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Hong Kong-based journalist and commentator Frank Ching.
Hong Kong-based journalist and commentator Frank Ching.

Frank Ching

In China, a step toward justice Add to ...

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 has deteriorated.

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

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Torture has been illegal in China since 1996. But the definition of an illegal act is so narrow that interrogators are able to employ a wide range of techniques that contravene standards set by the United Nations. The courts, meanwhile, routinely accept evidence obtained under duress, so there is little reason for the police to stay their hand when seeking a confession or to force a reluctant witness to provide a statement.

Manfred Nowak, the UN special rapporteur on torture, visited China in 2005 and was allowed to visit 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.

Mr. Nowak said that he believes "the practice of torture, though on the decline … remains widespread in China."

This finding was rejected by China, which pointed out that Mr. Nowak had been to just three cities - Beijing, Lhasa and Urumqi. However, the new regulations on the inadmissibility of evidence obtained through torture implicitly acknowledge that it remains a serious problem in China.

Two new rules on evidence have been 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-penalty cases and to excluding illegal evidence in criminal cases.

The new rules were issued in the aftermath of widespread indignation over the case of Zhao Zuohai, who, after being convicted of murder, spent 11 years in prison before the supposed victim showed up alive and well. Mr. Zhao said he had been tortured into confessing to a murder that had never happened. A Henan court has designated May 9 - the day he was released - as Wrongful Conviction Warning Day for the province.

The Zhao case is not the first time something like this has happened. In 2005, a 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 a sense, these two men were fortunate. At least they were still alive when exonerated. Others wrongfully convicted have been executed before the mistakes were discovered. That is why China, which executes more people each year than the rest of the world combined, is now putting special emphasis on death-penalty cases.

The new rules mark a significant step forward both for the legal system and for the protection of human rights. Making prosecutors responsible for showing that evidence was not obtained illegally is a change in the legal mindset. Instead of emphasizing the importance of not allowing the guilty to escape punishment, the new thinking is meant to ensure that innocent people are not convicted.

It remains to be seen, however, how the new rules are applied. China's law books - not to mention its constitution - are full of nice-sounding laws that are only selectively applied.

Moreover, the Chinese legal system still lacks basic safeguards. The right of every defendant to a lawyer, for example, has yet to be recognized.

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 author of China: The Truth About Its Human Rights Record.

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