Dialogue – Issue 46: Pardon Us: Asian Clemency Laps China

Recent acts of clemency show the leaders of several Asian nations running circles around China as it takes a 37-year breather from issuing pardons. Local interest in reviving the practice has grown, but will it be embraced by Chinese leadership?

On January 5, in one of the first official acts since new North Korean leader Kim Jong Un’s assumption of power, the Presidium of the Supreme People’s Assembly decreed an “amnesty” to be carried out on February 1 to honor the birthdays of North Korea’s former leaders. Five days later, the South Korean Ministry of Justice announced that 955 of its citizens benefited from sentence reductions, exemptions, and annulments as a result of presidential pardons marking the Lunar New Year holiday. On January 13, the Burmese government granted clemency to 651 prisoners in what is widely seen as part of an effort to persuade foreign governments to end economic and diplomatic isolation of the country. The release included an estimated 287 political prisoners, including a former prime minister, high-profile democracy activists, and leaders from the country’s often restive ethnic groups.

In contrast, China has not issued a pardon since 1975 and issued its last major act of widespread clemency in 1959. However, interest in reviving the practice has grown in recent years, and the death penalty trial of young businesswoman Wu Ying (吴 英) adds immediacy to the debate.

People wait at the gate of Insein Prison on January 13. Photo credit: The Irrawaddy

Semantics

States normally establish certain constitutional measures whereby acts of clemency may be carried out under special circumstances in order to make changes to judicial decisions of guilt and punishment. Although common usage often blurs distinctions, such acts of clemency can be broadly divided into two types: “amnesties” and “pardons.”

The term “amnesty” technically refers to a form of clemency whereby an official act, usually a legislative act, removes all trace of an offense without making any change to the law defining the offense. Beneficiaries are thus restored to the status of innocent persons, with their conviction meant to be completely forgotten. (“Amnesty” and “amnesia” both derive from the same Greek root.) Amnesties are typically general in their application and are frequently used in social-reconciliation efforts—for example, to promote peace after a civil war.

The forms of clemency that fall under the general category of “pardon” usually affect the execution of a punishment while making no change to an offender’s guilty status. Pardons, which are often directed by heads of state, forgive offenses and offer lenience through the removal or partial reduction of sentences. In contrast to the general application of amnesties, pardons are usually decided on a case-by-case basis, though many individuals may benefit at once.

Collecting Dust

As of this writing, there was no official tally as to how many North Koreans benefited from clemency announced on January 5. But an earlier pardon, issued in September 2010 to commemorate the 65th anniversary of the founding of the ruling Korean Workers’ Party, reportedly brought sentence reductions to around 150,000 prisoners. This suggests that although the most recent act of clemency was translated into English as an “amnesty” by the state-run Korean Central News Agency, it was more likely a large-scale pardon.

The last time China granted clemency on the scale of North Korea’s 2010 pardon was in 1959. That year, a pardon to celebrate the 10th anniversary of the founding of the People’s Republic of China (PRC) led to the complete or partial remission of sentences of tens of thousands of “war criminals,” counterrevolutionaries, and ordinary prisoners. Between 1961 and 1975, China granted six more pardons to Japanese and Nationalist war criminals, each on a much smaller scale. Although the power to grant general amnesties was also included in the first PRC constitution in 1954, it was never used and was removed from the constitution in 1982.

While several Asian nations continue to issue pardons on a relatively frequent basis, China has allowed the measures to gather dust for more than 35 years. But China is not entirely devoid of clemency. In fact, Chinese law provides for a system of sentence reduction and parole whereby courts reward offenders for good behavior, admission of guilt, and reform. There are, however, serious variances in application with prisoners convicted of “endangering state security” subjected to “strict handling.” In practice this means that ethnic Uyghurs and Tibetans, political dissidents, and rights activists receive clemency at rates far lower than other prisoners.

The Harmony of Revival

In recent years, there have been a number of efforts to revive the practice of granting special pardons in China. Pardons were proposed, and supported by Dui Hua, to commemorate the Beijing Olympics and the 60th anniversary of the founding of the PRC. More recently, a group of legal scholars at China University of Political Science and Law proposed adding provisions to the Criminal Procedure Law to allow people sentenced to death to apply for pardon.

A common argument against these proposals is that the importance of establishing judicial authority should not be trumped by the prospective benefits of encouraging legislative or executive intervention, which invites corruption and undermines the rule of law. But proponents of revival contend that intervention can help restore balance to existing inconsistencies in China’s criminal justice system. The ability for pardons to promote overall balance is supported by former Supreme People’s Court President Xiao Yang. In late 2007, Yang said that “fully demonstrating the role of the pardon system certainly will have an enormously positive impact toward creating a harmonious and stable social environment and enhancing the internal unity of the people.”

Wu Ying faces the death penalty for charges of illegal fundraising. Photo credit: Xinhua News Agency

The case of Wu Ying is arguably one in which this statement would ring true. A Zhejiang businesswoman in her early 30s, Wu is facing the death penalty on charges of illegal fundraising. Many Chinese are sympathetic to Wu. To her many supporters, Wu is a victim and a scapegoat: the victim of a system in which the difficulty for entrepreneurs to secure loans from state banks virtually necessitates private-lending channels, and a scapegoat doomed by her ability to expose the economic crimes of local officials. Beyond the particularities of her case, however, there is also growing consensus that the death penalty is inappropriate for economic crimes.

China’s courts may find that a death sentence for Wu is warranted under present law. If so, allowing public opinion to directly influence their decision would be a sacrifice of judicial autonomy. But China’s legislative and executive bodies are supposed to be more accountable to public opinion and pardoning Wu would be a humanitarian gesture that promotes larger social and political interests such as rooting out corruption and reducing the scope of the death penalty—a goal that China has stressed repeatedly.

In order for China to revive the practice of issuing pardons, broader consensus may be necessary about the positive effects of clemency in the criminal justice system and in society at large. In this regard, Chinese leaders might have something to learn from neighboring countries which, despite differing political and social circumstances, have found it useful to issue pardons routinely.