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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Filed under activism, enforced disappearance, law

“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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Filed under enforced disappearance, law

“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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Filed under courts, intimidation, law

“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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Filed under courts, enforced disappearance, human rights, law