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

THE CHINESE LEGAL FRAMEWORK

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

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

KEY ISSUES

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

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

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

THE INTERNATIONAL LAW FRAMEWORK 

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

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

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

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

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

Sartaz graduated with a First-Class LLB (Hons) degree from the University of Hertfordshire and aims to practice as a public law barrister in the future. He is currently working as a Paralegal for a class action firm and has volunteered for the following organisations in the past: Citizens Advice, Shelter UK, and the Hertfordshire Law Clinic. His commitment towards pro bono services earned him the LawWorks and Attorney General Award for the ''best contribution by an individual'' in 2020.

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