax fraud, counterfeiting, or smuggling money.

Second, the implementation of the two-year suspension rule on death sentences remains
unscrutinised. The state advertises it as a progressive feature of its capital punishment
framework as it gives a reasonable amount of time for discovering new evidence to overturn
convictions—avoiding miscarriages of justice—and also as it allows convicted individuals to
avoid the death penalty if they can showcase that they have reflected on their actions and
reformed as individuals. However, this rule is criticised as an inhumane approach, as during the
suspension convicted individuals live with the fear of the impending death penalty. Additionally, it
is alleged that in practice the two-year suspension rule has been used as a “get-out-of-death
card available to wealthy and powerful defendants” convicted for economic crimes, as death
sentences deemed worthy of immediate execution have always been “disproportionately
imposed on those with little education and social standing”.

THE INTERNATIONAL LAW FRAMEWORK

The arbitrary detention of journalists, Uyghur genocide, and clampdown of Hong Kongese
protesters are all examples of instances when China’s disregard of its citizens’ human rights has
been criticised internationally. Unfortunately, China’s use of the death penalty has endured a
similar fate, and three points showcase how China’s implementation of the death penalty is
incompatible with standards set by the international community.

First, article 10 of the Universal Declaration of Human Rights (UDHR) provides everyone with
the right to a fair hearing by an impartial tribunal. Naturally, this applies to individuals being tried
for capital crimes. Whilst the UDHR is not a binding instrument, China did play a pivotal role in
its creation. Additionally, China is one of the five permanent members of the United Nations
Security Council and one of the 47 members of the United Nations Human Rights Council.
Thus, figuratively, it should be the flagbearer of states implementing the UDHR. Yet, individuals
being tried for capital crimes in China hardly receive the requisite level of legal assistance. It is
common for defence lawyers involved in capital crime cases to get less than a week to prepare
for the trial. It is also common for defence lawyers to be denied the request for meeting their
clients in the early stages, accessing prosecution’s file, conducting independent investigations,
and calling expert witnesses in capital crime cases. Naturally, all of this culminates in defence
lawyers being unable to establish any sort of mitigation. Further, lawyers are reluctant to get
involved in matters involving the death penalty, as it often leaves them vulnerable to personal
attacks. For instance, Teng Biao, a lawyer who co-founded “China Against the Death Penalty,” a
network for lawyers working on death penalty cases, was “detained, tortured and stripped of his
licence to practice law” for campaigning against China’s use of the death penalty.

Second, article 7 of the UDHR provides that “All are equal before the law and are entitled
without any discrimination to equal protection of the law”. However, death sentences in China
have been “increasingly associated with selective enforcement along socioeconomic and
political-power lines”. Whilst it is uncommon for uninfluential people to expect any kind of
leniency by the authorities during investigations and trials, the same cannot be said for wealthy
individuals. A comparison of two separate instances encapsulates this disparity accurately. On
one hand, Li Qiming, the son of a prominent police official, killed one person and seriously
injured another after hitting the two with his car whilst driving under the influence of alcohol.
Upon arrest, he openly flaunted his father’s position. He was charged with endangering public
security under article 115 of the PRC, which carries the death penalty but, was eventually
sentenced to six years of imprisonment. On the other hand, Zhang Yuhuan, a farmer charged
with the murder of two boys, was tortured in police custody and forced into signing a confession.
Consequently, he was sentenced to death but released 27 years later after the court adjudicated
in an appeal that there was never direct evidence to prove he committed the murders. Further,
nearly 70% of 4,500 Chinese citizens acknowledged in a survey conducted by the EU-China
project that the death penalty is more likely to be imposed on “poor and ‘grassroots’ people than
a rich person or an official or a relative of an official”.

Lastly, the death penalty’s imposition in China is directly incompatible with article 6 of the
International Covenant on Civil and Political Rights (ICCPR), which provides that every human
has an inherent right to life. From a legal perspective, China has not ratified the ICCPR and is
under no obligation to follow it. However, the right to life is a fundamental principle of natural
law, which transcends borders. Even Confucius, a philosopher from ancient China whose
teachings remain popular till today, criticised the idea of capital punishment. Further, it is human
to err, thus, as long as the death penalty remains, so does the possibility of innocent people
being executed, and cases of Huugilt and Nie Shubin exemplify that in China. Nonetheless, the
death penalty remains an integral part of the country’s criminal justice system.

In 2001, as a part of the “Strike hard” campaign, 1,000 people were executed within a month
alone. Currently, the death penalty is being used as an instrument for curbing dissent. For
instance, Tashpolat Tiyip, a Uyghur academic, was arbitrarily detained, convicted of separatism,
and sentenced to a suspended death sentence; his current whereabouts remain unknown.
However, the international community is unable to scrutinise China’s use of the death penalty as
figures remain a state secret. Although this year some western countries did impose some
sanctions on China over the Uyghur genocide, due to China’s position as an economic force,
harsh sanctions remain implausible. Thus, the chances of China using the death penalty
transparently or moving away from it remain bleak.