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 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 to 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 is an important
condition safeguarding 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. The Standing
Committee is composed of 153 members, none of whom
can assume an office in State administrative, judicial and
procuratorial organs, which is seen to be beneficial . 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, 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. It's main functions and powers are as follows:
• 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 right
according to the law and without any interruption by
administrative organs, social organizations or individuals.
Its structure comprises a judicial committee, or the
highest judicial organization, and courts or the No.1
Criminal Tribunal, 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 Constitution and 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. 2003-05 Human
Rights Reports on PRC
 “The Government's human rights record remained poor,
and the Government continued to commit numerous and
serious abuses.”
 “Abuses included instances of extrajudicial killings, torture
and mistreatment of prisoners, forced confessions,
arbitrary arrest and detention, lengthy incommunicado
detention, and denial of due process.”
 “The judiciary was not independent, and the lack of due
process remained a serious problem. Government
pressure made it difficult for Chinese lawyers to represent
criminal defendants. A number of attorneys were detained
for representing their clients actively.”
From State Dept. 2003-05 Human
Rights Reports on PRC (cont’d)
 “Over 250,000 persons were serving
sentences, not subject to judicial review,
in ‘reeducation-through-labor’ camps.”
 “The Government severely restricted
freedom of assembly and association and
infringed on individuals' rights to privacy.”
 Every year since PNTR, China’s record
has gotten worse.
PRC Attitudes on DP
• 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.
Striking “Hard”
The existence of ‘strike hard campaigns’ and
determination to make examples of various
types of offender
Inevitably certain individuals at certain times and in
particular parts of the country are selected for
execution for smuggling, fraud, running
prostitution rackets, for robbery, corruption, tax
evasion, and other offenses
Recent Strike Hard: 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 taking place
on International (anti-)Drugs Day:
– 221 executions for drug offenses recorded by
AI in 1999, 196 (89%) took place in the last
week of June
– A fine way to celebrate the holiday?
Capital Offenses in the PRC Which
Would Not Merit Death in Other
Nations
• Execution for
–
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–
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–
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–
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armed robbery (reports last 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.
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.
· Awaiting a final verdict pending an appeal against the fourth sentence.
The four defendants’ case was tried for the fourth time on 21 July 2003, this time by 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.
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 DP Rates
• Prior to the new 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 are urged to speed up the process of criminal
trials even more.
Fluctuations in DP Rates (cont’d)
• Fluctuations in the death penalty can be
seen month-by-month in China, as seen in
1999:
– 135 executions in January
– 41 in March
– 381 in June
– 91 in August
– 4 in October
– 26 in November
Erosion of SPC Review Power
•
•
•
•
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.
***
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.
Abolitionist for All Crimes
84
Abolitionist for Ordinary Crimes Only
12
Abolitionist in Practice
24
TOTAL Abolitionist Countries
120
Retentionist Countries
76
EXECUTIONS AROUND THE WORLD
In 2004, there were at least 3,797 executions in 25 countries around the world. China, Iran, the United
States, and Viet Nam were responsible for 94 percent of these known executions. The following countries
executed defendants in 2004 (most figures are only of confirmed executions):
Most Executions in 2004
1. CHINA (At least 3,400 Executions)
2. IRAN (Approx. 159)
3. VIET NAM (Approx. 64)
4. UNITED STATES (59)
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 to review death sentences
• China's top court to regain power to review
death sentences
• The authorities move to stem criticism that
the death penalty is 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 have recently
come to light.
• The Supreme People's Court is setting up three
branch courts in order to conduct the reviews,
according to Chinese state media
SPC Death Penalty Review Begins
Since January 1, 2007, the SPC is supposed to review all death
sentences in China.
• Three criminal tribunals have been set up as a supplement to the
existing two, and the review team has been expanded, according to
the court.
• New members have been selected from local courts, lawyers and
law schools, and have finished a three-month training at the
Supreme People's Court. They are currently on probation for a year
before officially assuming office.
Details of the review process.
• Each case will 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.