Introduction
The debate on the existence and fairness of the death penalty began with the rise in popularity and the establishment of human rights around the world. It is a subject of a special emphasis in criminology
and international and criminal law. The death penalty as a manifestation of special and general prevention is controversial, due to doubts about its effectiveness and ethics. Since 1988, there has been a noticeable tendency to abolish the death penalty in many countries all around the world, as a result
of international agreements, the establishment of international and fundamental human rights, as well
as political reforms in many countries of the former Soviet bloc and former colonies coming out of the control of mother states and gaining independence.[1] The noticeable tendency to renounce the death penalty in many countries demonstrates the validity of doubts about its existence. Even if the state has
not decided to abolish the death penalty completely, it has been evident for decades that although the
death penalty still exists, it is not carried out. As far as the People’s Republic of China is concerned, it
is one of the few countries in the world which still practice the death penalty for cr imes, both political
and against life or health. In this paper will be presented arguments for and against the death penalty in China, as well as its general characteristics, cases and circumstances in which the death penalty is applied.
Characteristics of the death penalty in China[2]
The debate on the death penalty in China is a very hot topic in relation to human rights and current political developments in China. There is a tendency towards a more liberal approach to the death
penalty by the Supreme Court in China, particularly when it comes to convictions for the most trivial crimes. Around 2007, the Supreme People’s Court issued a verdict imposing an approach in which
only the most serious crime would be penalised with the death penalty. At the same time, however, the
Communist Party tried to tighten up its policy and return to a very restrictive death penalty, which
would extend to many more crimes than the Supreme People’s Court would have wished. Nevertheless, the tendency towards more lenient treatment of the death penalty is a major bypass to the Criminal Policy of the People’s Republic of China, which gives hope for a complete abolition of
the death penalty in the future.
There are no official statistics on capital punishment in the People’s Republic of China. It is said that this number can reach as high as 10,000 executions. At the same time as the subject of the death
penalty in China is a hot topic in the international arena, China’s policy is still very restrictive. Only
the above-mentioned statements of the Supreme People’s Court’s line of jurisprudence began to
influence the alleviation of this strict approach. This gives hope for a significant reduction in the
number of executions. It is also unclear how the execution itself is carried out, or at least there are no
official sources confirmed by the Chinese government. Nevertheless, the main problem that raises
most doubts internationally is the ambiguity of criminal law in China. Criminal law is so vague and
open that it gives a large margin of manoeuvre to the court to punish in principle the majority of
political crimes. This raises many doubts in comparison with the basic principles of law and criminal
trial which are supposed to protect people and citizens from the arbitrariness of power. These include the principles of nullum crimen sine lege, nullum crimen sine lege scripta, nullum crimen sine lege
certa. This vagueness has two forms: firstly, 'inconsistency in imposition during anti -crime campaing and non-campaign periods, and secondly, geographical differences across jurisdictions’.
Yanda Policy
The debate on the death penalty in the People’s Republic of China cannot go without explaining what the Yanda Policy is and what impact it has on the enforcement and observance of human rights in
China. After China’s economic opening after 1978, the legal system required reforms and adjustments to the country’s economic and political situation. The slogans under which these changes took place include „equality before the law”, „independent administr ation of justice” and “handling cases according to the law”[3], which were promoted with the implementation of the first complete penal code in the People’s Republic of China. Nevertheless, even with these reforms, it is difficult to escape the influence of politics on law enforcement from day to day. The complete division of power in China does not apply to the power of adjudication, prosecution and investigation exercised by the courts and judicial policy lie in the ghettos of the Communist Party.[4] After the aforementioned economic changes and reforms in the area of criminal law, there was a mood of uncertainty and panic as a result of the
international campaign against crime. Known as „Stern Blows” or „Strike Hard” by Yanda Campaing from 1983 to 1986, it was the largest campaign against crime in China since the mid-20th century. It was the inspiration for two consecutive campaigns taking place in 1996 and 2001. These campaigns
were aimed at precivilizing crimes against public order and their aim was to reduce crime in this area
of criminal law. It was promoted as a campaign thanks to which the level of crime will significantly
decrease and security in the country will increase, but no less everything has a second face. It was first
of all a symbolic reminder that despite the reforms and economic opening in post-1978 China, the
party continues to control life and any manifestations of insubordination among citizens will be
severely punished. At the same time, the Western media and human rights organizations, including
Amnesty International, presented Yanda’s policy as a bloody fight against the opposition. According to their research, more than 3,000 people were executed in the first five months of Yanda’s campaign.[5] According to President of Supreme People’s Court Xiao Yang, the crimes against which the campaign
was primarily directed are as follows: crimes committed by Mafia-style gangs and other criminal organized groups, serious violent crimes including bombing, willful murder, armed robbery and kidnapping, crimes such as burglary, theft and other offences that “pose a serious threat” to the sense
of security of the masses, as well as crimes of corruption involving government and party officials who act as “protective umbrellas” of organized crime. [6] This campaign, regardless of its distortion from the point of view of the law, is a manifestation of the power shown by the state and the keeping of the citizen in control. Using the tools of fear and terror. Public executions were meant to show citizens
what can happen if someone does not obey the politics of the first line of the party. However, we will never find out what the real impact it had on reducing crime in China, because official crime statistics do not exist in China, or at least they are not available to the media.
Arguments against Death Penalty
The debate on the death penalty is always a very serious and controversial subject, not only in the context of the People’s Republic of China, so the arguments presented below will focus on the general
reasons and reasons why there should be no death penalty under any legal regime, including the one in
force under the Chinese Penal Code.
Human life is the highest asset protected by law, especially from the perspective of international law
and international agreements. Dignity and human life have a natural and inalienable character, which
means that no one can deprive a person of his or her dignity including himself or herself. The dignity
of the human being gives rise to one of the fundamental rights, which is the right to life. After the
tragedy of the Second World War, the international community has stepped up its efforts to introduce
appropriate legislation to protect this life. The most important and groundbreaking event was the
adoption of the First United Nations Charter and the establishment of the United Nations, as well as the adoption of the Universal Declaration of Human Rights. They became the basis for international
protection of human rights and further pacts signed for this purpose. China is not a n exception in this case and is also a party to many of these pacts and inter -national agreements.
The issue of the death penalty is always inextricably linked to the issue of respect for the human right to life. In the current UN system, the right to life is guaranteed by Article 6 of the International
Covenant on Civil and Political Rights, which prohibits arbistic deprivation of human life, emphasizes the natural nature of the right to life and imposes an obligation on States Parties to regulate the protection of life in laws. However, it allows the death penalty to be imposed by the courts.[7]
There are many arguments against the death penalty. Most of them do not even stem from the legal system itself, but mainly from philosophical foundations and natur al law. First of all, it is necessary to
answer the question whether a person has the right to decide about the life of another person in an arbitrary manner. Since murderers are punished, how it is different to deprive people of their lives under the guise of the law. Since human life is the result of love between two other people. It is a
person equipped with his own will, self-esteem and consciousness of existence in relation to other
people, it is a separate and completely autonomous entity. This autonomy is a fundamental value and
is unique to every human life. It is from the fact of its existence that the first argument against the
death penalty arises: no man – be it a parent, a procurator or a judge – is entitled or competent to decide
about the life or death of the other human being. If he or she does this, he or she exceeds the morality and law of society.[8]
Secondly, since no one has the power to decide to deprive someone of his or her life, including his or
her parents, then society as a collective is all the more incapable of deciding it. Society is a collection
and collective of many individuals, which often determines their worldview and culture. What kind of culture exists in a given society can determine the perception of such important issues as the use of the death penalty. However, society consists and will always be composed of human beings. This is
inextricably linked to the first argument which says that no human being can deprive another human being of life. Therefore, neither society nor anyone has the right to decide about the deprivation of life
because of social conditions.
Thirdly, in connection with the publication of Amnesty Int ernational, in which the organization comments on statistics on the use of the death penalty, there is no evidence of any positive impact of
the existence of the death penalty on crime reduction. The organization also calls on the UN Commission on Human Rights to continue to oppose the use of the death penalty. Amnesty
International’s reports are the only source of information for Western media on capital punishment in
China. These reports reveal that at least 726 people were subjected to the death penalty in 2003, and there is reason to believe that this number was much higher. Countries where the death penalt y is used argue that it is an effective tool in the fight against crime as a deterrent. However, this approach has no
basis either in criminological research or in psychological studies. Let me take Canada, for example, whose murder rate has fallen by 40% since it abolished the death penalty for murders.[9]
Fourthly, there is always a risk of error. In the U.S. since 1973, 113 prisoners have been released from
capital punishment, following new evidence that has cleared them of the charges against them. Some
of them, after spending many years in the cell, avoided execution in the last minute. The common
features of all cases are badly investigated by the police or the prosecutor’s office, the use of unreliable
testimonies of witnesses, material evidence, or an ineffective line of defence. Negligence on the part of
the judiciary could have allowed these people to be unjustly convicted and deprived of their lives
without the slightest reason. Such a risk is too great to allow for the existence of the death penalty at
all. There are also other cases of U.S. prisoners who have been executed despite serious doubts about their guilt..[10]
Public opinion on Death Penalty in China
At the beginning of the 21st century there was a growing awareness of the need to abolish the death
penalty for economic crimes among Chinese legal experts. They also became aware of the importance of public opinion in this regard. However, they met with the brutal opposition, which intensified the feeling that the death penalty is only a continuation and is deceptively reminiscent of Maoist practices.
At first glance, they are the only opponents of the death penalty for economic crimes, and society is practically unanimous in its positive opinion on the existence of the death penalty. However, this is a
very general approach and we should actually look at the problem more closely. First of all, it must be realised that public opinion is shaped by the media, which in the political realities of the People’s Republic of China are practically completely controlled by the Communist Party. Nevertheless, the debate on the death penalty still exists in the public sphere. It began around the year 2000 among
Chinese jurists, that is, in a more specialised circle of people. There was a significant disproportio n between the symbolic and small number of scholars against the death penalty for economic crimes and the vast majority of the population under the influence of politically controlled media. After a few
years, it expanded on a slightly larger scale and often concerned individual adjudications decided in courts in the local community. The debate took place mainly on the Internet or in local newspapers.
However, legal experts had to take into account the strong opposition from the public and in order to illustrate the scale of the problem, it is worth quoting Zhu Zhongqing who published on the Internet a text entitled „International declaration against the abolitionist trend” in January 2006. He wrote such a
text about it: The abolitionist movements that are widespread in the world today are all led by politicians and elites against the public will (minyi). This policy, which is imposed on the masses by
the elites in jurist circles, is by nature anti-democratic. Respecting the masses in a basic necessity of
democracy, the right to legislative decision must be taken in hand by the masses, and the elites of the
legislative apparatus should dispose only of a right to propose with the aim of assisting the people in
the elaboration of the laws instead of wanting to carry it out as they please. To lead the led against their will is in fact to ‘kidnap’ them![11] This text shows very well that views against the death penalty met rather with aggression and misunderstanding on the part of society and were seen as injustice against the victims of criminals who were awaiting execution.
However, opponents of the death penalty in China did not give in. They have formulated many legal
arguments for which the death penalty, in particular for economic crimes, should not have a rais on
d’etre. Their arguments can be summarised and condensed into three main points, which I will quote below:
- On the theoretical level, it is necessary to abolish the application of this sentence to economic crimes because of the lack of legitimacy of the notion of retribution;
- On a practical level, its application lacks both dissuasive and preventative effectiveness;
- By their nature, these crimes are more amenable than others to an abolitionist position[12]
Conclusion
As we can easily deduce from the arrangement of this essay, as a person originating from the Western legal culture, I am a strong opponent of the death penalty and I believe that he or she should have no
place in any legal system. However, in order not to be completely closed to new opinions, I am able to understand the fears of the Chinese people about its complete abolition. Just as I was raised in the spirit of liberalism and international human rights, so the Chinese were raised in the spirit of solidar ity
with the State and the party and total dedication to the people. We must always bear in mind the
cultural differences between communities, especially in the context of philosophical and legal debates
such as the debate on the death penalty. Nevertheless, there are clear tendencies to increase awareness,
especially among specialised legal elites in China, of the fact that the death penalty is often a cover for
the Communist Party to get rid of its opposition, especially when it is structured as it is in China. I
believe that in this essay I have presented the problem from the perspective of a rather open point of
view and ready for further arguments.
[1] „Abolishing the Death Penalty Worldwide: The Impact of a “New Dynamic” ,Roger Hood and Carolyn Hoyle Crime and Justice Vol. 38, No. 1 (2009), pp. 1-63 (63 pages) Published by: The University of Chicago Press
[2] The Death Penalty in China Today: Kill Fewer, Kill Cautiously, Susan Trevaskes ,Asian Survey Vol. 48, No. 3 (May/June 2008), pp. 393-413 (21 pages) Published by: University of California Press
[3] Courts on the Campaign Path in China: Criminal Court Work in the „Yanda 2001” Anti-Crime Campaign
Susan Trevaskes Asian Survey Vol. 42, No. 5 (September/October 2002), pp. 673-693 (21 pages) Published by: University of California Press
[4] Kandishka Jayasuriya, „Corporatism and Judicial Independence within Statist Legal Institutions in East Asia”, in Law Capitalism and Power in East Asia: Rule of Law and Legal Institutions, Ed. Kandishka Jayasuriya (London: Routlege, 1999) p. 195.
[5] Craig S. Smith, „Torture Hurries New Wave of Executions in China” New York Times, September 9, 2001, p.9
[6] Xinhua News Agensy, RMW43, April 4, 2001
[7] Shukuralieva Nartsiss, Sobczak Witold, Kara śmierci w państwach Azji Centralnej Opublikowano: PiP 2014/9/88-102
[8] Wojciech Chudy „Przeciwko karze śmierci: argumenty filozoficzne”
[9] Official site of Amnesty International
[10] Official site of Amnesty International
[11] Public Opinion and the Death Penalty Debate in China ZHANG NING and Michael Black China Perspectives No. 1 (81) (2010), pp. 85-96 (12 pages) Published by: French Centre for Research on Contemporary China
[12] Public Opinion and the Death Penalty Debate in China ZHANG NING and Michael Black China Perspectives No. 1 (81) (2010), pp. 85-96 (12 pages) Published by: French Centre for Research on Contemporary China
Wiktoria Forystek
wi***************@fo******.pl
