China’s Fourth Plenum: More Court Accountability, Less Death Penalty?

Earlier on Lawfare, I wrote about the outcome of the Chinese government’s Fourth Plenum---a key meeting of the Central Committee of the Chinese Communist Party which wrapped up about two weeks ago. Below, I outline three additional legal developments from the session, including proposed court reforms and some effective changes to the death penalty procedures in China. First up, and despite some speculation to the contrary, Zhou Yongkang, the disgraced former member of the Politburo Standing Committee and head of the Central Political Legislative Committee, was not formally sentenced for corruption. Reuters quotes a "senior court official" as saying instead that China has not started legal proceedings against Zhou and that any such proceedings would be handled by the courts "in compliance with the law." A senior Communist Party official quoted in the same article said Zhou's fate was not discussed at the plenum because he is no longer a member of the central leadership. Additionally, a Communist Party Central Committee communique on the Fourth Plenum released on the Thursday after the meeting (here in Mandarin and here translated into English), as well as a Central Committee Decision on these issues released on the subsequent Tuesday, both proposed several reforms. One of these would be the institution of “circuit courts” that would exercise jurisdiction across existing districts. The Wall Street Journal reports that the move would aim to mitigate the ability of local officials to influence court decisions, much like the decision to transfer authority over financing and staffing at local courts to provincial bodies. However, while detrimental to corrupt local officials, such a move would consolidate Beijing’s power because the circuit courts would be directly answerable to the central leadership. Other prospective changes include a new “system for tracking, reporting on and punishing” officials who are judged to have handled cases inappropriately, and for picking court personnel that are from the legal profession, not from the ranks of party members with little training in law. The Central Committee’s materials also suggest that, going forward, judges should have lifetime accountability for major decisions; it isn’t completely clear yet what that might mean, though, as this and other proposals await implementation. Also, the decision paper endorsed increased government transparency standards, whereby disclosure of state-held records would now be the norm and non-disclosure the exception. As expected however, while the communique does say that the constitution is the “core” of the country’s legal system, it also states that the legal document rightly establishes the CCP as the “leading party.” The reform package is thus envisaged as reinforcing the political status quo by “improving governance” and public perceptions of the Party, and not as encouraging the development of an independent judicial “advocate” for the people. Cheng Li, a senior fellow at the Brookings Institution, said that while the report following the Fourth Plenum is not a “landmark decision,” it is the “beginning of China’s fight for constitutionalism.” Others say that even if China is moving on legal reform, it is doing so “very slowly.” Finally, several news outlets, including the New York Times, remarked on the timing of a draft amendment submitted to the Standing Committee of the National People’s Congress last Monday that would remove the death penalty as a punishment from 9 crimes. The last time China made a change to its policy on the death penalty was in 2011, when it removed it as a punishment from 13 crimes in favor of life imprisonment. That move was largely symbolic, as most of the aforementioned crimes were non-violent and the death penalty was rarely utilized. The People’s Daily produced an infographic that lists categories of crimes still punishable by death in the People’s Republic, as well as the crimes that would be designated as non-capital. For those who cannot read Mandarin, I have translated the infographic and struck through the crimes whose punishment is set to be downgraded. Without further ado, here are the crimes you can still be executed for in China: 1)  Crimes that threaten national security

1. Treason
2. Separatism
3. Armed rebellion, rioting
4. Defecting to or fraternizing with an enemy state
5. Espionage
6. Stealing, spying, bribing or illegally providing government secrets/intelligence for external institutions, organizations or individuals
7. Abetting the enemy

2)  Crimes that threaten public security

1. Arson
2. Flooding
3. Bombing
4. Poisoning
5. Introducing a dangerous substance
6. Threatening public security using a dangerous method, broadly construed
7. Destroying electrical facilities
8. Destroying flammable or explosive facilities/equipment
9. Hijacking aircraft
10. Illegally producing, buying, selling, transporting, mailing or stockpiling firearms, ammunition or explosives
11. Illegally buying, selling or transporting nuclear materials
12. Illegally producing, buying, selling, transporting or stockpiling dangerous materials/substances
13. Stealing firearms, ammunition, explosives or dangerous materials/substances
14. Pillaging firearms, ammunition, explosives or dangerous materials/substances

3)  Crimes that destroy the order of the socialist market economy

1. Producing or selling fake medicine
2. Producing or selling poisonous or dangerous food products
3. Smuggling weapons or ammunition
4. Smuggling nuclear materials
5. Smuggling counterfeit money
6. Forging money
7. Financial fraud

4)  Crimes that violate citizens’ civil rights or democratic rights

1. Intentional homicide
2. Rape
3. Kidnapping
4. Trafficking women and children
5. Intentional assault

5)  Crimes that infringe on property

1. Robbery

6)  Crimes that infringe upon social order

1. Escaping from prison
2. Raiding a prison
3. Smuggling, selling, transporting or manufacturing drugs
4. Organized prostitution
5. Forced prostitution

7)  Crimes that threaten national defense interests

1. Destroying weaponry, military facilities and military communications
2. Knowingly provide substandard weaponry or military facilities

8)  Corruption

1. Embezzlement
2. Accepting bribes

9)  Breach of duty by soldiers

1. Insubordination during wartime
2. Concealing or falsely reporting a military situation
3. Refusing to pass or falsely passing military orders
4. Surrender
5. Deserting at a critical juncture/Cowardice
6. Defection
7. Hindering the execution of military duties
8. Spreading rumors to mislead people during wartime
9. Stealing, spying, buying or illegally providing military secrets for external forces
10. Stealing or pillaging weaponry or military materials
11. Illegally sell or transfer ownership of weaponry
12. Killing innocent civilians or plundering their property during wartime