EDITOR’S note:

PAN Shuhong, attorney at law and managing director of law firm Shanghai Hundge, is also deputy director of both the Criminal Law Research Committee under the Shanghai Bar Association and Center of Jurisdiction and Procedure Law Studies of Fudan University. Shanghai Daily reporter Li Xinran recently interviewed him about the death penalty amid deliberations over abolition of capital punishment for some crimes as part of the legal reforms.

Q: The death penalty has always been part of China’s legal system. Why?

A: The question is connected to our country’s legal history, our modern history and legal system building in three decades since reform and opening up.

The death penalty has played a positive role in curbing and punishing criminal acts since the establishment of P.R. China as well as the restoration of our legal system after the “cultural revolution” (1966-76).

Violent crimes have never disappeared over the past 30 years. Meanwhile, corruption has become another serious problem. There are strong voices urging severe punishment, even the death penalty, against corrupt officials.

The recently proposed ninth amendment of our criminal code as well as some other revised provisions has showed our legislators’ efforts to abolish the death penalty step by step.

This time the National People’s Congress may scrap the death penalty for nine out of 55 crimes, including organizing prostitution and smuggling weapons and nuclear materials.

But if we cancel the death penalty for all the crimes at once, it would contradict some of the goals of China’s legal development, as violent crimes, terrorism and acts that endanger national security are still there.

Q: Since the death penalty was once a kind of retaliation, especially in the early stage of human history, what is its meaning in our legal system nowadays?

A: The death penalty in our criminal law is not exactly retaliation.

Retaliation means life for life, eye for eye or wounds equal for equal. None of the capital punishment for the 55 crimes is exactly retaliation.

For example, embezzlement and bribery may lead to a death sentence. The death penalty here is adopted to curb crimes to prevent them from happening and to warn any potential violators like the Sword of Damocles. That’s part of the very reason we still keep the death penalty.

Q: Do you think the death penalty is too harsh for crimes of property violation? Do you support the idea to cut the death penalty over crimes of such kind?

A: I support the idea to cut the death penalty over crimes of property violation. Crimes of property violation are different from traditional violent crimes or terrorism. For someone who commits any crime of property violation to have his or her life deprived, the cost is too harsh. I don’t agree with that from the perspective of humanity and human rights. That’s why I had vowed to cut the death penalty for crimes of such kind. They are usually committed for very complicated reasons, and the government’s tight control over some fields is sometimes partly to blame.

In addition, the consequences of some of the economic crimes are not irreversible. Like Wu Ying’s death sentence, which created an outpouring of sympathy from the public as well as official Chinese media, and caused a nationwide debate.

Wu, 33, is an entrepreneur from the city of Dongyang in Zhejiang Province, and formerly the sixth-richest woman in China. She was convicted of financial fraud and initially sentenced to death, but the sentence was overturned by the Supreme People’s Court of China on May 21, 2012. Wu might have breached some rules or financial regulations, but the background of her case was very complicated. Furthermore, the accurate figure of her properties has to be confirmed to make sure whether she can afford the major part of the losses claimed by the prosecutors. Earlier media reports say she had more properties than prosecutors alleged and could cover a large part of her debts. That’s what the case brings us for our consideration.

Q: Media reports have unveiled wrong convictions connected with the death penalty in recent years. It cannot be denied that our justice system is not perfect. What is your appraisal for any necessary measures to avoid more tragedies from happening?

A: The question is a little bit complicated. Our justice system still has plenty of room for errors.

Mistrials and false cases were frequently unveiled in recent years. The situation is caused by many factors.

First of all, a lack of respect for due process; the second, outside forces intervening in our justice; the third is that some of our courts and procuratorates sometimes behave more like government agencies than professional judicial organs; the fourth is that some police, prosecutors and judges would rather collaborate than restrict each other. Some Law-enforcement officers or judicial staff may turn a deaf ear to lawyers’ arguments.

Our laws, including the overall frame and top-layer design, are well improved but some of our judicial officials may need their minds further improved.

For example, principles like the rule in dubio pro reo, the nature of modesty-and-restraint or retributive justice (penalty fit for crime) are already established in our criminal law, but they have yet to be strictly followed.

But in our normal practice, if someone has been arrested as a suspect, he or she will finally stand trial. The whole case will be pushed forward until the ruling is delivered. For personnel handling the case, no one would stop it or cancel it halfway. That’s why false cases could not be rectified from their earlier stage.

That’s the reality. That’s why we have to improve our due process. For anyone who may face the death penalty, we have to take the case very seriously.

Fortunately, the Supreme People’s Court has withdrawn the final approval of cases involving the death sentence, which is a major step to prevent tragedies from happening.

One of the reasons which lead to wrong convictions is that some of our judicial officials ignore due process and human rights. Some of them rely heavily on suspects’ confessions but devalue evidence or even make it worse.

In August, Nian Bin was pronounced not guilty in a final verdict at the Fujian Higher People’s Court. Before that he had been sentenced to death four times for poisoning his neighbors eight years ago. However, the alleged murder case lacked evidence from the very beginning.

Nian Bin was tortured during interrogation while police officers were suspected of falsifying evidence. Before that, we have a couple of other wrong convictions spotlighted.

Apart from what happened in China, an innocent man in the US was reported to have been compensated US$40 million as he was wrongly convicted and put behind bars for more than 17 years.

Compared with what the guy received, the sums our government paid to those wrongly convicted people were too low despite different state conditions. On the other hand, judicial officials responsible for any false case shall cover part of the compensation themselves and are punished in accordance with the law.

Q: Our Party has decided to advance the rule of law. What do you think about the policy and its future impact to our legal system?

A: The latest Fourth Plenum of the Communist Party of China’s 18th Central Committee has decided to advance the rule of law. As part of the legal reforms, it is our judicial departments’ duty and obligation to avoid wrongful convictions. Courts nationwide shall be independent from governments at all levels. Our judicial departments shall overcome interference but follow the laws only. The above-mentioned needs to be further improved.

Q: Around two thirds of countries have abolished the death penalty or as a matter of fact stopped its implementation. Will China join the club in the future?

A: Capital punishment won’t be abolished in our country in the near future, but the number of crimes that carry the death penalty has been gradually reduced since the current criminal law took force in 1997.

Including nine crimes this time, most of them involve very few offenders or the circumstances are minor.

It is a global trend to abolish the death penalty. Once the time is ripe or just simply when both society and its governance become more idealized in our country, I think we will abolish the death penalty, too. The proposed ninth amendment of our criminal law shares the same value as our Party’s decision to advance rule of law.