For the last five years, 54-year-old attorney Zhu Zhanping has doggedly monitored every inch of progress made by the nation's capital punishment trial reform. His hope was that one day the highest court in the land would once again preside over death sentence cases. Zhu finally heard the news he had been waiting for on October 31, when the regular meeting of the Standing Committee of National People's Congress (NPC) adopted an amendment to the country's Organic Law of People's Courts to retrieve the power of death penalty review from the provincial high courts. The new amendment, which requires all death sentences to be approved by the Supreme People's Court, took effect on January 1, 2007.

Even before the new law was adopted, Xiao Yang, President of the Supreme People's Court, said the new policy was aimed at allowing each death sentence to withstand any scrutiny and prevent any wrongful conviction and execution. Media see the new move as the latest initiative by the judicial system to exert stricter controls over the application of the death penalty.

Zhu's name has become synonymous with the death penalty reform after he represented a young man sentenced to death in court. In April 2001, Zhu's persistent efforts forced the Supreme People's Court to deliver a last-minute stay of execution for a young man named Dong Wei. What makes this case dramatic is that the order was passed to the executioners only four minutes before the preset execution time. The case caused a sensation throughout the country. Dong was, however, executed four months later.

The failure to defend the young man caused Zhu to suffer great bouts of depression, and he even flirted with the idea of quitting his career. He dropped out of society for a month, and refused to accept any new lawsuits. Yet during this period, the frustrated Zhu received countless letters of support. Meanwhile, a group of renowned jurists began to openly discuss and review the ruling of this lawsuit, which was widely reported in the media, creating unprecedented public interest.

Zhu, who claims he knows what is ailing China's death penalty system, has become an active criminal attorney since 2003. He has, since this time, focused his energy largely on lawsuits related to the death penalty. So far, he has successfully defended six criminals sentenced to death.

"As lawyers, what we can do is to eliminate the abuse of execution in every case," said Zhu. He regards the return of the power of death penalty review to the Supreme People's Court as a mark of government's changed attitude towards the death penalty. The change emphasizes the respect for life and the prudent ruling of the judicial system. "This is a goal that many people with a career in the legal justice system have been working for," he said.

Decentralization

According to international human rights criteria relating to the death penalty, in countries practicing capital punishment, the final say rests with the country's supreme court of justice. China had stuck to this principle until reform in 1980.

In the country's first Criminal Law and the Criminal Procedure Law, which went into effect on January 1, 1980, it was stipulated that the rulings of death sentences should be either delivered or reviewed by the Supreme People's Court.

At that time, China's reform and opening up had been underway for only two years and government's lack of administrative experience had bred a deterioration of public security. Under such circumstances, the Supreme People's Court found itself short of resources to conduct re-examination for the surging death penalty cases handed out by local courts. To guarantee the normal operation of the Supreme People's Court, the NPC Standing Committee adopted a new legislation to temporarily and partly put the power of death penalty review into the hands of provincial high courts.

On June 10, 1981, the Standing Committee of the NPC decided to extend the temporary policy to 1983. Yet the end of 1983 witnessed China's first nationwide campaign to crack down on criminal offenses, under the principle that criminals should receive harsh timely punishment. This campaign created the conditions which allowed the review authority of death sentences to remain with provincial high courts for many years.

According to Jiang Xingchang, Vice President of Supreme People's Court, the decentralization of this review authority was an irregular policy to suit the deteriorating public security conditions shortly after the country's reform and opening up began.

"No one had expected the temporary decision tailored for one year to last over 20 years," said Gao Mingxuan, professor of Law School of Renmin University of China.

Death penalty review called for

Professor Chen Xingliang, a law expert on litigation and judicial reform with the Law School of Renmin University of China, believes that entrusting provincial high courts with the review right for the death penalty is essentially against the Constitution. In China's legislative system, the authority of Organic Law of People's Courts is inferior to that of the Criminal Law and the Criminal Procedure Law. Chen argued that it is unconstitutional for an "inferior law to contravene a superior law."

Professor Chen also believes allowing the provincial high courts to rule on executions has been creating inequality among criminals. As different high courts hold different judgment standards on the death penalty, it would create the situation that one criminal sentenced to death in one province could receive a lighter sentence in another province. Meanwhile, capital punishment for felonies such as murder and robbery was reviewed by provincial courts, while the death sentence for economic criminals and national security offenders was reviewed by the Supreme People's Court. This caused an inconsistency when sentences were passed for various crimes.

Ever since the death penalty review was partly bestowed to local courts, calls for its return to the Supreme People's Court has been ongoing.

"Strictly speaking, the return of review right of the death penalty is actually reasserting the rule of law," said Huang Songyou, Vice President of Supreme People's Court.

March 17, 1996 witnessed the adoption of the amendment to the Criminal Law and the Criminal Procedure Law at the NPC's annual session, reclaiming the right to review the death penalty by the Supreme People's Court.

Yet five days before October 1, 1997, the official implementation date for the amended Criminal Law and Criminal Procedure Law, the Supreme People's Court released an order to maintain the division of review tasks between the Supreme People's Court and provincial courts.

Around that time, workshops were held on the abolishment of the death penalty and the return of the death penalty review procedure. "Different opinions existed in academia over whether the death penalty should be abolished, but all scholars agreed upon the return of death penalty review authority," said professor Gao Mingxuan.

Why did it take the Supreme People's Court so long to retrieve the review for death sentences? Zhou Daoluan, who then headed the research department of the Supreme People's Court, said that the court had been thinking about recalling the authority to review since 1996, with much vocal support from most provincial high courts. "The workload of the Supreme People's Court was so heavy that it could not find enough staff to deal with the resultant extra work pressure if reviews were reinstated," said Zhou.

However, since 2000, media coverage on some controversial death sentence cases triggered strong public grievance and increasing calls for the return of the death penalty review process. Prompted by this, the Supreme People's Court put the death penalty reform on its work agenda.

Full scale judicial reform

Many experts believe that the reform on reviewing the death penalty may herald a full-scale criminal trial reform. The practical progress has already shed light on such a trend.

The closed court ruling of death penalty cases on the second trial could be up for reform. It is stipulated in the Criminal Procedure Law that "a people's court of second instance shall open a court session to hear a case protested by a people's procuratorate."

"Yet in practice, open court session becomes the minority while closed trial has become the norm," said Zhou Daoluan.

In addition, the return of the review authority of the death penalty will solve the overlapping between trial authority and review authority that exist in death sentences. Under China's two-trial system, the court of second instance of death penalty, namely the provincial high court, is also the review body of the death penalty. Such a scenario will harm the credibility of the review result.

At the end of 2005, the Supreme People's Court issued a circular requiring provincial high courts of second instance to open a court session to hear a death penalty case challenged by a people's procuratorate, if the challenge questions the essential facts and evidence since 2006. The circular also asked provincial high courts to openly judge all death penalty cases on the second trial from the second half of 2006.

According to a field survey conducted by the Law School of Renmin University of China, the new circular has exerted enormous work pressure on local courts, but provincial high courts have provided personnel and financial support to guarantee the implementation of the new regulation.

President of the Supreme People's Court Xiao Yang said the review of death sentence would be made through promoting open ruling for the second trials of death penalty cases. He believes that "it offers defendants sentenced to death one more opportunity to have their voice heard in court."

"Supreme People's Court's decision to openly try death penalty cases on the second trial is a practical choice to separate trial and review of death penalty cases, which will promote full-scale judicial reform," said professor Chen Weidong of Law School of Renmin University of China.