The Communist Party of China’s Approach to Human Rights and the Death Penalty

In: Asia-Pacific Journal on Human Rights and the Law
Author: Huang Gui 1
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Under the Constitution of China, the Communist Party (cpc) does not merely play a leadership role in the political field, but also in the legal arena. Legislation must reflect the Party’s outlook and achieve its policies, including any legal provisions governing particular systems, such as arrangements for the death penalty. After introducing the relationship between the cpc and legislation, this article will discuss the shift in the cpc’s approach to human rights and changes to the death penalty system in the Maoist, Deng Xiaoping and post-Deng eras. In the Maoist era, the government rejected human rights, but its policy on execution – at least on paper – was cautious and even stricter than during the other eras; the cpc recognised and accepted human rights in the Deng era, but emphasised national security and stability. As a result, individual human rights were not fully taken into account. Execution was considered an important measure to control crime and the scope of the relevant legislation was expanded. Post-Deng, human rights have developed gradually. Human rights protection has been incorporated into the Constitution and individual human rights have become more valued, but the cpc still focuses on state security, development and stability, and has not valued the right to life to the same extent as the right to subsistence. Although steps to reform the death penalty are being taken, 46 crimes are still punishable by death. The cpc should change its outlook and focus on the right to life, and abolish the death penalty de facto and de jure.

Abstract

Under the Constitution of China, the Communist Party (cpc) does not merely play a leadership role in the political field, but also in the legal arena. Legislation must reflect the Party’s outlook and achieve its policies, including any legal provisions governing particular systems, such as arrangements for the death penalty. After introducing the relationship between the cpc and legislation, this article will discuss the shift in the cpc’s approach to human rights and changes to the death penalty system in the Maoist, Deng Xiaoping and post-Deng eras. In the Maoist era, the government rejected human rights, but its policy on execution – at least on paper – was cautious and even stricter than during the other eras; the cpc recognised and accepted human rights in the Deng era, but emphasised national security and stability. As a result, individual human rights were not fully taken into account. Execution was considered an important measure to control crime and the scope of the relevant legislation was expanded. Post-Deng, human rights have developed gradually. Human rights protection has been incorporated into the Constitution and individual human rights have become more valued, but the cpc still focuses on state security, development and stability, and has not valued the right to life to the same extent as the right to subsistence. Although steps to reform the death penalty are being taken, 46 crimes are still punishable by death. The cpc should change its outlook and focus on the right to life, and abolish the death penalty de facto and de jure.

* The author would like to thank China’s Scholarship Council (csc No. 201500500019), and the Stipendium Hungaricum Programme (Reference number: 2015-sh-14036) for their sponsorship. A tanulmány a jogászképzés színvonalát emelő programok (ix – 14/6/2/2017. iktatószámú szerződés) keretében jött létre.

1 Introduction: The Relationship between the cpc’s Viewpoint and Legislation

Given the existence of two factors discussed below, a relationship between the Communist Party of China (cpc)’s views on human rights and the death penalty seems to be a false dichotomy. First, the concept and standards of human rights should be consistent throughout the world; therefore the cpc should not have its own view on the subject. Second, if the former principle is valid, the relationship between the cpc’s approach to human rights and the death penalty will be met with much skepticism because of the existence of judicial independence; in other words, it is not possible to identify a relationship between the Party’s view and the specific death penalty system, particularly the specific punishments adopted. In considering these two potential problems, we need a full understanding of human rights development in the People’s Republic of China (prc) and the country’s political regime.

The first principle, that human rights should have no frontiers, is questionable in the Chinese context. This can be explained by China’s history and the cpc’s attitudes toward human rights and their practical application. In China, with its long history of feudal dictatorship, a feudal culture developed to an extreme degree, and there has been neither the opportunity nor the appropriate conditions for democratic forces to develop, nor even for the concept of democracy itself to develop, due to its suppression and destruction by feudal influences and despotism. In modern times, along with foreign intervention, Western ideas, including its political thought and the concept of human rights, was introduced into China. Guo Songtao, the first Chinese diplomat and statesman during the Qing dynasty, introduced Jean-Jacques Rousseau1 and was the first to propose the concept of civil rights (Min Quan).2 Following this, Chinese scholars and revolutionaries such as Kang Youwei and Liang Qichao continued research on this subject. Sun Yat-sen, the first president and founding father of the Republic of China, tried to establish a rich and powerful state incorporating the Western approach to liberty, equality and fraternity. From 1908 to 1946, there were dozens of publications dealing with human rights and civil rights protection.3 The concept of human rights, however, could not take hold among the Chinese people. One of the chief reasons is that the concept of human rights, just like that of the constitution, had been shaped and developed in Western cultural soil and was considered exotic in China; this led to challenges and the exclusion of these ideas by China’s feudalistic culture at the time. There were no conditions for the development of human rights in modern China, let alone constitutionally protected human rights, and the theory of human rights still has not taken hold in China due to the lack of an appropriate cultural environment for these rights and their practical application.

The development of human rights in China enjoys only a relatively short history, stretching back no more than three decades. Compared with the West, where ‘human rights as values are rooted in the historical development of human society, theorised by both natural law doctrine and the doctrine of positivism’,4 in China the concept of human rights has been considered a bourgeois slogan and was excluded from the field of jurisprudence after the founding of the new China; this situation changed somewhat on 10 November 1989, when the Propaganda Department of the cpc Central Committee organised a small expert panel to discuss human rights issues.5 Subsequently, due to the lack of an indigenous concept of human rights based on China’s own cultural resources, Chinese scholars once again began to pay attention to the West as the theoretical source of human rights. Western human rights theory became a significant and key resource in Chinese academic circles; for example, the majority of Western work on human rights has been translated into Chinese and introduced into the Chinese academy. Furthermore, Chinese scholars have long been researching Western human rights theory from many perspectives and exploring the causes of the development of human rights and the conditions for their implementation and for the creation of a system to safeguard them. This research also includes investigation of the considerable experience and practice of human rights in the West. In addition, various Chinese scholars have conducted research on human rights issues from Western perspective, or in terms of the standards set by various international treaties or conventions. All of these approaches have promoted the development of human rights in China. However, this activity has exerted limited influence and has been mainly confined to academic research.6 Consequently, it is easy to create a false impression that human rights issues in China can be completely and definitively addressed and resolved simply by learning from, and copying or following, Western or international standards.

On the other hand, international critics, observers, activists and relevant organisations frequently focus on human rights issues in China from their own perspectives, and criticise China according to Western standards or relevant international treaties or conventions, according to the so-called ‘double standard’.7 This approach puts a great deal of international pressure on China and has driven human rights forward. However, it may have also created the erroneous impression that international criticism and pressure can advance human rights protection in China more quickly than it actually does.

China should indeed draw lessons from the successful Western experience of human rights protection and needs to fulfill its obligations and commitments under relevant international treaties. The development of human rights in China could certainly benefit from academic research and international criticism; however, to research the issue of human rights in China, identify the essential facts and their causes, and offer a perspective which is academically appropriate, an understanding of the brief history of the development of human rights in China and the country’s present condition is necessary.

The country’s particular political regime is significant to understanding China’s present condition. According to the Preamble of the Chinese Constitution, the country is a one-party state; the system is one of multiparty cooperation and political consultation led by the cpc.8 Based on this theoretical framework, the cpc has developed its own outlook on human rights. The Party not only plays a political leadership role, but also directs legislation and law enforcement, and its view or standpoint is considered the national will and so becomes law.9 Party-led legislation is a system with Chinese characteristics. In accordance with the Constitution of the cpc, ‘leadership by the Party means mainly political, ideological and organisational leadership’.10 Political leadership by the Party refers to leadership over political principles, political orientation and major policy decisions. Political leadership can normally be carried out by legalising the implementation of policies. Organisational leadership refers to formulating and implementing the correct line, principles and policies; i.e. carrying out organisational, publicity and educational work effectively. Ideological leadership means that the Party guides thinking. ‘The cpc takes Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the important thought of the Three Represents and the Scientific Outlook on Development as its guide to action.’11 The cpc has its own position on human rights, based on the Party’s theoretical guidance and China’s reality and history. It is clear that the cpc’s outlook on human rights must be incorporated into the relevant human rights legislation and judicial practice. However, one point must be made clear: the difference between the cpc’s perspective on human rights and that of the West is not based on a different literal definition of the notion and terminology of human rights. In other words, in examining the cpc’s outlook on human rights, this article does not focus on a didactic conceptual explanation of human rights, but rather concentrates on the cpc’s understanding and attitude towards the practice of human rights at different times.

This analysis has already demonstrated that the first point is valid, i.e. the cpc’s perspective on human rights deeply influences and even leads the legislation concerning guarantees of human rights. From this, the second point is easily demonstrated. On the one hand, in international terms, i.e. in terms of basic standards and safeguards, the concept of international human rights is an essential element in the strategy to abolish the death penalty, enabling abolition and saving lives.12 In other words, the norm that protecting human rights requires abolishing capital punishment or limiting its use has been prescribed by some international conventions, and has, for a long time, been accepted by the international community. On the other hand, China itself is still ruled by an authoritarian regime.13 Under this regime, two important elements influence decisions about whether a policy will be implemented or not: namely, determinations by the highest level of government and the demands of time.14 This is also the case with reform of the death penalty. When exploring China’s death penalty reform from the perspective of human rights, the focus should be on the cpc’s approach to human rights and relevant policies rather than Western standards of human rights because of the distinct nature of China’s political and legal regimes. In China, the cpc’s policies guide the enactment and implementation of the law through the main methods used to codify the Party’s policies into law and the ways in which the laws are applied. Conversely, the process of the rule of law also restricts the Party’s policies; however, where there is a conflict between the rule of law and certain policies, the influence of the former means effectively promoting and ensuring the implementation of the latter.15 This article will explore both policy and law by examining the cpc’s understanding and practice of human rights by analysing key leaders’ relevant speeches and documents and the death penalty legislation in the Maoist, the Deng Xiaoping and the post-Deng eras.

2 The cpc’s Approach to Human Rights and the Death Penalty in the Maoist Era: The Exclusion Zone of Human Rights and the Cautious Policy on Execution on Paper

2.1 The cpc’s Approach to Human Rights in the Maoist Era: The Exclusion Zone of Human Rights

In the Mao Zedong era, a completely negative attitude was taken towards human rights theory. ‘For a very long time after the founding of the new China, human rights were seen as a bourgeoisie slogan that had long been criticised and rejected, and the issue of human rights was an exclusion zone for theoretical research due to the influence of “leftist” thought’;16 the term ‘human rights’ could never be used in the policy and legal documents created by the Party and the relevant legislature. Therefore, human rights theory in this period was at a standstill under the domination of ‘leftist’ thought and the practice of understanding class struggle as the key concept in society. In practice, the period saw many social initiatives, including land reform, anti-rightist activities, the Great Leap Forward, and the Cultural Revolution, in which regular violations of human rights occurred without any available legal remedy.

In the Maoist era, China was obviously under a ‘paternalistic authoritarian regime’,17 in which Mao’s thought was considered ‘the guiding thought of the cpc and the Chinese people’s spiritual treasure’.18 In other words, Mao’s human rights thinking can be considered identical to the cpc’s outlook. Chinese scholars conducting research on Mao’s thinking explain and comment on Mao’s human rights concepts from different perspectives, i.e. negativism and positivism. The negativist approach holds that Mao denied and ignored human rights due to the fact that he never used the notion of human rights or rarely explained human rights thinking; some scholars have pointed out that before the foundation of the new China, Mao explained some of his thinking on human rights, but subsequently, he and the whole country were trapped in a nihilistic approach to human rights.19 However, most Chinese scholars take a positivist approach, which insists that in his thinking about rights Mao rarely used the term ‘human rights’, preferring most of the time to speak of “citizens’ rights”. This detail has been ignored in academic circles. Mao’s thinking about citizens’ rights was an experiment that critically developed Western human rights theory. Chinese traditional culture, Marxism, and the experiences of the long process of rescuing China from subjugation, deeply influenced Mao’s thinking on citizens’ rights, and introduced him to other aspect of human rights. He consequently proposed another form of thinking on citizens’ rights, which differed from Western human rights theory. This thinking on citizens’ rights emphasises class attribution, collectivism and non-elitism. Furthermore, these rights come from the people rather than from any god, and in a class-based society, they can only be obtained by struggle. Furthermore collective citizens’ rights should be protected as a first priority, and the right to subsistence is a fundamental right.20 This thinking on citizens’ rights was incorporated in constitutional legislation.

In the Maoist period, four constitutions were passed between 1949 and 1979, namely, the Common Program of the Chinese People’s Political Consultative Conference in 1949, the 1954 Constitution, the 1975 Constitution and the 1978 Constitution. In these constitutions, although there was no provision stipulating the need to ‘protect human rights’ or some other similar expression, there were explicit references entitling citizens to broad, basic rights, including the rights to elect and to be elected according to law, freedom of thought, speech, and publication, and the freedom to ‘hold processions and demonstrations’. Moreover, they also declared that ‘women enjoy equal rights with men in political, economic, cultural, education and social life’, ‘all nationalities have equal rights and duties’, and the ‘freedom to report truthful news shall be safeguarded’, and so on.21

However, it cannot be denied that although citizens were entitled to the above basic rights, these rights were laid aside and neglected in the several decades of Mao’s rule, and the state did not take on its responsibility to put the rights guaranteed in the Constitution into action, due to the fact that the constitutions were not judicially actionable; indeed, the entire legal system was weakened, especially during the period of the ‘Cultural Revolution’ launched by Mao Zedong from 1966 to 1977, when ‘the Cultural Revolution made the legal construction of China nearly suffer from extinction.’22 The cpc publicly denied the importance and necessity of legislation. In 1958, Mao Zedong said that ‘we are not to rely on law to manage the majority of people; [they] should develop a habit; who can remember so many provisions contained by laws?’23 At the same time, the Report to the Chairman and Central Government on Some Issues of Political and Legal Affairs Since the Organisation of People’s Communes throughout the Country, issued by the Central Group of Political Science and Law, pointed out that ‘in accordance with China’s reality, it is not necessary to make and pass Criminal Law, Civil Law, or Procedural Law.’24 Subsequently, legislation was effectively discontinued and legal nihilism became the order of the day. This led to a situation in which the legal construction of the state was destroyed and the ideology of one-man rule took over. In addition, the mixed functions of the political party and the law, even to the extent that the existence of the party replaced the law, meant that the emphasis was on policies rather than law at that time. All of this meant that in the period from 1949 to 1979 there were frequent cases where the interests of citizens were ignored and their rights overridden. In the social circumstances of the time, under the rule of Mao and under the impact of his political ideology, citizens’ rights in the Constitutions were stipulated as political aims, rather than an entitlement to rights or an undertaking to respect and protect them; indeed, these rights existed in name only. Meanwhile, the laws at that time were used entirely as a measure to protect dictatorship, one-man rule and privilege, even without considering legal nihilism and the prevalence of class struggle. So any practical protection for human rights was, at that time, out of the question.

Based on the above analysis, we can see that citizens’ rights were wantonly trampled on in practice, reflecting the reality that there were no human rights at all and a legal vacuum existed at that time. As some scholars have noted,‘the development of human rights in China was in fact at a standstill and regression’25 in the period of Mao’s rule. From this point of view, Mao only had an awareness of rights, rather than a comprehensive concept or perspective on human rights; he had no conception of how to protect human rights through legislation. The citizens’ rights provided by the Constitutions did not reflect Mao’s view of human rights. In addition, in the Mao era and even up until the early 1980s, China rejected Western values, including the human rights concept, so it cannot be argued that Mao Zedong or even the cpc itself took a human rights approach.

2.2 The Death Penalty in the Maoist Era: The Policy on Execution on Paper is Cautious and Strict

In the paternalistic authoritarian regime of the Mao period, Mao, and the cpc itself, did not have any conception of human rights, and the legislation on execution was not influenced by the cpc’s outlook on human rights at all. Human rights protection had no connection with legislation, including legislation related to execution; however, we should not ignore cpc attitudes and policies towards the death penalty in the Maoist era. It is submitted that the attitude towards execution as expressed in the published political papers by both the cpc and Mao himself was cautious and strict.26 In Mao’s paternalistic authoritarian regime, the cpc’s most important policies, such as its death penalty policy, were normally promulgated through the Party’s or the national leaders’ speeches or reports, especially those of Mao himself. In what follows, therefore, we will trace the death penalty policy of that period, using some of Mao’s speeches or documents relating to capital punishment.

In his 1951 paper, ‘the Party’s Mass Line Must be Followed in Suppressing Counter-revolutionaries (Zhenya Fangeming Bixu Shixing Dangde Qunzhong Luxian)’, Mao wrote that

The number of counter-revolutionaries to be killed must be kept within certain proportions. The principle to follow here is that those who owe blood debts or are guilty of other extremely serious crimes and have to be executed to assuage the people’s anger and those who have caused extremely serious harm to the national interest must be unhesitatingly sentenced to death and executed without delay.27

This is considered the policy for the application of the death penalty for counter-revolutionaries. As for the anti-corruption movement, on 8 December 1951, Mao said that the struggle against corruption, waste and bureaucracy should be emphasised as much as the struggle to suppress counter-revolutionaries. In major cases, the guilty should be dismissed from office, punished, or sentenced to prison terms (to be reformed through labor), and the worst among them should be shot. The problem could only be solved in these ways.28 In 1956, in his paper, On the Ten Major Relationships (Lun Shida Guanxi), Mao argued that ‘from now on there should be fewer arrests and executions in the suppression of counter-revolutionaries in society at large … All the same, we cannot announce that there will be no more executions, and we must not abolish the death penalty.’29 Mao’s statements about capital punishment are understood to constitute the death penalty policy at that time.30 In a society of exclusion of human rights, Mao’s cautious policy of execution on paper was adopted for political considerations rather than the protection of human rights. In order to consolidate the Communist government, the cpc launched a campaign to suppress counterrevolutionaries in the early years of the new China. Many places carried out this campaign excessively and killed many people, however, which worried Mao and led him to state that ‘[w]e cannot kill too many people; otherwise [we] will lose the support and sympathy of the whole society, and reduce the active population’.31 Meanwhile, in 1951 Mao proposed a death penalty system with a two-year suspension, in order to limit immediate execution, again reflecting his cautious policy on paper towards execution.32

In the 30-year period from 1949 to 1979 there was no criminal code and there was also a lack of relevant legal regulation of capital punishment, although some death penalty provisions could be found in certain special criminal laws, including: the Instruction on Suppression of Counter-revolution Activities of 23 July 1950 (which was the legal basis for dealing with counter-revolutionary cases in the early days following the foundation of the prc), the Regulations for Suppression of Counterrevolution of the prc of 20 February 1951, the Interim Regulations on Punishment for the Impairment of the State Currency of the prc of 19 April 1951, and the Regulations for Suppression of Corruption of the prc of 21 April 1952. According to Wikipedia, 873 600 convicts were executed under the above laws from 1949 to 1952.33 In February 1956, the Supreme People’s Court of the prc systematically summarised the crimes, penalties and the extent of the sentences which were to be applied in judicial practice, and then issued a summary report. In this report, those crimes punishable by death were not only the crimes which were stipulated in the special criminal laws mentioned above, but also included the offences of intentional killing, of intentionally causing injury (which led to death), and so on.34 ‘After 1958, work on criminal legislation was weakened; except for several amnesty decrees, no special criminal law was issued, and even the non-criminal laws seldom included criminal law norms.’35 All of these comprised the main criminal system at that time and, to a great extent, they marked the initial stage in the establishment of the death penalty system. In practice, in this period, capital punishment was considered an important measure in fighting the enemy, and was widely applied. Some scholars have argued that the ‘Maoist regime carried out thousands of executions in an era that was devoid of any concept of proportionality or procedural safeguard for criminal defendants.’36 ‘The death penalty was applied on a ground of political legitimacy and reasonableness, and this period is considered as the process of the politicisation of capital punishment, but with a lack of attention to the legal character of execution.’37 From the above, we can observe that, even though Mao enjoyed the highest authority in the paternalistic authoritarian regime, his cautious policy on execution – which existed on paper – could not be effectively implemented in practice through legislation. Consequently, in reality thousands of people were executed on various unwarranted grounds and even without trial in a ‘legal vacuum’ society. Although the mass and lawless use of the death penalty caused serious problems in terms of human rights protection in that era, we cannot deny that Mao’s death penalty policy was, on paper, cautious and strict.

Although Mao Zedong died in 1976, his thought still had a deep influence on death penalty legislation in 1979, when the new China passed its first criminal law. However, the 1979 Criminal Law was actually based on ‘the 33rd draft and also considered new conditions, new experiences and new problems’.38 The 33rd draft was drawn up on 9 October 1963. At that time Mao had noted that both Criminal Law and Civil Law were needed. ‘There is lawlessness nowadays and things are very difficult without laws. Criminal Law and Civil Law have got to be established. Law needs to be instituted, as do cases.’39 Here, we can see that Mao’s attitude towards the law differed and clearly changed from the speeches made in 1958. The 1979 Criminal Law, particularly the execution legislation, still retained some of the characteristics and traces of the Maoist era, as can be seen in the ‘explanatory note to the Seven Draft Laws’ made by Peng Zhen, the former Vice-Chairman of the Fifth National People’s Congress, in the Second Session of China’s Fifth National People’s Congress (npc). In this explanatory note, he argued that,

China cannot and should not abolish the death penalty, and yet should try to reduce its use. In 1959, The Central Committee of the cpc and Comrade Mao Zedong already and repeatedly made similar demands for a reduction in the use of the death penalty. Now, in the almost three decades since the foundation of the new China, particularly after crushing the ‘Gang of Four’, the nationwide situation of public safety and public order has become increasingly stable and better day by day; the Criminal Law hence decreases the number of crimes punishable by death … it also keeps the provisions of death with a suspension of execution.40

In addition, Article 1 of the 1979 Criminal Law provided an explicitly Party-minded reference to ‘taking Marxism-Leninism-Mao Zedong Thought as its guide’.41 Obviously, even though the 1979 Criminal Law was issued in the post-Mao era, it still retained Maoist legislation; and consequently, based on the above analysis, the 1979 Criminal Law was influenced by Mao’s thought at some level.

Without exception, the legislation regarding the death penalty in the 1979 Criminal Law also implemented Mao’s death penalty policy and that of the so-called Central Committee of the cpc. In accordance with the 1979 Criminal Law, the death penalty ‘shall only be applied to criminals who have committed the most heinous crimes (zui da e ji)’,42 and ‘not imposed on persons who had not reached the age of 18 at the time the crime was committed, or on women who are pregnant at the time of trial.’43 The system for reviewing death sentences was first established explicitly by the 1979 Criminal Law, but the npc Standing Committee and the Supreme People’s Court (spc) adapted this review system over the next few years.44 There were only 28 crimes45 punishable by death in the 1979 Criminal Law, which meant that the number of crimes punishable by death reached its lowest point in terms of legislation. As for the circumstances relating to these crimes, they mainly concerned ‘causing particularly grave harm to the State and the people’, or ‘if the circumstances are especially serious’, or ‘inflicting serious injury or death on people, or causing heavy losses of public or private property’ etc.46 These provisions partly limited the use of the death penalty. Some scholars have noted that ‘the provisions on crime and its corresponding punishment, in particular the provisions on the punishment for general crimes, are very close to the level of legislation in developed states.’47

Even though the 1979 Criminal Law provided for the lowest number of crimes punishable by death, it was still full of political utilitarianism and had a heavily political character. These features can be found in some Chinese criminal scholars’ research papers. Some contemporary scholars maintained that

retaining or abolishing the death penalty by a state, is [a matter to be] decided by the state’s specific situation in its political history, and exists to meet the objective requirements of combating crimes. As for the limited retention of the death penalty in the Criminal Law of China, it is a result of the situation of the class struggle now existing in China and the crime situation. Imposing the death sentence in accordance with the law on counter-revolutionaries and other criminals is a current demand of the state’s economic construction, and is necessary to consolidate the dictatorship of the proletariat, and also responds to the requirements of the Masses.48

Regarding the relationship between human rights and the abolition of the death penalty, scholars insisted that, in a class society, the terms humanism and human rights both had a class character; they argued for the existence of a supra-class, and an abstract concept of humanism and human rights. From the perspective of the proletariat’s view on humanism and human rights, crimes committed by a few counter-revolutionaries or a very few other criminals are deemed to infringe the interests of the majority and are by far the most inhuman crimes; they seriously violate human rights. From this perspective, imposing the deserved punishment on these counter-revolutionaries and criminals – including sentencing these few counter-revolutionaries to death – is a way of protecting the human rights of the masses and embodies the revolutionary humanitarian spirit.49 As for the issue of the abolition of the death penalty, scholars at that time also insisted that it would be completely abolished de facto and de jure, as a consequence of socialist development and the consolidation of the dictatorship of the proletariat.50

3 The cpc’s Human Rights Perspective and the Death Penalty in the Deng Xiaoping Era: Breaking through the Exclusion Zone and Expanding Execution Legislation

3.1 The cpc’s Human Rights Perspective in the Deng Era: Breaking through the Exclusion Zone

After Mao, came Deng Xiaoping. The Third Plenary Session of the 11th Central Committee of the Communist Party of China turned back to ideological guidelines, which encouraged the emancipation of the mind and the search for truth derived from facts, and embarked on an attempt to turn wrongs into rights throughout the country. Human rights concepts were introduced into China and widely discussed by Chinese scholars following this meeting.

Human rights were first introduced into China through debates about whether human rights belonged to a socialist or capitalist system. This controversy had heavy ideological content in the early 1980s. Those who thought human rights belonged to a capitalist system considered human rights only a capitalist slogan that could not be applied to the proletariat.51 Those who thought human rights also belonged to a socialist system argued that it was not only the bourgeoisie who could have their own human rights concepts; the proletariat, too, could have their own human rights slogan.52 In May and June 1985, Deng noted:

What are human rights? Above all, how many people are they meant for? Do those rights belong to the minority, to the majority, or to all the people in a country? Our concept of human rights is, in essence, different from that of the Western world, because we see the question from a different point of view.53

Based on this argument, Deng pointed out that individual human rights should not be set against the human rights of the masses; in order to protect the majority’s rights and security we must exercise dictatorship over a small number of criminals and crack down severely on crimes; ‘since the current situation is unusual, we have to strike hard, fast and according to law … This is what we mean by strengthening the people’s democratic dictatorship. So far as humanitarianism is concerned, since we are protecting the safety of the overwhelming majority of the people, we are humanitarian in the true sense of the word.’54 Deng believed that individual human rights were consistent with collective human rights and emphasised the importance of state sovereignty to human rights protection in a developing country. In other words, he thought state sovereignty was more important than human rights. In this sense, during Deng’s visit to the United States in 1989, he had explicitly pointed out that ‘people who value human rights should not forget the rights of the state. When they talk about human dignity, they should not forget national dignity.’55 Based on the rights of the state view, he insisted that ‘stability is of overriding importance’ and that the ‘first priority should always be given to national sovereignty and security’.56

As for Deng’s outlook on human rights, most Chinese scholars offer positive comments and are unanimous that Deng’s thinking on human rights is the latest development in Marxist human rights theory in China. It has not only a scientific but also an epochal character and realism that guides the protection and creation of human rights in China. Deng’s human rights thinking is critical to China; it illuminates the Party’s basic position and perspective on human rights and gives guidance on respecting and developing human rights in the country.57

Deng’s human rights thinking respects the cpc’s human rights perspective and has had a deep influence on China’s human rights development in both the Deng and post-Deng eras. Not only general ideas about human rights, but also the specific aspects of Deng’s human rights thinking were incorporated in the White Paper on Human Rights in China published by the State Council of the prc in November 1991. This document emphasises that ‘for any country or nation, the right to subsistence is the most important of all human rights, without which the other rights are out of the question’, that ‘without national independence, there would be no guarantee for the people’s lives’, and that ‘the Chinese people had to win national independence before they could gain the right to subsistence’.58 In 1997, the Report on Hold High the Great Banner of Deng Xiaoping’s Theory for an All-Round Advancement of the Cause of Building Socialism with Chinese Characteristics into the 21st Century stated that the Chinese must hold high the great banner of Deng Xiaoping’s Theory and apply it to our entire cause and all our undertakings. This is confirmation that the Party had drawn from both history and current realities.59 Although the Chinese government launched its first White Paper on Human Rights to show China’s basic position on and its practice of human rights, to a great extent the issue of human rights at that time served as a theme for declarations intended for foreign consumption, at least until the 15th National Congress of the Communist Party of China. At this Congress, the phrase ‘respect and safeguard human rights’60 was written into the Party’s political report for the first time.

3.2 The Death Penalty in the Deng Era: Expanding Legislation on Execution

Deng’s thinking on human rights was also implemented through the cpc’s death penalty policy. After the implementation of reforms and the opening-up of 1978, all kinds of political control that had been imposed on the individual were relaxed and Chinese society became less repressive and more open. At the same time, however, the social system was brought into a state of anomie and public security and criminality deteriorated. These changes can be observed in the increasing number of criminal cases dealt with by the People’s Courts in the period from 1979 to 1997, as Figure 1 shows.61

Figure 1
Figure 1

The number of first instance criminal cases in the whole country from 1978 to 1996 (in thousands)

Citation: Asia-Pacific Journal on Human Rights and the Law 18, 2 ( 2017) ; 10.1163/15718158-01802001

Figure 1 shows that the number of criminal cases up until 1983 – when the Chinese government implemented the “strike-hard” anti-crime campaign – had dramatically increased from 1978 to around 520,000 cases, especially from 1982 to 1983; after the campaign in 1983, however, the number declined to approximately 260,000 cases in 1985, almost the same number as in 1982. After 1985, the number of criminal cases showed a steady increase to another high in 1996, of around 610,000 cases, even though there had been a short term drop from 1990 to 1993.

In the deteriorating social environment, the central government applied the death penalty as the most severe punishment to control the increasing crime rate. At that time, ‘the view of Deng Xiaoping on the death penalty in principle represents the attitude of the central government.’62 As regards the social situation in 1983, Deng Xiaoping said:

The number of crimes, including serious ones, has increased substantially, and the people are very disturbed about this. Over the past few years, far from being checked, the tendency has grown. Why is that? Chiefly because we have hesitated to take prompt and stern actions to combat criminals and have given them very light sentences… Serious offenders… should be severely punished according to law. A number of criminals should be executed according to law… The only way to stop crime is to be tough about it.63

On the basis of this speech by Deng on 19 July, on 25 August 1983 the cpc launched the Decision on Cracking down Severely on Crimes, which claimed that ‘cracking down severely on crimes is as serious a struggle of opposites as that between us and the enemy in the political arena’.64 The criminal was deemed the enemy of the people. In this campaign, around 24,000 convicts were sentenced to death in 1984.65
As regards the death penalty, in 1986 Deng pointed out:

The death penalty cannot be abolished, and some criminals must be sentenced to death… Some criminals must be executed, but of course we have to be very careful in such matters. Some of the perpetrators of serious economic or other crimes must be executed as required by law. As a matter of fact, execution is one of the indispensable means of education… “Executing some of them can help save many cadres. As the saying goes, execute one as a warning to a hundred.”66

From the speeches above, it is clear that Deng tended to emphasise the death penalty as a severe punishment to control crime, an approach which differed from Mao’s attitude. The execution policy was correspondingly amended from a restrictive one in the Maoist era to one of extensive application in the Deng era. One Chinese scholar critiqued this change in the execution policy by writing: ‘the ruler expects to contain crimes and restore social order through the death penalty and has come to somewhat depend on the death penalty during the process of social government.’67

Starting in 1981, the npc Standing Committee successively adopted 25 Special Criminal Laws, 18 of which contained offences punishable by death, up until the present Criminal Law was passed in 1997. All of these Special Criminal Laws brought significant changes in terms of the number of crimes punishable by death and the conditions in which the death penalty could be applied. There are three important points to note. First, the number of crimes punishable by death increased dramatically. According to these Special Criminal Laws, 33 crimes were punishable by death,68 and, together with the 1979 Criminal Law, the total number of crimes punishable by death increased to around 80 before the 1997 Criminal Law was passed. Second, some Special Criminal Laws stipulated the death penalty as a mandatory penalty. These laws included Article 2 of the Decision Strictly Prohibiting Prostitution and Visiting Brothels ([1991] No. 51), Article 1 of the Decision on Punishing Criminal Elements Abducting and Selling or Kidnapping Women or Children ([1991] No. 52), and the Decision on Punishing Criminal Elements Hijacking Aviation Vehicles ([1992] No. 67). The death penalty for these crimes was mostly a mandatory penalty. Third, another significant change occurred in terms of judicial practice. In contemporary judicial practice, in order to crack down severely on ordinary crimes such as theft, the relevant judicial authorities applied the death penalty to these kinds of crimes through their interpretation of the law. For example, the death penalty could not be applied for theft in accordance with the 1979 Penal Code, but could be applied according to the Decision on Severely Punishing Criminals Who Seriously Undermine the Economy (1982).

China adopted its second Criminal Law at the Second Session of the Fifth National People’s Congress on 1 July 1997. Effectively, the 1997 Criminal Law was based upon the 1979 Criminal Law and a series of Special Criminal Laws passed successively from 1981 to 1996. Based on the 1979 Criminal Law, the execution legislation in the 1997 Criminal Law continued the death penalty policy contained in the Special Criminal Laws, with some modifications and adjustments. In the 1997 Criminal Law, there were 68 crimes punishable by death, which were distributed across nine different chapters – excluding Chapter ix (Crimes of Dereliction of Duty) – and the percentage of crimes punishable by death out of the total number of crimes (414) was 16.4 per cent.69 It might appear that the number of crimes punishable by death is fewer than the total in the 1979 Criminal Law and the 25 Special Criminal Laws (i.e. around 80 crimes), but actually, ‘it neither increased nor decreased in principle; the conditions were not right for us to decrease the number of crimes punishable by death due to the current severe situation regarding social order and economic crimes’.70 However, the applicable condition for imposing the death penalty was amended from ‘the most heinous crimes (Zuida E Ji)’ in the 1979 Criminal Law to ‘extremely serious crimes (Zuixing Jiqi Yanzhong)’,71 which meant that the conditions for execution were broadened and the number of possible executions increased.72 Although the 1997 Criminal Law did not reduce the number of executions carried out, it limited to some extent the scope of applicable cases and reduced the conditions required for commuting the death penalty to life imprisonment or fixed-term imprisonment. As regards limitations, it deleted the provision, ‘Persons who have reached the age of 16 but not the age of 18 may be sentenced to death with a two-year suspension of execution if the crime committed was particularly serious’,73 so a person who had not reached the age of 18 at the time the crime was committed would not be sentenced to death, including the death penalty with a suspension of execution. In terms of reducing the conditions, it changed the phrasing of the 1979 Criminal Law from ‘shows true repentance’ or ‘shows true repentance and performs meritorious service’,74 to ‘does not intentionally commit a crime’,75 so commutation can occur if the person does not intentionally commit a crime.

All things considered, the expansion of execution legislation in China was not altered by the 1997 Criminal Law, and the policy of execution was arguably somewhat strengthened. However, we should note that the 1997 Criminal Law preserved, to a great extent, the scope of crimes punishable by death, although it did not completely preserve the legislative pattern of the death penalty after 1979 due to the decrease in the number of crimes punishable by death. This change might appear insignificant, but it really does show that the death penalty needs to be limited and even abolished. The expansion of legislation has inevitably given judges much more scope to pass death sentences. Information about the number of executions has so far been a state secret, but according to the available estimates reported by Amnesty International, the number of executions was 3500 in 1996 when the second campaign was launched,76 which is less than that in 1984 when the first campaign was launched; in 1997, it was 1644,77 showing a dramatic decrease, while in 1998 it increased again to 1769.78

4 The cpc’s Approach to Human Rights and the Death Penalty in the Post-Deng Era: The Gradual Development of Human Rights and Restrictions on the Use of Execution

4.1 The cpc’s Approach to Human Rights in the Post-Deng Era: The Gradual Development of Human Rights

In the post-Deng Xiaoping era, ‘lacking a unifying figure like Deng or Mao, China’s leadership today is a mostly a faceless group of longtime party engineers’,79 which has been transformed from a structure dominated by one man to a collective leadership;80 in other words, the paternalistic authoritarian regime of the Mao and Deng eras is over, and in the era of Jiang Zeming (from 1989 to 2002) and Hu Jintao (from 2002 to 2012) China has developed a condominium authoritarian regime and is now trying to become an authoritarian rule of law regime in the era of Xi Jinping (from 2012 to the present).

More than 30 years after the reforms and opening up implemented in 1979, and particularly over the last 20 years, historic changes have taken place in Chinese society and in the cpc. First, the way in which social and political life was completely controlled by the ideological state apparatus and its ideology has already changed dramatically. Since the 1980s, the Chinese totalitarianism regime has moved irrevocably towards limited diversification, and its ideology has become secularised because of the economic diversification and development the country has experienced; at the end of the 1990s, China had already completed the historic transformation from totalitarianism to post-totalitarianism.81 In the transformation process, freedom of personal movement is accepted and protected, which means the previous mandatory political identity and interpersonal relationships based on personal loyalty are weakened, and consequently citizens no longer believe in empty political and ideological indoctrination. Second, the trust in politics and the political identity of the populace have significantly weakened, and civil disorder or ‘mass incidents’ (Qunti Xing shijian)82 have occurred more frequently and assumed an anti-institutional character. According to research, the number of civil disorder cases was 8700 in 1993, and around 10,000 in 1994; in 2003, however, it was around 60,000, while in 2005 it increased to 87,000, and reached 90,000 in 2006. According to other research, in the past 15 years the annual rate of increase of cases of civil disorder is approximately 17 per cent; in other words, civil disorder is growing.83 This kind of civil disorder, which is known as a ‘mass incident’ or ‘mass frustration’ in China, is normally caused by dissatisfaction with a particular leader, and then gradually changes to dissatisfaction with the whole state regime and the community of democracy.

The two main reasons discussed above prompted the cpc to consider implementing political reform and changing their approach to human rights. As regards political reform, at the 15th National Congress of the cpc, Jiang Zemin stated that ‘we should continue to press ahead with the reform of the political structure, further extend the scope of socialist democracy and improve the socialist legal system, governing the country according to law and making it a socialist country ruled by law’;84 as regards the changing approach to human rights, individual human rights have received more and more attention due to the internal factors described above, as well as international considerations.

With regard to international factors, ‘human rights groups regularly issue scathing reports condemning China for widespread human rights violations’.85 This has put international pressure on the cpc and influenced its approach to human rights, improving the human rights situation. The Chinese government has also gradually acknowledged and accepted various international human rights covenants and started to participate in some international human rights initiatives. For example, China signed the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in 1986 and ratified it in 1988, as well as other international treaties, such as the International Convention Against Apartheid in Sports (signed in 1984), the Convention Concerning Vocational Rehabilitation and Employment (Disabled Persons) (ratified in 1987), the International Covenant on Civil and Political Rights (iccpr) (signed in 1998) and the International Covenant on Economic, Social and Cultural Rights (icescr) (signed in 1997 and ratified in 2001). In addition, China has also actively participated in international organisations; for example, China began sending observers to the un Commission on Human Rights and became a full member in 1982. These activities required the Chinese government to fulfill its corresponding international responsibilities; in addition, the cpc has gradually begun to pay attention to the importance and value of individual human rights. These changes are evident in the cpc’s Work Reports; for example, at the 16th National Congress of the cpc in 2002, Jiang Zemin stated that ‘human rights are respected and guaranteed’ and he also stated that ‘we should uphold and improve the system of people’s congresses and ensure … their legislation and policy decisions better embody the people’s will.’86 A significant milestone in the development of human rights in China was the inclusion of the statement ‘the state respects and preserves human rights’87 in the 2004 Constitution, although the state is still lagging several decades, and perhaps several centuries, behind the West. The Constitution of the prc included the concept of human rights protection for the first time and transformed human rights from a political notion into a legal concept. Furthermore, the state, rather than only the Party and the government, has become the principle means of protecting human rights, and the citizens’ will and values have become an element in state construction and development as a constitutional principle. At the cpc’s 17th National Party Congress in 2007, Hu Jintao also emphasised that ‘we must respect and safeguard human rights, and ensure the equal right to participation and development for all members of society in accordance with the law.’88 At the cpc’s 18th National Congress in 2012, Hu Jintao stated that ‘the rule of law should be fully implemented as a basic strategy, a law-based government should be a basic function, judicial credibility should be steadily enhanced, and human rights should be fully respected and protected.’89 In 2013, the Fourth Plenary Session of the 18th Central Committee of the cpc launched its Decision on Some Major Issues Concerning Comprehensively Deepening the Reform (hereinafter, the 2013 Decision), discussed ‘promoting the rule of law’, and emphasised the importance of ‘improving the judicial system to protect human rights’.90 In 2014, the Fourth Plenary Session of the 18th Central Committee of the cpc passed the Decision Concerning Some Major Questions in Comprehensively Moving Governing the Country According to the Law Forward (hereinafter, the 2014 Decision), and once again declared its intention to, ‘strengthen the judicial protection of human rights; to strengthen the consciousness of the importance of respecting and protecting human rights in society, and to provide complete channels and methods to obtain relief for citizens’ rights.’91 All of these developments, to a great extent, show that in the post-Deng era there has been a gradual shift in the cpc’s attitude to human rights and judicial protection for all members of society.

The attitude toward human rights has been accompanied by a change in approach. However, as mentioned above, Deng had a profound influence on his successors, in particular Jiang Zemin, who propounded the important concept of the ‘three represents’ (Sange Daibiao Zhongyao Sixiang),92 which emphasises that ‘to satisfy the interests and demands of the overwhelming majority of the people is the most important thing and should be given top priority’, and that ‘the interests of the overwhelming majority of the people are the vital and most decisive factor. This has always been vital to the overall interests of keeping the Party in power’,93 and they ‘are also the guidebook of Chinese human rights development.’94 According to the three represents, protecting the human rights of the overwhelming majority of people takes priority. When Jiang Zemin referred to Ugandan President Yoweri Museveni’s speech on 30 January 1996, he said:

For China, to insure the people’s rights to subsistence and development is the primary and the most vital human rights protection; to insure Chinese social stability, economic development and the improvement of people’s living standards are the basic conditions and important content of improving human rights in China.95

He also pointed out that,

The criminal who has committed crimes against the people’s interest can’t be contained within the scope of human rights protection; all kinds of crimes must be punished according to the law and this is for the sake of protecting the human rights of the overwhelming majority of the people.96

Jiang Zemin emphasised the human rights of the majority and did not recognise the human rights of criminals.

Hu Jintao’s outlook on human rights was somewhat different from Jiang’s. The Scientific Outlook on Development (sod), propounded by Hu, ‘takes development as its essence, putting people first as its core principle’ and emphasises that ‘we must respect the principal position of the people in the country’s political life … and protect their rights and interests’.97 Even though the sod takes development as its essence, it puts the people first as its core principle, which consequently includes two factors, namely, humanism and rights. Individual freedom and dignity should be equally respected and protected, and when the individual interest conflicts with that of the state or the overwhelming majority of the people, it should be dealt with in an all-encompassing and considered approach, and both sides should be equally considered and protected.

Since then, individual human rights have received more and more attention. The 2014 Decision mentioned the need to ‘strengthen the judicial protection of human rights’.98 This was the first time in its history that the cpc had taken ‘the judicial protection of human rights’ as one of its general objectives, together with the need to ‘make the people feel fairness and justice in every judicial case’,99 and this initiative will enrich the cpc’s political values.

According to the above discussion and analysis, the cpc’s outlook on human rights, and in particular individual human rights, has undergone a great change. However, we need to face the fact that in China individual human rights have not received enough attention or enough respect. The state is strong enough to force the citizen to yield to the national interest or to the interests of the majority; in other words, individual human rights always suffer when faced with state interests or the human rights or interests of the majority.

4.2 The Death Penalty in the Post-Deng Era: Restricting the Use of Execution

In a state – in this case, China – which only emphasises the national interest, or the interests or human rights of the majority, the interests or human rights of the few, such as criminals, are seen as opposed to those of the majority, and are in most cases neglected or not taken seriously, and so ‘the criminals’ human rights protection’ is denied;100 in a state which only focuses on economic and state development, or on the stability of the state, the instrumental efficacy of criminal law and its punishment will be highlighted. In terms of crime and public security, the state is expected to control crime and protect public security by launching a national anti-crime campaign;101 on the other hand, the traditional concept of ‘governing the country with severe law during troubled times (Zhi Luanshi Yong Zhongdian)’ still plays an important role in contemporary China. ‘Culture is a rather vague concept, but certain legal and religious traditions can influence whether the death penalty is considered a culturally accepted part of the penal system.’102

The death penalty is always considered the main option in an anti-crime campaign, because it is the most effective and direct measure for controlling crime. It is true, to some extent, that the death penalty has always received the attention and has been a favoured policy of national rulers and the public. The public expects the authorities to be able to crack down on and control crime by using the death penalty, while the rulers also want to govern and control crime by applying heavy punishments to protect social order and public security. To a great extent, these expectations on the part of the public and the rulers have formed the basic reasoning behind the death penalty and expanded the scope of its application. In the post-Deng era, the national leaders of China still face serious public security issues; however, they need to launch different policies. Jiang, in his time in office, still continued the policy of ‘stability overwhelming the wholeness’, which was proposed by Deng Xiaoping; in the Hu era, the emphasis was on the strategic idea that ‘development is an absolute principle and stability is an absolute task’.103 Therefore, in these two eras, and until the end of the Hu era, there was no significant change in the use of the death penalty, and the number of executions, shown in Figure 2, was still at a high level according to estimates by Amnesty International.

Figure 2
Figure 2

Number of executions in China and the world (number of individuals executed)104

Citation: Asia-Pacific Journal on Human Rights and the Law 18, 2 ( 2017) ; 10.1163/15718158-01802001

Figure 2 shows that the number of executions in China was at its lowest in 2007, at around 470, while around the world, the lowest number – approximately 1146 – occurred in 2003, in which year China executed around 726; the highest number in China occurred in 2004, with 3400, following the ‘strike-hard’ anti-crime campaign that year; in 2001 a similar campaign was implemented, which resulted in the second highest yearly total, around 2468.

Although the death penalty still plays an important role in crime control and social governance, China has already amended the criminal law to limit its use. On 1 January 2007, a significant reform was made by restoring the power to review all death sentences to the spc from the local High People’s Courts and the Military Courts. The spc can now uniformly exercise its power to review and further improve the standards and conditions of evidence and the procedure involved in sentencing someone to death. Therefore, the execution number that year in the post-Deng era is the lowest. This is the first time China has limited the use of the death penalty in judicial practice since passing the 1979 Criminal Law. This change could be due to the inclusion in the Constitution of the statement ‘the state respects and protect human rights’; it could also be a result of a change in the criminal policy in 2006 from a policy of ‘cracking down on crime’ to one of ‘justice tempered with mercy (Kuanyan Xiangji)’.105

The Eighth Amendment to the Criminal Law (hereinafter, the Eighth Amendment) represented another significant and substantial step. In 2011, the Eighth Amendment, which was adopted on 25 February, abolished the death penalty for 13 economic and nonviolent crimes, reducing the number of crimes punishable by death from 68 to 55, and banned capital punishment for offenders over the age of 75. Even though seven amendments were adopted before the Eighth Amendment, they did not involve any reform of the death penalty; in other words, the Eighth Amendment started a process that could lead toward gradual abolition of the death penalty in China. Professor Carolyn Hoyle from the United Kingdom pointed out that ‘important in themselves, these reforms are emblematic of China’s emerging commitment to limit the scope and practice of capital punishment in stages, with, as it stated to the un Human Rights Council in 2007, the final aim of abolition.’106

As discussed above, in the Jiang era, China did not undertake any reform of the death penalty and denied criminals human rights, but in the Hu era, the country emphasised the central task of putting people first, and so the concept of the ‘state respects and protects human rights’ was included in the Constitution in 2006. Following this, reform of the death penalty began by limiting its use in judicial practice in 2007 and, in 2011, by legislatively decreasing in a significant fashion the number of crimes punishable by death. This is one important illustration of the cpc’s shifting approach to human rights and to the reform of the death penalty system. Information about the number of executions after 2008 is not available, however, and after the Eight Amendment 55 crimes were still punishable by death.

China entered the Xi Jinping era in November 2012, and launched its first White Paper on Judicial Reform in China in that year.107 This White Paper explicitly states that ‘China retains the death penalty, but strictly controls and prudently applies it.’108 This was also the first time that China had stated its opinion on the death penalty in a White Paper. The 2013 Decision also stated that ‘we will gradually reduce the number of crimes punishable by the death penalty’,109 which was also the first time China had discussed abolishing the death penalty gradually in the Party’s report. However, the 2014 Decision does not mention the death penalty, although it states that it will ‘promote judicial reform’, ‘comprehensively construct the rule of law’, and ‘strengthen the judicial protection of human rights’.110 In light of the Party’s political documents and the White Paper, China adopted the Ninth Amendment to the Criminal Law (hereinafter, the Ninth Amendment) on 29 August 2015, which also abolished the death penalty for nine crimes and reformed the relevant death penalty system.

The Ninth Amendment pushed reform of the death penalty further forward. The relevant steps in this process can be detailed as follows. First, there has been a further reduction in the number of crimes punishable by death stipulated by specific provisions of the Criminal Law, from 55 to 46, i.e., the death penalty is no longer applicable for the crimes of smuggling weapons, ammunition, or nuclear materials, smuggling counterfeit currency, counterfeiting currency, raising funds by means of fraud, organising prostitution, forcing another person to engage in prostitution, obstructing a commander or a person on duty from performing his duty, and fabricating rumors to mislead others during wartime. So China has taken another solid step towards the final goal of entirely abolishing the death penalty de facto and de jure by reducing the number of crimes punishable by death. However, there are still 46 crimes punishable by death in the present Criminal Law, of which 24 are non-violent crimes, representing 52.2 per cent of the total, and 22 are violent crimes.

Second, the execution conditions have been further improved in that the suspended death penalty has been commuted to immediate execution, which is a reform of great significance for China’s current death penalty system. In accordance with Article 2 of the Ninth Amendment, the stipulation of the previous Article 50(1) that ‘if it is verified that he or she has committed an intentional crime, the death penalty shall be executed upon verification and approval of the spc’ is amended by the Ninth Amendment as follows:

if he or she has committed an intentional crime the circumstances of which are flagrant, the death penalty shall be executed upon verification and approval of the spc; if he or she has committed an intentional crime, but the death penalty is not carried out, the terms of the suspension of the carrying out of the death penalty shall be reviewed again, and reported to the spc for the record.111

In other words, the system of the death penalty with suspension of execution was reformed in two senses: first, ‘it raises further the thresholds of the suspension of execution of the death penalty commuted to immediate execution’,112 i.e. the previous term ‘it is verified’ is amended to the ‘circumstances are flagrant’; second, it increases the probation period of the suspension of execution; in other words, it appears to put the criminal on ‘death row’ for a longer period of time.113 Once again, since the Ninth Amendment provides that if he or she has committed an intentional crime during the probation period of the suspension of execution and the circumstances are not flagrant, the death penalty shall not be carried out, but the terms of the suspension of the execution of the death penalty shall be reviewed again.

Certainly, China is still facing a difficult path toward the complete de jure and de facto abolition of the death penalty. In the post-Deng era, based on the analysis above, the cpc’s outlook on human rights has undergone a great change, especially with regard to criminals’ human rights, from denying criminals human rights protection to ‘strengthening the judicial protection of human rights’. The cpc, however, still emphasises the human rights and interests of the majority and the primacy of the nation and economic development; the individual interests of the few always make way for the former. Even though the sod stated the importance of ‘putting people first as its core principle’ and the 2013 and 2014 Decisions declared the judicial protection of human rights, they also emphasised the importance of ‘persisting in starting from China’s reality and striving to make the people feel fairness and justice in every judicial case’.114 As far as fairness is concerned, however, different people have different perspectives. Hence it is a pseudo-perspective that every person should feel fairness and justice in every judicial case. Particularly now, judicial authorities in China have to implement all kinds of ‘Mass Line Campaigns’ as a form of political initiative. In these kinds of political campaigns, fairness and justice tend to be the domain of the majority of the people; public opinion can always be involved and react to events in the judicial sphere.115

The White Paper on Judicial Reform in China and the 2013 Decision have already led to strict control and cautious application of the death penalty, but the process is gradual. Nobody knows the timetable for China’s complete abolition of the death penalty. In the present situation in China, death penalty reform is decided by the nation’s leaders. On the one hand, the nation’s leaders must focus on the demands of the mass of the people, because they are ‘the subjects of and source of strength for ruling the country according to the law’;116 on the other hand, the death penalty is still the most effective measure available to the rulers to protect national stability and public security.117

5 Conclusion

Perhaps when considering Chinese affairs according to relevant Western or international standards we will often find it difficult to reach a satisfactory conclusion. We need to understand the Chinese political regime and the Party’s perspective so that we can explain its reasoning and try to make predictions. This is also true for human rights. As international standards, human rights are accepted by all states that attempt to improve their national human rights situations in order to comply. In China, the cpc admits and accepts human rights, although the focus is on different aspects of these rights. The cpc emphasises that national development and stability are guarantees of all citizens’ human rights, and consequently, protecting the majority of citizens’ human rights and the people’s right to subsistence and development118 are always the cpc’s priority.

The existence and extent of the death penalty are significant factors in evaluating human rights development. In accordance with international and Western human rights standards, China should have completely abolished the death penalty, as has South Africa and European states such as Hungary, France, and Germany. However, the process is still underway. We believe that the death penalty will be abolished entirely de facto and de jure, but if the cpc continues to prioritise people’s rights to subsistence and development rather than the right to life, it will not be achieved rapidly. Article 6(1) of the iccpr provides that ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’.119 In this sense, the Chinese government should repeal entirely the death penalty thereby removing the conflicts between China’s domestic laws and the iccpr and enabling the country to more effectively and realistically protect the people’s right to life.

1

Wu Yaling, ‘Chinese Translation of the Social Contract by Jean-Jacques Rousseau and its influences (Lusuo “shehui qiyue lun”de hanyi jiqi yingxiang)’ (2009) 104(3) Modern Philosophy 84, 86.

2

Zhao Xiaobo, ‘On the Evolution of the Concept of Civil Rights in Modern China: the Discussion on Conversion from Restoration to Revolution (Jindai Zhongguo “Minquan” Neihan Yanbian Kaolun: Cong Weixin Dao Geming de Huayu Zhuanhuan)’ (2015) (2) The Juris 140, 140–141.

3

These documents chiefly include the Outline of the Constitution by Imperial Order (Qinding Xianfa Dagang) adopted on 27 August 1908; The Provisional Constitution of the Republic of China (Zhonghua Minguo Linshi Yuefa) adopted on 11 March 1912; The ‘Temple of Heaven’ Draft Constitution (Tiantan Xianfa) adopted on 31 October 1913; The Constitution of Republic of China (Zhonghua Minguo Xianfa) adopted on 10 October 1923; The Constitution of Republic of China (Zhonghua Minguo Xianfa) adopted on 25 December 1946, and so on.

4

Nicolae Pavel, ‘Defining the Concept of Human Rights in the Light of Juridical Values Theory’ (2012) 4 (1) Contemporary Readings in Law and Social Justice 502, 508.

5

Guo Daohui and Tao Wei, ‘How Could the Exclusion Zone for Human Rights be Broken? On Significant Cases Occurring in the Field of Jurisprudence after the Foundation of the prc (Renquan Jinqu Shi Zenyang Tupo de: Jianguo Yilai Faxuejie Zhongda Shijian Yanjiu)’ (1999) 5 Law Science 2, 2.

6

In this sense, the cpc’s political documents have already stated that, ‘we should draw from the quintessence of Chinese legal culture, learn from beneficial experiences in the rule of law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.’ See ‘The ccp Central Committee Decision Concerning Some Major Questions in Comprehensively Moving Government of the Country According to the Law Forward (hereinafter abbreviated to ccp-cdc) (Zhonggong Zhongyang Guanyu Quanmian Tuijin Yifa Zhiguo Ruogan Zhongda Wenti De Jueding)’ (China Social Science Net, 29 October 2014) <http://www.cssn.cn/fx/fx_ttxw/201410/t20141030_1381703.shtml> accessed 10 February 2016.

7

Randall Peerenhoom, ‘Assessing Human Rights in China: Why the Double Standard?’ (2005) 38 Cornell International Law Journal 71, 71.

8

Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa) 2004.

9

The ccp-cdc demonstrates that letting the Party leadership penetrate the entire process and all aspects of ruling the country according to the law is a basic experience of the construction of our country’s Socialist rule of law. Persisting with the Party leadership is a basic need for the Socialist rule of law; it is where the foundations and the life-line of the Party and the State lie … Party leadership and the Socialist rule of law are identical, the Socialist rule of law must persist in Party leadership; Party leadership must rely on the Socialist rule of law … We must persist with the idea of the Party leading legislation, guaranteeing law enforcement, supporting the judiciary … being good at making the Party’s standpoints become the national will through statutory procedures. See ccp-cdc (n 6). In relation to this, one Chinese scholar has said that the role of political guarantees for the Party leadership lies in the fact that the Party’s guiding thought should also be the guide for the rule of law. See Liu Jiazheng, ‘On the High Unity of the Party’s Leadership and Rule by Law (Danglingdao He Yifa Zhiguo Gaodu Tongyi)’ (Qiu Shi Net, 10 February 2015) <http://www.qstheory.cn/laigao/2015-02/10/c_1114315500.htm> accessed 10 February 2016.

10

Constitution of the Communist Party of China (Zhongguo Gongchandang Dangzhang).

11

Ibid.

12

Salil Shetty, ‘The Value of International Standards in the Campaign for Abolition of the Death Penalty’ (2014) xxi(1) The Brown Journal of World Affairs 41, 42.

13

Yu Jianrong, ‘Condominium Authoritarian Regime and the Authoritarian Regime of the Rule of Law: the Problems and Outlooks of Political Development in China (Gongzhi Weiquan Yu Fazhi Weiquan: Zhongguo Zhengzhi Fazhan De Wenti Yu Chulu)’ (2008) 98(4) Issues of Contemporary World Socialism 17. The author pointes out in this paper that China had already changed from a ‘paternalistic authoritarian regime (Jiazhangshi De Weiquan Tizhi)’ in the Mao Zedong and Deng Xiaoping era to the ‘condominium authoritarian regime (Gongzhishi De Weiquan Tizhi)’ in the of post-Deng period, and now is trying to drive forward the ‘authoritarian regime of rule of law (Fazhishi De Weiquan Tizhi)’.

14

Nue Huihua, ‘Mr. Zheng Yongnian Spoke Irresponsibly and Sarcastically (Zheng Yongnian Xiansheng Zhanzhe Shuohua Bu Yaoteng)’ (21ccom Net, 29 January 2016) <http://www.21ccom.net/html/2016/gqmq_0129/1317.html> accessed 11 February 2016.

15

Shen Zongling, Jurisprudence (Fa li xue) (Beijing University Press, 2000) 272–273.

16

Wang Mi, ‘How the Exclusion Zone of Human Rights Theory was Broken Through (Renquan Lilun Jinqu Shi Zenyang Tupo de)’ (2004) (5) Hundred Year Tide (Bai Nian Cao) 13, 13.

17

Yu (n 13) 18.

18

Zheng Derong, ‘The Historical Status and Contemporary Values of Mao Zedong’s Thought (Mao Zedong Sixiang De Lishi Diwei Yu Dangdai Jiazhi)’ (People Net, 30 December 2010) <http://theory.people.com.cn/GB/13619948.html> accessed 14 January 2016.

19

Du Gangjian, ‘On Overcoming the Nihilism of Human Rights (Lun Kefu Renquan Xuwu Zhuyi)’ (1992) (1) Law Study and Research 3.

20

See Lin Yuchuan, ‘Citizens’ Rights: An Alternative to the Human Rights – With the Perspective of Mao Zedong’s Thinking on Rights (Renmin Quanli: Renquan De Yizhong Tidai Fangan – Cong Mao Zedong De Quanli Siwei Kan)’ (2007) (1) Modern Philosophy 37; Dai Xingli, ‘On Mao Zedong’s Thought on Human Rights (Lun Mao Zedong De Renquan Sixiang) (2014) (2) Studies on Marxism 29; Fu Zitang and Cui Yan, ‘The Human Rights Concept in Mao Zedong’s Early Manuscripts (‘Mao Zedong Zaoqi Wengao’ Zhong De Renquan Guannian)’ (2012)(3) Studies on Mao Zedong’s Thought 26; Shen Xiaoyang, ‘On Mao Zedong’s Thought on Human Rights (Lun Mao Zedong De Renquan Sixiang)’ (1995) (3) Guansu Theory Research 3; Xian Kailin, ‘On the Unique Contribution of Mao Zedong’s Thought on Human Rights (Lun Mao Zedong Renquan Sixiang De Dute Gongxian) (2013) (6) Human Rights 21.

21

See the Common Program of the Chinese People’s Political Consultative Conference (Zhongguo Renmin Zhengzhi Xieshang Huiyi Gongtong Gangling) 1949; The Constitution of the prc (Zhongguo Renmin Gongheguo Xianfa) 1954; The Constitution of the prc (Zhongguo Renmin Gongheguo Xianfa) 1975; The Constitution of the prc (Zhongguo Renmin Gongheguo Xianfa) 1984.

22

Gao Mingxuan and Zhao Bingzhi (eds), The Evolution of Chinese Criminal Legislation (Law Press, 2007) 69.

23

Research Office of General Office of the npc Standing Committee, The 40 year Construction of the System of National People’s Congress (Renmin Daibiaodahui Zhidu JIanshe 40 nian) (China Democracy and Law Press, 1991) 102, cited in Zhang Jiliang, ‘On the Chinese Communist’s Thesis of Human Rights and Its Legislation in China (Zhonggong Renquan Lilun Yu Zhongguo Renquan Lifa Yanjiu)’ (PhD Thesis, Northeast Normal University 2004) 30.

24

Zhang Jiliang, ‘On the Chinese Communist’s Thesis of Human Rights and Its Legislation in China (Zhonggong Renquan Lilun Yu Zhongguo Renquan Lifa Yanjiu)’ (PhD Thesis, Northeast Normal University 2004) 30–31.

25

Yan Dong, ‘A Diachronic Study on the Influence of International Human Rights Law on the Chinese Legal System Construction (Guoji Renquanfa Zhiyu Zhongguo Renquan Fazhi Jianshe De Lishixing Yanjiu)’ (2014) 32 (2) Hebei Law Science 169, 172.

26

See generally Zhao Bingzhi, ‘On Mao Zedong’s Thinking on the Death Penalty (Mao Zedong Sixing Sixiang Yanjiu)’ (2001) (4) Jurists’ Review 15; Gao Ge, ‘Mao Zedong’s Idea of the Death Penalty (Mao Zedong De Sixing Sixiang)’ (1995) 6 Law Science (Journal of Northwest Institute of Political Science and Law) 41.

27

Mao Zedong, ‘The Party’s Mass Line Must be Followed in Suppressing Counter-revolutionaries (Selected Works of Mao Tse-tung: vol. 5) <https://www.marxists.org/reference/archive/mao/selected-works/index.htm> accessed 15 January 2016.

28

Ibid.

29

Ibid.

30

Gao Mingxuan, The Birth and Development of the Criminal Law of prc (Zhonghua Renmin Gongheguo Xingfa De Yunyu Dansheng He Fazhan Wanshan) (Beijing University Press, 2012), cited in Zhang Shouwen and Mi Chuanyong, ‘The Past, Present and Future of the Death Policy in China (Zhongguo Sixing Zhengce de Guoqu, Xianzai he Weilai)’ (2006) (2) Law Review 38, 40; see also Chen Xingliang, ‘Death Penalty Policies: A Jurisprudential Perception (Sixing Zhengce Zhi Fali Jiedu)’ (2013) (6) Journal of Renmin University of China 2, 3.

31

See Fan Xianlei, ‘To Begin with Suspended Execution Proposed by Mao Zedong’ (News of the Communist Party of China) <http://cpc.people.com.cn/GB/85037/7928936.html> accessed 15 January 2016.

32

Ibid; see also Zhao, On Mao Zedong’s Thinking (n 26) 19; and Gao, Mao Zedong’s Idea (n 26) 45.

33

‘Campaign to Suppress Counterrevolutionaries (Zhenya Fangeming Yundong)’ (Wikipedia.net) <https://zh.wikipedia.org/wiki/%E9%95%87%E5%8E%8B%E5%8F%8D%E9%9D%A9%E5%91%BD%E8%BF%90%E5%8A%A8> accessed 15 January 2016.

34

Gao Mingxuan, ’60 years of the Death Penalty: the Evolution of and Prospects for the Capital Legislation of New China (Sixing 60nian: Xinzhongguo Sixing Lifa De Bianqian Yu Zhanwang)’ (People’s Net, 30 October 2014) <http://history.people.com.cn/n/2014/1030/c372326-25936904.html> accessed 15 January 2016.

35

Gao and Zhao (n 22) 69.

36

Ryan Floria, ‘The [Capital] Punishment Fits the Crime: A Comparative Analysis of the Death Penalty and Proportionality in the United States of America and the People’s Republic of China’ (2008) 16 University of Miami International and Comparative Law Review 43, 68.

37

Chen, The Death Penalty Policies (n 30) 3.

38

Gao and Zhao (n 22) 77.

39

People’s Daily (Renmin Ribao) (Beijing, 29 October 1978) cited in Gao and Zhao (n 22) 74.

40

Peng Zhen, ‘An Explanatory note to the Seven Draft Laws (Guanyu Qige Caoan De Shuoming)’ (News of the Communist Party of China) <http://cpc.people.com.cn/GB/69112/99985/100003/9739230.html> accessed 29 January 2016.

41

Criminal Law of prc 1979, art 1.

42

Ibid art 43.

43

Ibid art 44.

44

Article 44(2) of the Criminal Law 1979 provided that ‘all death sentences, except for those that according to law should be decided by the Supreme People’s Court, shall be submitted to the Supreme People’s Court for approval’. However, on 10 June 1981, the npc Standing Committee formulated an adaptation on reviewing the death sentence by issuing a Decision, which provided that, within the period from 1981 to 1983, in any case where a person who commits the crimes of homicide, robbery, rape, arson, causing an explosion, poisoning, breaching a dike, or sabotaging any means of transport, any transportation facility or electric power facility, is sentenced to death by High People’s Courts in the provinces, autonomous regions and special municipalities, or by the Intermediate People’s Court in the first instance, and if the defendant does not appeal, and the sentence is verified and approved by the High People’s Court, or the sentence is imposed by the High People’s Court in the first instance, and the defendant does not appeal, all of these sentences do not have to be submitted to the Supreme People’s Court for verification and approval. (See the Decisions of the npc Standing Committee on the Issues of Verifying and Approving Death Sentences (Quan Guo RenMin Dai Biao da Hui Chang Wu Wei Yuan Hui Guan Yu Si Xing He Zhun Wen Ti De Jue Ding), adopted by the 19th Session of Standing Committee of China’s National Fifth National People’s Congress (npc), on 10 June 1981). In addition, on 7 September 1983, the Supreme People’s Court made a notification to authorise the High People’s Courts in the provinces, autonomous regions and special municipalities, and the Military Court to verify and approve the death sentence in accordance with the laws imposed on criminals who commit homicide, robbery, rape, causing an explosion and other crimes which cause serious damage to public safety. (See the Supreme People’s Court’s Notification on the Authorization the High People’s Courts to Verify and Approve some Death Sentence Cases, on 7 September 1983, (Zui Gao Ren Min Fa Yuan Guan Yu Shou Quan Gao Ji Ren Min Fa Yuan He Zhun Si Xing An Jian De Tong Zhi)).

45

In accordance with the Criminal Law of 1979, there were 10 articles, which were Articles 90, 91, 92, 93, 94, 95, 96, 97, 100 and 101, providing for 15 crimes punishable by death in Chapter 1 (crimes of counter-revolution), 2 articles (Article 106 and Article 110) providing 8 crimes punishable by death in Chapter 2 (crimes of endangering public security), 2 articles (Article 132 and Article 139) providing 3 crimes punishable by death in Chapter 4 (crimes of infringing upon citizen’s personal and democratic rights), and 2 articles (Article 150 and Article 155) providing 2 crimes punishable by death in Chapter 5 (crimes of property violation). See Criminal Law 1979.

46

See Articles 103, 106, 110, 132, and others of the Criminal Law of 1979.

47

Li Jie, ‘On Modifying Cautiously the Criminal Law (Shenzhong Xiugai Xingfa Lun)’, in Chen Xingliang (ed), Criminal Law Review (China University of Political Science and Law Press, vol. 11, 2002) 314.

48

Ge Ping and Wang Honggu, ‘On the Death Penalty (Tan Sixing)’ (1980) (1) Chinese Journal of Law (Fa Xue Yanjiu) 29, 29. See also Li Kangtai, ‘Understanding and Applying Correctly the Death Penalty (Zhengque Renshi he Shiyong Sixing)’ (1983) (2) Tribune of Political Science and Law (Zhengfa Luntan) 18, 18 (‘In China, at the present stage, the death penalty still cannot and shall not be abolished due to the existence of the remnants of the exploiting class and the existence of internal class struggle and international reactionaries.’).

49

Ge and Wang (n 48) 29.

50

Ibid. Socialist countries do not always retain the death penalty. With the development of socialist economics and greater consolidation of the dictatorship of the proletariat, and when the conditions for abolishing death penalty are right, it will disappear completely from the socialist criminal punishment system. See also Li (n 48) 18 (‘China is a socialist state under the people’s democratic dictatorship, it is necessary to retain death penalty for a certain period.’).

51

For example, on 22 March 1979, ‘Human rights isn’t the slogan of the proletariat (‘Renquan’ Bushi Wuchan Jieji De Kouhao)’ was published in Beijing Ribao (Beijing Daily), and it was claimed that human rights is the slogan of bourgeoisie, not the banner of the struggling proletariat. Some scholars thought that human rights were only the slogan and ideology of bourgeoisie, and it would be interpreted as a demonstration against Communism and the government if the slogans ‘Respect human rights’ and ‘Fight for human rights’ were proposed. See Chen Youwu and Li Buyun, ‘The Historical Development of the Relationship between the Rule of Law and Human Rights since the Reform and Opening-up (Gaige Kaifang Yilai Fazhi Yu Renquan Guanxi De Lishi Fazhan)’ (2015) 37(2) Modern Law Science 3, 4.

52

Lan Ying, ‘Is Human Rights always the Slogan of Bourgeoisie? Discussion with Comrade Xiao Weiyun, etc. (“Renquan” Conglai JIushi Zichan Jieji De Kouhao Ma? – Tong Xiao Weiyun Deng Tongzhi Shangque)’ (1979) (3) Social Sciences 71.

53

Deng Xiaoping, ‘The Selected Works of Deng Xiaoping: vol. 3’ <https://dengxiaopingworks.wordpress.com/2013/03/18/bourgeois-liberalization-means-taking-the-capitalist-road/> accessed 15 February 15 2016.

54

Ibid.

55

Ibid.

56

Ibid.

57

See Huang Weiqin, ‘Insistence on Deng Xiaoping’s Outlook on Human Rights; Maintain the Human Rights Development Road with Chinese Characteristics (Jianchi Deng Xiaoping Renquanguan, Zou Zhongguo Tese De Renquan Fazhan Daolu)’ (People’s Net, 6 January 2012) <http://theory.people.com.cn/GB/148980/16810107.html> accessed 8 January 2016; Li Yanqi, ‘Learning Deng Xiaoping’s Thinking about the Issues of Human Rights (Xuexi Deng Xiaoping Guanyu Renquan Wenti De Sixiang)’ (The History of the People’s Republic of China, 12 September 2009) <http://www.hprc.org.cn/gsyj/zzs/zzsxs/200909/t20090912_30910.html> accessed 8 January 2016; Wang Fuchun, ‘Primary Studying on Deng Xiaoping’s Thinking on Human Rights (Deng Xiaoping Renquan Sixiang ChuTan)’(2001)(1) Journal of Beijing Administrative College 53; Yuan Xuchuan, ‘Theoretically Analyzing Deng Xiaoping’s Human Rights Thinking (Deng Xiaoping Renquan Lilu Tanxi)’(2005)(6), Mao Zedong’s Thinking, Study 88; Sun Li, ‘Deng Xiaoping’s Human Rights Thinking Pioneering and Innovating Marxism (Deng Xiaoping Renquan Sixiang Dui Makesi Zhuyi de Kaituo Chuangxin)’ (2005) (5) Social Sciences 40.

58

Information Office of the State Council of the prc, ‘White Papers on Human Rights in China’ (China Human Rights Net, 24 July 2014) <http://www.chinahumanrights.org/html/2014/WP_0724/36.html> accessed 9 January 2016.

59

‘Report on Hold High the Great Banner of Deng Xiaoping’s Theory for an All-Round Advancement of the Cause of Building Socialism with Chinese Characteristics into the 21st Century (hereinafter abbreviated to rhh-dxt) (Gaoju Deng Xiaoping Lilun Weida QIzhi, Baojianshe You Zhongguo Tese Shehuizhuyi Shiye Quanmian Tuixiang Ershiyi Shiji)’ (The Central People’s Government of the prc, 11 July 2008) <http://www.gov.cn/test/2008-07/11/content_1042080.htm> accessed 9 January 2016.

60

Ibid.

61

The Supreme People’s Court of the prc, ‘Showing the People’s Courts’ Trials in Statistics Over 60 Years (Shushuo Renmin Fayuan Shenpan Gongzuo 60 nian)’ (Supreme People’s Court of the prc, 21 February) <http://www.court.gov.cn/fabu-xiangqing-119.html> accessed 5 February 2016.

62

Zhang and Mi (n 30) 40.

63

Deng (n 53).

64

cpc’s Decision on Cracking Down Severely On Crimes (Zhonggong Zhongyang Fachu ‘Guanyu Yanli Daji Xingshi Fanzui Huodong De Jueding)’ (News of the Communist Party of China) <http://cpc.people.com.cn/GB/64162/64165/68640/68665/4739396.html> accessed 19 February 2016.

65

‘The Campaign of Cracking down Severely on Crimes Launched by the People’s Republic of China (Zhonghua Renmin Gongheguo Yanda Xingdong)’ (Wikipedia.net) <https://zh.wikipedia.org/zh-hans/%E4%B8%AD%E5%8D%8E%E4%BA%BA%E6%B0%91%E5%85%B1%E5%92%8C%E5%9B%BD%E4%B8%A5%E6%89%93%E8%A1%8C%E5%8A%A8> accessed 19 February 2016.

66

Deng (n 53).

67

Chen, The Death Penalty Policies (n 30) 4.

68

Gao (n 34).

69

Criminal Law of prc, No. 83, 1997.

70

Wang Hanbin, ‘Introduction to the Draft to the Criminal Law of prc (Guanyu ‘Zhonghua Renmin Gongheguo Xingfa (Xiuding Cao An)’ De Shuoming)’ (Law library, 6 March 1997) <http://www.law-lib.com/fzdt/newshtml/20/20050812041456.htm> accessed 20 February 2016. However, apparently, the number of crimes punishable by death has become fewer than ever due to two important considerations; namely, some crimes punishable by death according to the Special Criminal Laws have been abolished, or the death penalty itself has been abolished for a few crimes; and some crimes punishable by death have been merged or certain provisions or articles have been merged by legislative technicalities.

71

Article 43 of Criminal Law 1979 provided that ‘the death penalty shall only be applied to criminals who have committed the most heinous crimes’, but Article 48 of Criminal Law 1997 provided that ‘the death penalty shall only be applied to criminals who have committed extremely serious crimes’. See the Criminal Law of prc, No. 5, 1979 and the Criminal Law of prc, No. 83, 1997.

72

Scholars have pointed out that the concept of ‘the most heinous crimes (Zuida E Ji)’ emphasises two facts: objectivity and subjectivity; specifically, that the objectively harmful consequence of the crime is extremely serious, and that the subjective culpability of the offender’s mind is extremely serious, but the concept of ‘extremely serious crimes (Zuixing Jiqi Yanzhong)’ only emphasises the objective consequences of harm to society. So the change from ‘the most heinous crimes’ to ‘extremely serious crimes’ already lowers the applicable standards of death penalty. Moreover, some scholars noted that, compared with ‘extremely serious crimes’, ‘the most heinous crimes’ had stricter demands in terms of the number of crimes punishable by death and the concrete applicable conditions for the death penalty, and imposed more stringent restrictions on the stipulation of crimes punishable by death in the Specific Provisions of the Criminal Law and on the death sentence in judicial practice. See Zhang Yuanhuang, ‘On the Defects of Applicable Standards of the Death Penalty in China and their Solution (Woguo Sixing Shiyong Biaozhun De Quexian Jiqi Mibu Fangfa)’ (2006) (6) Studies in Law and Business 40; Chu Huaizhi, ‘Judicial Control of Death Penalty: A Comprehensive Understanding of Article 48 of the Penal Code (Sixing Sifa Kongzhi: Wanzheng Jiedu Xingfa Di 48 tiao)’ (2012) 5 Beijing University Law Journal 1014; Zhao Bingzhi, Exploring the Issues of Punishments in the General Provisions of Criminal Law (Xingfa Zonglun Wenti Tansuo) (Law Press, 2002).

73

Criminal Law 1979, art 44.

74

Ibid art 46.

75

Ibid art 50.

76

Amnesty International, the Death Penalty Worldwide: Developments in 1996, Al Index: act 50/05/97. We must note that the Chinese government launched a ‘cracking down severely’ policy on Crimes, so the number of executions was higher than in the following years.

77

Amnesty International, the Death Penalty Worldwide: Developments in 1997, Al Index: act 50/04/98.

78

Amnesty International, Death Sentences and Executions in 1998, Al Index: act 51/01/99.

79

Joshua Kurlantzick, ‘After Deng: On China’s Transformation – Is Deng Xiaoping’s legacy of modernization without political reform one that no contemporary Chinese official can control’ (The Nation Instigating Progress Daily, 27 September 2011) <http://www.thenation.com/article/after-deng-chinas-transformation/> accessed 20 February 2016.

80

The Report on Hold High the Great Banner of Socialism with Chinese Characteristics and Strive for New Victories in Building a Moderately Prosperous Society in all Respects, delivered by Hu Jintao on 15 October 2007, stated that ‘we will strictly implement democratic centralism, improve the system that combines collective leadership with division of responsibilities among individuals, and oppose and prevent arbitrary decision-making by an individual or a minority of people.’ See Hu Jintao, ‘Hold High the Great Banner of Socialism with Chinese Characteristics and Strive for New Victories in Building a Moderately Prosperous Society in all Respects’ (hereinafter abbreviated to rhh-gbs) (Scientific Outlook on Development, 24 October 2007) <http://news.xinhuanet.com/english/2007-10/24/content_6938749_11.htm> accessed 20 February 2016.

81

Xiao Gongqin, ‘On the Chinese Transformation Regime with a Perspective from the Politics of Development (Cong Fazhan Zhengzhixue Kan Zhongguo Zhuanxing Tizhi)’ (2005) (5) Zhejing Academic Journal 100, 107.

82

Incidents of civil disorder or ‘mass incidents’ (Qunti Xing shijian), refer to collectively violent confrontations occurring in a public place, including physical space and virtual collaborative space such as the internet, and are normally caused by dissatisfaction with the enforcement of government policies, crime and corruption, and environmental issues and seizures of land by local government and so on. The formation, outbreak and tailing off of these incidents have an intimate and direct relationship with important structural characteristics of the Chinese transformation, and also with the special management and control patterns of the Chinese government, and its political culture and political psychology. See Liu Neng, ‘Mass Incidents in Modern China: Change of Image and Reconstruction of the Classification Framework (Dangdai Zhongguo de Quntixing Shijian: Xingxiang Diwei Bianqian he Fenlei Kuangjia Zaigou)’ (2011) 56(2) Journal of Jiangsu Administration Institute 53; Jiang Yongfu, ‘The Institutional Source and Mechanism of the Frequent Contemporary Chinese Mass Incidents – An Interpretation of the Relationship Between the State and the Social Framework (Dangdai Zhongguo Quntixing Shijian Pinfa De Tizhixing Genyuan Yu Fasheng Jili – Yige Guojia Yu Shehui guanxi De Jieshi Kuangjia)’ (2012)(6) Journal of Hubei Administration Institute 86.

83

Liu Neng, ‘Mass Incidents in Modern China: Change of Image and Reconstruction of the Classification Framework (Dangdai Zhongguo de Quntixing Shijian: Xingxiang Diwei Bianqian he Fenlei Kuangjia Zaigou)’ (2011) 56(2) Journal of Jiangsu Administration Institute 53, 54.

84

rhh-dxt (n 59). The cpc still used the term ‘rule by law’, which is very different from ‘rule of law’. ‘A system under a rule of law system has a political and social order due to the positive nature of the stated law, whereas a system ruled by law has a political and social order that depends on already existing political laws or political interpretations of stated laws. The danger in a ‘rule by law’ system is that a domineering state can vindicate any action as long as it alters or interprets the rules accordingly.’ (See Jeremy T. Monthy, ‘Internal Perspectives on Chinese Human Rights Reform: The Death Penalty in the prc’ (1998) 33(1) Texas International Law Journal 189, 194). At the 17th cpc National Congress, Hu Jintao’s report first uses the term ‘rule of law’. See rhh-gbs (n 80).

85

Peerenhoom (n 7) 72.

86

Jiang Zemin, ‘Build a Well-off Society in an All-Round Way and Create a New Situation in Building Socialism with Chinese Characteristics (bws-awc) (Quanmian Jianshe Xiaokang Shehui, Kaihuang Zhongguo Tese Shehuizhuyi Shiye Xinjumian)’ (China Net, 18 November 2002) <http://www.china.com.cn/chinese/zhuanti/233872> accessed 20 February 2016.

87

The Constitution of the prc, art 33 (3).

88

rhh-gbs (n 80).

89

Hu Jintao, ‘Firmly March on the Path of Socialism with Chinese Characteristics and Strive to Complete the Building of A Moderately Prosperous Society in All Respects’, 18th cpc National Congress’ (Xinhua Net, 17 November 2012) <http://news.xinhuanet.com/english/special/18cpcnc/2012-11/17/c_131981259_4.htm> accessed 20 February 2016.

90

‘Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Deepening the Reform’ (dcc-ccm) (China Net, 16 January 2014) <http://www.china.org.cn/china/third_plenary_session/2014-01/16/content_31212602.htm> accessed 20 February 2016.

91

ccp-cdc (n 6). Based on this Decision, we can say that China is trying to promote the ‘authoritarian regime of the rule of law’.

92

The main elements of the important thinking of ‘three represents’ are that the cpc always represents advanced social productive forces; always represents the progressive course of China’s advanced culture and always represents the fundamental interests of the majority. In reality, these three represents stand respectively for economic production, cultural development and political consensus. See bws-awc (n 86).

93

Jiang Zemin, ‘Speech at the Meeting Celebrating the 80th Anniversary of the Founding of the Communist Party of China’ (China Net) <http://www.china.org.cn/e-speech/a.htm> accessed 21 February 2016.

94

Su Zhe, ‘The Important Thought of “Three Represents” is the Guidebook of Human Rights Development in China (“Sange Daibiao” Zhongyao Sixiang Shi Zhongguo Renquan Shiye Fazhan De Zhinan)’ (2002) (5) Human Rights 47, 47.

95

‘On Human Rights by Jiang Zemin (Jiang Zemin Lun Renquan)’ (People’s Net, 7 December 2006) <http://politics.people.com.cn/GB/8198/5139784.html> accessed 22 February 2016.

96

Ibid.

97

rhh-gbs (n 80).

98

ccp-cdc (n 6).

99

Ibid.

100

On Human Rights By Jiang Zemin (n 95).

101

Since the first anti-crime campaign was launched in 1983, China has launched four similar campaigns in 1983, 1996, 2004 and 2010. In addition, in 2014, the country launched an anti-terrorist campaign in Xin Jiang province.

102

Eric Neumayer, ‘Death Penalty: The Political Foundations of the Global Trend towards Abolition’ (2008) 9(2) Human Rights Review 241, 253.

103

‘Decision of the cpc Central Committee on Major Issues on Strengthening and Improving Party Building (Zhonggong Zhongyang Jiaqiang Gaijin Xinxingshixia Dangjian Ruogan Zhongda Wenti de Jueding)’ (Central People’s Government of the prc, 27 September 2009) <http://www.gov.cn/jrzg/2009-09/27/content_1428158.htm> accessed 23 February 2016.

104

All these dates are from Amnesty International Death Sentences and Executions from 1999 to 2008, Al Index respectively: act 50/08/00, act 50/001/2001, act 50/001/2002, act 50/002/2003, act 50/007/2004, act 50/005/2005, act 50/002/2006, act 50/004/2007, act 50/001/2008, and act 50/003/2009.

105

On 18 October 2006, the Sixth Plenary Session of the Sixteenth Central Committee of the cpc decided that in the future China would implement a criminal policy of severity tempered with gentleness. See ‘Decision of the cpc Central Committee on Certain Major Issues in the Building of a Harmonious Socialist Society (Zhonggong Zhongyang Guanyu Goujian Shehui Zhuyi Hexie Shehui Ruogan Zhongda Wenti De Jueding)’ (News of the Communist Party of China, 18 October 2006) <http://cpc.people.com.cn/GB/64093/64094/4932424.html> accessed 24 February 2016. With this Decision it also emphasised its intention to crack down heavily on severe crime by means of the law, to attempt to regulate areas with serious security problems, and to significantly rein back the upward growth in criminal activity.

106

‘The Death Penalty in China – the road to reform’ (Faculty of Law of Oxford University) <https://www.law.ox.ac.uk/research-subject-groups/research-index/impact-index/death-penalty-china-road-reform> accessed 25 February 2016.

107

Here we must note that the White Paper on Judicial Reform in China was published on 9 October 2012 when China was still in the Hu era, although in effect, it had already entered the Xi era, Xi being elected as General Secretary of the Central Committee of the Communist Party of China (cpc) on 15 November 2012.

108

The Information Office of the State Council of prc, ‘Judicial Reform in China (Zhongguo De Sifa Gaige)’ (News of the Communist Party of China, 17 April 2013) <http://english.cpc.people.com.cn/206972/206981/8211483.html> accessed 25 February 2016.

109

dcc-ccm (n 90).

110

ccp-cdc (n 6).

111

The Ninth Amendment to the Penal Code of the prc 2015, art 2.

112

Chen Liping, ‘Clicking on the 7 highlights of the Draft of the Ninth Amendment to the Penal Code of the prc (Dianji Zhonghua Renmin Gongheguo Xingfa Xiuzhengan Jiu Cao an De Qida Liangdian)’ Legal Daily News (Fazhi Ribao) (Beijing China, 28 October 2014) 3.

113

Death row in China is very different from the ‘death row’ in America where the criminal spends a long time waiting for execution; some inmates even have to spend several decades awaiting execution. In China, death row is the probation period, which is not less than two years. See David Von Drehle, ‘The Death of the Death Penalty: why the Era of Capital Punishment is Ending’ (Time, 8 June 2015) <http://time.com/deathpenalty/> accessed 23 February 2016.

114

ccp-cdc (n 6).

115

It has recently become very common for public opinion to influence the judiciary, particularly in the criminal justice field, and the impact of public opinion is increasing, as can be seen in the following cases: Xu Ting (State Vs. Xuting [2007] Hui Intermediate the Second Criminal Court First Trial. No. 196 ([2007] Hui Zhong Faxing Er Chu Zi Di 196 Hao), [2008] Hui Intermediate the Second Criminal Court Second Trial. No. 2 ([2008] Hui Zhong Faxing Zhong Er Chong Zi Di Er Hao)); Yao Jiaxin [2011] Xi the First Criminal Court First Trial. No. 68 ([2011] Xi Xing Yi Chu Zi Di 68 Hao); Li Changkui ([2010] Zhao intermediate Criminal Court First Trial. No. 52. ([2010] Zhao Zhong Xing Yi Chu Zi Di 52 Hao), [2010] Yun High Court Second Trial No. 1314. ([2010] Yun Gaofa Zhong Zi Di 1314 Hao)), all of which reflect the influence of public opinion on criminal practice. The most important impact of public opinion is to influence the judges’ sentencing decisions, as, for example, in the case of Xu, where the punishment was changed from life imprisonment to a fixed term of five years, in the case of Yao, where public opinion was always focused on the death penalty in the two trials, and in the case of Li, where the sentence was changed from the death penalty with immediate execution to a suspended death penalty, which then became the death penalty with execution at the retrial. In all of these cases public opinion played an important role in changing sentences.

116

ccp-cdc (n 6).

117

We have indirect evidence of this from the legislator. The Vice-Chairmen of the Law Committee of the National People’s Congress of the prc, Li Shishi, when delivering the explanatory note for the Draft of the Ninth Amendment to the Criminal Law of the prc said that since the death penalty for 13 economic and nonviolent crimes had been abolished by the Eighth Amendment in 2011, the general security situation of Chinese society is within a controllable range and the number of serious crimes is stable, with a slight decline. The initiative has already indicated that the abolition of the death penalty for 13 crimes by the Eighth Amendment did not have any negative impact on society, and sections of society in China have reacted positively to the abolition and commented on this. However, we must note that the death penalty for these crimes is seldom or never applied in judicial practice, and its abolition would not cause any negative impact on public security. (See Chen Xingliang, ‘Reduction of the Legislation Road Map for the Death Penalty (Jianshao Sixing De Lifa Luxiantu)’ (2015) (7) Political Science and Law 71, 71; Huang Taiyun, ‘Unscrambling the Amendment viii to the Criminal Law (The First Part) (<Xingfa Xiuzheng Ba> Jiedu yi,)’ (2011) (6) People’s Procuratorial Semi-monthly 5, 6).

118

The National Human Rights Action Plan of China states that, ‘while respecting the universal principles of human rights, the Chinese government, in the light of the basic realities of China, gives priority to the protection of the people’s rights to subsistence and development, and lawfully guarantees the rights of all members of society to equal participation and development on the basis of facilitating sound and rapid economic and social development.’ See Information Office of the State Council of prc, ‘National Human rights Action Plan of China (2009–2010)’ (China Human Rights Net, 30 July 2014) <http://www.chinahumanrights.org/html/2014/NHRAPC_0730/111_2.html>; Information Office of the State Council of the prc, ‘National Human Rights Action Plan of China (2012–2015)’ (China Human Rights Net, 30 July 2014) <http://www.chinahumanrights.org/html/2014/NHRAPC_0730/112_2.html> accessed 26 February 2016.

119

International Covenant on Civil and Political Rights, 2200A (xxi), 1966, art 6.

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    The number of first instance criminal cases in the whole country from 1978 to 1996 (in thousands)

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    Number of executions in China and the world (number of individuals executed)104

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