Category Archives: law

“Is Li Xingong Arrest Another Victory for China’s Weibots?”

Today I’ve got another post for an article I disagree with, although this time it was written by someone I certainly respect. Stan Abrams, writer of the great China Hearsay blog, is an intellectual property lawyer in Beijing and member of the Central University of Finance and Economics faculty. Last week he wrote about the Li Xingong case, in which a Communist Party official in Henan has been accused of raping multiple underage girls. After describing the case Stan writes:

That being said, there is another twist to this case that I’m frankly still trying to unravel: the role of public pressure. As you know, I have a great deal of interest in cases where the public seemingly exerts an influence on the judiciary, prosecutors or the police, usually in criminal matters. As I’ve said many times, the general trend disturbs me; the criminal justice system should generally be immune to public pressure. If not, scary things can happen.

And here, sadly, I have to take issue with him. As a general rule, sure- cases should be decided by their merits using the law, not by crowds in front of the courtroom or on Weibo. This isn’t just any case, though. This is a case in the People’s Republic of China involving a Communist Party official accused of doing heinous things to regular Chinese citizens. The chances of justice being done here are vanishingly small. If public pressure is worth worrying about, what of the other pressures that are surely exerted in less visible ways during a case like this? We’re talking about a man with money, guanxi, power, the Party, and a judiciary which understands the meaning of loyalty at his back. The moment accusations are leveled at the Communist Party, the rule of law isn’t simply compromised- it disappears entirely. Mr. Abrams is worried about scary things that can happen when public pressure influences cases, but scary things are already happening, and do happen every time the law bumps up against the Party.

He goes on to say:

More disturbing than any media failure is the rush to judgment by the weibots. The automatic assumption that Li’s actions had somehow been known and covered up prior to May 8 or that the local authorities would definitely try to cover up his crimes even after he was detained, is troubling. It suggests severe credibility problems of local officials, although that’s not exactly news. The level of distrust that is illustrated by these types of cases is startling.

And here’s where I have to come back to the problem I have with his concern about public pressure. I believe that he’s looking at the whole issue backwards. The rush to judgment and the tendency of online commentators to dog-pile the Party is a symptom of the flimsy nature of the rule of law in China. People are used to seeing the Communist Party let itself off the hook, and to seeing the Party use official propaganda organs to cover up misdeeds. Many Chinese have reached the conclusion that public pressure is one of the few tools that is capable of balancing the lopsided power balance enjoyed by the Party, and I can’t say that they’re wrong. In the future a mature Chinese legal system will have to learn to resist public pressure, although I suspect that a system capable of delivering just outcomes in situations like these wouldn’t face as much public pressure to begin with.

I can appreciate how Mr. Abrams, as a lawyer, found this objectionable. The moment the Party gets involved, however, this ceases to be a legal problem and becomes a political one. Until the Party allows justice to be done, public pressure seems like the least of our worries.

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“Ai Weiwei: to live your life in fear is worse than losing your freedom”

Ai Weiwei has written in to The Guardian, with a short letter to the editor here. By the way, fans of Teacher Ai should try to catch Ai Weiwei: Never Sorry, a fantastic documentary on the man behind the art, political statements, and general cyclone of activity. He writes:

The 81 days of detention were a nightmare. I am not unique: this has happened to many people, and is still happening. It’s an experience no one should share. They were extreme conditions, created by a system that thinks it is above the law, and has become a kind of monstrous machine. Everybody who has been through it loses their original hope or has it changed somehow.

There are so many moments when you feel desperate and hopeless and you feel that’s the end of it. But still, the next morning, you wake up, you hear the birds singing and the wind blows. You have to ask yourself: can you afford to give up the fight for freedom of expression or human dignity? As an artist, this is an essential value that can never be given up.

They destroyed my studio, they put me in secret detention and they fabricated a crime that put a 15m yuan tax bill on me. We are now suing the Beijing tax authorities for abuse of powers and ignoring procedures. We are using this opportunity to make them realise what’s wrong and inform the public, even though we know the results won’t be positive. They refused to give us our papers back or let our manager and accountant be witnesses at the trial on Wednesday, or let me attend court. They even made my friend Liu Xiaoyuan, a lawyer, disappear before the hearing.

Friends of mine say: “Weiwei, my father has been questioned, my mother has been questioned, my sister has been questioned because of you.” I don’t know these people. Why does the system make them suffer? Because it can’t allow anybody to exercise their humanity and communicate or show support. But when your children are growing up and will never have a chance to have their voices heard, do you want to turn your face away and say OK, that’s not my problem?

Reflect on Bo Xilai’s case, Chen Guangcheng’s and mine. We are three very different examples: you can be a high party member or a humble fighter for rights or a recognised artist. The situations are completely different but we all have one thing in common: none of us have been dealt with through fair play, open trials and open discussion. China has not established the rule of law and if there is a power above the law there is no social justice. Everybody can be subjected to harm.

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“How China Flouts Its Laws”

Whoa. Chen Guangcheng, who just a few short weeks ago seemed doomed to suffer extralegal house arrest and beatings for years to come, has written an op-ed for the NYT from the safety of New York:

High officials from the Chinese government assured me that a thorough and public investigation would take place and that they would inform me of the results. I hope that this promise will be honored. But the government has often failed to fulfill similar commitments. I urge the government and people of the United States and other democratic countries to insist that the Chinese government make timely progress in this matter.

The central government and the authorities in Shandong Province, Linyi City and Yinan County have many questions to answer. Why, beginning in 2005, did they illegally confine my family and me to our house in Dongshigu Village, cutting us off from all contact with other villagers and the world? Why, in 2006, did they falsely accuse me of damaging property and gathering a crowd to interfere with traffic and then, after farcical trials that excluded my witnesses and defense counsel, send me to prison for 51 months? On what legal basis, following my release from prison in 2010, did they turn our home into another, equally harsh, prison?

The fundamental question the Chinese government must face is lawlessness. China does not lack laws, but the rule of law. As a result, those who handled my case were able to openly flout the nation’s laws in many ways for many years.

After the local police discovered my escape from my village in April, a furious pack of thugs — not one in uniform, bearing no search or arrest warrants and refusing to identify themselves — scaled the wall of my brother Guangfu’s farmhouse in the dead of night, smashed through the doors and brutally assaulted my brother.

After detaining him, the gang returned twice more, severely beating my sister-in-law and nephew with pickax handles. At that point, Kegui tried to fend them off by seizing a kitchen knife and stabbing, but not killing, three of the attackers.

Kegui, who is 32 years old, was then detained in Yinan County and, absurdly, charged with attempted homicide. No one has been able to reach him, and he has most likely been tortured even more severely than his father was. Although China signed the United Nations convention against torture in 1988 and has enacted domestic laws to implement it, torture to extract confessions is still prevalent.

Any serious investigation of the injustices that we and hundreds of thousands of others have suffered must determine who is beating, kidnapping, disbarring and prosecuting these lawyers and threatening their families, and why defendants are compelled to accept the nominal legal assistance of government-employed lawyers instead of counsel of their choosing.

China’s government must confront these crucial differences between the law on the books and the law in practice.

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“Activists: Blind Chinese activist, under house arrest for 18 months, slips away, in hiding”

I’ve felt bad about not posting anything regarding Chen Guangcheng recently, but that’s simply because there wasn’t any news… until tonight, when the man reportedly escaped from house arrest. Stunning and welcome news (via WaPo):

A blind legal activist who is a key figure in China’s rights movement escaped the house arrest he has lived under for a year and a half, fleeing to an unknown location and angering his captors, fellow rights campaigners said Friday.

Chen Guangcheng slipped out of his usually well-guarded house in Dongshigu town on Sunday, said the campaigners, who are based in China and overseas. He Peirong, a leading campaigner for Chen’s freedom, said she picked him up and drove him to “a relatively safe place” she would not further describe.

“His mental state is pretty good. He’s alive, but whether he’s safe I don’t know,” He said from her home city of Nanjing. She said she left Chen a few days ago but declined to discuss further details, other than to say he is no longer in his home province of Shandong, southeast of Beijing.

She denied an online report by Singapore’s Lianhe Zaobao newspaper that Chen entered the U.S. Embassy in Beijing on Thursday night. The paper did not name a source.

“I can tell you he’s not at the U.S. Embassy, and he’s not in Shandong. I did talk to the U.S. Embassy people, though,” He said.

Chen Guangcheng’s treatment by local authorities had seemed especially bitter and personal. He served four years in prison for exposing forced abortions and sterilizations in his rural community. Since his release in September 2010, local officials kept him confined to his home, despite the lack of legal grounds for doing so. They prevented outsiders from visiting him and occasionally beat him up.

If he can make it out it’ll be a slap to Beijing’s face on the scale of the Karmapa escape ten years ago. Certainly more on this as it develops.

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“Inside China’s secret black jails”

Melissa Chan is basically an unstoppable force of journalism in a country that normally finds journalism quote stoppable:

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“Chatting with China’s security apparatus”

Melissa Chan from Al Jazeera is still one of the best things to happen to China journalism in a long time- in her most recent blog post she describes a run-in with state security while trying to interview Chinese lawyer Pu Zhiqiang:

Al Jazeera’s team decided to speak to rights attorney Pu Zhiqiang, known for his work representing Ai Weiwei and himself an object of frequent police surveillance, to solicit his opinion.

What happened next was not surprising, but on this day, felt particularly ironic: plainclothes police officers prevented us from interviewing Pu on camera, even as we explained to them that this new legislation would curtail their state security powers.

The language used by the officers, who refused to identify themselves, might also be interesting to those unfamiliar with this kind of state apparatus: Orwellian, wrapped in code, and offering our crew “recommendations” that if disobeyed, could have meant some physical confrontation from the two men in sunglasses who were called up for reinforcement during the following exchange.

This took place in the private office of rights attorney Pu Zhiqiang. The officers present were from China’s “guo bao” — its national security/secret police ministry. They had no legal basis to be there.

Despite no prerogative to do so, we offered to allow the officers to sit in on the interview. We even offered them to record the questions we wished to ask Mr. Pu. I felt that the questions were very straightforward.

Read the rest to see what they said. Pretty unbelievable.

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“Legalizing the Tools of Repression”

Nicholas Bequelin on the Criminal Procedure Law rewrite:

The more progressive-minded factions of the Communist Party and the government consider legal reforms to be integral to China’s modernization. They see enlightened self-interest in giving a greater role to the rule of law, and reforming the criminal code to offer due-process rights that resemble international norms is a key part of this effort.

The other camp is made up of the powerful security apparatus and the more conservative and hard-line elements in the party and the government. This faction has become increasingly powerful since it was assigned the leading role for the security of the 2008 Beijing Olympics.

To this group, the law is purely instrumental — a tool of state power — and should not be altered to empower the citizenry and curtail the authority of the party. The hard-liners believe it is critical to allow security services to deal expediently with threats to the broadest possible interpretation of national security and public order, even if that means frequent miscarriages of justice.

Article 73 would allow the police to secretly detain citizens for up to six months on suspicion of “endangering state security” or “terrorism” — two vague charges that have long been manipulated by the government to crack down on dissidents, human-rights lawyers, civil-society activists and Tibetan and Uighur separatists.

Even more chilling, these secret detentions would be carried out in venues controlled by the police outside of regular detention facilities, greatly increasing the likelihood of ill-treatment. Gao Zhisheng, for example, was tortured while in such detention.

Why is China’s leadership considering giving more powers to the security services, when it means bringing into disrepute what otherwise could have be an important legal reform?

One reason is that on any given day, 200 to 300 protests take place across China. The scale of the protests varies from less than a dozen people to tens of thousands. The protests are fueled by a host of labor, environmental and livelihood issues, compounded by corruption and abuses of power, primarily among local officials. Unable to take their grievances to the courts, a growing number of people are taking them to the streets. Often, only the police stand between “the masses” and the party.

Second, the leadership is increasingly concerned that it is losing the battle against the spread of “global values” among the citizenry — code in China for human rights, the rule of law and freedom of expression. Hard-liners believe they need the power to take dissidents and critics “off the grid,” both to silence them and to make an example of them to others. Legalizing “disappearances” provides just the tool.

The rise of the national security faction is one of the most foreboding trends in China. Whether Article 73 is adopted or not will signal a great deal about whether China is making progress toward the rule of law or solidifying the supremacy of the security state.

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“Where is Gao Zhisheng?”

C.A. Yueng from Under the Jacaranda Tree writes about Mr. Gao, still missing:

Ms Geng has been separated from her husband for nearly 22 months. When Gao Zhisheng briefly reappeared in early 2010, Ms Geng and her children had already fled to the USA to escape persecution. As she was about to give up hopes of ever seeing her husband alive, Xinhua News English services released information on 16 December 2011 to suggest that Gao Zhisheng had been sent back to jail to serve his full sentences for violating his parole conditions. However, apart from a letter sent from Shaya prison to Gao Zhisheng’s older brother Gao Zhiyi, neither Ms Geng nor her family has ever received any formal verdict or court ruling with regard to Gao Zhisheng’s sentencing.

They also have links to an interview with his wife and more analysis.

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“China Set to Punish Another Human Rights Activist”

I’m sure this will go over even better than the house arrest of a blind lawyer and his daughter:

First the police crippled Ni Yulan’s legs. Then the authorities took away her license to practice law. Later, while she was serving time in jail, demolition crews tore down the courtyard house that had been in her family for two generations.

Freed from prison in 2010 but unable to walk, she ended up living in a Beijing park with her husband for nearly two months, until unflattering publicity led local officials to move them into a cheap hotel.

Their predicament will most likely take a turn for the worse in the coming weeks, when a court in the capital’s Xicheng district is expected to sentence the couple on charges that include “picking quarrels” and disturbing public order. “I’m afraid the sentence this time will be especially heavy,” their lawyer, Cheng Hai, said after their hearing on Thursday.

The case of Ms. Ni and Mr. Dong highlights the ways officials can leverage the legal system against those they deem to be nuisances. Ms. Ni, 51, who received a law degree from China University of Political Science and Law, drew the attention of the authorities in 2002, when she used her expertise to help neighbors in Xicheng fighting eviction, part of the government’s sweeping effort to remake the capital ahead of the Olympics.

Detained after she tried to photograph demolition crews, she said she was kicked and pummeled over the course of 15 hours, leaving her incontinent and unable to walk. She was released after 75 days but continued her legal work while also seeking redress for the beating. Over the next few years, she was arrested twice more and convicted of “obstructing public business.”

During her three years in prison, she said, she endured frequent indignities: An officer once urinated on her face, she said, and prison officials often took away her crutches, forcing her to crawl from her cell to the prison workshop. One of her tasks included cleaning toilets.

Her daughter, too, said she was subjected to government surveillance. “The police followed me to school and watched me all day so I would experience the fear,” said the daughter, Dong Xuan, now 27.

During their trial last week, Ms. Ni, thin and weak, was propped up on a makeshift bed, an oxygen mask tethered to her face. Outside, a heavy police presence prevented family members, supporters and foreign diplomats from entering the courtroom. Their lawyer, Mr. Cheng, claims the proceedings were illegal because 9 of his 10 witnesses were barred from testifying.

Reached by phone, a spokesman for the Xicheng District People’s Court declined to answer questions about the case.

Cases like this are part of what convinces me that the Communist Party isn’t anywhere near as strong as it looks, in the long term. Does a secure Party need to go to such lengths to attack a women whose crime is lawyering and who needs an oxygen mask to survive?

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“China’s Latest Legal Crackdown”

Jerome Cohen is back in the WSJ, describing the new Chinese legal code updates:

Before the end of this month, the Standing Committee of the National People’s Congress will review the second draft of a proposal for comprehensive revisions to China’s Criminal Procedure Law. Despite some tweaks made under public pressure, it’s clear the revisions will be one step forward and two steps back for justice, at least for the politically controversial.

For non-political citizens, the draft revision promises overdue protections against arbitrary exercise of state power. But for politically unpopular minorities and dissidents, the revision threatens the legalization of repressive and abusive state tactics. The overall effect is a murky, two-tiered legal regime that will move the country further away from some major international human rights standards.

Despite its positive aspects, the draft revision also embraces a more sinister agenda toward political outsiders. It will authorize, under Article 73, the practice of enforced disappearances of political offenders. While the practice has been employed for years, it was always technically illegal—until now. Under the draft, citizens can be secretly detained for up to six months on suspicion of “endangering national security” or “terrorism”—notoriously vague charges that have long been manipulated by police, prosecutors and courts. Article 73 is a blatant, open-ended attempt to authorize expanded political repression in the guise of concern for national security.

By law, “residential surveillance,” a strict form of house arrest allowed for up to six months, is supposed to be less severe than confinement in a police detention center. Yet it has often been abused as a vehicle for detaining political offenders not in their own homes but in secret, incommunicado venues controlled by police, as in the cases of Nobel Peace Laureate Liu Xiaobo and renowned artist Ai Weiwei. The proposed law effectively institutionalizes this rights violation.

In today’s climate, petitioners seeking relief from political or even mundane grievances may easily be charged with endangering national security, and peaceful Tibetan and Uighur protesters are often accused of terrorism. Under Article 73, they will have fewer legal rights than they do now. They will be virtually defenseless during the critical first stage of the criminal process.

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“China’s Legal Blindness”

Jerome Cohen has an op-ed in the WSJ talking about Chen Guangcheng:

There are three myths about Mr. Chen’s plight that must be dispelled. One is that such cases of persecution and abuse of lawyers and legal activists are rare in China, and only occur when a few heroic dissidents openly invoke the law to confront injustice rather than rely less confrontational methods.

Mr. Chen never saw himself as a “troublemaker” bent on damaging social stability and harmony. He wanted to improve stability and harmony by using legal institutions to process social grievances in an orderly way as prescribed by law. His only mistake was to accept the law as it was written, as a true believer in China’s legal reforms.

One day, when he was especially frustrated by the county court’s refusal to accept the lawsuits he brought on behalf of impoverished pro bono “clients,” he asked me: “What do the authorities want me to do? Lead a protest in the streets? I don’t want to do that.” Yet, in a cruel twist, he was ultimately convicted on bogus charges of interfering with traffic and damaging public property.

China’s activist lawyers and non-professional advocates are under widespread, systematic official assault. Hundreds of lawyers have been persecuted for representing clients who seek to challenge arbitrary residential evictions, environmental pollution, food and drug contamination, official corruption, and discrimination against the sick or disabled. Many public interest and criminal defense lawyers never consider themselves human rights lawyers until the local judicial bureau threatens to take away their license to practice law, the police detain them in jail or at home, the authorities “suggest” that they leave the country, or officially sponsored thugs kidnap and beat them.

A second myth is that Mr. Chen’s recent suffering is merely another example of local government run amok, neither approved nor condoned by the central government. Many attacks on lawyers are indeed local in origin, and Mr. Chen’s case started out that way in 2005 when local authorities first sent thugs to illegally confine him and his family at home. However, the case soon came to the attention of national leaders. After representatives of the Ministry of Public Security reportedly met with local officials to discuss the situation, the authorities launched a criminal prosecution against Mr. Chen, a more conventional type of repression.

A third myth is that there must be some purported legal justification for the suffering that the Chen household has endured since his release from prison last year. Governments, even the Chinese government, normally like to maintain some veneer of plausible legitimacy for their misconduct, however thin it might be. Yet no such justification has come to my knowledge in this case, which seems to have exceeded the bounds of police ingenuity.

When, at an Oct. 28 Beijing press conference, a foreign reporter asked deputy director Li Fei of the Legal Affairs Commission of the National People’s Congress Standing Committee to state the legal basis for Mr. Chen’s home imprisonment, he declined to answer. He merely asserted that “in our country the freedom of a citizen is adequately protected, and the use of any compulsory measures is based on law.” The question and its answer were eliminated from both the transcript and the video broadcast of the press conference.

Although it hasn’t gotten Chen out yet, it is still good to see increased international pressure and awareness of his captivity. As an added bonus, some of that international noise can easily leak back into China and lead to more Chinese citizens learning about what their government is doing.

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“Lawlessness, Public Opinion and Censorship in China”

Jerome Cohen is back, with a great new article on Chen Guangcheng:

The Chinese government’s current suppression of rising internet protests against its barbaric abuse of the blind “barefoot lawyer” Chen Guangcheng raises fundamental questions about the impact of legal reforms on real life in China.

Is Chen destined to be illegally silenced for the rest of his life? He is about to be 40 and has the iron will and charisma of a Gandhi. He is badly debilitated, however, by six years of being denied adequate medical attention for increasingly serious gastroenteritis. His death in prison would have plainly embarrassed his captors, but dying “at home” might appear less sinister.

Although domestic media are usually forbidden to mention Chen, two Chinese newspapers recently made brief references to his plight. The Internet is a more likely prospect for invoking the Party’s highly-touted but normally restricted “supervision by public opinion”. The weeks since the first anniversary of his release from prison have witnessed a surge in microblog protests against Chen’s suffering. Some were inspired by the failed attempts of disabled activists to mark International White Cane Safety Day by visiting Chen. But many broader protests reflect widespread, perhaps growing, concern over the regime’s lawlessness.

Of course, the Party Propaganda Department has an equally long memory and is trying to wipe out all Internet mention of Chen. Thisi s a great challenge to the ingenuity and energy of his blogging sympathizers. Yet other possibilities also exist. Huge, peaceful pro-environment “strolls” in Xiamen, Shanghai and Dalian led to cancellation of harmful development projects. At great political risk, some 370 Shanghai people just signed a petition supporting Chen. One can imagine the boost that might come from China’s large disabled population, if awakened. Chen once estimated that almost 10% of Linyi City’s residents are disabled. Foreign protest movements on Chen’s behalf also seem to be stirring in an attempt to emulate their recent success in helping to free famous artist Ai Weiwei from his illegal detention.

Zhou Yongkang and his comrades are undoubtedly determined to hang tough. Yet reports that Chen’s six-year-old daughter has finally been permitted to attend school – under stigmatizing police escort – suggest a sop to public opinion. Unfortunately, a similar gesture toward the daughter of the long-”disappeared” human rights lawyer Gao Zhisheng only added to the pressures that battered her and did not presage release for her courageous father. Without stronger public demands for holding the Chinese government to account for dishonoring its own legislation, Chen is unlikely to fare better.

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“Little Yueyue and China’s moral road”

Where to even start with this one… a few years ago, a man in Nanjing helped a senior citizen who had fallen over. He was then taken to court and blamed for her injuries, with the judge ruling that he must have been responsible, because why else would he help her out? This is one of those times where having a ludicrously terrible judicial system which only exists to serve the powerful and moneyed and can’t actually function in any other capacity comes back to bite you. Since then a slight nervousness about helping others has turned into an outright phobia- Chinese friends and students have told me on multiple occasions that I shouldn’t ever help anyone in distress, because I’ll end up taken to court and the Nanjing ruling will happen again.

It seems to have reached a head with the case of Yueyue, a child struck by a car who was then ignored by passersby, much to the outrage of the general public. A piece from Asia Times:

“What has happened to our morality?” “Where are our hearts of sympathy?” “How come we could ever become even more cruel and hard-hearted than cold-blooded animals?” These were questions being asked by outraged Chinese media and bloggers over a recent incident hit-and-run incident which saw bystanders indifferently walk past a toddler who was struck by a van, only for the child to be hit by a second vehicle.

The incident happened on October 13 in Foshan city in southern Guangdong, the richest province in China, and was captured by a surveillance camera. The footage was aired by the province’s Southern Television Guangdong (TVS) and posted last Saturday on the Chinese video site Youku, drawing around 2 million views and thousands of comments on that site alone.

The footage shows a two-and-a-half-year-old girl hit and run over by a large white van while walking down a street in a market district of Foshan. About six minutes later, another passing van runs her over again. During the interval, at least 18 people walk by without helping her. Finally last an elderly trash collector comes to her aid, moving her to a side of the street and calling her mother.

The apathy of the bystanders and people in the neighborhood has shocked the public, with media commentators and netizens seething over an incident that raises questions about the morality and conscience of today’s China.

“[Ancient Chinese thinker] Mencius said, ‘The heart of sympathy is essential to man.’ What has made us so apathetic?… Lack of sympathy is a moral disaster facing us all … Let us all ask ourselves if we had passed by the scene, how many of us would have stopped to help the girl?” wrote a commentary on Chongqing Times.

It went on to blame the system for a lack of mechanisms that support good deeds. “Our current system is obviously in an embarrassing status: corruption continues to run wild and evil people enjoy privileges, scandals with charity organizations such as the Red Cross stop people from donating to help the needy. [3] All this certainly shakes up the beliefs of kind-hearted people.”

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“Independent Candidate Yu Nan’s Candidacy Revoked for No Reason”

We’ve been following the upsurge in independent candidates for local elections- many have been harassed by the government or had their candidacies invalidated for any number of meaningless reasons. Another one has bitten the dust, this time for no reason whatsoever:

On September 7, Yu was suddenly notified by the Election Committee of the National People’s Congress and asked to turn in original copies of the household registrations and property certificates for all of his 17 nominators. In addition, one of the nominators was required to be present at the Committee for an interview. Yu later managed to collect all of the required documentations in time, and his wife was interviewed as a nominator.

On September 9, however, Yu’s candidacy was revoked with no reason or any prior notification given, despite the fact that he was on the list of four officially registered candidates. And since only three representatives are needed in Yu’s district, there will be no surprise on the election day, which will be September 15.

Another stark reminder that the law exists only as a means of enforcing the Party’s will, and if their will runs contrary to the law, the law loses every time.

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“China Threatens to Legalize Repression”

Stanley Lubman in the WSJ, on the subject of the Criminal Law Update:

Police would need permission from a prosecutor or public security agency to detain people in a “specified location” in cases when they believe holding them at home could “obstruct the investigation,” the report said. However, there is no provision requiring police to contact family members of suspects involved in these types of cases if it could hinder their inquiries. Joshua Rozenzweig, a civil rights activist with the Dui Hua Foundation, has said that the proposal “would essentially legitimize the enforced disappearances that we have been seeing more and more of over the past year or so.”

The Chinese leadership has been determined to stifle dissent, as shown by the recent “disappearances” of Ai and numerous other high-profile critics of the regime. Since the outbreak of the “Jasmine Revolution” in the Middle East, the number of dissidents, rights activists and lawyers who have been held in secret locations has increased.

China’s Criminal Procedure Law has not been amended since it came into effect in 1997. Even while considering the “legalization” of secret detentions, the drafters of the proposed revisions of the code seem to be moving in another direction at the same time. Other proposals, if adopted, would at least formally bring aspects of China’s criminal procedure more into line with protections for persons accused of crime that are common in the West. For example, according to Xinhua, the Code would be amended to outlaw the use of forced confessions as evidence and would also enlarge the rights of suspects to meet with their defense attorneys. Other proposed revisions have been reported to include “no longer compelling defendants’ family members to testify against them, and granting mental health patients who are forcibly detained the right to judicial review.”

The coexistence of moves toward increased procedural legality with formalization of authoritarian police measures to quell dissent vividly illustrates some of the contradictions in society and governance that trouble China today. Dissent is viewed as a threat to “social stability,” but other currents in Chinese society are strengthening a pluralism of values. Those include not only dedication to economic development and nationalism, which support the co-opting of the population, but also free expression and legality.

With a little less than a month left for the public to comment on the draft revisions to the Criminal Procedure Law, it remains to be seen how China ’s legal community will react to the proposed changes.

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“Lawyers Express Criticism of Criminal Procedure Law Revision Draft”

Siweiluozi has written up a fairly detailed summary of the Criminal Procedure Law rewrite. For specifics go to his site- here I’ll just quote his conclusion:

Looking at the CPL draft overall, the public security system has turned the tables on their attackers and scored a big victory. The procuratorate has held their ground, particularly since some of extremely unreasonable provisions haven’t been eliminated — so they’ve held steady. As for the courts, well when it’s come to this point, anything’s okay with them. But lawyers? What happened to the lawyers?

Not a good sign for the future of trials and courts here.

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“Chinese civil rights under new threat”

From the Sydney Morning Herald, another piece about the legalization of enforced disappearance:

A proposed change in the Chinese criminal code that would allow authorities to detain suspects for up to six months in a secret location is a dangerous step backwards for the country, activists said.

The change would essentially enshrine what has become a common practice for silencing dissidents, many of whom have disappeared for months without formal charges being filed. Under the change, the suspects can be held without their family members or lawyers being notified.

China is revising its criminal code, which has not had an overhaul since the mid-1990s. Bits and pieces have been leaked to the media in recent days, some of them winning praise from human rights advocates. For example, another revision would ban the use of evidence obtained by torture in criminal cases. Also, family members of defendants would not be compelled to testify against them.

I have to say: I just don’t see it. “New threat”? This is the exact same old threat. Now it’s legal? Wow, what an irrelevant change. Before, people were disappearing contrary to what some piece of paper says. Now, people will disappear in a way allowed for on a piece of paper. The legal code bears no relation to what police do here, why do we care what it says?

Look at it this way: the same legal code update bans the use of torture. Does anyone believe China will stop torturing people? Show of hands.

Nah? Ok, so lets worry about what Chinese police are doing, not what a meaningless pile of paper says they can or can’t do.

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Filed under enforced disappearance, law, torture

“China Set to “Legalize” Enforced Disappearance?”

Prolonged house arrest, a strategy increasingly used on dissidents, is actually a tactic making use of a legal loophope. Siweiluozi writes that China might be moving to close the loophole… by writing it into law!

Based solely on what has been written here, this is a rather shocking development. It means that, for example, individuals suspected of “inciting subversion,” can be taken into custody by police and held in a designated location (as long as it’s not a place of detention) for up to six months without any need to notify anyone of their whereabouts or the charges against them. All on the pretext of “impeding the investigation,” a vague criterion that police investigating these types of cases should have little difficulty convincing their superiors of.

Readers of this blog (among others) will recognize that were this to become law, it would essentially give legal cover to the sort of enforced disappearance that befell Liu Xiaobo, Ai Weiwei, Liu Shihui, and others. Rather than closing the loopholes that police have been using to engage in this sort of activity, China’s legislators seem set to legitimize it.

It’s ironic, given that “residential surveillance” is actually intended to be the least restrictive coercive measure available to police investigators. Indeed, the article above concludes with experts saying that the proposed revisions concerning residential surveillance (which include other, more sensible changes) represent an effort to safeguard citizens’ individual rights.

That’s progress!

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“Liu Shihui Reveals Details of 108-Day Detention”

Via Siweiluozi, an account from one of the human rights lawyers disappeared during the Spring Crackdown:

I was interrogated day and night for five days straight without sleep. Only after I finally collapsed on the bed and a doctor checked my blood pressure did they finally allow me to sleep. At that point I could barely take off my pants, as my injured left leg had swollen to double its original size.

The five days without sleep, the incessant air-con, the abusive threats — all of these tortures are nothing compared to having my wife and home taken from me.

I realize that I face some danger from revealing the truth [about my ordeal] and that being kept under tight control. But if one is forced even to be suffer the insult of having one’s newlywed wife stolen from him, it can only lead to more like Yang Jia! I don’t want to become a Yang Jia, so I’m speaking out. If the security police get upset about this, I’d ask them to think it over — what would you be thinking if it happened to you?

After 10 p.m. on 11 June, the security police suddenly announced I’d be on a flight early the next morning. They also gave me back my computer. Up to that point I repeatedly emphasized to them that any personal or professional data unrelated to the case must be returned to me, and the security police officer in charge agreed. But after I got to Inner Mongolia and turned on my computer, I found that it was empty and my HP hard disk had been switched out.

There were 50-60 GB of personal and professional data, the product of more than 10 years of my legal career and personal life. Others might not see this as being worth much, but it’s priceless to me, at least! Now it’s all gone, leaving not even a trace!

When I discovered my data was missing, I tried calling the number that I’d been given by the security police, but the phone was always switched off. I also tried calling a number they had left with my father, but the phone refused to pick up so I sent text messages. I never imagined I’d receive eight different junk messages in response, each of them costing me one yuan for a total of eight yuan.

Think about it: who in China has the ability to transfer personal text messages to those junk-message sites without any consequences? The answer is clear.

Some Twitter followers say that I’m revealing everything. On the contrary — I’ve only begun to scratch the surface! I’ll stop here for now.

This is where it comes back to these tactics being a sign of weakness, not strength. Has Beijing made itself any more secure by harassing this guy? No, they’ve made him furious and given yet another public example of how they treat their citizens. They do this not because they can, but because they think they have to- and in doing so, make their own position less secure in the long run.

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Filed under enforced disappearance, human rights, Jasmine Revolution, law, torture

“A riot that could easily have been avoided”

A writer from China Labour Bulletin traveled to the site of the Guangdong migrant worker protests that shocked China a few weeks ago, and wrote about her findings:

In late May, Xiong Hanjiang, a 19-year-old migrant worker from Sichuan visited his township labour bureau in the hope that officials there would help him get his two-month’s salary back from his employer, Hua Yi Porcelain. The bureau did in fact order the factory to give Xiong his 3,400 yuan salary but the boss refused to pay. When Xiong and his parents demanded payment, the boss and his family started to beat them and Xiong’s hamstrings were severed, leaving him possibly paralyzed for the rest of his life.

Following the assault, Xiong’s relatives pleaded with the township government in Guxiang and municipal government in Chaozhou to arrest the boss and give Xiong proper compensation. Sadly, neither government paid any attention to their plight.

Frustrated and angry, the family, together with hundreds of other Sichuan migrant workers, vented their fury by smashing cars in the town. The message they wanted to convey was: Why didn’t the government care about or help a worker paralyzed by his cruel boss just for asking for his due salary?

When the riot broke out, local residents thought the time had come to “battle to guard our homeland” and quickly equipped themselves with any domestic weapons they could find and forced their way into the houses of migrant workers, destroying anything they saw.

The local government tried to stem the unrest but failed. A detachment of Guangdong provincial armed police were sent in, along with more than 50 police from Sichuan. According to one local resident, the police were stationed in Guxiang township for 20 days.

The Chinese media reported that about 200 people took part in the riot and that 19 vehicles were damaged. Yet according to a Chaozhou-based taxi driver, several thousand Sichuan migrant workers marched through the streets, swinging clubs on the night of 6 June. “Some 200 cars were smashed, including a couple of BMWs. After the riot started, none of the Sichuan migrants could work. If anyone was seen working, they were beaten,” he said.

Porcelain manufacturing is a labour intensive industry subject to frequent labour disputes, especially in small unregulated family workshops where migrant workers have neither access to reliable institutions of redress nor effective legal enforcement to protect their rights. As a result, it is rumored that Sichuan migrant workers have organized their own underground association to defend themselves with violence and other illegal means.

This riot could have been avoided if the township labour bureau had enforced its order for the payment of Xiong’s wages, or if the municipal authorities had taken prompt action to arrest the boss.

Even the most rudimentary collective bargaining mechanism could have helped workers and factory bosses in the porcelain industry here resolve their disputes. The pre-requisite for collective bargaining is solidarity of workers, as only when they are united can they have the bargaining power to negotiate equally with their bosses, no matter if they are local residents or from Sichuan.

According to official news reports, the boss who attacked Xiong is in custody and his factory closed down. Nearby, it is business as usual at another porcelain factory. Local residents told me this was the first time they had seen such a big riot, but that there was no guarantee it wouldn’t happen again.

To take my ‘broken record’ act one step further, I should note that many of the riots in China could be easily avoided. They’re going to keep happening, and keep growing in intensity, until the government makes real efforts towards political reform and rule of law.

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Filed under China, law, migrant workers, protests