Transcript The National People's Congress (NPC)

The National People's Congress (NPC)
The National People's Congress is the highest organ of State power in the People's
Republic of China. Its main functions and powers include legislative power, appointing
and removing power, decisive power and supervising power
I.
The State legislative power:
The NPC has the right to enact and amend the Constitution of the People's Republic
of China, and to enact and amend basic laws concerning criminal offenses, civil
affairs, the State organs and other matters.
II. The power to select, decide and remove the members of the high-level State
organs and their power:
The NPC has the following rights:
--to select the members of the Standing Committee of the NPC;
--to elect the President and the Vice-President of the People's Republic of China;
--to decide on the choice of the Premier, Vice-Premiers, State Councilors, Ministers in
charge of ministries or commissions, the Auditor-General and the Secretary-General
of the State Council;
--to elect the Chairman of the Central Military Commission and, upon nomination by
the Chairman, to decide on the choice of all other Members of the Central Military
Commission;
--to elect the President of the Supreme People's Court and the Procurator-General of
the Supreme People's Procuratorate.
--The NPC has the right to remove the Members it has elected.
The National People's Congress (NPC)
[cont’d]
III. The decisive power of major State events:
The NPC has the right to examine and approve the
report on implementing the plan for national economic
and social development; to examine and approve the
state budget and the report on its implementation; to
approve the establishment of provinces, autonomous
regions and municipalities directly under the Central
Government; to decide on the establishment of special
administrative regions and the systems to be instituted
there; to decide on questions of war and peace; and
other functions and powers as the highest organ of State
power should exercise.
The National People's Congress (NPC)
[cont’d]
IV. The supervising power over other highest State organs:
• The NPC has the right to supervise the implementation of the
Constitution. According to the Chinese Constitution, the State Council,
the Supreme People's Court and the Supreme People's Procuratorate
are all created by the NPC, responsible to it and supervised by it. The
NPC's exercise of its supervisory right is to supervise the government
and other State organs on behalf of the people. This supposed to
safeguard the “normal operation” of the State apparatus.
• Under the current Constitution and related laws, the NPC holds a
session on the first quarter of each year. convened by its Standing
Committee. The NPC is elected for a term of five years .
Standing Committee of the NPC
The Standing Committee of the NPC is the permanent supreme State organ of
power and legislation. It exercises the highest State power and legislative
power when the NPC is not in session – all but two weeks of the year.
The Standing Committee is composed of 153 members, none of whom can
assume an office in State administrative, judicial and procuratorial organs.
The Standing Committee of the NPC exercises several main functions and
powers. It interprets the Constitution and supervises its implementation,
enacts and amends laws, with the exception of those which should be
enacted by the NPC, partially supplements and amends laws enacted by
the NPC when it is not in session, and interprets the laws.
Since 1979, the Standing Committee of the NPC has enacted over 280 laws,
and the standing committees of local people's congresses have drawn up
over 3, 000 local rules and regulations .
“Special Committees” of the NPC
The special committees, both permanent and provisional, are organs
representing the NPC. When the NPC is in session, the main work of the
special committees is to study, examine and draw up related motions.
When it is not in session, they work under the direction of the NPC
Standing Committee.
Currently, there are eight permanent special committees:
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the Nationalities Committee
Law Committee
Financial and Economic Committee
Educational, Science, Culture and Public Health Committee
Foreign Affairs Committee
Overseas Chinese Committee
Committee for Internal and Judicial Affairs and
Committee on Environmental and Resource Protection.
People's Procuratorates of the PRC
Article 130 of the Constitution of the People's Republic of China
provides that the PRC establishes the Supreme People's Procuratorate,
local people's procuratorates at different levels, the military
procuratorates and other special people's procuratorates.
Nature and Tasks
Article 129 of the Constitution of the People's Republic of China states that
the people's procuratorates are state organs for legal supervision.
By exercising their procuratorial authority, the people's procuratorates:
“suppress all treason, attempts to split the country or other
counterrevolutionary activities, and prosecute counterrevolutionaries and
other criminals.”
“Their purpose is to safeguard the unity of the country, the people's
democratic dictatorship and the socialist legal system; to maintain public
order, including order in production and other work, in education and
scientific research, and in the daily life of the people; to protect the
socialist property owned by the whole people and by collectives and the
private property lawfully owned by individuals; to protect the citizens'
rights of the person and their democratic and other rights; and to ensure
the smooth progress of socialist modernization.”
People's Procuratorates of the PRC
(cont’d)
Functions and Powers
The people's procuratorates exercise the following functions and powers:
• procuratorial authority in cases of treason, of attempts to split the country and of other
major crimes that violate state policies, laws, decrees and administrative orders;
• investigate cases involving graft, infringement of citizens' democratic rights, dereliction of
duty and other cases which they deem necessary to handle directly, and decide whether to
arrest the offenders and initiate public prosecution;
• review cases investigated by the public security organs and state security agencies and
decide whether to approve arrest and whether to prosecute; supervise the investigation
activities of public security organs and state security agencies to determine whether they
conform to the law;
• initiate and support public prosecutions of criminal cases; supervise the criminal trials of
the people's courts to determine whether they conform to the law;
• supervise the verdicts and sentences of the people's courts in criminal cases to determine
whether they conform to the law; in cases where they find definite errors, lodge protests in
accordance with the procedure for appeal; supervise the execution of sentences in
criminal cases and the activities of prisons, houses of detention and institutions in charge
of reform or rehabilitation through labor to determine whether they conform to the law;
• exercise legal supervision over trials of civil suits by the people's courts;
• exercise legal supervision over administrative litigation and;
• protect citizens' legal right to lodge complaints or petitions against state functionaries who
violate the law; investigate the legal responsibility of those who infringe upon other citizens'
rights of the person or their democratic or other rights; deal with the citizens' accusations,
reports of wrongdoing and petitions.
People's Procuratorates of the PRC
(cont’d)
Organizational Structure
(i)The Supreme People's Procuratorate
(ii)Local People's Procuratorates
• These include:
• -people's procuratorates of provinces, autonomous regions and municipalities
directly under the Central Government;
• -branches of the above, and people's procuratorates of autonomous prefectures
and cities directly under the provincial governments; and
• -people's procuratorates of counties, cities, autonomous counties and municipal
districts.
(iii)Special People's Procuratorates
• There are two types of special people's procuratorates – military and railway
(iv)The Procuratorial Committee
• Each people's procuratorate has a procuratorial committee. The committee is
expected to institute the system of democratic centralism and, under the
direction of the chief procurator, to discuss and decide important cases and
other major issues, on the principle of the minority being subordinate to the
majority. If the chief procurator disagrees with the majority's decision on an
important matter, it is referred to the standing committee of the people's
congress at the corresponding level for final decision.
Supreme People's Procuratorate of the
PRC
The Supreme People's Procuratorate is the highest procuratorial organ of the state.
Its main functions and powers are :
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direct the work of the local people's procuratorates at the various levels and that
of the special people's procuratorates;
exercise procuratorial authority in major criminal cases that have an impact on
the entire country;
lodge a protest, in accordance with the procedures for judicial supervision, if
some definite error is found in a legally effective verdict or sentence by a
people's court at any level;
supervise the activities of prisons, houses of detention and institutions in charge
of reform through labor;
supervise trial of civil suits and administrative litigation;
interpret laws applied to procuratorial practice;
formulate regulations, provisions and rules for procuratorial practice;
determine the organizational structure and staff size of the people's
procuratorates at all levels.
Supreme People's Procuratorate of the
PRC (cont’d)
The Supreme People's Procuratorate consists of the following
departments:
• Criminal Procuratorial Department
• Procuratorial Department for Embezzlement and Bribery
• Procuratorial Department for Dereliction of Duty and Infringement of
Citizens' Rights
• Procuratorial Department for Railways
• Procuratorial Department for Prisons and Reformatories
• Procuratorial Department for Civil and Administrative Cases
• Procuratorial Department for Accusations and Petitions
Supreme People's Court of the PRC
The Supreme People's Court is the highest judicial organ in China and is
responsible to the NPC and its Standing Committee.
• It independently exercises the highest judicial power according to the law
and (supposedly) without any “interruption” by administrative organs,
social organizations or individuals.
• Its structure comprises a judicial committee, or the highest judicial
organization, and followingcourts:
– the No.1 Criminal Tribunal and the No.2 Criminal Tribunal,
– the Civil Tribunal,
– the Economic Tribunal,
– the Administrative Tribunal,
– the Complaint and Appeal Tribunal and
– the Communication and Transportation Tribunal.
Supreme People's Court of the PRC
(cont’d)
Responsibilities:
• According to the PRC Constitution and organic statutes, the Supreme
People's Court is charged with three responsibilities:
– First, trying cases that have the greatest influence in China, hearing
appeals against the legal decisions of higher courts, and trying the
cases the Supreme People's Court claims are within its original
jurisdiction.
– Second, supervising the work of local courts and special courts at
every level, overruling wrong judgements they might have made, and
deciding interrogations and reviewing cases tried by the lower courts.
– Third, giving judicial explanations of the specific utilization of laws in
the judicial process that must be carried out nationwide.
From State Dept. 2012 Human Rights
Reports on the PRC
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Repression and coercion, particularly against organizations and individuals involved
in rights advocacy and public interest issues, were routine.
Individuals and groups seen as politically sensitive by authorities continued to face
tight restrictions on their freedom to assemble, practice religion, and travel. Efforts
to silence and intimidate political activists and public interest lawyers continued to
increase. Authorities resorted to extralegal measures such as enforced
disappearance, “soft detention,” and strict house arrest, including house arrest of
family members, to prevent the public voicing of independent opinions.
Public interest law firms – and lawyers - that took on sensitive cases continued to
face harassment, disbarment of legal staff, and closure.
There was severe official repression of the freedoms of speech, religion,
association, and harsh restrictions on the movement of ethnic Uighurs in the
Xinjiang Uighur Autonomous Region (XUAR) and of ethnic Tibetans in the Tibet
Autonomous Region (TAR) and other Tibetan areas.
Abuses peaked around high-profile events, such as the visit of foreign officials,
sensitive anniversaries, and in the period leading up to the meeting of the 18th
Party Congress in November.
From State Dept. 2012Human Rights
Reports on PRC (cont’d)
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Citizens did not have the right to change their government, and citizens had limited forms of
redress against the government.
Other human rights problems during the year included:
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extrajudicial killings, including executions without due process; enforced disappearance and
incommunicado detention, including prolonged illegal detentions at unofficial holding facilities known
as “black jails”;
torture and coerced confessions of prisoners; detention and harassment of lawyers, journalists,
writers, dissidents, petitioners, and others who sought to exercise peacefully their rights under the
law;
a lack of due process in judicial proceedings; political control of courts and judges; closed trials;
the use of administrative detention; restrictions on freedom to assemble, practice religion, and travel;
failure to protect refugees and asylum seekers; pressure on other countries to forcibly return PRC
citizens to China;
intense scrutiny of and restrictions on nongovernmental organizations (NGOs);
discrimination against women, minorities, and persons with disabilities;
Despite reported reconsideration, continuing a coercive birth-limitation policy that in some cases
resulted in forced abortion (sometimes at advanced stages of pregnancy) or forced sterilization;
trafficking in persons;
prohibitions on independent unions and a lack of protection for workers’ right to strike; and the use of
forced labor, including prison labor.
Corruption remained widespread. Authorities prosecuted a number of abuses of power,
particularly with regard to corruption. However, the internal disciplinary procedures of the
CCP were opaque and only selectively applied to senior officials. (Cf. Bo Xilai case)
PRC Attitudes on Death Penalty
• A 1995 study revealed “that the overwhelming majority of Chinese
citizens hold affirmative attitude towards the death penalty”
– Quoting Hu Yuteng “On the Death Penalty at the Turning of the
Century,” in M. Nowak and Xin Chunying (eds), EU-China
Human Rights Dialogue: Proceedings of the Second EU-China
Legal Experts, Seminar Held in Beijing on 19 and 20 October
1998 (2000), pp. 88-94 at 91-92.
• Yet in 2013, when a Chinese street hawker who scraped a meagre
existence barbecuing meat was executed, the state-ordered death
by lethal injection of Xia Junfeng, convicted of fatally stabbing two
“chengguan” urban security enforcers in 2009, prompted an all-day
battle between Chinese censors and tweeters who were outraged by
the verdict. At the same time, their was popular approval of a
sentence by a court in Beijing which issued the death sentence to a
road rage attacker found guilty of killing a toddler.
– Leo Lewis, “Tale of two executions exposes Chinese attitudes to
death penalty,” The Times, Sept. 23, 2013
Striking “Hard”
The existence of ‘strike hard campaigns’ and
determination to make examples of various
types of offender create inequities in the
application of the death penalty
Inevitably certain individuals at certain times and in
particular parts of the country are selected for
execution for non-lethal crimes such as
smuggling, fraud, running prostitution rackets,
for robbery, corruption, tax evasion, and other
offenses
Example Strike Hard Campaign: Spring 2001
– From April – July 2001: 1,781 executions
– By end of 2001: 2,468 executions (just from
Strike Hard)
Striking “Hard” – Part 2
• Most drug-related executions take place
on International (anti-)Drugs Day:
– Of 221 executions for drug offenses recorded
by Amnesty International in 1999, 196 (89%)
took place in the last week of June
– A fine way to celebrate the holiday (June 26)?
Capital Offenses in the PRC Which Would
Not Merit Death in Other Nations
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armed robbery (last reports from 1990)
economic crimes such as corruption, embezzlement, and fraud
trading in illicit drugs
kidnapping
smuggling
piracy
publishing and selling obscene materials
smuggling forged money
tax- and VAT-related offences
public order offences
trafficking in women and children
Informational Problems
Art. 212 of China’s Criminal Procedure Law
of 1997 provided for the publication of
every execution of a death sentence, and
all courts have to prepare written records
of the executions, yet no statistics on
capital punishment are published, being
still considered a state secret
Deterrence?
China claims that deterrence is working and says that death penalty is
responsible (for example) for the decline in the rate of recorded
crime from 8.9 crimes per 10,000 people in 1981 to 5 per 10,000 in
1987.
• A more recent (and often-cited) example: The Supreme People's
Court approved the death sentence against Zheng Xiaoyu, 62, who
was convicted of taking bribes worth some 6.5 million yuan
($850,000 at then-current exchange rates) from eight companies.
Among them were companies that had caused numerous deaths of
consumers, many of them infants, due to tainted milk products and
baby formula.
• Zheng, head of the State Food and Drug Administration from 1998
to 2005, was sentenced on May 29, 2007; his appeal was heard the
following month, and was executed in early July 2007.
An Atypical Case?
CHEN GUOQING, YANG SHILIANG , HE GUOQIANG , ZHU YANQIANG
Confessions extorted through Torture - Presumption of Innocence - Retrials for
"insufficient or unclear evidence"
Four times sentenced to death for murder and robbery by the Chengde City Intermediate
People’s Court between 1996 and 2003;
· Three times the Hebei High Court overturned the original sentence (s), and sent the case back
to the Intermediate Court for re-trial "on the grounds that the facts were not clear";
· All four defendants stated to the court that their confessions had been extracted under torture
and that they were forced to confess to the charges made against them.
· They were still awaiting a final verdict (as last reported in 2009!) pending an appeal against the
fourth sentence.
The four defendants’ case was tried for the fourth time on 21 July 2003, this time by the Hebei
Province High People’s Court sitting as the court of first instance, apparently in response to
the authorities’ exasperation that the intermediate-level court could not reach a sound
verdict. During the public hearing, all four men were reportedly permitted to submit their
alibis to the court, as well as present the wounds sustained during their torture to the court,
and to state the names of the police officers who tortured them. One report claims this was
the first time the co-defendants had physically been able to show their scars, having
appeared in court on all previous occasions wearing handcuffs.
Changing Chinese Attitudes Toward the Death Penalty
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Roger Hood,Professor Emeritus of Criminology at the University of Oxford, has published a
report on official attitudes towards capital punishment in China.
Abolition of the Death Penalty: China in World Perspective outlines the changes over the
past decade on this issue within Chinese academic and judicial communities.
Hood observed that one of the strongest justifications for the death penalty in China is “the belief
that retribution based on the notion of ‘a life for a life’ was deeply embedded in Chinese culture;
that ignoring this support might cause social instability; and that China [is] not yet sufficiently
economically developed that it could do away with an effective criminal sanction.”
Nevertheless, Hood points out that despite secrecy around the country’s death penalty, “no one
can doubt that a movement towards restriction and eventual abolition has got under way.”
He attributes the shift in attitudes on the death penalty to the emerging international narrative
that suggests capital punishment should be treated not as “a weapon of national criminal justice
policy,” but as “a fundamental violation of universal human rights: not only the right to life but the
right to be free from excessive, repressive and tortuous punishments - including the risk that an
innocent or undeserving person may be executed.”
Hood concludes that “the last few years have witnessed a distinct change in the discourse,
evidenced by the willingness of the Chinese authorities to discuss the death penalty in human
rights seminars and dialogues with European countries, the gradual opening up of the subject to
research, and the attempt to guard against wrongful conviction and control the incidence of
executions through review of all death penalty verdicts by the Supreme People’s Court.”
A Few Other Cases
The Chinese media has given widespread coverage to two
relatively recent wrongful convictions –
1. A butcher executed for murder in 1989 was
proved innocent when his alleged victim was found alive;
2. A man (She Xianglin ) was wrongfully convicted
and imprisoned for 11 years for the murder of his wife,
who suddenly showed up alive and well one day;
however, he was presumed guilty from the start and
ultimately received compensation from the government
for physical and emotional harm suffered during the
course of his wrongful imprisonment.
Fluctuations in Death Penalty Rates
• Prior to the revision of the Criminal Law in 1997, there
were many reports of executions occurring within 6-8
days after arrest
• Since then there have been some incidents of
accelerated trials:
– In Shenzhen, April 1998, at a large public sentencing
rally 14 out of 40 defendants were sentenced to death
and then escorted to the execution ground straight
after the rally to be shot.
– When Strike Hard campaigns are in progress, for
example in Spring 2001, police, prosecutors, and
lawyers were urged to speed up the process of
criminal trials even more.
Erosion of SPC Review Power
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in February 1980, the Standing Committee of the National People’s
Congress made the following decision: For serious crimes such as
homicide, rape, robbery, bombings and arson, to which the death penalty
could be applied, provincial higher courts had the right to impose the
punishment with authorization from the SPC.
In 1983, the decision was written into the revised Organic Law of the
People’s Courts of China. Subsequently delegated this right in drug
trafficking cases successively to five local higher courts including
Guangdong Province, Guangxi Zhuang Autonomous Region and Sichuan
Province.
When the Criminal Procedure Law was revised in 1997, the SPCC was still
the sole organ to review death penalty rulings. Does delegation of the
death penalty review right to lower courts go against the Constitution.
Organic Law of PCC is just a general law, while the Criminal Law and the
Criminal Procedure Law constitute the fundamental law. Does the
constitution allow general law to violate a fundamental law?
Local courts may adopt different standards in the award of the death
penalty. Hence, a criminal who may face capital punishment in one locality
may escape the same fate in another one. According to current laws, death
penalty for criminal cases, such as homicide and rape, is subject to review
by provincial courts, while capital punishment for economic crimes and
crimes threatening state security can be reviewed by the SPC.
Relevant Provisions of ICCPR
Article 6
1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
2. 2. In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious
crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the
present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be
carried out pursuant to a final judgment rendered by a competent
court.
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4. Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. [emphases added]
The International Status of the DP
ABOLITIONIST AND RETENTIONIST COUNTRIES
More than half the countries in the world have abolished the death penalty in law or practice.
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Abolitionist for All Crimes
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Abolitionist for Ordinary Crimes Only
12
Abolitionist in Practice
24
TOTAL Abolitionist Countries
120
Retentionist Countries
76
EXECUTIONS AROUND THE WORLD
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Overall, 21 countries are known to have carried out 682 executions, according to Amnesty International's
report, titled "Death Sentences and Executions 2012". The same number of countries executed 680 people
the year before.
However, these figures omit executions in China, Syria and Egypt. China does not release its
figures, which are considered a state secret. Amnesty was unable to confirm any executions in Syria and
Egypt, but says some did occur there.
China is said in the report to have carried out more than 1,000 executions (more than the rest of world
combined), although that's not verified.
The countries with verified figures that executed the most people in 2012 are:
Iran, a minimum of 314 people.
Iraq, a minimum of 129 people.
Saudi Arabia, a minimum of 79 people.
United States, with 43 confirmed executions.
Extra-Judicial Killing
• Torture in police custody
• Reform Through Labor
• Use of Force:
– Tiananmen Square Massacre
– Against “terrorists” in Xinjiang:
• detaining and torturing Muslims in Xinjiang by labeling them either
“separatist” or “terrorist” for engaging in “illegal religious” activities
• Soldiers firing on peaceful protesters: Demonstration in Gulja in
February 1997 resulted in death or serious injury. Local people
were protesting for equal rights for Uighurs when security forces
used violence to break up the protest. Several people were shot
and demonstrators were reportedly hosed down with icy water
– Against “separatists” in Tibet
– Beatings of Falungong Members
SPC review of death sentences
• China's top court “regained” power to review
death sentences at the end of the last decade
• The authorities moved to stem criticism that the
death penalty was too widely used
• The Supreme Court passed its right to review to
lower courts in the 1980s, and a series of
subsequent miscarriages of justice subsequently
come to light.
• The Supreme People's Court set up three
branch courts in order to conduct the reviews,
according to Chinese state media
SPC Death Penalty Review Begins
From January 1, 2007, the SPC was supposed to review all death
sentences in China.
• Three criminal tribunals were set up as a supplement to the existing
two, and the review team has been expanded, according to the
court.
• New members are selected from local courts, lawyers and law
schools, and must finish a three-month training at the Supreme
People's Court. They serve on probation for a year before officially
assuming office.
Details of the review process.
• Each case is to be reviewed by a team of three judges. They will be
required to check the facts, laws applied and criminal procedures
adopted.
• Any testimony extracted through illegal means will be declared
invalid.
• During the review, judges must arraign the defendants face to face,
and present their separate judgments and reasons in writing.
• If the case is very complicated or there are doubts over the facts,
judges can visit the place where the alleged offense took place to
check details.