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Clipping the dragon's torturous claws

June 16, 2010

Law banning evidence obtained under duress is a
small step, but one in the right direction
By Frank Ching
Special to Gulf News
June 15, 2010

Each year, the human rights report on China makes
gloomy reading. Each year, we are told "the
government's human rights record remained poor"
and, not infrequently, that the situation had deteriorated.

Next year, hopefully, there will be at least one
bright spot. This is because China has just
announced that evidence obtained through torture
will no longer be admissible in court cases, especially in death penalty cases.

Previously, torture was supposedly illegal but
evidence obtained through duress was routinely
accepted; so there was little reason for the
police to stay their hand in order to obtain
confessions and to force reluctant witnesses to
provide the required statements.

Actually, China in theory outlawed torture in
1996. But its definition of illegal acts was so
narrow that interrogators could employ a wide
range of techniques that contravened the standards set by the United Nations.

Manfred Nowak, the United Nations rapporteur on
torture, visited China in 2005 and was allowed to
go to prisons, detention centres and
"re-education through labour" camps in Beijing as
well as Tibet and Xinjiang. He said he observed a
"palpable level of fear and self-censorship"
among the prisoners that he had not seen in other countries.

Nowak said that he "believes that the practice of
torture, though on the decline -- particularly in
the urban areas -- remains widespread in China."

This finding was immediately rejected by China,
which pointed out that Nowak had only been to
three cities -- Beijing, Lhasa (the Tibetan capital) and Urumqi, in Xinjiang.

However, the new regulations on the
inadmissibility of evidence obtained through
torture implicitly acknowledge that torture remains a serious problem in China.

Two new rules on evidence were jointly issued by
the Supreme People's Court, the Supreme People's
Procuratorate, the Ministry of Public Security,
the Ministry of State Security and the Ministry of Justice.

The rules relate to evidence review in death
sentence cases and to excluding illegal evidence in criminal cases.

The new rules were issued in the aftermath of
widespread indignation over disclosure of a
murder conviction in Henan province where the
alleged murderer, Zhao Zuohai, had spent 11 years
in prison before the supposed murder victim, Zhao
Zhenshang, showed up alive and well. The murder
suspect said he was tortured into confessing to a nonexistent murder.

It turned out that the two men had had a fight in
1997 during which Zhao Zuohai was struck on the
head. The other man then ran away for fear of
prosecution and remained away for 11 years. After
Zhao went to prison, his wife remarried and two
of his children were adopted by the new husband.

A Henan court has designated May 9 -- the day
Zhao was released -- as Wrongful Conviction
Warning Day for the province. The warning should
not be confined to Henan but given to judges across the country.

The Zhao case is not the first time something
like this has happened. In 2005, another man, who
had confessed to killing his wife, was released
when she returned home after 11 years. She had
run away with another man. In both cases, police had misidentified a body.

In a sense, the men in these two cases were
fortunate. At least they were still alive when
exonerated. Others wrongfully convicted were
executed before the mistakes were discovered.
That is why China is now putting special emphasis
on death penalty cases. The country executes more
people a year than the rest of the world combined.

The new rules mark a significant step forward.

Making prosecutors responsible for showing that
evidence used was not obtained illegally is a
change in the legal mindset. It means that
instead of emphasis on not allowing the guilty to
escape punishment, the new thinking is not to
allow innocent people to be convicted.

However, it remains to be seen how these new
rules are applied. Chinese law books -- not to
say the Chinese constitution -- are full of
nice-sounding laws which are only selectively applied.

Moreover, the Chinese legal system still has a
long way to go. For example, the basic right of
each defendant to a lawyer has yet to be recognised.

And, of course, as long as judges work under the
leadership of the communist party, there will be
no independent judiciary and no true rule of law.
But the vast majority of cases are not political.
So the credible dispensing of justice by courts
in nonpolitical cases will be a big step forward.

Frank Ching is a Hong Kong-based commentator.
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