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'We might abolish the death penalty in 20 years': He Jiahong on justice in China

Chinese lawyer and crime fiction writer Prof He Jiahong
Chinese lawyer and crime fiction writer Prof He Jiahong
Born into China's cultural revolution, He Jiahong spent years working in the fields before studying law to win over his girlfriend's parents. Now he is a leading authority on miscarriages of justice, and a writer of hit detective novels to boot. 

The undead take on a central role in Prof He Jiahong's extraordinary narratives of courtroom incompetence. They haunt the commanding certainties of the trial process and the execution yard. 

But He is not a connoisseur of Halloween magic. As China's leading authority on miscarriages of justice and the author of a series of detective novels, the 63-year-old former prosecutor and acclaimed academic has exposed heart-stopping flaws in judicial procedures. 

His meticulous and engaging research exposed the infamous case of Teng Xingshan, who was executed in 1989 for murdering his mistress. 6 years later Teng's supposed victim, Shi Xiaorong, was discovered to be alive. 

In another case documented in He's latest book, Back from the Dead, She Xianglin was convicted of murdering his wife and imprisoned. 11 years later, she reappeared in her native village, astonishing her family. In both cases, the verdicts were belatedly overturned. 

At a time when nationalism is on the rise, He's critique of a justice system on the opposite side of the world might seem like an esoteric diversion. But his ability to develop universal criminal justice lessons from forced confessions, the pressure of public opinion and misinterpretation of scientific evidence have chilling echoes in a country that jailed the Birmingham 6 and the Guildford 4. 

Only this year, the UK's supreme court ruled that for the past 30 years British judges have been misconstruing crucial aspects of the joint enterprise guidelines, which may yet lead to scores, if not hundreds, of cases being reassessed and possibly retried. 

Britain and China's judiciaries, if not on the road to convergence, are sharing more and more legal experience through exchange visits and lectures. In May, Lord Neuberger, president of the UK's supreme court, led a judicial delegation to Beijing. Prof He is an adviser to China's supreme court and director of the Centre for Common Law in Beijing, which works in co-operation with the Great Britain-China Centre and the University of Oxford's Faculty of Law. 

In London this month to launch his book, He cuts a dapper figure in a neat blue suit, buttoned up at the neck. His English is crisp and fluent; his personal odyssey from agricultural labourer to pre-eminent legal scholar verges on the fantastical. 

He was born in Beijing in 1953. During the cultural revolution he was sent to work on a farm. "I believed in communism," he recalls. After a few years, though, he began to feel he had been fooled, and started writing a novel to prove he possessed talent. When he completed it, he was allowed to return to the capital, where he worked as a plumber. There he fell in love with a beautiful young woman. "She was a doctor; it was a very good job," he says. Her parents tried to separate them. 

They set up a challenge. "If I could pass a national exam for university ... they would be happy to meet me. I had had only 6 years of education," He recalls. "The examination was very competitive. I prepared for 6 months and passed." 

On enrolment at university, he randomly selected law. "I didn't know [about it]," he admits. "Under the cultural revolution there was no law." 2 years later, after finishing his course in record time, he married his girlfriend. They have been together for 35 years, and have a daughter and a grandson. 

He is an optimist. Accustomed to hard work on the farm, he believes the experience helped him power through academic challenges. "It's not a bad thing for people to have hard lives and frustrations when they are young,' he says. Of the cultural revolution, he is less forgiving: "My 2nd novel [published by Penguin] is entitled Black Holes. The cultural revolution was a black hole. It changed the lives of millions of people." 

The death penalty, real and fictional, has been a recurrent theme in He's work. Eventually, he hopes, its use may cease. Opinion polls conducted in 2002, he says, showed public support for executions running at around 93% of the population. It was considered a natural part of Chinese culture. 

"At the time, I said that we cannot abolish the death penalty. We have to respect public opinion. If you kill somebody then you should be killed. About 10 years later, I changed my mind," he says. "Public opinion can be changed with education. More and more people think that [considering human rights] the death penalty is not a natural role for human beings." 

Around 2005, the Chinese authorities introduced a criminal justice reform known as the "kill fewer, kill carefully" reforms. In 2014, an amendment to the criminal law further reduced the number of offences that carry the death penalty. 

Chinese death-row convicts are marched off to a nearby execution ground
Chinese death-row convicts are marched off to a nearby execution ground.
Support for capital punishment is now around 70-80%, and coming down. He has advocated abolishing it gradually over the next 2 decades. "In fact, we may not abolish the death penalty [straight away]," he suggests. "We might not use it. We would wait and see; if we don't use the death penalty for a number of years, then people in China would be persuaded. Then we may legally abolish the death penalty in 20 years. But it all depends on the situation ... the government is facing the threat of terrorists [militant groups from within the separatist Muslim Uighur ethnic group] and drug trafficking." 

The number of executions is a state secret. Figures are disputed. While as many as 12,000 people might have been killed in 2002, according to the Dui Hua Foundation, a human rights campaign group, the annual total estimated by foreign observers is more than 1,000 deaths. 

"We should not keep secret the numbers ... policy has been changing in the supreme people 's court in China," He says. "We should have stricter scrutiny of death penalties. We have to change the mentality of the decision makers. These wrongful convictions made [the authorities] have second thoughts." 

In 2007, the authorities decided to return to the supreme people's court the power to review any death penalty. It had previously been entrusted to lower courts because there were too many cases for the supreme court to consider. Trafficking in the organs of those who have been executed has also been banned. 

20 years ago, Back from the Dead could not have been published, He admits. "I started studying wrongful convictions in 2005. And at the time people thought it was wrong. It was difficult to have a dialogue openly in conferences at first. 

"Chinese people would say: 'We have some dirty things, but we should not let foreigners know.' That was quite natural. But the leaders of the judiciary have had to accept that we must deal with the problem more openly, and that wrongful convictions can teach us lessons," He says. 

"It is not a matter of viewing police or prosecutors as evil gangs. Mistakes can be genuine errors. The problems have a positive role in provoking judicial reform. I point out the loopholes ... perhaps other countries have better rules, but they still have miscarriages of justice one way or another. It's a challenge for all human societies." 

In terror trials, He points out, there may be greater public demand to convict and to use torture on top of all the other pressures. Beatings were widely misused in the 1980s and 90s. "Now we have rules against torture. You can't say it's very good, but it's better [at preventing] illegally obtained evidence," he says. "And interrogations are videotaped. These things help to prevent torture." 

Earlier campaigns against corruption were handled by the party's committees, which acted outside legal frameworks. "They ought to be restrained by criminal procedure law," He says. Chinese water torture, he points out, was not devised by the Chinese; it is originally from Vietnam. 

He practised as a defence lawyer for several years in the 1980s before transferring to academia. Inspiration for the 1st in his series of 5 detective novels, Hanging Devils, came from his research into miscarriages of justice. It is set on a state farm in a city in the north-east of China. 

The book's protagonist, Hing Jun, is a defence lawyer. "He has to travel up north to solve a wrongful conviction case. I had a problem with how to frame the story at first. In China at the time, defence lawyers had only 7 days to prepare the trial. It would not have been enough time to collect all the evidence. 

"Then we revised our criminal procedure so that defence lawyers would have 2 months to prepare a case [on appeal]. In 2012 we made further progress when the accused were given the right to a lawyer at the 1st investigation. Crime fiction is just a way to tell the story." 

Source: The Guardian, Owen Bowcott, October 22, 2016

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