Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Wednesday, November 1, 2006

Court Organization Law amended to provide for universal Supreme People's Court review of death sentences

On Oct. 31, 2006, the Standing Committee of the National People's Congress adopted a resolution amending Art. 13 of the Court Organization Law (中华人民共和国人民法院组织法)to read in its entirety as follows:

死刑除依法由最高人民法院判决的以外,应当报请最高人民法院核准。(Death sentences, except where imposed by the Supreme People's Court according to law, should be reported to the Supreme People's Court for review and approval.)

(Note that "should" in this context doesn't really connote that there's any choice in the matter, but Chinese drafters sometimes say "must" (需 or 必须) and if they choose not to do it here, the translation should make that visible.)

This amendment represents a policy change that has been in the works a long time. Under the 1979 Court Organization Law (COL), the Supreme People's Court (SPC) had sole reviewing authority over death sentences - an authority that existed in addition to the regular one appeal that all defendants get as of right. In 1983, as part of the anticrime campaign of that era, Art. 13 of the COL was amended to give the SPC the authority to delegate death penalty review, in certain cases involving violent crime, down to provincial-level courts. Duly authorized, the SPC promptly issued a notice delegating that review power.

In recent years, however, discontent with the system of provincial-court review had grown because of a series of egregious miscarriages of justice, and the SPC put reclaiming this power of review on the agenda of its official Second Five-Year Plan for Court Reform dated Oct. 26, 2005.

An interesting question about this policy change: since provincial courts got their review power from the Supreme People's Court, the Supreme People's Court could have taken it back at any time simply by issuing another notice. Since as far as we know the SPC supports recentralization of review power, the fact that it was effected through NPC Standing Committee legislation may mean that those in favor of it wanted something a little more robust than a mere SPC notice.

Here are some news reports (in English):

Here's a 2004 Amnesty International report (AI site|this site) on the death sentence in China. And lest anyone think that China has a monopoly on harrowing abuses in capital cases, check out the Texas capital punishment system in action here.

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I think the correct translation of "应当" is "shall", not "should". What do you think, professor Clarke?

Posted by: Wang | Nov 3, 2006 12:07:05 AM

"Shall" is the same as "must" - it is an absolute obligation. As I stated in my post, Chinese has words that express such an absolute obligation and Chinese legislation sometimes uses them. Here it does not. My philosophy of translation is that ambiguity in the original should be reflected in the translation. Because "yingdang" does not necessarily mean "shall" or "must", I don't think it's appropriate to translate it that way. To decide whether an absolute obligation is intended here is a job for the legal analyst, not the translator. (As a legal analyst, I believe that this is intended to be an absolute obligation.)

Posted by: Don Clarke | Nov 4, 2006 6:01:43 PM

Here's hoping that its legislative intention
is genuine, enforceable and affordable -
never forgetting, of course, that one has
the rest of one's life to appeal against
one's death sentence.

Posted by: Rob Schackne | Nov 4, 2006 9:42:20 PM

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