30 December 2009

Thoughts in Reaction to the Execution of Akmal Shaikh

Akmal Shaikh, a naturalized British citizen, was executed by lethal injection in Urumchi yesterday after being sentenced to death for the crime of drug smuggling. I wrote about this case before briefly and have thought about it more since then. I offer these thoughts as a sort of summary of my reaction. (I don't know whether it's fully coherent, and I should probably come back and add a few links here and there when I have a bit more time.)

As far as I'm concerned, this case was less about the morality of capital punishment and more about due process. Chinese law provides a mechanism for psychiatric evaluation of mental competence at the time of the crime to be introduced as evidence that could exempt the defendant from punishment or mitigate that punishment. In practice, that mechanism is flawed in many ways, because the court has near total discretion in deciding whether an evaluation is warranted, evaluations are not independent, and the defense has little recourse to challenge the evaluation or submit its own evidence.

There's still a lot about this case I don't know. My understanding, based on some of the Chinese reporting, is that Akmal Shaikh was from the very beginning opposed to any "insanity defense," but that such was at least raised at the insistence of his (court-appointed?) attorney. I also understand that it is that it's often difficult to get the court to consider new evidence after the first-instance verdict has been handed down, which may have contributed to frustrations as the case went on.

Akmal Shaikh's mental state appears to have been the sole point of controversy in the entire trial, a controversy made manifest by the rambling, incoherent testimony he presented at trial that reportedly so amused the judges. Given that the existing procedure is so heavily tilted in favor of the state, I still cannot understand why the court didn't order an evaluation simply to provide itself some cover from that particular controversy.

Though international appeals were often framed in terms of leniency, that only wound up enflaming the (in many ways justifiable) Chinese reactions about hypocrisy, interference in the judicial process, etc. But to have the court order a psychiatric evaluation on a man of questionable sanity facing the law's ultimate sanction is not to ask for leniency or an exception to be granted by virtue of foreign citizenship; it is to ask the court to grant Akmal Shaikh the same procedural protections that a Chinese defendant should have under the same circumstance -- but, to be sure, is also not guaranteed.

The British and European governments may oppose application of the death penalty in principle, in which case the death penalty would be unacceptable regardless of whether the judicial process had been carried out differently. But what makes this case so disturbing (to me, at least) is the refusal to acknowledge the need for visible justice by not one, but three courts.

(There is some ambiguity about whether the Supreme People's Court ever initiated a formal psychiatric evaluation during its review. That was stated in a China Daily article yesterday, attributed to an elderly law professor from Hubei who, as much as I respect him, I don't believe to be intimately familiar with the case. Based upon what I've read in the Chinese press, including the SPC's own statement, it seems more likely that the SPC, like the lower courts, made a judgment based on other evidence—AS's own statements, in particular—that no evaluation was necessary.)

Finally, what may ultimately have been a deciding factor in the case was the possible difference in the understanding about what sorts of psychiatric conditions can qualify for mitigation. I've seen some acknowledgement in the Chinese press that Akmal Shaikh may have suffered from a "personality disorder" but that this not only did not meet the criteria for mitigation but also did not meet the criteria for necessitating a psychiatric evaluation. (This would at least better explain the courts' refusal to order an evaluation.) Something worth investigating (probably by someone other than me) is whether bipolar disorder (the illness Akmal Shaikh is said to have suffered) is recognized in Chinese psychiatric diagnosis and whether there is any precedent for its use in mitigating criminal culpability in China.

16 December 2009

Liu Xiaobo Set for a Christmas Trial?

The other day, someone posted on Twitter that Liu Xiaobo had been informed that his trial for "inciting subversion" would open "next week." I've been trying to find out more information, but so far I've only seen other hints that a trial may be imminent, nothing definite.

According to Article 119(4) of the Supreme People's Court "Interpretation on Several Questions Concerning Implementation of the Criminal Procedure Law of the PRC," the Beijing Number One Intermediate People's Court is required to notify a defendant and his or her defense attorney five days before the trial is set to open and get information about defense witnesses and evidence. If this was the basis for the notification given to Liu Xiaobo, it would suggest that the trial could open as early as Monday, 21 December.

If the case is to be tried in open court, the court is supposed to make a public announcement three days prior, which, if the trial were set for Monday, would mean today. (Anyone in Beijing want to venture over to the courthouse and have a look at the announcement board?)

Of course, it's not clear to me at this point whether Liu's case will be tried in open court or whether authorities will invoke the need to protect state secrets in an effort to keep everyone out of the courtroom. (Even if the trial is nominally open, however, good luck finding a seat in the courtroom that's not already occupied by some off-duty law-enforcement officer or government official.)

Nearly every year in my recent memory, some arrest, conviction, or other incident that would otherwise receive international scrutiny gets carried out during the week between Christmas and New Year's Day, when foreigners' attentions are turned elsewhere. (Hu Jia's arrest in December 2007 is a good example.) Even if Liu's trial opens next week, there's no guarantee that he'll be sentenced by Christmas, though the process appears now to be moving with an alacrity rarely seen in cases against people charged with political crimes in China.

Watch this space . . .

23 November 2009

Huang Qi Sentenced to 3 Years, Verdict Denied to Family

According to this report from Chinese Human Rights Defenders (CHRD), Huang Qi was sentenced to three years in prison at around 11 a.m. this morning on the charge of "illegal possession of state secrets." Huang, who previously served five years in prison from 2000 to 2005, is one of China's veteran "rights defenders" and, through his 64tianwang website, a pioneer in the use of the Internet to promote justice and rights in China.

The conviction is unfortunately not unexpected. What is a bit more unusual is that, according to the CHRD report, the presiding judge in the trial at the Wuhou District People's Court in Chengdu, Sichuan, refused to provide Huang's wife, Zeng Li, with a copy of the verdict, arguing that since Huang is an adult, it's unnecessary to provide family members with a copy. (The implication is that only relatives of juvenile defendants are provided copies of the verdict.)

Well, unless there are "special" rules that haven't been made public, the judge's excuse is ridiculous. According to Article 182 of the 1998 Supreme People's Court "Interpretation of Several Issues Concerning Implementation of the Criminal Procedure Law of the PRC" (最高人民法院关于执行《中华人民共和国刑事诉讼法》若干问题的解释):

第一百八十二条
当庭宣告判决的,应当宣布判决结果,并在五日内将判决书送达当事人、法定代理人、诉讼代理人、提起公诉的人民检察院、辩护人和被告人的近亲属。定期宣告判 决的,合议庭应当在宣判前,先期公告宣判的时间和地点,传唤当事人并通知公诉人、法定代理人、诉讼代理人和辩护人;判决宣告后应当立即将判决书送达当事 人、法定代理人、诉讼代理人、提起公诉的人民检察院、辩护人和被告人的近亲属。判决生效后还应当送达被告人的所在单位或者原户籍所在地的公安派出所。被告 人是单位的,应当送达被告人注册登记的工商行政管理机关。
"After the verdict is announced, [the court] should immediately deliver a copy of the verdict to the parties to the case, their legal representatives or litigation representatives, the People's Procuratorate making the prosecution, defense attorneys, and close relatives of the defendant."

I'd read someplace before that Huang and Zeng were divorced, but I don't know if that's a fact. If so, perhaps that has some bearing on her status as a "close relative." Otherwise, though, the judge's argument that relatives can only be provided with copies of the verdict in cases involving juveniles is bogus.

30 October 2009

Uyghur Journalist Heyrat Niyaz Reportedly Detained on State Security Charges

Over the past week there have been an increasing number of reports that Uyghur journalist Heyrat Niyaz (海来特·尼亚孜 or 海莱提·尼亚孜) has been detained by Chinese police on state security charges. According to the most recent report I've seen:
Heyrat Niyaz, age 50, well-known Uyghur journalist and former senior reporter for the Xinjiang Economic News, was taken by police from his home in Urumchi on 1 October. One 4 October, his family received a detention notice specifying that the cause of his arrest was "endangering state security." Police also said that it was because Heyrat gave several interviews following the 5 July Urumchi incident. He is currently being held in Urumchi's Tianshan Detention Center.
Most notably, Heyrat Niyaz gave an interview to the Hong Kong-based news magazine Yazhou Zhoukan in July, which I previously translated here, in which he claimed to have warned local officials that trouble was brewing and that the riots appeared to have been a premeditated effort coordinated by Hizb-ut-Tahrir al Islami (Islamic Liberation Party).

"Endangering state security" is not a specific crime; under Chinese law, it refers to a group of specific crimes under Articles 102–113 of the criminal code. Police are supposed to indicate a specific crime when they issue a detention notice, but it's not unusual for them to be vague like this in state security cases.

Given the circumstances, it seems most likely that Heyrat Niyaz is being investigated on suspicion of "illegally providing state secrets or intelligence to overseas entities" (为境外非法提供国家秘密、情报罪) in violation of Article 111 of the criminal code. It's a crime that, under serious circumstances, carries the death penalty, but I wouldn't expect that to be under consideration in this case.

Article 111 has been frequently used in past years to punish individuals who provided foreign media or organizations with information about ethnic unrest. A few examples:
  • Rebiya Kadeer was sentenced to eight years in prison in 2000 for sending newspaper clippings to her husband, who was living in the United States.
  • In 2003, Abdulghani Memetimin was sentenced to nine years in prison for providing newspaper clippings and other information to an overseas Uyghur organization.
  • In 2008, Ekberjan Jamal was sentenced to 10 years for transmitting audio of a protest to friends overseas, who then gave it to Radio Free Asia.
  • Also last year, Tibetans Phuntsog Dorje, Sonam Drakpa, Sonam Tseten, Sonam Yarphel, Tsewang Dorje, and Yeshe Choedron were sentenced to 9–15 years in prison for providing information about the riots and protests in Lhasa and elsewhere that began in March 2008.
It thus appears that Heyrat Niyaz may be facing serious prison time for revealing details about the 5 July riots that weren't part of the official narrative of events. Given the attention that was given to the interview in question (I doubt anything I have ever done has been read by so many people), his fate deserves our continued attention.


14 October 2009

Some Notes on Mental Illness and Criminal Responsibility in China

In light of the case of Akmal Shaikh, a British national of Pakistani origin who has been sentenced to death in Urumchi on drug charges, I've been doing a bit of reading on the subject of China's laws regarding mitigation of criminal responsibility due to mental illness.

Article 18 of the Criminal Law is fairly straightforward:
If a mentally ill person causes harmful consequences at a time when he is unable to recognize or control his own conduct, following verification and confirmation through legal procedure, he shall not bear criminal responsibility, but his family members or guardian shall be ordered to keep him under strict watch and control and arrange for his medical treatment. When necessary, the government may compel him to receive medical treatment.

Any person whose mental illness is of an intermittent nature shall bear criminal responsibility if he commits a crime when he is in a normal mental state.

If a crime is committed by a mentally ill person who has not completely lost the ability to recognize or control his own conduct, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment.

Any intoxicated person who commits a crime shall bear criminal responsibility.
So, depending on the nature of the mental illness, criminal responsibility can be either completely nullified or a lighter punishment may be imposed if it has been found to have impaired the ability to recognize or control one's actions. All of this is dependent on a psychiatric evaluation to be carried out by an appointed medical professional and introduced as evidence according to relevant legal procedure.

Such an evaluation was carried out for the trial of Deng Yujiao, and it was the certification of her psychiatric condition that was cited by the court in its decision to exempt her from punishment. Meanwhile, in Yang Jia's murder trial, a psychiatric evaluation was reportedly conducted despite Yang's insistence that he was not mentally ill. The evaluation was negative, and Yang was executed.

Yet in this case—a case in which defense counsel is reported to have raised the issue of mental illness and in which the Times reports the defendant was "apparently so delusional during an appeals hearing in May that the judges could not help but laugh out loud"—the court evidently saw no need to conduct a psychiatric evaluation. Discretion to order such examinations on incarcerated suspects clearly rests solely with criminal justice authorities, and apparently that discretion can be exercised quite arbitrarily in China.

Akmal Shaikh's actions may or may not have been a result of impairment due to mental illness, but shouldn't the ultimate determination be made on the basis of a proper medical evaluation, especially in a death penalty case where an allegation of mental illness has been made? I certainly hope that the judges conducting the final review of the death sentence in this case would recognize this glaring failure to safeguard Shaikh's human rights, vacate the verdict, and order a new trial.

17 September 2009

Final Update on the Wu Baoquan Defamation Case

I've written before about Wu Baoquan, one of a series of questionable criminal defamation cases that were reported on earlier this year in the Chinese media. In this post, I expressed hope that the court would review whether the defamation charge was applied properly, given that a public prosecution for defamation (as opposed to charges brought by the aggrieved party) is only supposed to be pursued when there is a serious threat to social stability or national interest. I question whether that threshold was reached in this case, but according to this update from Southern Metropolis News today (translated by the EastSouthWestNorth blog here), the court seems merely to have accepted the claim of serious threat to social stability, rather than examine it more closely. A missed opportunity to take a stand on proper legal procedure, but I guess I shouldn't be too surprised.

Wu decided not to pursue any more appeals, which makes sense given the number of times he's been found guilty so far and the fact that he's due for release (after credit for time served in detention) in just over a month.

UPDATE: I just realized that the ESWN post above left out the final paragraph of the original story, which to me is crucial:

"The handling of this case was seriously in violation of the law," said Liu Xiaoyuan, a lawyer with the Qijian Law Firm in Beijing. If Wu's [actions] truly constituted defamation, the aggrieved party should have filed suit in court himself. One cannot simply believe that, because the party affected by the "defamation" is an official, that [the speech] therefore disrupts social order and thus treat it as a case for public prosecution. This is a clear abuse of power.

05 September 2009

A Dissenting View on Internet "Rumors"

I'm not prone to spend time translating items whose premise I disagree with, especially on a Friday night. But the following opinion piece, which appeared in Thursday's Beijing Daily (a paper with a reputation for taking hard-line "leftist" positions) struck a bit of a nerve.

A lot of people have now read the translation I did last week of Hu Yong's piece on Xiong Zhongjun's 10-day detention for items he posted online suggesting that law-enforcement authorities in Hangzhou had allowed the perpetrator of a notorious traffic accident to go free and let a "surrogate" stand in for him at trial. Hu (and several other commentators) have been questioning whether Xiong's statements—wrong and misleading though they may have been—should have been punished with jail time for "disrupting public order."

As the collection of posts on my blog can attest, the subject of how laws and regulations are being used (and misused) in China to constrain speech online is a subject I find quite interesting. So, it was natural that I entered into a discussion on this subject with an acquaintance from the mainland the other night over dinner.

This individual, who I would expect to carry the Party's water enthusiastically, started off with exactly the same argument that is the core of the piece below: that China has freedom of speech, but that free speech is not absolute. He then proceeded to raise a number of examples of speech that could have serious consequences for stability—such as rumors about poisoned water or Uyghur attacks on Han.

But he (and the article below) really avoided what to me is the central question here: what serious social consequences does raising suspicions about the credibility of government agencies really have? It seems to me that the harm is simply assumed, and it betrays the lack of self-confidence that the author of the piece below suggests is necessary. In a society that for so long has used the media as a tool to shape public opinion, the possibility for free Internet speech to "mislead" public opinion is simply too scary to behold. So, it's okay to have critical views, but the government won't provide space to air them publicly, lest they contaminate others'

When my dinner companion said for the n-th time that "Xiong Zhongjun's attacks on the fairness of Hangzhou's court caused people to doubt China's legal system, and this can't be tolerated," I couldn't help but ask in return, "Don't posts like Xiong's get written (and attract attention) precisely because many people already question the fairness and credibility of China's legal system?" I didn't receive a real response to this question, and the matter had to be left as one of those unresolvable differences between "you foreigners" and "we Chinese."

This debate—which, after all, is taking place inside China, too—between those who support freer online speech and those who maintain that restrictions are necessary to maintain stability strikes me as being a lot like other "discussions" these days (and not just in China)—they're more like two sides talking past each other, entrenched in their positions, and not really considering the arguments made by the other side. How any progress develops from this state of affairs is beyond me.

Anyway, on to the translation:


Detention of the Poster in the "Hu Bin Surro-gate": Online Speech Freedom Not Absolute
Zong Yuan

Xiong Zhongjun, who used the Internet to fabricate and spread the rumor that Hu Bin, the defendant in the "May 7" traffic accident case in Hangzhou was a "surrogate," was recently punished with a 10-day administrative detention.

Prior to this Xiong Zhongjun, using the name "Liu Yiming," posted more than 10 items on the Internet, claiming that the Hu Bin facing judicial punishment was a surrogate and presenting a large amount of "evidence" as confirmation—which led many netizens to question the credibility of the judicial organs. Police in Xiong's hometown of Ezhou, Hubei, charged that his "spreading rumors" led netizens to harbor suspicions and misled public opinion. He disrupted public order and violated the Public-Order Administration Punishment Law, so [police] decided to punish him with administrative detention.

Some people support this punishment, seeing it as just desserts for spreading rumors; others harbor doubts, saying this will lead to criminalizing speech and threats to citizens' freedom of speech. So how should we view this?

His "suspicious" article not different opinion
Contains large amount of speculative and inflammatory language

Article 25 of the Public-Order Management Punishment Law states: "The following acts are subject to between five and 10 days' detention and may be accompanied by a maximum 500 yuan fine; if the circumstances are minor, detention of five days or less or less than 500 yuan may be imposed: (1) spreading rumors; falsely reporting danger, epidemic, or alarm; or intentionally disrupting public order by other means . . . ." Is what Xiong Zhongjun did spreading rumors?

The prerequisite for spreading rumors is fabricating facts, making up the truth, and then broadcasting it. Some believe that Xiong Zhongjun did not spread rumors and that it was only based on [an examination of] news photos of Hu Bin taken on different days from which he judged that the Hu Bin who appeared in court was not the driver of the car on that day because there were many differences in the face, expression, and physical characteristics in the two photos. There's nothing wrong with this sort of suspicion, as all citizens have the right to express their own views and opinons. Even though his his view is mistaken, that doesn't constitute the "fabricating facts and making up the truth" that is spreading rumors.

To be sure, if Xiong Zhongjun had only expressed his own contrary opinion, then no matter how many mistaken things he said he should not be punished for it. But having read what Xiong Zhongjun wrote online, I've found that this is not what happened.

In his posts, Xiong Zhongjun included a great deal of speculative and inflammatory language, such as: "Hu Bin's family is, unsurprisingly, wealthy, brash, and well-connected, and after the drag-racing case occurred all in Hangzhou's law enforcement agencies were hell-bent on tilting the scales of the law in their favor," "When interviewed, employees of the [Hangzhou Xihu District] court shamelessly said that statements of suspicion were 'baseless,'" "The Hangzhou judicial agencies can really be called master thespians, but it's too bad their performance isn't seamless," and "[The Hangzhou judicial agencies] can only keep lying to the end in order to protect their official posts. They would never admit that 'the leopard has turned into a prince.'" I'm afraid it's hard to say these "statements" are rational suspicions.

Spreading rumors about individuals might constitute defamation

Complaints about the government that don't affect stability shouldn't be punished


Imagine for a moment that I, based on hearsay, "discovered" that a co-worker was having an affair and, claiming "iron-clad evidence," went around announcing that "so-and-so may have a mistress" and "so-and-so's life is indiscreet"—but this co-worker actually wasn't doing any of the deviant things that I suspected. I ask you, wouldn't my behavior qualify as "spreading rumors"? The answer is certainly, and that co-worker most likely would bring defamation charges against me.

Xiong Zhongjun has a right to air any suspicion he may have about the case, but if he engages in improper conjecture and recklessly spreads unsubstantiated hearsay, it could threaten social stability by misleading social opinion.

I also believe that Xiong Zhongjun truly fabricated and spread rumors, however his actions were not yet punishable. If Xiong Zhongjun posted an article online that hurled abuse at an individual citizen, that would clearly be an act of defamation that should be punished for perhaps violating the criminal law and at least violating the Public-Order Administration Punishment Law. But the target of Xiong Zhongjun's accusations and attacks was not an individual, but rather the relevant judicial agencies. So this ought to be treated differently.

In everyday life, ordinary people may occasionally complain or express dissatisfaction about government agencies because of some lack of trust or misunderstanding—this is understandable. Being lenient toward people's various criticisms of government agencies is a sign of society's progress and an expression of the government's self-confidence and diligence. What's wrong with ordinary people criticizing or rebuking the government a bit, so long as it doesn't lead to serious consequences or threaten social stability. But if it really leads to chaotic consequences, that's another story.

Following rumor-filled posts makes people stop and think

Online freedom of speech is not absolute

It's normal that Hu Bin's appearance would change from the time he was arrested to the time he faced trial. Way back during the Warring States period, there was the story of Wu Zixu, whose hair turned white overnight after his father and brother were murdered. After being jailed for several months, it's no wonder that Hu Bin's appearance would change. As for the "points of doubt" in those few news photos and videos, these are all created by [different] photo resolutions, shooting angles, and lighting directions. Xiong Zhongjun's articles lacked proof and were full of flaws, conjecture, and speculation. Yet it was precisely because of these vulnerable views that attracted many netizen followers. This, I'm afraid, is an issue more worth thinking about than Xiong Zhongjun's detention.

On today's Internet, with its high degree of information proliferation, only those maverick articles can attract netizens' attentions and only "startling language" attracts the highest number of hits. This is precisely why Xiong Zhongjun's posts on the Hu Bin surrogate [issue] were able to "stand out from the crowd" and receive notice. For netizens, online commentary is largely a form of entertainment consumption, and they mostly pay attention to whose views have the most impact, rather than whose argument is the tightest. Thus, many netizens gave their approval to Xiong Zhongjun's articles without thinking.

Xiong Zhongjun's detention reminds netizens that in this open Internet space, speech is free but this freedom is not absolute. The openness of the Internet determines the openness of Internet speech, and expressing one's views is not the same as complaining at home or having a heart-to-heart chat with friends. One must pay attention to the possible effect [of speech] on society, try hard to be reasoned, and avoid infringing on the interests of others or society.

03 September 2009

An Update on Gao Zhisheng

Since disappearing in February, there have been a lot of rumors about what might have happened to the crusading Chinese rights lawyer, Gao Zhisheng. Given that Gao was allegedly treated savagely during a previous disappearance, the more time passed, the more ominous the predictions of his fate became, with some even suggesting that Gao may have been killed.

Now, Beijing legal scholar and rights activist Teng Biao is reporting via his Twitter feed that Gao was briefly in contact with family members as recently as late July. If this news is true, it should allay some of the worst fears about Gao's well-being, but it leaves unanswered serious questions about why he has apparently been deprived of his liberties and under whose authority.

Teng's message, translated into English below:
Is Gao Zhisheng dead? In May and June, quite a few people were privately spreading the word [about this possibility]. In June, Gao's brother went to Beijing to contact the police, and police told him he'd hear something by the end of the month. In July, Gao made a brief telephone call to his relatives in Shaanxi, saying that he was okay. Since then, there has been no further news. Actually, "okay" means "not okay." It seems that Old Gao's not dead, but for the past seven months since 4 February, no one's seen hide nor hair of him.

30 August 2009

Hu Yong Looks at the Crackdown Against Online "Rumors"

Beijing University journalism professor Hu Yong has just published another excellent opinion piece in Saturday's Southern Metropolis News that looks at the continued efforts by Chinese authorities to crack down on criticisms that appear on the Internet. Following on his critique of the use of criminal defamation charges to punish individuals who posted information about the Yan Xiaoling case (see also here and here), this piece looks at how the authorities also punish people for "spreading rumors" online—even when those "rumors" are really little more than inaccurate information or opinions based in error.

Below I've translated a fuller version of Prof. Hu's piece that appears on his blog.


The Public's Right to Question Shouldn't Be
Misconstrued as Spreading Rumors
Hu Yong

The Hangzhou “70 MPH” incident that was once such a sensation has again created a wave of controversy—all because local police placed Xiong Zhongjun, from Ezhou in Hubei Province, under 10-day administrative detention for using the Internet to spread a rumor that the defendant who appeared in court in the drag-racing case was a “surrogate” for Hu Bin.

In fact, just as the debate over the “surrogate theory” was at its most intense, a netizen on the Tianya forum worried over whether the theory's originator would wind up being “extradited” for defamation. The charge against Xiong Zhongjun isn't defamation, perhaps because this charge has recently become rather notorious after being used indiscriminately. But the actions taken by the relevant authorities really are no different this time, placing him under criminal detention for fabricating and disseminating rumors to disrupt public order. The rate at which this vague crime has been trotted out in a series of past Internet cases is extremely high.

If we look back a bit we see that a legal trick frequently used by the relevant authorities in major public safety incidents in recent years has been to treat statements that have a certain factual basis but are not entirely accurate as rumors and crack down with force. The result is that during major social and safety incidents, statements made by Chinese citizens can carry great legal risk.

Articles 105(2), 181, 221, and 291(a) of China's criminal code have provisions criminalizing the use of rumors and other means to incite subversion of state power, the fabrication and spread of false information to adversely affect securities trading, the fabrication and spread of false stories to damage the commercial reputation of an individual or the reputation of a commercial product, and the intentional dissemination of alarmist information known to be fabricated. Article 25(1) of the Public Order Administration Punishment Law states that “those who disseminate rumors, falsely report danger, epidemic, or alarm or intentionally disrupt public order through other means” are subject to administrative fine or detention.

With respect to the publication and dissemination of rumors via new media, the PRC Telecommunications Regulations enacted on 25 September 2000 state that no organization or individual shall use telecommunications networks to produce, reproduce, publish, or disseminate information that “spreads rumors, disrupts social order, or undermines social stability.” In the National People's Congress Standing Committee's 28 December 2000 “Decision on Safeguarding Internet Security,” it says that acts such as “use of the Internet to spread rumors, slander, or express or disseminate other harmful information, incite subversion of state power or the overthrow of the socialist system, or incite splitting the nation or undermining national unity,” “use of the Internet to fabricate and disseminate the trading of securities or futures or any other false information that disrupts financial order,” or “use of the Internet to defame others or fabricate facts to slander others” should be punished according to the provisions of the criminal law. The “Regulations for the Administration of Internet News Information Services” issued by the State Council Information Office and the Ministry of Information Industry on 25 September 2005 require that Internet news information services contain nothing that “spreads rumors, disturbs social order, or undermines social stability.”

These provisions appear vague because they lack concrete determinative criteria. For example, in order to hand down an administrative punishment there must be consequences that “disrupts public order,” but precisely what constitutes “disruption of public order” in such cases is subject to debate. Moreover, the law treats spreading rumors and making false reports of danger, epidemic, or alarm as the same, and the requirement of the subjective element of “intention” creates a problem: if an individual unintentionally publishes or disseminates information that is not entirely factual, should he or she bear the corresponding legal responsibility?

From the “Zhang Zhijian affair” in 2006 to [the cases of] “Red Diamond Empire” in 2007 and “SS Mountain Division” in 2008, there has been a series of cases in which netizens have been arrested or detained by law enforcement agencies throughout [China] for “re-posting” or “commenting” online. In other instances, individuals have been charged with crime for text messages. For example, in January 2007 Beijing police stated that individuals could be sentenced to five years or more for sending text messages with rumors about “tainted pork.” During the Lake Tai blue-green algae contamination, police in Wuxi placed a local resident surnamed Ding under public order detention for sending a text message by mobile phone to more than 130 people, saying that the “carcinogen level in Lake Tai water was 200 times above [the acceptable level].”

If one carefully differentiates between these cases according to the laws and regulations, it is not difficult to discover clear abuse of the law by the government. First, the government has a tendency to treat any hearsay that is not entirely factual as a rumor in the legal sense of the word. At the time when “SS Mountain Division” reposted [information about casualties in a major railroad accident], the relevant agencies were in the process of investigating and handling the train collision on the Ji'nan-Qingdao railway line and information was confusing. Even though the post inaccurately reported the number of casualties, it still confirmed that the accident resulted in a large number of casualties. In fact, in the relatively short period immediately after a major disaster or accident occurs, even the government has difficulty immediately judging whether statements are true or false. The authorities confuse the difference between disseminating rumors to disrupt public order and spreading gossip out of concern for one's personal safety—the latter simply cannot be characterized as an illegal act. Following major disasters, many people have spread gossip without knowing whether it is true or false. Warn your friends and relatives to take care—given the current legal system, nearly every one of them could wind up arrested!

Second, the point of departure for handling rumor cases should be [consideration of] whether or not the rumor “intentionally disrupts public order” or is enough to “seriously disrupt social order” and not whether the information spread is true or false. The posts by “Red Diamond Empire” and “SS Mountain Division” reposted and quoted [other information]. The [author's] tone may be extreme, but whether a post constitutes “disruption of public order” depends on the extent of its impact and the objective consequences to which it leads—for instance, the scope of a post's circulation, whether it resulted in public fear or had an affect on the normal order of production, work, education, or daily life.

In this case, Xiong Zhongjun simply questioned whether judicial authorities fairly enforced the law. This will not cause public fear or lead to great chaos in the city's public order. Moreover, the authorities claim that Xiong fabricated and spread the rumor about “Hu Bin's surrogate,” causing netizens to be suspicious and misleading public opinion. They seem to want to prove the rumor-monger's subjective intent, but how can one determine whether Xiong's judgment about a “surrogate” was not made out of the spirit of citizenship and the rational desire to encourage the judicial authorities to accept public oversight? The so-called dissemination of the “Hu Bin surrogate” rumor is nothing more than an individual's analysis and suspicion based on a news photo—how can this be called a “rumor”? Those who claimed that Zhou Zhenglong faked his photograph of a tiger must be breaking out in a cold sweat—if Zhou truly photographed a tiger, all those who claimed otherwise could face extradition!

It's especially important to emphasize that the public has the right to question or refute the veracity of any report, even government announcements. If a member of the public sends a text message or reposts relevant posts, even if they contain some untruths they should be seen as [an effort to] protect onself or exercise the right to monitor [public affairs]. To soothe people's worries and eliminate inaccurate speech, the government must release more public, transparent information. Countries with rule of law have long held the view that one should use the criterion of “clear and present danger” to judge whether speech is a threat to public order, For example, one important reason to be tolerant of reports by the media and public concern following a disaster is that these can prevent further danger and save more lives. By comparison, the possible fear and chaos [these reports might create] is a lesser evil that must be tolerated. Rather than concocting ways to crack down on criticism, as a remedy for the biases that might be created by those expressing [mistaken information], the government can reduce the impact by releasing the truth as a means of clarification and exposing the false information that has been disseminated.

After Xiong Zhongjun was detained, one point of view held that many netizens haven't yet grasped the difference between questioning and spreading rumors and thus abuse their “right to question.” Pray tell: Can we not question court judgments? Can we not question the state's public authority? Is a citizen's right to question really something that needs to be officially granted? Some say that netizens have “overstepped their oversight” [rights] in the Hangzhou drag-racing case, but everyone knows that citizens have only just begun [to exercise] their right to oversight—how can we possibly have overstepped our rights after taking a single step?

In the face of questioning and oversight from the public, the relevant authorities should reflect on why their credibility with the public is the way it is. It's not that the Chinese public is too suspicious, but rather that they have just started to learn to be suspicious. As Li Chengpeng says: “Suspicion is a progressive force in society and is the least tolerance our country can show the public. If someday our laws were to say 'suspicion is forbidden,' then everyone can only obey mother and go home for dinner.”

26 July 2009

Heyrat Niyaz on the July 5 Riots in Urumchi

In its August 2 issue, the Hong Kong newsweekly Yazhou Zhoukan interviews Heyrat Niyaz (海莱特·尼亚孜), a Uyghur journalist, blogger, and AIDS activist. In the interview, which I've translated roughly below, Heyrat tells of how he tried to warn officials that "blood would flow" in Urumchi on July 5 and gives his thoughts about the background to the ethnic rioting.

UPDATE: Here's a link to the original item from Yazhou Zhoukan's website.

* * *
YZ: When did you feel that something could occur on July 5?

HN: After the incident in Shaoguan, Guangdong, I felt that something big would happen, that blood would flow. Before the Shaoguan incident, there were already seeds of a disturbance in Xinjiang. After the Shaoguan incident, I wrote a series of three blog posts analyzing the impact of the incident and, the more analysis I did, the more certain I felt about my prediction.

YZ: Do you believe the July 5 incident was organized and premeditated?

HN: Looking at it from today, it was certainly organized. As for premeditated, between June 26 and July 5, there was already plenty of time for that. But the most crucial thing was that the government did not take prompt measures to prevent deterioration of the situation. On July 4, I was continually listening to Radio Free Asia and the Voice of America. On that day, World Uyghur Congress President Rebiya [Kadeer] and others were truly a bit out of the ordinary on that day, with nearly all of the leaders going on the air to speak.

Around 8 p.m., I called a friend of mine in the government and said, "Something is going to happen tomorrow. You should take some measures." I gave him the URL of Rebiya's speech so that they could listen for themselves. They said they would report to their superiors.

The next morning, I called again. At around 10 a.m., I went with a friend to see a high official in the regional government. I told him that as an ordinary person of conscience, I have an obligation to remind you that blood will certainly flow today. You should immediately take steps and mobilize emergency preparations. Then, I made three recommendations: First, Xinjiang Uyghur Autonomous Region Chairman Nur Bekri must make a public speech before 12 noon. Second, notify Han merchants in predominantly ethnic neighborhoods to close shop early and go home. Third, mobilize as many troops as you can, cordon off ethnic neighborhoods and block and patrol crucial intersections. After the close of business, impose martial law.

At the time, the official said he would make a phone call to seek instructions. In the end, not a single one of these recommendations was taken. In fact, I was not even the first person to warn the relevant government agencies on July 4. Just after 6 p.m. on July 4 another person had provided a warning.

YZ: You said that prior to the Shaoguan incident there were already seeds of a disturbance in Xinjiang. What do you mean by that?

HN: There are two direct reasons that led to something like what happened on July 5. First is the promotion of bilingual education, and the second is the government's arrangements to send Uyghurs away to work. These two policies were strongly opposed by many Uyghur cadres, but anyone who dared to say "no" was immediately punished.

The first to bear the brunt of the bilingual education policy were teachers who had previously taught in ethnic languages. Tens of thousands of teachers faced being laid off because their Chinese was not up to standard, and this led to unstable popular feelings among grassroots educators.

As for sending Uyghurs away to work, in the eyes of [Uyghur] nationalists you can joke all you like, but don't joke about our women. Almost all of the workers initially organized to be sent out to work were 17- and 18-year-old girls. At the time, some elders said, "Sixty percent of these girls will wind up as prostitutes; the other forty percent will marry Han Chinese." This led to enormous disgust [among people]. In carrying out this policy, the government first failed to carry out proper education work and, second, failed to realize that such a small thing could have such major repercussions.

YZ: Before the promotion of these two policies, how were ethnic relations in Xinjiang?

HN: In the 1950s, even though Mao Zedong criticized "great Han chauvinism" in Xinjiang, contemporary ethnic policies in Xinjiang never led to a rupture. Ethnic relations in Xinjiang really became more tense over the past 20 years or so. After taking office, Party Secretary Wang Lequan adopted a high-handed posture that would not allow for any ethnic sentiment among minority populations. For example, if a ethnic cadre were to express the slightest complaint during a meeting, he would definitely not be promoted and might even be sacked. [Wang] overemphasized and exacerbated the anti-separatist issue. In fact, border provinces in any country that have cultural, linguistic, or ethnic ties with foreign countries are bound to have such tendencies. The current anti-separatist struggle in Xinjiang is not simply something [being carried out] by law enforcement agencies but has become something [carried out] in the whole society.

YZ: Have these tense ethnic relations led to increased thoughts of independence among Uyghurs?

HN: My father took part in the "Revolution of the Three Districts" [in which ethnic partisans revolted against Chinese rule in 1944 and established the second East Turkestan Republic] as a soldier. Logically, he should be a classic example of someone with thoughts of independence, but as far as I know not even someone like him is pro-independence—much less so someone like me.

In fact, looking historically, the Uyghur people transformed early on from a desert-based [nomadic] people to an agricultural society and developed an extremely exquisite civilization. The nature of this people has become such that we don't spread or seek conflict. Even during its strongest point, this society was never expansionary. When the Khitan came, Uyghurs quickly surrendered. When the Mongols came, the Uyghurs basically surrendered without a fight. Historically speaking, Uyghurs don't like to fight and have no foundation for independence.

YZ: How do you view the issue of "East Turkestan"?

HN: This phrase "East Turkestan" is something invented by Europeans and not something that Uyghurs themselves came up with. However, it has been built up by the Turks and forcibly thrust upon us. We Uyghurs have no concept of "East Turkestan." From historic times to the presnt, Uyghurs have called Xinjiang "Land of the Uyghurs." No one has ever called it "Land of the Turks," much less "Eastern Land of the Turks."

YZ: If this is so, why do so many pro-independence types in Xinjiang make a fundamental claim for "East Turkestan"?

HN: At the time of the Silk Road, Uyghurs had opportunities to travel about in neighboring countries and their thinking was more open. Later, when maritime navigation became dominant, Uyghurs found themselves isolated and closed-off. In such a backwards circumstance, it's easy to think that "monks from outside can really chant the scripture" [i.e., outsiders have the answers]. It's just as when China first opened up, all sorts of ideas flowed in, both good and bad, and it wasn't clear which were good and which were bad. Moreover, over the past several decades local Uyghur elites suffered under the repression of the Communist Party's leftist policies and there were no opportunities to develop thought. The moment a few people shout "East Turkestan," many among our people have no idea what to think.

YZ: How do local Uyghur intellectuals view Rebiya [Kadeer]?

HN: They're not interested. Rebiya basically has no ideas.

YZ: For outside forces to be able to organize the July 5 incident, doesn't it mean that they have considerable influence inside China?

HN: Yes, definitely. I believe that the July 5 incident was organized by "Hizb-ut-Tahrir al-Islami" [ILP, Islamic Liberation Party], an illegal religious organization that has spread extremely quickly in southern Xinjiang. I've studied this group, which was founded by an Afghan. When the Afghan died, a Pakistani doctor among his followers carried out a reorganization and recruitment drive. Whether in China, Afghanistan, or Pakistan, the ILP is an underground movement. In 1997, when the ILP had just begun to appear in Xinjiang, there were probably only several hundred members. According to statistics made public last year by the relevant agencies, the organization may now have close to 10,000 members in Xinjiang.

On July 5, I was on Xinhua South Road watching as rioters smashed and looted. More than 100 people gathered and dispersed in an extremely organized manner, all of them wearing athletic shoes. Based on their accents, most were from the area around Kashgar and Hotan, but I did not see any of them carrying knives. I suspect they were from the ILP because of their slogans. The rioters were shouting "Han get out!" [and] "Kill the Han!" Other than these [slogans], there was also "We want to establish an Islamic country and strictly implement Islamic law." One of the main goals of the ILP is to restore the combined political and religious authority of the Islamic state and strictly implement Islamic law; it is a fundamentalist branch.

This organization is extremely disciplined and its composition rather unusual. It attracts young men around the age of 20, mostly from rural areas. In fact, this organization is extremely backwards, so that even among Uyghurs without any basic social underpinning, those with even a bit of education don't have any interest [in the ILP]. The influence of groups like this that have infiltrated from abroad is ultimately quite small, because they bring nothing to the table. A serious attack from the organs of state power could totally wipe them out. There's no need for anti-terrorism measures throughout society in Xinjiang.

YZ: What do you think is the main problem for Xinjiang at the moment?

HN: I don't think the main problem for Xinjiang is ethnic separatism. The key problem for Xinjiang is still economic development. Actually, so-called ethnic conflict is really conflict over interests. Last year during the "two meetings," I watched video of President Hu Jintao's meeting with the Xinjiang delegation many times. President Hu said that Xinjiang should emphasize development and only at the end did he say anything about stability. Subsequently, I decided to write a series of articles clarifying my views on this.


18 July 2009

Hu Yong on the Yan Xiaoling Defamation Case

I've just finished a rough translation of an opinion piece by Hu Yong (胡泳)that appeared in this morning's Southern Metropolis News in which he criticizes the use of criminal defamation charges to punish individuals who posted critical comments against local government officials' handling of the Yan Xiaoling case.

Defamation Can No Longer Be
Used to Restrict Netizen Speech

Hu Yong

The public security bureau in Mawei District, Fuzhou, recently detained Guo Baofeng and several other netizens. The lawyer for these detained netizens says that they were detained for posting or re-posting items on the Internet about the “Yan Xiaoling case” in which [Yan was] “brutally gang-raped to death by eight people.” Police have given the reason as “suspected defamation”; when the lawyer requested to meet with the detained individuals, police refused on the grounds that the case “involved state secrets. (See the July 17 Xin Kuai Bao report.)

These detentions sound quite familiar to us. Like the cases of Wang Shuai, Wu Baoquan, and others, they form a part of a long, long list of names of those bloggers and netizens who have been detained or convicted by organs of public authority for exposing the deeds of local governments. There are two basic elements of most of these types of cases. One is the fervor with which ordinary people use the Internet and employ text or video to expose and broadcast local injustice on popular Internet forums or blogs. The second is the habitual way that certain local governments, faced with suspicion or criticism, use the crime of defamation as a weapon of public power to attack private rights and try to restrict people's expression on the Internet.

Police have not said yet who the victim of defamation is [in the case of the] netizens detained this time in Mawei. But according to the provisions of Article 246 of the Criminal Law, “Whoever, by violence or other methods, publicly humiliates another person or invent stories to defame him, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance, or deprivation of political rights.” One should notice that this article is placed under Chapter IV of the Criminal Law, entitled “Crimes of Infringing upon Citizens' Rights of the Person and Democratic Rights.” That is to say that the crime of defamation is for serious acts of intentionally inventing and spreading false stories to damage a person's character or destroy their reputation. The object of this criminal infringement must be a citizen and not the reputation of a business, government organ, or other organization. This is why defamation cases typically can only be brought following charges from the victim and are only prosecuted when the victim files suit [directly] with the court. Only in defamation cases where there is serious threat to social order and national interest can the public security apparatus mobilize public authority to pursue criminal responsibility.

Among the posts regarding the “Yan Xiaoling case,” a few individual officials from the public security bureau and procuratorate have been mentioned by name. Could it be simply because of their official position that [the case] has become connected with social order and national interest? Moreover, the day after the posts appeared the relevant government agencies in Fuzhou made public statements denying the claims made in the posts. Even if the items by the posters and re-posters created a negative impression of the government agencies concerned, that doesn't necessarily make it unlawful or illegal acts that necessitate mobilizing the coercive power of the state for punishment. If criticism of public officials' actions [in carrying out] public authority can be punished as criminal defamation, the inevitable result is that no one will dare to carry out oversight of public authority and there will be no way to safeguard the highest value of citizens' freedom of speech.

Freedom of speech naturally includes the freedom to express mistaken ideas, and it is especially the freedom to question authority. This requires public officials who face criticism or even fabrications that exaggerate the truth to not automatically invoke defamation on the grounds of their rights of reputation or privacy—much less use the state's apparatus of violence to satisfy their own personal interests. Yet one after another, there have been cases [of individuals who] have been convicted for sending text messages or posting items on the Internet, many times with senior local officials availing themselves of the resources of public authority they have at hand and habitually attacking all criticism of their policies as if it were damage to their personal reputations—even not hesitating to rely on personal retaliation and stigma to clamp down on speech, thereby creating a society and environment for opinion in which everyone feels at risk.

In the situation in Mawei, not only has defamation been used as a catch-all, vague charge, but the authorities concerned have even resorted to using a new magic weapon—the use of “state secrets” to answer efforts by netizens and reporters who seek to understand the truth of the situation. To carry out an investigation for public prosecution of the “defamation” of a local official is already a mistake; to completely block the public and lawyers from understanding and investigating this case of public prosecution on the grounds that it “involves state secrets” only compounds the error. Can those who hold public power really use “defamation” and “state secrets” so arbitrarily to muzzle people's voices? There's no way to explain the logic of these parties: we can only conclude that their overbearing rule originates in their belief that they personally represent the authority of the law and administration and that any oversight and criticism is a threat to this authority. If this kind of scary logic is allowed to spread further, a malignant tumor will spread through local governance.

A netizen should both enjoy the freedom of speech protected by Article 35 of the constitution and rely on Article 41, [which gives] the right to criticize and make suggestions or even make complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state functionary. There can be no arbitrary deprivation of these kinds of rights. As a netizen put it on kdnet: “As netizens, we pay attention to many issues, people, and phenomena be they from the past, present, or future, and we create original posts and re-post some items. As members of the public, we have the right to question—including parties concerned and the police. There are many things about which we don't have all the facts, so we must try to understand. You can explain, you can cross-examine, but you cannot break the law in the process of enforcing the law. Who gives you the right to use public authority to turn civil 'defamation' into criminal prosecution? Who is the victim of defamation here? If being concerned is a crime, then we are all guilty of this impardonable crime.”

17 July 2009

Update: Deng Yonggu Convicted of "Defamation," Exempted from Punishment

The case of Deng Yonggu, which I've posted about here, here, and here has finally concluded, with the Pengxi County People's Court in Sichuan finding Deng guilty of the crime of defamation but exempting him from punishment. Meanwhile, another major defamation case is brewing in Fujian, with six people detained so far for Internet posts critical of a police cover-up of a brutal gang-rape. I hope to have time to post something on this soon.

29 June 2009

The New Youth Study Society Case and the Saga of Li Yuzhou

In 2004 Phil Pan, former Beijing bureau chief for the Washington Post and author of the award-winning Out of Mao's Shadow, wrote a masterfully moving article about the case of the New Youth Study Society, an informal group of young people in Beijing who met to discuss subjects concerning social and political reform. Four key members of the group, Xu Wei, Jin Haike, Yang Zili, and Zhang Honghai, were sentenced in 2003 to seven to ten years on charges of subversion. As Pan revealed, one of the key sources for the prosecution in the New Youth case was Li Yuzhou, a police informant who had infiltrated the group for the Ministry of State Security. When he discovered what his reports on the group had resulted in, Li tried unsuccessfully to recant his testimony and ultimately fled to Thailand, where he sought refugee status.

This weekend, the AP put out an excellent piece by Alexa Olesen that updates the case to the present day. Li Yuzhou, it seems, has lost his refugee status and is in danger of being deported to China, where he fears retribution for his efforts to derail the New Youth prosecution and his pro-democracy organizing activity inside of Thailand. Meanwhile, two of the four New Youth Study Society members he helped imprison have been released at the end of their terms. While they still puzzle over Li's motivation for ratting them out, they express some sympathy for his current plight and don't wish to see him imprisoned in China.

The details of this story are so rich, they would make a good basis for a novel, with themes of youthful idealism betrayed, the weight of guilt and efforts to seek absolution, and the fate of individuals who dare to challenge the authoritarian system.

27 June 2009

Liu Xiaobo Meets with Lawyers, Willing to Take "Full Responsibility" for "Charter 08"

I'm not sure why I didn't think of this earlier: If Liu Xiaobo's case weren't about "Charter 08," then why would the police prevent renowned criminal defense attorney Mo Shaoping (another "Charter 08" signatory) from representing him?

In any case, Liu has now met with two other lawyers from Mo's firm, Shang Baojun and Ding Xikui. Chinese Human Rights Defenders has a good summary of the meeting here (in English), and another summary (in Chinese) can be found here.

It appears I was right to think that "Charter 08" could be used as the basis of an incitement charge against Liu Xiaobo, but it seems that some of his other writings over the years are also in the mix. Liu has reportedly told his lawyers that he's "willing to take complete responsibility" for "Charter 08," but he has denied breaking the law.

I still think there's a possibility that police will turn this case into a "subversion" case and start arresting other "co-conspirators," but in case that investigative thread doesn't pan out, they appear to have someone on whom they can pin blame for this vile act of expressing aspirations for a freer, more transparent, more democratic China.

25 June 2009

Liu Xiaobo and (Inciting) Subversion

Yesterday, I translated part of an analysis by Beijing lawyer Liu Lu concerning the formal arrest of veteran dissident Liu Xiaobo. I agree with most of this analysis but have a different opinion about the significance of the charge—"inciting subversion" (Article 105.2 of the criminal law).

Liu Lu reasons that because Liu Xiaobo has been charged with "inciting subversion," it's most likely that the "crime(s)" in question concern some of the many articles that Liu Xiaobo has written over the years, rather than "Charter 08"—which is what most people have been assuming. If "Charter 08" were the main issue, Liu Lu argues, the charge would be "subversion" and we would see additional arrests.

First of all, I agree that it's quite possible that police are charging Liu Xiaobo on the basis of the many non-"Charter" items he has published on the Internet over the years. But that doesn't mean that the initial decision to detain Liu and the determination to keep him incarcerated is not connected with "Charter 08." The timing of Liu Xiaobo's detention simply doesn't allow for too many other explanations. (To be fair, I don't think Liu Lu is arguing otherwise.)

As I understand it, the key to making a subversion charge under Article 105.1 is proving that some sort of organization—or attempt to create one—lies behind the supposedly subversive activity. I have suspected all along that the police investigating "Charter 08" have been trying to establish that it was created by people who formed or tried to form such an organization, rather than an informal coalescing of like-minded individuals around an expression of common beliefs. I suspect the authorities haven't been able to find any solid evidence of such organization—not least because one doesn't appear to have existed—and thus have keyed in on Liu Xiaobo as a key drafter of the document (whether he actually was or not).

So, I believe it's still possible that the police are actually building their incitement case around "Charter 08," a document that can be (mis-)interpreted as calling for the overthrow of the one-party state. But the question then remains, why is Liu Xiaobo the only one so far who has been treated to this extended stay in police custody?

It wouldn't be unheard of, however, for the charge to be changed to subversion at a later stage in the investigation and see others charged as well. By formally arresting Liu Xiaobo (as opposed to sending the case directly to prosecutors), police have bought themselves more time to figure it out as they—or the higher-ups actually calling the shots—go along.

24 June 2009

Liu Xiaobo Formally Arrested on Incitement Charges

Word came down earlier today through the Xinhua wire that veteran dissident Liu Xiaobo has been formally arrested on charges of inciting subversion. (See, e.g., this report by the New York Times.) This is a disappointing development, but not totally unexpected.

I'm literally about to run out the door and don't have a lot of time to weigh in here, but I wanted to excerpt from this post by Beijing rights lawyer Liu Lu (刘路), who offers his analysis and predictions:
1. The "criminal facts" for which [Liu] Xiaobo has been charged likely are limited to the articles he has written over the past few years and is not related to "Charter 08." Otherwise, the crime would be subversion and not incitement and the [Xinhua] article would mention ["Charter 08"] in order to frighten the other signatories. Also, there would be other arrests and trials.

2. It's likely that [Liu] Xiaobo will be indicted within a month and tried quickly. I predict that a trial would conclude before the end of July and that Xiaobo's sentence would be five years or less. If the procuratorate decides to prosecute him for "major crimes," the sentence could be greater than five years, but no matter what it would not exceed 10 years.

3. The phrase "Liu Xiabo has confessed to the criminal facts" really means that Xiaobo has acknowledged that he wrote articles but doesn't imply any value judgment regarding whether the articles constitute a crime. In other words, Xiaobo likely just admitted the facts and has not admitted wrongdoing. The authorities are playing word games here.
I agree with most of this, though I don't think that the point made in (1) is as clear-cut as he does. More later.

23 June 2009

News on Revised State Compensation Law Draft

There were a number of reports (e.g., here) over the past couple of days regarding the National People's Congress Standing Committee's second reading of the draft revised State Compensation Law, legislation that has some interesting ramifications for criminal justice matters in China. (Note: Civil law is not an area I feel comfortable opining on at any length, so I'm basically just going to lay out the facts as I understand them.)

The first issue concerns death or disability suffered while in detention. The draft legislation being reviewed would put the burden on the detention center or prison to prove that an individual's death or disability was not a result of its negligence. This seems pretty straightforward, but it actually appears to me to be a fairly big step forward to shift the burden of proof to state institutions here. We'll see if the provision survives into the final legislation.

A second revision concerns the scope of eligibility for compensation on the grounds of wrongful detention. Currently, as I understand it, individuals are only eligible to request compensation if they are detained or arrested for a crime they did not commit. The legislation under consideration would expand eligibility to include anyone detained or arrested whose case was subsequently dropped, whom prosecutors declined to indict, or who was acquitted by a court.

This is very interesting and strikes me as quite a broad definition of "wrongful." I don't know how this compares with similar laws in other countries, but it seems potentially revolutionary for China. For one thing, it seems designed to encourage increased use of non-custodial measures such as bail or—dare I say it, given the fate of Liu Xiaobo—"residential surveillance." This would complement anticipated revisions to the Criminal Procedure Law that are also expected to place more emphasis on the use of bail.

It's important to note, though, that law enforcement agencies have secured safety provisions that would deny compensation to those whose unlawful behavior, if not punished in the formal criminal justice process, is handled through administrative sanctions—presumably including "re-education through labor." So, it's probably too early to send your condolences to China's police over the imposition of restrictions on their broad powers.

09 June 2009

Bad news for Liu Xiaobo, worse news for rule of law in China


According to this report from the BBC, police have informed Beijing lawyer Mo Shaoping that they intend to continue holding veteran dissident intellectual Liu Xiaobo (right) under "residential surveillance" while they continue their investigation into unspecified charges.

This is despite the fact that Chinese law clearly prohibits the police from holding Liu in this manner beyond the six-month period that has just elapsed. As I wrote elsewhere this week, the authorities had lots of other legal options at their disposal for continuing to keep Liu in custody, options that would have, however, carried the inconvenient requirement for them to at least provide Liu's wife with official notice of the charges against him and, in some circumstances, even allow Liu access to a lawyer.

Clearly, none of these options were preferable to the one in which the police simply ignore the law and do whatever they want. In fact, they've been in violation of the law from the beginning in this case with their decision to carry out his "residential surveillance" in what is most likely a police-affiliated guesthouse in the Beijing suburbs, rather than in Liu's actual residence.

This brazen contempt for the law on the part of China's police somehow still manages to surprise me, even after so many cases over all these years.

31 May 2009

Counting Chinese Executions Isn't Easy

Last week, Amnesty International's latest report on the state of human rights throughout the world included new figures for the use of capital punishment in China. As the headline in Hong Kong's South China Morning Post alarmingly put it on Friday (subscription required for full article): "Mainland executions up 260 [percent], report says." Clear evidence of a worsening human rights situation in China? Not really.

What Amnesty's report says is this:
Amnesty International estimates a minimum of 7,000 death sentences were handed down and 1,700 executions took place. However, the authorities refused to make public national statistics on death sentences and executions and the real figure is undoubtedly higher.
Unfortunately, it doesn't offer much context for those three claims, leaving a lot of room for misunderstanding. (For example, what is "the real figure is undoubtedly higher" referring to in the final sentence, the number of death sentences or the number of executions?)

My understanding of what Amnesty does here is catalog all reports of executions that are published in the Chinese press. This is a fraction of the actual total, a closely-guarded figure treated as a "state secret" and unknown to all but a select group of people inside China. In 2007, Amnesty recorded 470 executions but acknowledged clearly that "this number is based on public reports available and serves as an absolute minimum."

A more accurate headline in the SCMP would have been "260 percent increase in the number of executions found by Amnesty in published Chinese reports." When you're dealing with a known portion of an unknown quantity, you simply cannot draw conclusions about the whole based on the part without much more analysis of the relationship between the two.

The fact that Amnesty counted more executions in 2008 compared to 2007 could mean that more executions were carried out. Or it could mean that the Chinese press was given more leeway to report on executions in 2008. Or it could mean that Amnesty had a more attentive team of researchers in 2008. It could even be a combination of all three. What it doesn't mean is that there was a 260 percent increase in the total number of executions in China.

In its report for 2007, Amnesty cites the Dui Hua Foundation's estimate of around 6,000 executions that year—a significant decrease from previous years due to the return of final review over all capital cases to the Supreme People's Court earlier that year. My personal view is that total executions in China probably remained basically flat or decreased slightly in 2008, but even if there was an increase, it would likely only be on the order of 5–10 percent.

We're all grasping at straws and trying to interpret dim shadows thanks to an intentionally opaque system that hides the extent to which capital punishment is used in China. Amnesty's annual recording of executions in the public record provides important data that is really some of the best that's available, but we should all be clear about the serious limits to what it can tell us. The SCMP clearly didn't comprehend that and jumped to unsupportable conclusions in pursuit of an eye-grabbing headline, though Amnesty probably could have done a better job at explaining its own thinking behind this estimate, too.

27 May 2009

Medical parole? What's it worth to you?


Earlier today Zeng Jinyan, wife of imprisoned Chinese human rights activist Hu Jia, reported that prison officials have rejected the family's most recent petition to seek medical parole for Hu, who suffers from hepatitis B and serious liver damage.

Zeng reports that an official told her: "Regardless of how serious his illness is, without major political environment, he has no chance of medical parole."

I'm not exactly sure what Zeng (or, rather, the unnamed official) means by "political environment" means here, but my interpretation is that officials at Beijing Municipality Prison won't release Hu early without getting orders from above to do so and that such orders would likely only be issued if China's top leadership considered it politically expedient to do so.

Or, reading between the lines: "Perhaps Hu Jia's serious medical condition would qualify him for medical parole if he weren't Hu Jia the renowned activist, but since Hu is so important to the international community, we are going to hold on to him as long as we can to see what we can get for him in return."

This mentality—which critics deride as "hostage diplomacy"—was a regular feature of the Jiang Zemin era, with splashy releases of political prisoners on the eve of state visits by world leaders like President Clinton. But it has been conspicuously missing under Hu Jintao's leadership. Hu has been reported to find the practice personally distasteful, but there are probably larger factors at work as well. These days, Beijing can offer foreign leaders much more than the release of a few political prisoners, especially in light of the global financial crisis. Another possible explanation would be that the current leadership has concerns that releasing prisoners might be read as a sign of weakness, particularly by the more conservative wing within the Communist Party. Certainly, a gene for political risk-taking appears to be absent from the current leadership's genetic make-up.

But, having said that, one cannot simply assume that a deal of some sort is totally out of the question. I'm guesing that the person who spoke to Zeng Jinyan is not in a position to know Hu Jintao's mind on the subject and was speaking in general terms, perhaps extrapolating from historical analogy. But a certain newly elected foreign leader who enjoys widespread popularity is slated to visit Beijing later this year. Perhaps personal intervention by this person would be just the kind of stimulus needed to convince Beijing to part with one of its most "valuable" political prisoners.

22 May 2009

Hu Xingdou Successfully Sues ISP for Shutting Down Website

According to this report from Radio Free Asia (in Chinese), Professor Hu Xingdou of the Beijing Institute of Technology has won his lawsuit against the host of his "China Issues" website, Beijing Xinwang Co. Hu filed suit with Beijing Daxing District People's Court in March when his ISP closed down his site for a day on grounds that an anti-corruption article posted on the site constituted illegal content. for closing down the site for one day on the grounds that an anti-corruption article posted on the site constituted "illegal content." The decision is reportedly the first success an individual has had in suing a hosting provider for closing down a site on such grounds. Hu contends that the closure of his site was ordered by the Internet monitoring division of the Suzhou Public Security Bureau, where officials took issue with the post's content. He expressed surprise and joy at the outcome, saying that when he filed the suit, he didn't even really expect the court would even accept it. He says he plans to file suit against the Suzhou Public Security Bureau next.

This is a significant, if not game-changing, decision, an important step in the struggle to preserve space for free expression on the Internet in China. Prof. Hu shouldn't be too surprised, though, if his suit against the Suzhou PSB doesn't get as far.

19 May 2009

Seeking Truth From Facts: The 20th Anniversary Edition

I was interviewed for the radio the other day on the subject of the number of individuals who remain imprisoned in China in connection with the protests 20 years ago. As I wrote last week, Dui Hua publicly revised its estimate for this, cutting it by half. I sensed as I was giving the interview that the reporter was challenging me more than usual, questioning whether the sources behind this estimate were reliable and, subtly, suggesting that I may have some kind of agenda behind minimizing the number of individuals imprisoned from that time.

Perhaps I'm too sensitive. I don't mind being challenged—though I'd be lying if I said I enjoyed it—because I can usually provide a good explanation of the basis for my reasoning and assumptions. A good example of that happened just the other day, when I was challenged to explain my estimate for the number of state security arrests in China last year. I have a whole spreadsheet of data and calculations that underlies that one.

In the case of June Fourth, I'll be the first to admit there are a lot of unknown variables, but I'm reasoning on the basis of information that, frankly, no one else has really bothered to aggregate and analyze—at least not for quite some time. That's why I found it a bit frustrating when the reporter who interviewed me chose to add a "rebuttal" of my estimate—from someone whose work I respect a great deal but who has not spent even a fraction of the amount of time I have spent considering the evidence at hand—that said, in effect, "It seems kind of low. I just have to believe there are more prisoners out there who haven't been accounted for."

But as I was fuming, I realized: the emotional stakes are likely higher, or at least different, for this person than they are for me.

Someday, there will be no more June Fourth prisoners in prison. That's simply a fact and, in my opinion, that day will arrive within a matter of a few years. But it's also a fact that, given the lack of transparency in China's criminal justice system, particularly with respect to sensitive events like this, without fuller knowledge of the fates of those detained 20 years ago it's unlikely that we'll ever know when that date actually arrives. But it seems certain that it will precede the day when the official verdict on the "counterrevolutionary turmoil" of 1989 is overturned and the victims of that period are duly accounted for. I just don't see signs of that one anywhere on the horizon.

Under those circumstances, it makes some sense to interpret the reluctance to believe that there are so few remaining prisoners as originating from a fear that, once there are no more prisoners, it will be that much easier to "let go of the past and focus on something more positive" and "let bygones be bygones" (as it was so insensitively put in a recent column in Hong Kong's Standard) and the memory of what happened in 1989 will fade even further. To me, it is rather reminiscent of the way that some in the US cling to the belief that there exist POWs or MIAs from the Vietnam War, despite mounting evidence to the contrary.

All I can say is that I have no intention to minimize the suffering of those who paid a price for participating in the events of 1989, nor am I trying to erase historical events from memory. Otherwise, why would we spend so much time trying to bring these obscure prisoners' names into the public eye? My commitment to that history is to "seek truth from facts," not fight one mythology by perpetuating another.

12 May 2009

Accounting for 20 Years of Pain: Li Hai's List

In late April, as part of the effort to commemorate the 20th anniversary of the Chinese pro-democracy movement and the bloody suppression in Beijing that brought it to an end, the indispensable Chinese-language news and opinion website Boxun published valuable historical documents that, as far as I know, have never been previously published in their original form. A series of painstakingly hand-copied records lists the details of more than 100 men imprisoned in Beijing Number Two Prison after being given long prison sentences for criminal acts allegedly committed during the riots that broke out in Beijing after troops descended on the center of the city.

These were not the students, intellectuals, and labor activists who had occupied Tiananmen Square for much of the spring of 1989, nor were they "political prisoners" in the usual sense of the term. These were mostly young men from the same working-class backgrounds as those who made up the bulk of those felled by military gunfire that night, men who tried to use whatever means necessary to block the advance of military and police vehicles and who vented their anguish over Chinese soldiers firing their weapons on unarmed civilians by setting fires, attacking troop convoys, and seizing rifles and ammunition.

Of the thousands of Chinese from across the country who were arrested following the crackdown in June 1989, these "ruffians" or "hooligans," as they came to be known, are the only ones who remain imprisoned 20 years on. They were given life sentences or suspended death sentences subsequently commuted to life imprisonment for crimes like arson, robbery, theft of weapons, or "hooliganism." It's important to remember that the protests were national in scope: besides Beijing, violent demonstrations took place in other Chinese cities in the spring of 1989, with large numbers of arrests in Shanghai, several different cities in Hunan Province, Xi'an, and Chengdu.

Despite being given heavy sentences, over the years it seems that most of those convicted of violent criminal activity were granted sentence reductions or paroled. The Dui Hua Foundation, which in recent years has made a special effort to use its resources to track these cases and come to some understanding of how many individuals might still be imprisoned from that period, has just released a new estimate putting the number between 25 and 35 and called on the Chinese government to show them clemency in an effort to achieve some measure of reconciliation with this painful period of history.

That we know anything at all about these all-but-forgotten prisoners is mostly thanks to the efforts of a few individuals who have taken it upon themselves to rescue their names from obscurity. One who mustn't be forgotten is Li Hai—the man who 15 years ago compiled the Beijing Number Two list that was recently published. Li, who was active during the 1989 demonstrations and subsequent political activity in the early 1990s, such as the "Peace Charter" movement, paid a heavy price for compiling this and other prisoner lists that eventually wound up in the hands of overseas human rights organizations. He spent nine years in a Beijing prison, much of it reportedly in solitary confinement. Since his release from prison in 2005, Li has remained politically active and was a signatory of the latest in a long series of expressions of Chinese aspirations for fundamental political reform, a document in which he identified his occupation as "human rights defender."

(I wrote this primarily to pay tribute to Li Hai, but also to see whether writing about this subject will kill access to my blog in China. I truly hope not, but if it happens, well there's not much I can do about it. I didn't start writing this blog to subject myself to some regime of censorship. I realize that all of the links probably won't be reachable to Chinese readers without access to the unfiltered Internet, and for this I apologize.)

06 May 2009

Phurbu Tsering, Deng Yonggu and Delayed Verdicts

I've been spending a lot of time recently tracking cases of Tibetans who've been detained over the last year since March 2008. Contrary to what the Chinese media would have you believe, most of these detentions did not involve people who "burned, smashed, or looted" in the violent incidents in Lhasa on March 14. In fact, the vast majority of detentions have been of individuals who engaged in peaceful protests in Tibetan areas in Qinghai, Gansu, and especially Sichuan provinces—areas known as Amdo and Kham to Tibetans.

One of these cases was much in the news over the past couple of weeks, that involving a Tibetan lama and "living Buddha" named Phurbu Tsering, who is well respected in and around Kardze (Ganzi). Phurbu Tsering has been charged with illegal possession of a firearm and illegal appropriation of government property and faces 15 years in prison. Part of what makes his case so noteworthy is that he is being defended by two well-known Han Chinese defense attorneys from Beijing, Li Fangping and Jiang Tianyong, who have so far provided a strong defense poking many holes in the prosecution's case.

One of the things that makes Li and Jiang so good is their work with the international media. When Phurbu Tsering went on trial, they emphasized that under Chinese law the court had one week to render its decision. This created a sense of urgency, a neat time-frame for a focused international campaign to develop and move forward. I'd be extremely surprised, however, if either of them was surprised when, one week having elapsed, the Kangding [Dartsedo] County People's Court opted to postpone issuing a verdict.

It was in this context that I was mightily amused last week to read "legal experts" quoted in an update on the case as saying the decision to delay issuing a verdict in Phurbu Tsering's case was "rare." The only way such a decision could be considered "rare" or "unusual" is if you completely discounted both the international attention being paid to the case and the likelihood of further protests erupting if the court decided to convict this esteemed local figure. (Dozens of nuns were detained in protests following his detention in May 2008.)

Now, I haven't had the time to muster conclusive evidence—and given the lack of transparency in China's criminal justice system, any such evidence would be anecdotal at best—but I can probably think of at least a couple of dozen cases in which this particular procedural one-week deadline for courts to render a verdict in a criminal trial has been ignored. The fact is that for controversial cases like this one it is more-or-less expected that judges will not rush to issue a judgment but, rather, sit and wait for instructions from above about how (and when) to rule—especially, I would argue, when the trial is being held by a basic-level court.

For example, as far as I know there is yet no ruling in Deng Yonggu's criminal defamation trial held nearly two weeks ago. Given all of the attention that's been paid to abuse of criminal defamation charges to stifle criticism of local misconduct—not to mention the connection of Deng's case to last year's Sichuan earthquake, which is about to mark its first anniversary—the lack of a timely verdict is unsurprising.

This doesn't even factor in the flouting of numerous other deadlines in the course of prosecuting criminal cases, particularly sensitive cases involving "state security" charges. As I wrote in this essay, one of the things that made the prosecution of Hu Jia on charges of "inciting subversion" so unusual was how quickly it was carried out. Most of these cases simply drag on and on and on, with no consequences. And that's the part that most people familiar with, for example, the American justice system forget: in China, violations of defendants' rights do not result in cases being dismissed. They are simply ignored.

For this reason, I'm not sanguine about the delay in sentencing for Phurbu Tsering. It's probably true that one of the reasons the sentencing was delayed is because of the international attention the case has garnered. And Phurbu Tsering's lawyers are right to use the delay to create a case for increased, continued pressure. But I fear that the delay merely means that the authorities will seek an opportune moment when the world's attention is focused elsewhere to deliver the bad news. I hope I'm wrong, but many years of tracking these kinds of cases does not give cause for much optimism. It's a sad fact that in individual Chinese cases international pressure seems to work best only after an individual winds up in prison.