China’s most recent Criminal Law was adopted by the National People’s Congress on July 1, 1979, and came into force on January 1, 1980. It has been amended nine times, most recently in September 2015.
The most sweeping amendment to the Criminal Law took effect on March 14, 1997, when lawmakers removed the chapter on counterrevolutionary crimes and added another on crimes of endangering state security (ESS). The new chapter covered some, but not all, of the acts formerly classified as counterrevolutionary offenses. For instance, the counterrevolutionary crimes relating to “reactionary sects,” organizing a jailbreak, and plotting and carrying out airplane hijackings were reclassified as crimes other than ESS in the amended Criminal Law.
American businessman John Kamm had been intervening on behalf of prisoners convicted of counterrevolutionary crimes—most of whom had been convicted for offenses committed during the Spring 1989 disturbances—for nearly seven years when the amended Criminal Law took effect. From exchanges he had with the Ministry of Justice (MOJ), he obtained information on individual cases as well as the number of counterrevolutionaries serving sentences in prison: 2,016 as of the end of 1996. By the end of 1997, almost nine months after counterrevolutionary crimes had been removed from the Criminal Law, there were still 1,946 people serving prison sentences for the defunct crimes.
In early 1998, Kamm began lobbying the SPC and the MOJ to release these prisoners in accord with both Chinese and international law. In China, there is no such thing as “crime by analogy.” An offense cannot be an offense simply because it is like another crime, and counterrevolution and ESS are different.
Kamm also relied on an interpretation of Article 15 of the International Covenant on Civil and Political Rights, which China signed in 1998 but has not ratified. Article 15 states that, “If subsequent to the commission of an offense, provision is made for the imposition of a lighter penalty, the offender should benefit thereby.” Kamm argued that, after their removal from the Criminal Law, the legal penalties for counterrevolutionary crimes became nonexistent.
Surprisingly, Chinese officials were sympathetic. An SPC official told Kamm that if his arguments were accepted, many prisoners and their families would be forever grateful. An MOJ official told Kamm that the ministry’s own analysis somewhat aligned with his: under international human rights law, the prisoners should be released, but under Chinese law, this was impossible.
The MOJ expanded on its position in a letter to Kamm dated April 17, 1998, citing Article 12 of the amended Criminal Law, which states: “Before the entry into force of this law, any judgment that has been made and has become effective according to the laws at the time shall remain valid.”
Around the time Kamm received the letter, President Bill Clinton was planning a state visit to China. Kamm appealed to Jeff Bader, who headed China affairs at the National Security Council, to present Kamm’s proposal for clemency to the president. Clinton agreed to raise the issue with President Jiang Zemin.
On June 27, 1998, Clinton met Jiang at the Great Hall of the People. After the meeting, they held a press conference at which President Clinton revealed that he had suggested to President Jiang that “Chinese citizens who were in prison for crimes no longer on the books” should be released.
On a subsequent trip to China, Kamm asked a senior adviser what President Jiang thought of the suggestion. The advisor said, “President Jiang was impressed by President Clinton’s deep knowledge of Chinese law.”
To this day several dozen people remain in prison for counterrevolutionary crimes committed before 1997. One of the longest still in prison is Shanghai labor activist Jiang Cunde, who was detained in 1987 and subsequently sentenced to life in prison for counterrevolutionary sabotage. His life sentence was commuted in 2004, and there have been no sentence reductions since then. Jiang, who reportedly suffers from schizophrenia, is not due for release until August 22, 2024, by which time he will be 71 years old.