Showing posts with label China. Show all posts
Showing posts with label China. Show all posts

Sunday, 12 August 2012

The Influence of WTO Membership on the Rule of Law in China - Brian Safran


           The World Trade Organization (WTO) is an international body tasked with administering the rules of trade between nations, providing a forum for trade negotiations, and handling trade disputes and monitoring national trade policies. (Kobayashi 2007) Previously known as the General Agreement on Tariffs and Trade (GATT) and limited in its scope to trade in goods, a fully-functioning, multifaceted World Trade Organization subsumed the GATT at the conclusion of the Uruguay Round of trade negotiations in 1995. (Jackson 1997) The WTO introduced agreements on trade in services and intellectual property, and provided for the creation of a fully-functioning organization, and a more procedurally-sound, binding system of dispute resolution. (Jackson 1997) In 2001, China was permitted to join the WTO after a fifteen-year-long accession process that required deep reforms to China’s political, economic, and legal systems in exchange for it to be permitted to avail itself of the many benefits of membership in the WTO system. (Kobayashi 2007) Yet, almost ten years after the fact, scholars continue to question the extent to which these reforms have facilitated the creation of a more transparent, rule-based system of Chinese law. To what extent has membership in the WTO contributed to the establishment of the rule of law in China, and what is the status of the rule of law in China today?
            When it comes to trade law and policy, membership in the WTO was predicated on China agreeing to undertake a series of legal reforms and consenting to the application of the entire body of WTO substantive principles and regulations. Among these were requirements that China substantially reduce its imposition of tariffs, or taxes imposed upon imports; and that China provide for fair trade by putting an end to its practice of subsidizing its domestic industries or permitting the “dumping” of its products on other markets through the use of predatory pricing (Hu 2001: 101) China also consented to the non-discrimination principles embodied in the GATT agreement, including “national treatment,” which mandates that “treatment for foreign products be no worse than that for like domestic products,” and the “most-favored-nation” obligation, which requires “each contracting party to grant to every other contracting party the most favorable treatment that it grants to any other country with respect to imports and exports of products” (Hu 2001: 101; Jackson 1997: 157). With respect to its commercial relations, China’s Accession Agreement ultimately involved over six hundred commitments; at least ten percent of which were determined to require China to “enact, repeal, or modify” trade-related laws, policies and regulations (Westin 2002: 3).
Yet, the reforms that China was required to undertake went far beyond substantive economic policy. Among these were obligations to provide for “transparency,” “judicial review,” and the “uniform enforcement of laws” (Westin 2002: 2). With respect to transparency, China agreed to publish its trade regulations and “provide a reasonable period of public comment before implementing them” (Kobayashi 2007: 5 Westin 2002: 4). Regarding judicial review, China agreed to mandate that the “central government…address areas where WTO [law] is violated and provide a meaningful remedy” (Kobayashi 2007: 5). China also agreed to “establish or designate tribunals to promptly review trade-related actions of administrative agencies” (Westin 2002: 4). As to uniform enforcement, China agreed to apply trade-related laws and regulations “uniformly throughout China” and provide for a complaint procedure whereby “individuals and enterprises can bring complaints to China’s national authorities about cases of nonuniform application of the trade regime” (Westin 2002: 4). Finally, and perhaps most significantly, membership in the WTO required China to consent to becoming subject to the jurisdiction of the Dispute Settlement Body, an international body capable of adjudicating disputes over WTO rules and enforcing decisions against China’s own will. (Hu 2001)
It is of course, one thing to agree to a series of obligations and quite another to actually put those agreements into practice. To what extent has China followed through with its WTO commitments? For one, China began to make positive rule of law changes to its domestic legal system in advance of its securing membership to the WTO, as demonstrated by the 1999 amendment to its Constitution, which recognized for the first time that “[t]he People’s Republic of China shall be governed according to the law and shall be built into a socialist country based upon the rule of law” (Chow 2003: 78). By the end of 2002, China had already revised fourteen of its laws and thirty-seven administrative regulations, annulled twelve administrative regulations, suspended thirty-four relevant documents, and changed more than one-thousand departmental rules to comport with WTO obligations. (Zou 2006: 89)  By 2003, China had lowered its tariff rates, eliminated non-tariff measures, and relaxed limitations on foreign investment. (China Daily 2003) As a result of China’s having undertaken domestic reforms permitting increased market access, its total trade vis-à-vis the rest of the world more than doubled from $509.8 billion in 2001, to $1.2 trillion in 2004. (Winn 2005)
Furthermore, the key legal institutions in China have become increasingly accessible and transparent. (Horsley 2006) Draft legislation is now made available on the Internet for public comment, and public hearings are increasingly being held on proposed legislation believed to be of public concern. (Horsley 2006)  Additionally, as of 2006, Chinese citizens were permitted to “audit” all legislative proceedings; rendering them open to the public (Horsley 2006: 96). In June 2004, the Standing Committee of the National People’s Congress established a special office under its Legislative Affairs Commission, which was made responsible for reviewing all central and local government regulations and legal interpretations in an effort to harmonize legal process throughout the country. (Wang 2007) In January 2007, the government was set to approve China’s first-ever national, administrative “freedom of information” ordinance, a measure believed to be a precondition for the creation of an information access law (Horsley 2006: 101).
Yet in the midst of all of these reforms, scholars have noted that China still has a long way to go before it claim to have a society built on the rule of law. For one, some have said that the creation of a Chinese system of rule of law is impossible in a system marked by the subordination of law to Communist Party policy and the lack of independence of the courts. (Westin 2002: 2) In fact, it is often argued that the key function of the law to the Chinese government is “to order and regulate the exercise of government power” (Horsley 2006: 93). As of May 2009, approximately one-third of registered lawyers were party members, and almost all law firms had party committees, which allocated attorney remuneration based on loyalty to the party. (McGregor 2010) In a 2009 pronouncement by the Party, it was said that judges must remain loyal “to the Party, the state, the masses and finally, the law,” in that order (McGregor 2010: 24). Furthermore, despite the establishment of a procedure in 2005 that made it possible for individuals to file petitions with the central government to challenge the legality of local regulations, attempting to do so is said to be futile, as “the Party sits outside, and above the law,” and that “[n]o legal obstacle is so great that the party cannot brush it aside” (Horsley: 2006; McGregor 2010: 22, 25).
Another significant problem said to be plaguing the court system is the incompetence of Chinese judges. (Horsley 2006) In some respects, there have been signs of improvement. For instance, unlike in the past, where “judges were typically drawn from the ranks of the retired military” and “[a]ppointments were based more on political correctness than on relevant experience or legal knowledge,” today’s judges are “required to hold university degrees” and “pass a national unified bar exam,” as well as “participate in ongoing legal education programs” (Horsley 2006: 102). Yet, judges remain highly “susceptible to pressure” from the Communist Party, as it continues to control judicial salaries and court budgets; as well as judicial appointments and the personnel arrangements of the Courts (Inch 2010; Hung 2002: 9).
Accordingly, the aforementioned analysis suggests that there continues to be significant limitations to the rule of law in China. Although membership in the WTO marked a turning point in China’s socio-legal culture in that it ushered in a series of reforms designed to improve transparency and uniformity in the application of law, there continues to be significant barriers to the effective implementation of the rule of law; among which are the continuing retention of significant control over the legal system by the Communist Party, both with respect to litigants and attorneys, as well as over judges and their staffs. One significant limitation to empirical analysis in determining the true status of the rule of law in China is that one cannot simply come to conclusions based on documented materials since sensitive information is kept secret by the communist party, and as such, goes unreported. As a result, an analyst must look to anecdotal evidence, on a case-by-case basis, to determine the extent to which reforms are being implemented. Accordingly, based on the forgoing evidence, one can conclude that while China appears to have made great strides in consolidating the rule of law when it comes to trade-related matters in the WTO setting, it appears that these reforms have not yet firmly established the right of an individual to challenge the interests of the ruling Communist Party.

Works Cited:

"China's WTO Commitments on Track." China Daily. China Daily, 10 Dec. 2003. Web.
17 Oct. 2010. <http://www1.chinadaily.com.cn/en/doc/2003-12/10/content_289144.htm>.

Chow, Daniel C. K. The Legal System of the People's Republic of China in a Nutshell. St.
Paul, MN: Thomson/West, 2003. Print.

Horsley, Jamie P. "The Rule of Law in China: Incremental Progress." The Rule of Law in
China. Center For Strategic and International Studies, 2006. Web. 17 Oct. 2010. <csis.org/files/media/csis/pubs/090212_05rule_of_law.pdf>.

Hu, Martin G. "WTO's Impact on the Rule of Law in China." Mansfield Dialogues in
Asia (2001): 101-06. The Rule of Law: Perspectives from the Pacific Rim. The Maureen and Mike Mansfield Foundation, 2001. Web. 17 Oct. 2010. <www.mansfieldfdn.org/programs/program_pdfs/08hu.pdf>.

Hung, Mei-Ying. "China's WTO Commitment on Independent Judicial Review: An
Opportunity for Political Reform." Political and Legal Reform Project: China Program 32 (2002): 1-26. Working Papers. Carnegie Endowment for International Peace, Nov. 2002. Web. 17 Oct. 2010. <carnegieendowment.org/files/AJCL1.pdf>.

Inch, Jason. "Doing Business in China.” China's Reemergence: The Changing
Political, Economic and Social Landscape. East China Normal University, Shanghai, China. 22 June 2010. Lecture.

Jackson, John H. The World Trading System: Law and Policy of International Economic
Relations. 2nd ed. Cambridge: MIT, 1997. Print.

Kobayashi, Yuka. "The Impact of the World Trade Organization on the Chinese Legal
System." Rule of Law in China: Chinese Law and Business (2007): 1-10. The Foundation for Law, Justice and Society. The Centre for Socio-Legal Studies, University of Oxford, 2007. Web. 17 Oct. 2010. <www.fljs.org/uploads/documents/Kobayashi%231%23.pdf>.

McGregor, Richard. The Party: the Secret World of China's Communist Rulers. New
York, NY: Harper, 2010. Print.

Wang, Zhenmin. "Constitutional Conflict and the Role of the National People's
Congress." Rule of Law in China: Chinese Law and Business (2007): 1-12. The Foundation for Law, Justice and Society. The Centre for Socio-Legal Studies, University of Oxford, 2007. Web. 17 Oct. 2010. <www.fljs.org/uploads/documents/Zhenmin%231%23.pdf>.

Westin, Susan. "Observations on China's Rule of Law Reforms." Testimony Before the
Congresional Executive Commission on China. United States General Accounting Office, 6 June 2002. Web. 17 Oct. 2010. <www.gao.gov/new.items/d02812t.pdf>.

Winn, Howard. "Accession Has Brought Change to China and WTO." New York Times.
New York Times, 7 Nov. 2005. Web. 17 Oct. 2010. <http://www.nytimes.com/2005/11/06/world/asia/06iht-rchinwto.html>.

Zou, Keyuan. "Revamping Laws for the Market Economy in the Post-WTO China."
ASIEN 100 (2006): 88-93. Contributors. Deutsche Gesellschaft Für Asienkunde E.V., July 2006. Web. 17 Oct. 2010. <http://www.asienkunde.de/content/zeitschrift_asien/archiv/pdf/A100_088_093.pdf>.

Authoritarian Constitutionalism & the Rule of Law in China - Brian Safran


I.                   Introduction: The CCP and the Law

            In his 2009 policy paper entitled “The Party as Polity, The Communist Party, and the Chinese Constitutional State: A Theory of State Party Constitutionalism,” Larry Catá Backer analyzes the theory of constitutionalism in application to China. According to Catá Backer, constitutionalism is a theory which posits that “states ought to be organized to avoid tyranny or despotism by grounding state action in law and by limiting the reach of such lawful state action on the basis of values reflecting the values of the political collective” (Catá Backer 2009: 103). In his paper, he notes that China has developed what he refers to as a system of “authoritarian constitutionalism,” according to which the Communist Party itself “serves as the political collective from which constitutional norms are formulated, developed, defended and reviewed,” and which also “plays a role as constitutional source of values for the application as rule of law” (Catá Backer 2009: 157). Finally, he argues that the Communist Party “sits atop the state apparatus” and serves as the “sovereign collective,” or ultimate representative of the people (Catá Backer 2009: 157). Yet, what remains uncertain in Catá’s analysis is to what extent does the Communist Party have control over judicial outcomes? This paper will seek to examine competing claims over the powers of the Communist Party, and will analyze two divergent areas of Chinese law, including its systems of trade law and criminal law.
In recent years, China has embarked on an ambitious agenda that has resulted in legal reform of expansive scope and depth. Although once seen as a country devoid of law and marked by traditional notions of guanxi (关系), or a “system of interpersonal relationships” said to take precedence over the rule of law (China Strategic Research 2009: 1), China now has more laws on its books than any other country in the world (Inch 2010). Yet despite these reforms, scholars have noted that China still has a long way to go before it can claim to have a society built on the rule of law. Some have said that the creation of a Chinese system of rule of law is impossible in a system marked by the subordination of law to Communist Party policy and the lack of independence of the courts (Westin 2002: 2). In fact, it is often argued that the key function of the law to the Chinese government is “to order and regulate the exercise of government power” (Horsley 2006: 93). As of May 2009, approximately one-third of registered lawyers were party members, and almost all law firms had party committees, which allocated attorney remuneration based on loyalty to the party (McGregor 2010). In a 2009 pronouncement by the Party, it was said that judges must remain loyal “to the Party, the state, the masses and finally, the law,” in that order (McGregor 2010: 24). Furthermore, despite the establishment of a procedure in 2005 that made it possible for individuals to file petitions with the central government to challenge the legality of local regulations (Horsley: 2006), attempting to do so is said to be futile, as “the Party sits outside, and above the law” (McGregor 2010: 22), and that “[n]o legal obstacle is so great that the party cannot brush it aside” (McGregor 2010: 25).
Another significant problem said to be plaguing the court system is the incompetence of Chinese judges (Horsley 2006). In some respects, there have been signs of improvement. For instance, unlike in the past, where “judges were typically drawn from the ranks of the retired military” and “[a]ppointments were based more on political correctness than on relevant experience or legal knowledge,” today’s judges are “required to hold university degrees” and “pass a national unified bar exam,” as well as “participate in ongoing legal education programs” (Horsley 2006: 102). Yet, judges remain highly “susceptible to pressure” from the Communist Party, as it continues to control judicial salaries and court budgets (Hung 2002: 9); as well as judicial appointments and the personnel arrangements of the Courts (Inch 2010).

II. Trade & The Role of International Law

Despite the forgoing claims, there is reason to believe that the Communist Party’s grip on power is not absolute. One evolving area of the law which demonstrates the limits of the power of the Communist Party is trade law and policy. In 2001, China was permitted to join the World Trade Organization, or WTO, after a fifteen-year-long accession process that required deep reforms to China’s political, economic, and legal systems in exchange for it to be permitted to avail itself of the many benefits of membership in the WTO system (Rumbaugh 2004: 4). The WTO is an international body tasked with administering the rules of trade between nations, providing a forum for trade negotiations, and handling trade disputes and monitoring national trade policies (Kobayashi 2007). Previously known as the General Agreement on Tariffs and Trade (GATT) and limited in its scope to trade in goods, a fully-functioning, multifaceted World Trade Organization subsumed the GATT at the conclusion of the Uruguay Round of trade negotiations in 1995 (Jackson 1997). The WTO introduced agreements on trade in services and intellectual property, and provided for the creation of a fully-functioning organization, and a more procedurally-sound, binding system of dispute resolution (Jackson 1997).
When it comes to trade law and policy, membership in the WTO was predicated on China agreeing to undertake a series of legal reforms and consenting to the application of the entire body of WTO substantive principles and regulations. Among these were requirements that China substantially reduce its imposition of tariffs, or taxes imposed upon imports; and that China provide for fair trade by putting an end to its practice of subsidizing its domestic industries or permitting the “dumping” of its products on other markets through the use of predatory pricing (Hu 2001: 101). China also consented to the non-discrimination principles embodied in the GATT agreement, including “national treatment,” which mandates that “treatment for foreign products be no worse than that for like domestic products” (Hu 2001: 101), and the “most-favored-nation” obligation, which requires “each contracting party to grant to every other contracting party the most favorable treatment that it grants to any other country with respect to imports and exports of products” (Jackson 1997: 157). With respect to its commercial relations, China’s Accession Agreement ultimately involved over six hundred commitments; at least ten percent of which were determined to require China to “enact, repeal, or modify” trade-related laws, policies and regulations (Westin 2002: 3).
Yet, the reforms that China was required to undertake went far beyond substantive economic policy. Among these were obligations to provide for “transparency,” “judicial review,” and the “uniform enforcement of laws” (Westin 2002: 2). With respect to transparency, China agreed to publish its trade regulations (Kobayashi 2007: 5) and “provide a reasonable period of public comment before implementing them” (Westin 2002: 4). Regarding judicial review, China agreed to mandate that the “central government…address areas where WTO [law] is violated and provide a meaningful remedy” (Kobayashi 2007: 5). China also agreed to “establish or designate tribunals to promptly review trade-related actions of administrative agencies” (Westin 2002: 4). As to uniform enforcement, China agreed to apply trade-related laws and regulations “uniformly throughout China” and provide for a complaint procedure whereby “individuals and enterprises can bring complaints to China’s national authorities about cases of nonuniform application of the trade regime” (Westin 2002: 4). Finally, and perhaps most significantly, membership in the WTO required China to consent to becoming subject to the jurisdiction of the Dispute Settlement Body, an international body capable of adjudicating disputes over WTO rules and enforcing decisions against China’s own will (Hu 2001).
It is of course, one thing to agree to a series of obligations and quite another to actually put those agreements into practice. To what extent has China followed through with its WTO commitments? For one, China began to make positive rule of law changes to its domestic legal system in advance of its securing membership to the WTO, as demonstrated by the 1999 amendment to its Constitution, which recognized for the first time that “[t]he People’s Republic of China shall be governed according to the law and shall be built into a socialist country based upon the rule of law” (Chow 2003: 78). By the end of 2002, China had already revised fourteen of its laws and thirty-seven administrative regulations, annulled twelve administrative regulations, suspended thirty-four relevant documents, and changed more than one-thousand departmental rules to comport with WTO obligations (Zou 2006: 89).  By 2003, China had lowered its tariff rates, eliminated non-tariff measures, and relaxed limitations on foreign investment (China Daily 2003). As a result of China’s having undertaken domestic reforms permitting increased market access, its total trade vis-à-vis the rest of the world more than doubled from $509.8 billion in 2001, to $1.2 trillion in 2004 (Winn 2005).
Furthermore, the key legal institutions in China have become increasingly accessible and transparent (Horsley 2006). Draft legislation is now made available on the Internet for public comment, and public hearings are increasingly being held on proposed legislation believed to be of public concern (Horsley 2006).  Additionally, as of 2006, Chinese citizens were permitted to “audit” all legislative proceedings; rendering them open to the public (Horsley 2006: 96). In June 2004, the Standing Committee of the National People’s Congress established a special office under its Legislative Affairs Commission, which was made responsible for reviewing all central and local government regulations and legal interpretations in an effort to harmonize legal process throughout the country (Wang 2007). In January 2007, the government was set to approve China’s first-ever national, administrative “freedom of information” ordinance, a measure believed to be a precondition for the creation of an information access law (Horsley 2006: 101).
            As noted, membership in the WTO has also subjected China to a binding system of dispute resolution. Scholars have pointed out that China was initially reluctant to make use of the WTO’s dispute settlement system upon its joining. As a result, in the first four cases in which China was either sued or was threatened to be sued, China chose to “keep a low profile” and settle its disputes outside of the WTO framework (H. Gao 2007: 369). As of 2007, China was brought into the dispute settlement process as a respondent five times (H. Gao 2007: 372). Each of these cases demonstrates the erosion of the power of the Communist Party and the strengthening of the rule of law through the actions of the international community.
One such case involved a 2004 dispute brought by the United States in which it was alleged that China was levying its domestic exporters of integrated circuits with lower value-added tax rates than those imposed upon importers, which if shown to be true, would constitute a violation of WTO substantive rules (H. Gao 2007: 374). In the end, the Chinese decided to settle the matter without resort to formal dispute settlement procedures. As part of this settlement, the Chinese government agreed to immediately issue a “notice to revoke” the measure complained of. In October 2005, the United States announced that the terms of the agreement had been successfully implemented by China, and the dispute was rendered closed (WTO Dispute DS309).
Another claim against China was brought in 2006 by the European Union, the United States and Canada alleging that China was unjustly discriminating against imports of automobile parts (Bown 2008: 36). Upon review by a panel of the Dispute Settlement Body, it was determined that China’s measures constituted violations of its WTO obligations, and recommended that China bring the measures in question into conformity with its obligations within a reasonable period of time (WTO Dispute DS339). The Chinese government subsequently sought to appeal a portion of the adverse findings through WTO procedures, but in December 2008, the Appellate Body largely upheld the findings of the dispute panel, and once again urged China to bring its measures into compliance (WTO Dispute DS339). Faced with the threat of retaliatory trade sanctions, representatives of the Chinese government notified the WTO Dispute Settlement Body of its intention to put an end to its discriminatory measures concerning automobile parts, and China’s General Administration on Customs issued a “joint decree” with other relevant agencies putting an end to the discriminatory practices (WTO Dispute DS339). The Chinese government ultimately declared itself to be in compliance with the Dispute Settlement Body’s recommendations as of September 2009 (WTO Dispute DS339).
More recently, a number of disputes have been filed against China by the U.S. and other WTO members, among which was a 2007 case brought by the U.S. alleging that China was unjustly invoking measures restricting the importation of audiovisual entertainment products, including films, videocassettes, DVDs, sound recordings and other written materials. (WTO Dispute DS363) In August 2009, a panel of the Dispute Settlement Body completed its review, and found China to be in violation of several of its WTO obligations for its failure to protect the rights of foreign businesses seeking to operate in China, including most significantly the prohibition on import quotas under Article XI of the General Agreement on Trade and Tariffs, and provisions under the General Agreement on Trade in Services mandating that treatment of imported distribution services be no less favorable than the treatment of domestic distribution services (WTO Dispute DS363). China subsequently appealed the findings of the panel to the WTO’s Appellate Body, which in December 2009 circulated its report which substantially upheld the panel’s original findings (WTO Dispute DS363). In February 2010, China announced that it would bring its policy into compliance with the Appellate Body’s report, and both the United States and China have agreed on a reasonable timeline for it to do so, and the deadline for compliance has been set for March 2011 (WTO Dispute DS363).
The resolution of each of these representative disputes indicates the extent to which China, and by extension, its Communist Party leadership no longer exercises absolute sovereignty with respect to trade policy. Despite the fact that the measures called into question by other WTO members in the sampling of disputes cited above were those which, if permitted to continue, would support Chinese domestic industries and thus, Chinese Communist Party interests, the actions of the international community and the threat of WTO sanctions ultimately persuaded the Chinese government to agree to withdraw the measures in question in the face of the possibility of retaliatory trade sanctions.

III. Chinese Criminal Law and the Continuance of Communist Party Controls

            Despite the reforms achieved in the area of trade law, some have noted that China still has a long way to go before it can claim to have a society built on the rule of law. (McGregor 2010) One area of the law which demonstrates the extent to which the Communist Party maintains a grip on power is criminal law. With respect to criminal law, China does not belong to any international organization such as the World Trade Organization which would act to place limitations on the Communist Party’s ability to exercise power. In fact, China has actively shunned any efforts on the part of the international community to gain its willingness to consent to it becoming a state party to the International Criminal Court, or ICC. When the Rome Statute authorizing the creation of the ICC was ratified in 1998, China was one of only seven countries in the world that refrained from joining. (Findlay 2010: 3) In refusing to ratify the ICC Statute, China has focused on the centrality of criminal justice to its sovereignty (Gao 2007). Among the reasons given for its refusal to become party to the statute were concerns that the ICC would have supranational authority to determine whether individual states are “willing and able to conduct proper trials of its own nations;” the criminalization of “crimes against humanity,” the definition of which was not limited to those crimes committed during wartime, and the inclusion of the “crime of aggression” in the ICC statute, which it was believed might have the potential to be used against Chinese authorities for political ends (Findlay 2010: 3). It should also be noted that China has signed but has refused to ratify the International Covenant on Civil and Political Rights, or ICCPR (Human Rights Watch 2009: 34). The ICCPR, to which China is not bound, sets forth a number of principles which afford protections of due process under international law to those that are accused of crimes, including that “[n]o one shall be subjected to arbitrary arrest or detention” and that “[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law” (ICCPR Article 9). Given the absence of an effective mechanism by which the international community can exert supranational authority over China’s criminal law, the Chinese Community Party maintains a stronghold on criminal justice processes.
            The Chinese criminal justice system operates with little regard to due process, and its design effectively permits the Communist Party to intervene as it pleases. Criminal law in China is said to be “marked by long periods of investigatory detention, a high rate of confessions and administrative penalties that are tantamount to incarceration without trial” (Belkin 2000:  61). To that end, criminal defendants lack the “right to refuse interrogation, enjoy no presumption of innocence, and have no right to confront their accusers or compel the presence of witnesses to testify in their defense” (Belkin 2000: 61). In certain circumstances, the police have chosen to hold individuals in custody without charging them with crimes solely in an effort to “avoid protests and other instances of social unrest” (CECC 2007: 37).
Access to counsel is said to be “extremely limited” during the pre-trial phases of criminal cases, and the rights of the accused to proffer a defense is limited by the absence of procedures which would provide for discovery. (Belkin 2000: 61) In fact, as of 2004, only one in every three criminal defendants had access to representation by counsel. (CECC 2007: 47) Contributing to the inability of the accused to receive adequate representation by counsel is the fact that defense attorneys are often intimidated by threats of prosecution under statutes that provide for criminal liability for “evidence fabrication” (CECC 2007: 48). In certain circumstances where the “vague and elastic” concept of “state secrets” is implicated, the accused may find that they must attain prior approval from those investigating him or her before he or she can hire an attorney (Belkin 2000: 78). Cases which proceed under the “state secrets” doctrine are conducted in secret, and are therefore immune from public scrutiny and inspection (CECC 2007: 83). Once a case proceeds to trial, prosecutors must meet a low burden of proof by showing only that “the facts and circumstances of the crime are clear,” that “the evidence is reliable and sufficient,” and that “the charge and the nature of the crime is correctly determined” (Berkin 2000: 79). As of 2007, it was widely reported that many continue to be “arbitrarily detained and convicted, and torture remains widespread” (CECC 2007: 34).
In addition the limited nature of due process protections afforded to the accused, the substantive penalties issued in China are said to be “extremely harsh” (Belkin 2000: 83). In fact, Chinese law authorizes the death penalty as a permissible sentence for sixty-five crimes, which not only include murder and rape, but also include narcotics trafficking, financial fraud, and embezzlement (Lu 2008: 4). According to the Dui Hua Foundation, almost 100,000 individuals were executed by the Chinese government between 1997 and 2007, which accounts for over ninety-five percent of all executions carried out worldwide (CECC 2007: 53). Although in recent years, the Chinese government has taken measures to curtail the imposition of the death penalty by implementing measures which have sought to reserve the death penalty for an "extremely small number of extremely serious and extremely vile criminals posing a grievous threat to society” (Scott 2009: 5), as of 2009, Amnesty International has confirmed that China executes “more people than the rest of the world put together” (Amnesty International 2010). Through the operation of the criminal law and the existence of the death penalty as a permissible sentence coupled with the ability of the Communist Party to intervene in cases as it pleases renders the Party capable of compelling the Chinese people to succumb to its demands.
The Chinese criminal justice system is said to have its roots in “Confucian communitarian ideology and communist philosophy,” which has traditionally emphasized the usage of non-legal mechanisms for preventing crime (Findlay 2010: 4). Although China introduced criminal codes under the Tang and Qing Dynasties, and has since gradually adopted more modern criminal laws culminating with the 1979 Criminal Law and Criminal Procedural Law, aspects of its traditional focus on conflict resolution methods outside of the legal system still persist (Findlay 2010: 5). In fact, police have the authority to call upon administrative procedures and send an individual to a laojiao (劳教), or labor camp, for up to three years even before the commencement of any judicial proceeding through a process known as “reeducation through labor” (Belkin 2000: 68). As of 2005, it was estimated that as many as five hundred thousand individuals are held in such administrative labor camps throughout China (CECC 2007: 40). Similarly, public and state security officials are said to “regularly authorize mass security sweeps” which involve the utilization of various forms of administrative detention, house arrest, and surveillance in an effort to “harass and control” the Chinese citizenry (CECC 2007: 37). Ultimately, the criminal justice system in China is designed to first “protect…the socialist order,” and only secondarily to protect “people’s rights” (Findlay 2010: 5).
            Outside of the limitations placed on the rights of the accused and the sentences imposed upon them, the criminal justice system is constructed within a hierarchy which places the Communist Party at its helm. The Communist Party is said to exercise influence over criminal justice mechanisms through its influence on a variety of matters, including “ideology, policy and personnel matters,” and even in some circumstances, its direct involvement in “deciding the outcome of particular cases” (Peerenboom 2008: 13). It is said that so-called “party committees of political and legal affairs exist at all levels of government,” and that such committees are dominated by leaders of the Public Security Bureau, which is tasked with investigating crimes, as well as chief judges and chief prosecutors (Belkin 2000: 67).  The role of the Communist Party at the top of the judicial hierarchy is further demonstrated by a 2003 resolution issued by the Communist Party’s Central Committee, which noted that “public security work must proceed under the Party’s absolute leadership” (CECC 2007: 46). Furthermore, a 2006 communiqué issued at the sixth plenum of the Central Committee outlined the introduction of a policy which would seek to enhance public and state security by sending police forces into local communities in an effort to “safeguard stability” and build a “harmonious society” (CECC 2007: 46).
Crimes in China are prosecuted by the so-called “People’s Procuratorate,” which operates under the direct authority of the National People’s Congress and its Standing Committee (Belkin 2000: 65). Based on the fact that such limited procedural protections are afforded to criminal defendants, the People’s Procuratorate maintains a conviction rate which exceeds ninety-nine percent. (CECC 2007: 51) Yet the role of the People’s Procuratorate is not limited to the mere prosecution of crimes. Instead, its leadership is vested with the authority to issue technically non-binding interpretations of the law, which in actuality have tremendous impact upon the interpretation of Chinese criminal law, as the language embodied has a tendency to be “vague” and open to interpretation (Belkin 2000: 66). These vague provisions include such crimes as “disturbance of public order” and “endangering state security” (CECC 2007: 3). The reach of the leadership of the Communist Party is strengthened by the fact that China operates a uniform system of criminal justice through its maintaining of a single criminal code and criminal procedure law applicable throughout the country (Belkin 2000: 64). The extensive grip on power possessed by the Communist Party over Chinese criminal justice is further evidenced by the fact that as of 2006, the sentences of imprisonment for at least five hundred individuals accused of the crime of being a “counterrevolutionary” were still serving sentences of imprisonment, despite the fact that the crime was technically eliminated from China’s law books in 1997 (CECC 2007: 5), and by the fact that it is Communist Party leaders who remain responsible for determining the sanctions of police officers accused of having abused their powers (CECC 2007: 43).
            Cases which clearly demonstrate the extent to which the Communist Party exercises its power through the criminal justice system are those brought against human rights defenders. One widely-publicized case was that brought against Liu Xiaobo (刘晓波). In December 2009, Liu was convicted of the charge “inciting subversion of state power” for his having published articles that expressed his “dissatisfaction with the political and socialist system of [China’s] people’s democratic dictatorship” (HRIC 2009). Additionally, Liu was alleged to have played a leading role in drafting “Charter 08,” an essay calling for the abolishment of the “one-party monopolization of ruling privileges” and for the establishment of a constitutional democracy in China (HRIC 2009). Ultimately, an eleven-year sentence of imprisonment was levied against Liu (HRIC 2009). Given the fact that a penal statute is in effect in China which permits courts to hold individuals accountable for merely publishing material which the Communist Party finds threatening indicates the extensive grip on power the Communist Party retains over the legal system in China, and its ability to manipulate the law through the operation of the criminal justice system.

IV. Conclusion

            The forgoing analysis suggests that Chinese domestic law is not above politics, and that the Communist Party maintains a powerful force in the Chinese legal system despite efforts taken to modernize that system. As pointed out by Larry Catá Backer in “The Party as Polity, The Communist Party, and the Chinese Constitutional State: A Theory of State Party Constitutionalism,” China has indeed established a unique form of “authoritarian constitutionalism” which places the Chinese Communist Party at the helm of its legal system. Yet at the same time, it should be noted that the development of international law has served to quell the extent to which the Chinese Communist Party can exercise an exclusive right to shape and mold Chinese law. China’s membership in the World Trade Organization has demonstrated that the Communist Party has found itself incapable of instituting trade-related policies which would embolden its economic position if doing so would violate its WTO obligations. Yet, in the case of criminal law, the Communist Party maintains a stronghold on power. Marked by the non-existence of an international body such as the ICC or a treaty such as the ICCPR which would place limits on China’s justice system, its lack of due process protections for the accused, the levying of harsh penalties, and the existence a hierarchical structure of policymaking and adjudication of individual cases which places the Communist Party at its peak, the criminal justice system in China maintains within the control of the Party. Giving this analysis, it appears that only with the establishment of supranational bodies capable of enforcing international law, such as the Dispute Settlement Body of the World Trade Organization, will the Chinese Communist Party find the scope of its powers limited.

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Taiwan and Its Disputed Claim to Territorial Sovereignty - Brian Safran


Introduction

The geo-political identity of Taiwan remains one of the most contentious issues in pacific affairs and international relations in contemporary times. The present crisis emerged as an outgrowth of China’s legacy of colonialism, and its subsequent endeavor to reclaim the territories that were previously under its sovereignty. As a result of China’s loss in the first Sino-Japanese War, Taiwan was ceded to Japan, which administered the territory until the end of World War II. Since that time, Taiwan’s geo-political status has remained in a state of ambiguity and confusion, with Taiwan establishing its own democratic system of governance under the title Republic of China, and the People’s Republic of China on the mainland refuting Taiwanese independence, instead claiming itself as the sole legitimate governing authority. The tension between China and Taiwan has embodied itself in the international political arena, where governments and international organizations have been forced to render a position on the issue by either choosing to empower Taiwan with legitimacy or recognizing the People’s Republic of China as having sovereignty over the territory. With China emerging as a prominent actor on the international stage both economically and militarily, the tension surrounding the Taiwan Strait has the ability to define global affairs for years to come. Countries that choose to support Taiwanese independence may risk chastising themselves from amicable relations with China. Furthermore, Taiwan’s current government has advocated for controversial steps to be taken aimed at establishing the territory as an official sovereign entity; the extent of China’s response to which is yet to be realized. These factors have rendered it of paramount importance for the region and for the world that the two parties agree on an amicable solution as soon as possible. An analysis of the geo-political issues surrounding Taiwan can provide an understanding of geography in its relationship with political affairs and international relations, as well as provide insight into a conflict that may serve to play a prominent role in shaping the pacific century.

Analysis

Causes


An understanding of the conflict surrounding Taiwan requires an understanding of the evolution of complex interrelations between competing domestic forces in China as well as foreign influence and international law. Beginning in 1683, Taiwan was made a province of China’s Qing Dynasty. (Qimao 1987: 1163) The Taiwanese conflict dates back to the first Sino-Japanese War, which was fought between China and Japan in 1894-95. As a result of the Qing Dynasty’s loss, the territory of Taiwan was ceded to Japan under the Treaty of Shimonoseki. (Qimao 1987: 1167) At that time, Taiwan remained a largely undeveloped territory and its development was constrained by its heavily mountainous and limited arable land. (CIA 2007: 2) Under Japanese colonial rule, Taiwan was governed according to a strict regimen, which served to foster the development of industry and infrastructure. (Knapp 1978: 362) After Japan’s loss in World War II, Taiwan was returned to China via the Cairo Declaration; however by that time, the Qing Dynasty had long collapsed and China was in a state of internal conflict regarding who its legitimate governing body was. (Qimao 1987: 1165) As a result of the Chinese Civil War, China became divided into two warring factions: including the Chinese Communist Party under Mao Zedong and the KMT Nationalist Party under General Chang Kai-shek. (ICG 2004: 1) Those advocating Taiwanese independence assert that it was Chang Kai-shek who formally accepted the return of Taiwan to China in the Cairo Declaration. (Ogden 2008: 70) However, in 1949, the Chinese Communist Party and the People’s Republic of China emerged victoriously in the Chinese Civil War and declared themselves as the sole legitimate government of China, and as a result, the KMT Nationalist Party and its Republic of China were forced into exile to Taiwan. (Dreyer 2008: 77) Many members of the international community were reluctant to recognize the PRC as the official government of China, and for a period of twenty years the Republic of China was treated as the sole governing entity of China. (Qimao 1987: 1168) Thus, the geopolitical status of Taiwan has been seen as dependent on the disputed legitimacy of its government during the Chinese Civil War. Geography has been one of the primary reasons as to why China has vehemently sought to incorporate Taiwan with Mainland China. The island of Taiwan is only about one-hundred miles away from the Mainland, and because of its location, its independence is believed to represent a substantial security threat to Chinese interests. (Nathan 1996: 87) The United States has traditionally sided with Taiwan in the territorial dispute, seeing the island as a bulwark of defense against the spread of Communism in East Asia, and has embedded its support in the form of treaties and domestic laws. (Collinwood 2008: 118; Kanatsu 2007: 3) U.S. involvement in a 1950 naval blockade to prevent a Chinese invasion of Taiwan, and its subsequent promulgation of a Mutual Defense Treaty promising to defend Taiwan in the event of military conflicts demonstrated the depth of America’s effort to protect the island from falling to communist rule. (Qimao 1987: 1162) By the early 1970s, it became clear that it would be impossible to permanently marginalize a power as great as the People’s Republic of China in international relations; and subsequently, the PRC was given Taiwan’s seat in the United Nations, which in effect justified the PRC’s claim to sovereignty over Taiwan. (Collinwood 2008: 118) Although the United States, by virtue of its 1972 Shanghai Communiqué, recognized the PRC as sole legitimate government of Taiwan by abandoning its Mutual Security Treaty, it has nevertheless maintained its promise to Taiwan that it will step in to defend the territory if a military conflict were to arise with China under a domestic law known as the Taiwan Relations Act. (Qimao 1987: 1165; Dreyer 2008: 319) In the 1980’s, Deng Xiaoping initiated a system known as “one country, two systems,” which allowed former colonies including Macao and Hong Kong status as Special Administrative Regions, affording them a certain degree of autonomy. (Dreyer 2008: 326) The Republic of China was offered this as a resolution to the territorial dispute in the early 1980s, a solution of which it declined on the basis of its growing ideological disagreement with Mainland China. (Qimao 1987: 1171) China’s willingness after Taiwan’s initial refusal to allow for a similar agreement with the territory was tarnished by China’s Tiananmen Square demonstrations, the division of the former Soviet Union, and U.S. interference in the Middle East, all of which China interpreted as demanding of strong centralized power (Dreyer 2008: 304). Although geographically proximate, Taiwan has in recent years established an increasingly distinct political and economic identity from that of Mainland China. Since the late 1980s, Taiwan has developed democratic form of governance, allowing for the formation of opposition political parties, and since 1996, holding elections for the position of the Taiwanese presidency. (Ogden 2008: 81-82) Economically, Taiwan has become a Mecca for technological production and its market has remained largely un-integrated with the Mainland, exporting the majority of its production to the United States which affords the island special trade incentives. (Ogden 2008: 77; Qimao 1987: 1168) These factors have afforded Taiwan a separate and distinctive identity from that of Mainland China, and have rendered efforts to formally unite the two increasingly difficult.

Current and Future Impacts

In modern times, China has been able to reclaim Macao and Hong Kong, territories lost during the colonial era; yet Taiwan remains its only former colony presently asserting its independence. Current Taiwanese President Chen Shui-bian is advocating for Taiwan’s independence in the face of staunch Chinese opposition. (GOV 2007: 2) Over the past few years, President Chen Shui-bian has closed Taiwan’s “National Unification Council” as well as the “National Unification Guidelines,” serving to increase tensions along the Taiwan Strait. (People’s Daily A 2006: 1) According to the Taiwanese government, Chinese leaders have in recent years refused to communicate with Taiwan’s elected leaders, intensified their effort to prohibit Taiwanese participation in international forums, and have deployed hundreds of ballistic missiles to its coastline aiming at Taiwan (GIO 2004: 1) Furthermore, the establishment of a 2005 “anti-succession” law demonstrates the extent of China’s effort to discern separatist activities and response to them with force (People’s Daily A 2006: 1). More recently, China has repetitively threatened to intervene militarily in the event of a Taiwanese declaration of independence, and has progressed towards strengthening its military capability to prepare for such an attack. (Yardley 2007: 2) The graph on the left demonstrates the significant extent of China’s military buildup from 1994 till 2005, as estimated by the U.S. Department of Defense. In 2007, the Chinese government has stated that it intends to expand its military budget by over seventeen percent, and many analysts concur that its primary reason for its doing so is to offset any efforts by Taiwan to formally seek its independence. (Yardley 2007: 1) China has repetitively initiated military exercises in the Taiwan Strait, often doing so just prior to Taiwanese elections so as to indoctrinate fear into the hearts of voters to coerce them into electing leaders against independence in an effort to advance the interests of unification. (Faison 1996: 1) Chinese officials have stated that if the United States were to intervene militarily on behalf of Taiwan in a conflict, the country would not hesitate to use long range missiles if not nuclear weapons against the United States. (BNET 2005: 1-2) The United States government has recently supplied Taiwan with submarines and destroyers for the blatant purpose of preparing for an attack against China, serving to the anger of Beijing. (BBC 2001: 2) Some believe that the current Taiwanese government is planning to pronounce its independence just prior to the Beijing Olympics scheduled for the summer of 2008, during which time it is believed that China would be preoccupied by the events and find itself unable to attack the island. (China Daily 2003: 1) If such an occurrence were to take place, it would be difficult to predict China’s immediate reaction. However, it seems plausible that if a solution is not found to this conflict and China continues at its current rate of military expansion, a crisis might be provoked at some point in the future, serving to polarize the world into a Cold War-type set of military alliances with China and the United States going head-to-head in a full-blown military confrontation. Nearby Japan, whose government has in recent years actively sought to revise its constitution to allow for the establishment of military forces, has found these developments in East Asia concerning and has pledged to support Taiwan and the United States in a conflict. (Onishi 2007: 1; Yale 2005: 1) On the other hand, Russia has advocated for unification, pledging its support to the PRC in the event of a confrontation. (People’s Daily B 2005: 1) In addition to the aforementioned potential for military confrontation, both Taiwan and Mainland China are placed at a disadvantage economically by virtue of the restrictions placed on trade between the two, which allows them to engage in trade with one another only through third parties such as Hong Kong; a restriction which vastly increases their mutual costs of doing business. (Collinwood 2008: 118) Analysts have noted that economies of Taiwan and China are “complimentary” to one another, and Taiwanese development is hampered by its lack of natural resources and limited access to markets and capital, resources of which China has readily available. (Qimao 1987: 1169) Thus, a solution to the conflict would serve the interests of both entities, and should therefore be considered. However, if a solution is not found, the extent of the impact that a worsening of the relationship between Taiwan and China would have on both powers as well as the international community is difficult to limit; and further confrontation may prove to drastically redefine East Asia as well as the world at large.

Solutions

Judging on the basis of China’s staunch unwillingness to allow for Taiwanese independence, and Taiwan’s reluctance to fully incorporate with China, it appears as though the only amicable solution to the conflict would be for Taiwan to accept the notion of “one country, two systems,” with all of the rights offered to it as proposed in the early 1980s. These rights included provisions that would require Taiwan to unify with China and give up its claim of a supposed right to “self-determination,” but in exchange, China would grant the island autonomy as a “special administrative region,” allowing it to maintain its own military and judicial systems, its democratic political system and the economic property rights to which its people are currently afforded, and would provide Taiwan with a limited autonomy in terms of foreign policy. (Qimao 1987: 1170-73) Accordingly, Taiwan would be made a Special Administrative Region with an extensive degree of autonomy from Beijing. Scholars have argued that it would be impractical for China to impose its communist economic system and authoritarian political system on Taiwan; not only have the Taiwanese adapted to capitalism and democracy, Taiwan’s economic success can be attributed to their very existence. (Qimao 1987: 1171-72) Rendering Taiwan a Special Administrative Region with such an extensive degree of autonomy would satisfy China’s goal of reunifying the various colonies it has lost over the past five centuries, while at the same time satisfying Taiwan’s goal of having the ability to maintain its political and economic systems, as well as its own culture and ideology. A solution to this conflict would not only reduce tension between China and Taiwan, but would also serve to quell the fears of other regional powers. Furthermore, this resolution would offset the risk of the world finding itself divided in its support between the hegemonic powers of China and the United States as they fiercely defend their interests. Thus, although this solution would require both sides to make substantial concessions to one another, it appears as though a modified “one-country, two systems” approach is the only foreseeable resolution to the conflict.


Conclusion

The issue surrounding the ambiguity of Taiwan’s geo-political identity remains one of the most pressing East Asian problem having global implications. Emerging out of Japanese colonization of Taiwan, and its subsequent recapitulation to warring internal forces within China, the territory has seen its external identity vacillate between international recognition as a sovereign state and being seen simply as a province of the People’s Republic of China. In recent years, China’s economic and military might has ascended to new heights, affecting the geo-political landscape and creating a new system of alliances. China has boosted its anti-Taiwanese independence rhetoric in recent years, seeing the island and its location relative to Mainland China’s coastline as a potential threat to Chinese security. In recent years, Taiwan has grown increasingly apart from Mainland China in terms of political and economic ideology, and tension has grown along the Taiwan Strait as a result of the election of pro-independence Taiwanese leaders that have advocated for a Taiwanese declaration of independence. Some predict that the upcoming Beijing Summer Olympics will occupy the PRC and make it possible for Taiwan to stage its independence; the result of which would likely only increase tension in the region. It was argued that ongoing tension and the possibility of military confrontation in the region may serve to split the world in two according to political ideology, similar to the Cold War. In addition to the political implications that this conflict has espoused, tension between the two powers has limited the potential for each to participate economically in each other’s markets. A mutual agreement between Taiwan and China would be in the best interests of both powers as well as the world at large. A solution was proposed in which Taiwan would be incorporated with China as a quasi-autonomous Special Administrative Region, allowing the territory significant concessions such as its being able to retain its own military and justice system, as well as its democratic political system and capitalist economic system. In exchange, Taiwan would be required to unify with China and abandon its advocacy of “self-determination.” This solution would be a compromise between both parties, and would put an end to what otherwise may amount to be one of the most disastrous geo-political conflicts of the pacific century.

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China and its Death Penalty: Operating On Assumptions - Brian Safran


China has had a lengthy history of inflicting the death penalty. In modern China, the death penalty is issued as punishment for sixty-eight crimes, ranging from murder to distributing pornography and bribing public officials, and the country is believed to carry out over ninety percent of the world’s executions. (Dryer 2008: 179) Although utilized throughout much of China’s past, the usage of the death penalty is believed to have increased significantly in the post-Mao era. (Scobell 1990: 513) The penalty has largely been instituted on the basis of its perceived ability to act as a deterrent to criminal activity. Deng argued that the penalty was an “indispensible means” to deterring future criminal activity of the populace, and the Criminal Procedure Law of 1979 that he propagated with its promotion of the death penalty embodied the notion that the execution of each single individual would serve as “a warning to a hundred” (Scobell 1990: 505; Hood 2002: 53). Similarly, President Hu has seen execution as a way to “ensure the healthy progress” of his anti-crime campaign in its effort to deter would-be criminals (Amnesty 1997: 1). Although the death penalty may serve other purposes in the interest of justice, its implementation in China should not be based on the flawed assertion that it deters crime in China any more than would the prospect of lifetime imprisonment.
First, no relevant studies of the death penalty and its ability to have a lasting deterrent effect on crime have been conducted to prove the merit of such an argument. On the contrary, available evidence suggests that the implementation of the death penalty and the increase in its usage during China’s “Strike-Hard” campaigns has actually served to raise the crime rate in those areas punishable by death. Scholars have argued that the 1983-84 “Strike Hard Campaign” failed to achieve any long-term deterrent effect; in actuality the 1984 crime rate was 49.9 cases per one-thousand population, and by 1990, this number had increased to 210, representing a four-fold increase in the crime rate. (Bakken 1993: 31) Furthermore, the campaign failed to deter juveniles from joining violent gangs, then responsible for much of China’s overall crime rate; and by 1986, young people under the age of twenty-five accounted for over ninety-three percent of the composition of such gangs. (Trevaskes 2002: 689) Similarly, in the period following China’s 1996 Strike-Hard Campaign, the number of recorded crimes rose significantly, and between 1996 and 2000, the crime rate more than doubled. (Trevaskes 2002: 687) Finally, in the years following the 2001 Strike-Hard Campaign, crime rates were once again on the rise, and in 2004, seven percent more arrests were made than the year prior. (CECC 2005: 2) The recent occurrence of public, roadside executions on Route 302 in Jiangxi Province of those convicted of highway robbery also demonstrates the extent of the death penalty’s inability to deter crime; as two months after the punishment was instituted, the same crimes were being perpetrated again in the same location. (Amnesty 1997: 3) Statistics such as these have led some theorists to argue that the existence of the death penalty contributes to the “brutalization” of their respective societies, actually serving to increase the rate of crime. (Hood 2002: 211) At the very least, it cannot be doubted that increases in the usage of the death penalty in China has failed to act as a long-term deterrent to crime.
The existence of a weak legal system in China is such that those seeking to participate in crime would not weigh the consequences of their actions before committing offenses. The likelihood of getting caught is very slim, and if offenders are indeed caught, they maintain the ability to resort to bribery. (Svensson 2001: 2) Scholars have found that Chinese judges routinely accept bribes in exchange for favorable judgments. (Minxin A 2005: 1) Since 2004, over one-thousand Chinese judges were removed from their posts on the basis of their alleged participation in judicial corruption. (Xie 2007: 1) In the context of a weak system of law enforcement coupled with a seemingly impenetrable culture of corruption, it is unlikely that a rational individual would view the minute risk being caught, finding themselves unable to bribe public officials, and potentially receiving the death penalty as a sufficient inducement to deter their actions.
Many convicted criminals often assert after the fact that they are legal illiterates in the sense that they were unaware of the illegality of their actions or the extent of the punishment they were likely to receive after the fact (so-called famang) (Svensson 2001: 2) China’s history of having an underdeveloped legal system and its use of a decentralized, informal, societal model of law enforcement has contributed to the extent of the problem. (Dryer 2008: 169) In fact, judges are often recruited from the military with no formal legal training, and have themselves been known to be “legal[ly] illiterate” (Michelson 2003: 263). Without a clear understanding of what is illegal and what punishments are inflicted to violators of the law, it would be impossible to deter offenders before committing crime; regardless of the extent of penalty.
China’s lack of an independent judiciary and the interconnectedness that exists between judicial decision-making and the volatile political agenda leads to unpredictability both in the degree of enforcement of established laws and in the extent of punishment carried out after the fact. (Minxin A 2005: 2) Criminal offenders are made eligible for the death penalty when their crime is considered “serious,” a term that is open to interpretation. (Monthy 1998: 206) In addition, there is a significant discrepancy between localities, whereby offenders committing the same type of crime in two different jurisdictions are often subjected to very different penalties. (Howie 1996: 5) Furthermore, the death penalty is applied sporadically, as many offenders are given a suspended sentence during which time they are required to participate in hard labor; and if they repent sufficiently, their sentences are reduced to terms of imprisonment. (Hood 2002: 178) Studies have shown that Communist Party members, a group that commits a substantial proportion of crime in China, receive special treatment by the judicial system and are significantly less likely to be executed than non-CCP members. (Scobell 1990: 517) According to the Carnegie Endowment for International Peace, less than six percent of Chinese politicians accused of corruption since 1982 have actually been prosecuted, and only twenty percent were dropped from the ranks of the party. (Minxin B 2007: 4) The mere existence of the death penalty, if unlikely to be used against them, would not deter their actions. With capital punishment unpredictable, and its application inconsistent and arbitrary, how can its existence possibly deter criminal activity?
Judging from the arguments presented above, one may be convinced that the death penalty would deter crime if social problems were corrected, such as reducing the instances of judicial corruption, improving law enforcement capabilities, establishing a more structured sentencing regimen to ensure that those that commit certain crimes are subjected to the death penalty, and improving the knowledge of the population with regards to the law. However, studies of comparative data refute this claim, instead showing there to be no correlation between the inflicting of the death penalty as punishment and a lower rate of crime, even in political systems where such problems are not pervasive. For example, U.S. states that do not have the death penalty have almost systematically had lower murder rates than states that do enforce the death penalty. (DPIC 2007: 1) A 2000 study conducted by The New York Times demonstrated that ten out of the twelve U.S. states without the death penalty had lower murder rates than the national average, while half of the states in which the death penalty was a valid punishment had murder rates above the national average. (Hood 2002: 216) Canada, a country that has systematically banned the death penalty had by 1999 seen its homicide rate decline by forty-three percent since the death penalty was abolished in 1976, prior to which time the rate had been steeply increasing. (Hood 2002: 214) Similar evidence can be seen internationally. For instance, Canada has seen a substantially lower rate of violent crime, including homicide, assault and robbery when compared to the United States. (Daily 2001: 2) European countries without the death penalty have similarly enjoyed a lower rate of crime vis-à-vis the United States. (Barclay 2002: 8) Based on this information, a growing body of experts has refuted the deterrent effect of the death penalty; and a 1995 study of the American Society of Criminology concluded that 80 percent of American criminologists did not believe the death penalty to deter homicide. (Radelet 1995: 1) Thus, comparative data demonstrates that the assumption that the fear of execution is stronger than the prospect of life imprisonment so as to deter would-be criminals is flawed- irrespective of the socio-political context in which it is implemented.
It can be argued that the issue of whether the death penalty is a deterrent to crime is not of significance, but rather, the perception of it being a deterrent is what affords the Chinese government popular support. This may very well be the case, however in the midst of growing evidence to the contrary, how long can the Chinese government expect to maintain support in that regard if its advocacy of the death penalty is based on flawed evidence? Furthermore, many make the argument that the death penalty exists as a way to provide those harmed by heinous crimes a method by which to attain retribution. However, what is at issue is not the validity of the death penalty itself, but the grounds on which the death penalty is justified. Although retribution is perhaps a valid and useful argument in favor of the death penalty, Chinese leaders have advocated for the death penalty primarily on the grounds of its deterrence effect. If retribution is a primary sentencing goal brought about by capital punishment, it should be purported as such.
In summary, China has long issued the death penalty as punishment on the basis of its supposed ability to deter crime. Numerous arguments have been made that challenge this assumption. First, evidence demonstrates that China’s increase in usage of the death penalty during its various Strike-Hard Campaign’s have done nothing to reduce China’s long-term crime rate; if anything, it appears as though its existence has increased the rate of crime. China’s weak legal system is such that criminal offenders often fail to see themselves as subject to its precepts or likely to face penalty for their actions. Judicial corruption is a method by which offenders can circumvent legal strictures and avoid facing penalties, and its perception challenges the notion that the mere existence of the death penalty will deter their actions. In addition, with a constantly evolving legal system and a history of un-codified law, many Chinese citizens are legally illiterate and lack an adequate understanding of what actions are illegal and the extent to which violators are punished; an understanding without which, no penalty would be sufficient to act as a deterrent to crime. Also, the death penalty is often applied inconsistently and arbitrarily, rendering its existence unlikely to deter crime. Although it may be argued that the correction of social problems would render the death penalty a plausible deterrent to crime, comparative data refutes that claim, showing instead that jurisdictions without extensive problems that utilize capital punishment have seen a substantially higher rate of crime than those jurisdictions without it with regards to crimes specifically punishable by death. Although the implementation of capital punishment may be justified on its ability to fulfill other sentencing goals, it should not be promoted as a tool by which to deter crime.
 
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