Thailand Law Journal 2011 Fall Issue 2 Volume 14

In imperial China, the Tang and the Qing Criminal Codes were notable and sophisticated. The central purposes of these codes were to punish those who violated the rule of order, and the value of good conduct. Leng and Chiu⁵⁴ argue that these traditional codes paid less attention to the protection of individual interests, than to the maintenance of social and political order. In this respect they were compatible in function to the more recent Chinese crime legislation. To some extent the Codes could be seen in conflict with Confucian legal theory which advocates ruling by moral education, with the law and its sanctions used only as the last resort. Punishment was still for the Confucianist the province of the state where moral education was rejected by the individual.⁵⁵

The People's Republic of China was established as a socialist country in 1949. Since then, efforts have been made to enact basic laws concerning criminal justice administration. It was in 1979, after the anarchy of the 'Cultural Revolution', that the Criminal Law and Criminal Procedure Law were originally enacted. At that same time, laws concerning the organisation and function of the courts and public prosecution were also developed.

Basic laws with regard to lawyers, arrest and detention of suspects, also have been established. With the return of Hong Kong, and then Macau as Special Administrative Regions within China, the criminal law now accepts to a limited extent the traditions of British and Portuguese criminal procedure and jurisprudence.

The Chinese criminal law⁵⁶ takes the political ideologies of Marxism, Leninism and Mao Zedong as its guide. It proclaims that its tasks are to use criminal punishments to struggle against all counter-revolutionary and other criminal acts in order to safeguard the system of the people's democratic dictatorship and the smooth progress of the course of socialist re-construction. In the early days of the Chinese soviet, the legal traditions of the USSR were heavily influential. Prior to that, western European civil law traditions had influence over the development of legal principle. The impact of the laws of imperial China is perhaps most clearly survived in the institutional structures of Chinese criminal justice.

It took 30 years for the People's Republic of China to enact its first laws. Until 1979 there were no legislative legal standards to guide judges to try criminals. The criminal law takes the Constitution as its basis. Article 28 of the Constitution stipulates that:
 
The State maintains public order and suppresses treasonable and other criminal activities that endanger State security; it penalizes acts that endanger public security and disrupt the socialist economy and other criminal activities, and punishes and reforms criminals.⁵⁷

The Chinese government revised the Criminal Procedure Law in 1996 and the Criminal Law in 1997.⁵⁸ The revisions promised increased protection for criminal suspects and defendants and a fairer trial process.⁵⁹ The amendments to the Criminal Procedure Law included an expansion of the right to counsel, a more meaningful role for defence attorneys during the pre-trial and trial stages, and other measures to address the problem of 'decision first, trial later' (xian ding hou shen). The amended Criminal Law abolished the provision on 'analogy' contained in the 1979 Criminal Law. Under this provision, a person could be punished for an act that was not explicitly prohibited by law at the time the act was committed by providing for punishment according to the closest analogous provision of the Criminal Law.⁶⁰ The revised Criminal Law also replaced 'counter-revolutionary' crimes with 'crimes of endangering national security' as part of an effort to depoliticise criminal law, at least on paper.

A wide discrepancy often exists in China between the law on paper and the law in practice. Criminal suspects and defendants frequently do not enjoy the enhanced protections found in the revised laws. Excessive pre-trial detention has not been stamped out. Legal representation, widespread as it now may be is compromised by regular instances where public security organs detain and punish active defence advocates. The presumptions of innocence, and against self incrimination, constitutionally accorded, and declared in the International Covenant of Civil and Political Rights (ICCPR) which China has signed, are common casualties in criminal justice delivery. Torture remains a feature of policing practice.

Although the revisions to the Criminal Procedure Law and the Criminal Law reflect progress toward internationally recognised criminal justice standards as set, forth in the Universal Declaration of Human Rights, the ICCPR, and other international human rights documents, the administration of criminal justice in China has been criticised for falling far short of international standards.⁶¹ These criticisms; should be seen against the prominence given in China to communitarian over individual rights. In addition, the excesses of a one party state, and its functionaries with little regard for the law in practice, should not be confused with an institutionalised commitment to subvert international rights conventions.

Most legal scholars have not completely abandoned the idea of 'Chinese characteristics' or 'China's social  situation" for explaining the actual discrepancies between the PRC's CPL and international standards, but they speak about it in quite flat and unconvincing tones. Moreover, they often identify China's retrograde legal mentality as one of the key factors that hinder legal progress and reforms... (following on from the administration's recent denunciation of the excesses of public justice officials, the state) demonstrates its

benevolence in its willingness to defend individual rights and it makes obvious to its citizens that criminal justice reforms are an actual 'Chinese necessity' and not an imposition from abroad. On the other side, in promoting ideas of proceduralism and respect of human rights, it internationally shows its goodwill to adhere to international standards.⁶²

However, as Nesossi rightly observes, criminal justice reform in China cannot be entirely explained as an effort to enhance state legitimacy, domestically and internationally. Pressures coming out of rapid changes in Chinese social order, which in turn have increased the significance of crime and the fragility of conventional approaches to control, have required a re-interpretation of the relationship between the offender, the victim and state institutions. In addition, legal academics and professionals, as well as activists with a growing voice are pushing for rights-based reforms. Above all this, the Chinese compromise of individual rights and social security prevails negotiated as it will continue to be by the interests of the one party state. The debate about the compliance of Chinese criminal justice in practice with international human rights will be distorted if taken exclusively from perspectives outside Chinese legal and social traditions. Both Confucian and Chinese communist philosophies emphasise order over freedom, duty over rights and group interests over those of the individual.⁶³ 'The main objective of the Chinese criminal justice system is to protect, first of all, the socialist order, and next, the people's personal rights.’⁶⁴

The challenge for a relevant 'rights and justice' debate in China is to recognise the ' I political force of collective and state interests over the protection of the individual, while not sacrificing the sharp edge of international human rights conventions. This is1 in light of the invitation to emphasise the significance of criminal justice in protecting the individual as well as the collective, through the Constitution's celebration of constitutional legality, and the invocation of the rule of law.

Article 3 of the Chinese Criminal Law provides .that offenders 'shall be determined and punished ... in accordance with the law'. Besides art 33 of the Constitution, art 4 of the Criminal Law states, "Anyone who commits a crime shall be equal in applying the law. No one is privileged to be beyond the law.” Article 5 equates punishment with the crime committed and the criminal responsibility to be borne by the offender.

When it comes to pre-eminent considerations of individual rights like that of the victim as an essential paradigm for international criminal justice, Chinese criminal law presents the rights of the individual (even victims) as subordinate to the public duty to control crime when there is a conflict between the two. This is despite provisions allowing for civil claims along with criminal prosecution. Provisions for victim participation in mediation and the trial process, as well as the opportunities for compensation,⁶⁵ mean that the protection of victim interests are in keeping with the intentions of the Rome Statute, the practice of the international criminal tribunals, and are consistent with international rights conventions. These are not merely symbolic balances against abuse of power and miscarriages of justice. For instance, the Supreme People's Court President Xiao Yang recently indicated that legal action by the public against government officials had risen in the past 6 years, with an average of 100 000 cases now being heard each year.⁶⁶ Echoing the concern of the Chinese Politburo Standing Committee about unjust official practice, a senior member said:

The Party and the country have attached great importance to administrative trial work. Administrative litigation plays an indispensable function in realising the rule of law, building a lawful socialist country, and forging a harmonious society.⁶⁷

This said, the translation of constitutional legality in the form of due process into Chinese criminal justice is a suspect as the state's ideological commitment to communitarianism. 'One-party* state politics is not conducive to accountable justicial power particularly in a tradition of governance such as in China where historically and recently law is not above politics, or constitutional law superior to| executive administration.66