Chinese Executions And China Courts

China recently issued a new mandate requiring the approval of the Supreme People's Court for all executions.  I see Beijing as doing this to strengthen its hand against the provinces and I see this boding well for strengthening China's judiciary. 

A year or so ago, I was on Fox News Live to discuss international jurisdiction issues arising from the Natalee Holloway murder case in Aruba.  Before accepting this "gig," I made very clear to Fox that I knew almost nothing about criminal law and even less about Aruba criminal law.  The "show people" assured me I would not be asked to discuss either of those topics. 

So I go on LIVE TV before ten million people and the first question I am asked is on Aruba criminal law.  My mind races for a second and I then answer (without really having any clue) as though I had been handling criminal cases in Aruba for the last twenty years.  I had no choice.

I have a choice now so please forgive me for not delving terribly deeply into the criminal law implications and going right to its overall impact.  I see this new law as just another effort by Beijing to strengthen its hand against the provinces.  Consolidating the right to execute means only Beijing has the power to kill.  It also means Beijing's control over the courts has increased.

This is not to say real good will not come from this change, because I think it will. Those on China's death row can expect to get a fairer shake from China's highest court than from the judges in most of the provinces.  But, as pointed out on the Moderate Voice blog, this will not always be the case:

In December 2003, a purported gang boss who said he was tortured into confessing to corruption charges was executed in the northeastern city of Shenyang in an anti-graft crackdown.

A provincial court had issued a reprieve, citing the possibility that the torture claims might be true, but the Supreme People's Court overruled that decision and ordered his immediate death.

The BBC had this to say:

But it is unclear whether this will involve a full appeal hearing or, as it is at present in lower courts, simply a review of the paperwork from the initial trial.

Jerome Cohen, a US expert on the Chinese legal system, called the move a "step in the right direction", which shows the country's top judiciary is increasingly concerned by the death penalty system.

But he said more fundamental reform of the death penalty legislation is needed to change the way such cases are tried and appealed.

China's chief justice Xiao Yang called it "an important procedural step in preventing wrongful convictions".

"It will also give the defendants in death sentence cases one more chance to have their opinions heard," Mr Xiao said in comments carried by state media.

In a sidebar, the BBC article noted the following:

• China is believed to execute more people than rest of the world combined
• Non-violent crimes such as tax fraud and embezzlement carry death penalty
• Other crimes include murder, rape, robbery and drug offences
• China does not publish official figures on executions
• Many cases are based on confessions and trials often take less than a day, observers say

The Paper Tiger Blog, whose writer has been deeply involved with China for more than 25 years "wonders if this [new law] is another part of the Central government's efforts to reign in unruly and disobedient local governments. The optimist hopes that it marks a further strengthening of a rule of law in China with a foundation of justice, as opposed to the whims of authority."

I actually wrote the above portion of this post at the end of October, but decided it lacked enough of a business angle to run. I revived it after reading an article in the most recent "China Law Reporter" that does an excellent job of tying the change in China's execution laws to the big picture of China governance and business.  China Law Reporter is put out by the China Committee of the American Bar Association's (ABA) section on International Law and the article was co-written by the committee co-chairs, Amy Sommers of Squire, Sanders & Dempsey and Michael Burke of Williams Mullen.

Like me, Ms. Sommers and Mr. Burke see the change in China's execution laws as part of "an effort by the national government to exert greater control over, and prevent abuse by, local officials."  They also see this same dynamic at work in China's new M&A regulations applicable to foreign-invested acquisitions and in Beijing's recent crackdown on corruption and economic crimes. 

According to Sommers and Burke, the M&A regulations "grant greater supervisory powers to MOFCOM (the national body responsible for overseeing foreign investment), such as in the case of proposed sales of companies in strategic industries or projects having a bearing on 'national economic security.'"  Sommers and Burke see Beijing as wanting to crackdown on corruption for fear it could threaten social stability and eventually lead to increased challenges to party control. 

I agree. 

I see Beijing's increasing strength, particularly in the courts, as generally good for foreign businesses in or involved with China, at least in the short term. Beijing has a better understanding of the importance of such things as enforceable contracts and IP protection than most of the provinces. The more control Bejing asserts over the provincial courts, the more those courts will begin to resemble Beijing in their law enforcement. I am much more wary of the long term implications of centralized power, but I will leave that discussion to the political theorists. 

I recently discussed Beijing's battles for control in "Shanghai Corruption, Beijing Battles And The Fight For China Leadership" and in "Unsafe Mines And China IPR" and I urge those who want more on these issues to check out those posts.