Wrongs and Rights: A Human Rights Analysis of China's Revised Criminal Law
This paper is an analysis of the overhaul of China's substantive Criminal Code which went into effect on October 1, 1997. The changes that have been enacted, while quite extensive, cannot be viewed as an effort to liberalize, much less to advance human rights. Instead, the watchwords of the Criminal Code reform are modernization, rationalization and professionalization. These all speak to the desire of the present Chinese leadership to ground its legitimacy in the law, as previous generations of leaders sought legitimacy from their revolutionary credentials, their military authority, or their technocratic skills. The pursuit of this goal means that, in sharp contrast to the past, the law must appear as neutral and non-ideological as possible.
The overarching logic of the new Code is to rationalize and to modernize, to reduce the exercise of discretionary power, to depoliticize the law, and to keep pace with the momentous changes that have taken place in Chinese society since the adoption of the 1979 Code. The ideological trappings of the old Code are all but gone. Preambular language about the primacy of Marxism-Leninism-Mao Zedong Thought and the dictatorship of the proletariat has given way to invocation of the Constitution. The revised Code brings together criminal provisions that were previously scattered in a variety of statutes. Many new offenses are added, while old ones are more sharply defined. Penalties are revised to be consistent with the crime. This is a document that is designed less to be wielded against ideological adversaries than to be applied in a consistent and rational manner by people with specialized legal skills.
But from the point of view of movement toward international human rights standards, the revisions to the Criminal Code add little. What progress there is, when taken in conjunction with the 1996 reforms to the Criminal Procedure Law, is largely at a procedural rather than substantive level. The overt influence of international norms is less marked in the case of the Criminal Code. When revisions to the Criminal Procedure Law were under discussion, proponents of reform drew explicitly on international human rights law to bolster their arguments for strengthening the rights of criminal defendants. Similar arguments appear to have prevailed mainly in the Criminal Code's abolition of the former Code's provisions on analogy, which had made it possible for someone to be punished for an act that was not prohibited by any statute.
The aspect of the revisions that has received the greatest attention internationally--the relabeling of "crimes of counterrevolution" as "crimes endangering state security"--provides no encouragement at all from a human rights perspective. On its face, this change is part of a general trend to depoliticize the law. Yet the revisions' effect--and their evident intention--is actually to increase the state's ability to criminalize internationally recognized rights of free expression and association by adding to the already lengthy list of punishable offenses. An even more serious failure of the revisions is that they did nothing whatsoever to rationalize, let alone liberalize, the operation of penal institutions, such as re-education through labor, which continue outside the statutory framework of the Criminal Code.
Donald C. Clark, Wrongs and Rights: A Human Rights Analysis of China's Revised Criminal Law, Lawyers Committee for Human Rights, December 1998.