29 April 2009

Ran Yunfei: The Shameless, Hidden Facts of the Deng Yonggu Case

(I promise to write about something else eventually, but there's simply too much good stuff out there concerning the three criminal defamation cases that I've been writing about for the past two weeks. The following is my somewhat rough translation of an April 23 blog post by Ran Yunfei 冉云飞 on the subject of Deng Yonggu.)

The shameless, hidden facts of the Deng Yonggu case
Ran Yunfei

With respect to the extent, depth, and number of individuals involved, I'm afraid Chinese corruption today is second to none any time, any place. Corruption spread out over large areas and involving large numbers of people and huge amounts of money is spreading rampantly, all thanks to this political system and government of ours that has no real oversight. At the root of this inability to curb the rampant spread of corruption is a political sphere with no real oversight or healthy competition. In this abnormal political system, it is the fate of the people to be passively governed; if on occasion, they disagree, they can only make formal allegations or petition. The risks involved in making allegations or petitioning are great, basically the same as putting oneself in prison. Time and time again, government officials at all levels punish those individuals who criticize or oppose them. We can only gaze in admiration at the diversity of their methods, the speed with which they arrest people, the efficiency of their punishments. The three recent cases of Wang Shuai, Wu Baoquan, and Deng Yonggu all involve accusations made against local corrupt officials who levied exorbitant taxes and caused all kinds of disaster.

For making a signed accusation of corruption in the reforestation work being done in Gaosheng Township, Deng Yonggu has been falsely accused by the Pengxi County Procuratorate of defamation. Considering the principle under which there should be no crime if no one brings suit, for the public prosecutor to bring suit in this case is, from one perspective, a colossal joke. Even if one's criticisms of the government turned out not to be factual, it should never constitute defamation—this is basic common sense. If the officials who were criticized feel that they were libeled, why shouldn't they bring suit themselves and, at the same time, allow neutral investigators to examine whether what Deng Yonggu alleged is true? By not making the truth public and not discussing the truth of what Deng Yonggu alleged, prosecutors have taken it upon themselves to exonerate and illegally shield these few officials tagged as “scum.” It looks like the Pengxi procuratorate and many other procuratorates are already very good at offering protection to other officials, giving these officials so much love that the officials don't have to bring suit because prosecutors will do it for them. This is truly ridiculous! This kind of clearly illegal behavior, where the procuratorate willfully violates the law, truly epitomizes the wretched state of China's law enforcement bodies.

Deng Yonggu has been making accusations about reforestation work for many years, writing letters to provincial and central disciplinary committees and writing about it publicly on his blog. Not a single government agency at any level has endeavored to investigate his allegations and make their findings public. Rather, in a classic case of local governments and officials with guilty consciences, they deleted his blog on Sina.com in an effort to conceal the truth. Governments and officials shouldn't try to obstruct and censor information that is not in their interests; instead, they should make the facts known publicly in an open, fair, and balanced way so that the public and media can scrutinize them. Lacking the true facts, it is a classic abuse of power for the procuratorate to stick Deng Yonggu with the crime of defamation when they have no standing to bring charges and the aggrieved party has not come forward. Even more important, I believe that punishing the innocent Deng Yonggu with defamation is connected to his revelations that the Pengxi government fraudulently obtained earthquake relief funds after the May 12 earthquake. Misappropriation of earthquake relief funds is something that causes considerable public anger. The local government treated his accusations of official corruption in reforestation work as “defamation” in an effort to shut him up and prevent him from continuing to expose the fraudulent use of earthquake relief funds. This is the true, behind-the-scenes nature of Deng Yonggu's case.

Following the earthquake, I had some interactions with Deng Yonggu here on the 1510 website, where he was known as “Taking the Broad View.” Later, he posted an article accusing Pengxi officials of fraudulently obtaining earthquake relief funds (see link below) and “Villagers from Gaosheng Township, Pengxi County, Unite in Opposition to Local Government's Fraud in Obtaining Earthquake Relief Funds” (see photo linked below) and sought to use my blog to help expose these things. After I posted this information, I was contacted by concerned individuals who expressed hope that I would delete this information and agree not to publish anything on this subject again. I told them there was no way I would delete any blog posts. I have never voluntarily deleted anything from my blog because when I write I focus on the facts, discuss evidence, and put forward the truth. It's an unassailable fact that the information published by Deng Yonggu is absolutely true, as evidenced by the more than one hundred villagers who signed their names and gave their thumbprint as witness to the the government's fraud with respect to earthquake relief funds. How could such a minor forestry bureau employee can get the signatures and thumbprints of so many villagers if the facts weren't true? Corruption in the distribution of and application for earthquake relief funds is definitely not limited just to Pengxi. In many counties where the earthquake damage was relatively minor, false reporting of the need for post-quake reconstruction funds has brought many benefits to local governments and officials and few benefits to the public. They exaggerate the extent of local damage and use the public as a pretense for obtaining relief funds, skimming their share in the process.

Putting Deng Yonggu in prison for exposing false reporting for earthquake relief funds would attract too much attention to the circumstances surrounding Pengxi's earthquake relief funds and increase the pressure on the government there. Therefore, the local government took advantage of the speed, efficient, and cooperative law enforcement agencies and killed two birds with one stone by putting him in prison on a ridiculous “defamation” charge for his accusations on a completely different matter. Please, friends, note that not only Huang Qi and Tan Zuoren have been put behind bars for seeking the truth in the aftermath of the earthquake—there is also Deng Yonggu. I call for the immediate acquittal of Huang Qi, Tan Zuoren, and Deng Yonggu and restoration of their freedom.

Further links [to Chinese items provided in Ran's original article]:

27 April 2009

Updated Update: Ordos Law Enforcement Officials "Clearing Their Thoughts" Regarding Wu Baoquan

I've been working on a longer article about China's recent "defamation" cases and haven't had time to post anything lately. I meant to post something new here today, but I can't resist noting the latest on Wu Baoquan's case.

This article in today's Legal Daily confirms what I predicted last week: that the "judicial supervision" review of Wu's case would result a decision to hold a new trial in the case. I wouldn't hold out much hope for an acquittal, though. Other hints in the article lead me to believe that authorities there are preparing the ground for a face-saving "compromise" (for them, at least) whereby Wu will remain convicted on the charges and essentially sentenced to time already served in detention.

Why do I say this? Because the Legal Daily article makes an effort to point out a difference between the cases of Wu Baoquan and Wang Shuai that could account for the vastly different punishments handed down (first a one-year then a two-year prison sentence for Wu, eight days of detention followed by having the case thrown out, an apology, and compensation for Wang).

The article notes that according to the vice president of the Ordos Intermediate People's Court, Zang Jianping, in the first appeal trial, the court found that the prosecution offered little justifcation for filing a public prosecution on criminal defamation charges, namely that there was a "serious threat to social order or national interests." But the court's decision to uphold the two-year sentence in the end stemmed from a new consideration of the negative social impact of Wu Baoquan's Internet posts, such as a "noticeable increase in frequency and regularity of mass petitioning activity requiring the dispatch of police on more than 20 occasions."

By revealing this "fact" in the media, I believe that the court (and the press) are signaling to the public that the relative level (or, perhaps, existence) of "serious social consequences" explains the difference in the application of punishment between the two cases. Assuming that this assessment of the social harm caused by Wu Baoquan does not change between now and the time his third trial opens, then the main criterion for bringing a criminal defamation charge can be argued to have been met.

The way I see it, the choices then are two: either convict but exempt from punishment or convict and sentence in such a way that Wu doesn't serve additional time. If the court were to acquit, it would be a major sign that the threshhold for bringing criminal defamation cases in China has just gone higher. I'm just not sure the powers-that-be are quite ready to do that yet. However, it must be noted that the article goes on to state that "all agencies involved in this case are 'clearing their thoughts' (梳理思路) with respect to the case," so perhaps we can hope for some fresh thinking.

It is certainly clear that law enforcement is feeling the pressure created by negative public opinion over its handling of the case. Perhaps, then, someone will be able to answer the bigger question posed by Wu Baoquan's case (and the one that has attracted the most attention and ridicule from critics): why the court was essentially allowed to invent the crime of "defaming the government" in its conviction of Wu Baoquan.

22 April 2009

Update: Review Underway in Wu Baoquan's Case

The Ordos Intermediate People's Court's rejection on April 17 of Wu Baoquan's appeal against his conviction on defamation charges is, technically speaking, a "final decision." This means that Wu has no automatic right under the criminal procedure law to appeal further. His only options are to have the case reopened are to petition a higher court to reopen the case or to have a court review the case as part of the process of "judicial supervision."

Well, according to this report from today's Southern Metropolis News, the Ordos Intermediate People's Court has decided to initiate "judicial supervision" of the case, which means that another retrial is likely and there is a possibility that the case will get thrown out.

At issue, most likely, will be the key question of whether the defamation charge was applied properly. According to the criminal code, prosecution for defamation is intended to be initiated by charges brought directly to the court by the aggrieved party. Only when there is serious threat to social stability or national interest should the police and procuratorate be involved. This is partly what led the police to drop charges against Wang Shuai, so I wouldn't be surprised to see this factor into a new decision in Wu's case as well.

Incidentally, this report reveals the official reason why Wu's sentence was extended by a year in the second trial. Apparently he had been in contact with petitioners while released on bail awaiting the verdict, and the court took this as insufficiently remorseful behavior.

21 April 2009

Public Opinion and the Administration of Justice in China

Following on the heels of the "Lingbao post case," recent days have seen Chinese media report yet another case involving local authorities using charges of "defamation" to silence critics. In this instance, a man named Wu Baoquan was detained by police in Ordos, Inner Mongolia, after he criticized illegal land grabs online. Initially sentenced to one year in prison, Wu appealed the conviction and saw the appeals court send the case back for retrial on the grounds that the lower original court's finding of fact had been unclear. The case was retried, with no introduction of additional evidence, and Wu saw his sentence increased to two years!

The main lesson being drawn from cases like these is that it is necessary to allow greater public oversight of Chinese law enforcement. In fact, I dare say that one reason why so much ink has been spilled on these cases in Chinese papers of late (here, for example) is because journalists are engaging in a public plea for more leeway to carry out their professional duties in China's restricted media environment.

In a column in today's China Youth Daily, Xie Yuhang writes: "Judges decide cases independently, but the fairness of their judgments must undergo examination by the public, who serve as arbiters. . . If the public accepts the fairness of a judgment, it determines the authority and value of the court and, ultimately, the effectiveness of the judgment's implementation."

On the surface, Xie's argument in favor of greater public scrutiny and oversight of the judiciary sounds good as a remedy for clear miscarriages of justice. In these cases, public opinion tends to be on the side of justice for individuals whose rights are not being protected. But I was struck as I read this: isn't it equally possible to imagine cases where having judges be guided by public opinion might lead to other kinds of miscarriages of justice? Cases involving less sympathetic characters whose rights nonetheless deserve protection under the law?

This is, in my reading, part of the concern that's been raised with regard to the "three supremes" policy that is currently guiding China's judicial system. As Professor Jerome Cohen has pointed out, this shifting emphasis towards making judges more accountable to public opinion seems to have come at the expense of promoting the creation of a more professional, independent judiciary in China. While more public oversight (which, by the way, assumes greater transparency) over China's courts is probably a good thing as a general rule, it's not the only—or even the best—solution to the problems facing China's courts and the problem of how to ensure justice for Chinese defendants. A better trained, more professional, less overworked judiciary given space to decide cases on the basis of the provisions or the law and the constitution seems a much preferable, long-term strategy to me.

20 April 2009

Rumination on Becoming a Blogger

I'm not sure what's needed to get more people to read this blog, and frankly I'm not sure I necessarily want the pressure of knowing that there's an audience—particularly an unknown audience—out there expecting something from me. For various reasons, I'm being coy about my identity at present, but I'm not so vain to think that if I had my name up here more people would necessarily come flocking to to site to see what I have to say.

The fact is, I'm not convinced I'm someone whose thoughts on anything in particular are going to attract all that much attention. More likely, some people are going to wind up here by accident and I'm not going to be able to sustain their attention. There are some subjects about which I probably have something to say that a handful of others might find interesting. Certainly, China and human rights issues are what I spend a lot of my time thinking about, as they're both part of my professional life. But if I have something really interesting or important to say on these subjects, I'll most likely have to say them in a professional capacity, rather than in this personal space.

If I think about the bloggers that I read regularly, the ones I appreciate the most are those who aren't so single-tracked that they feel any guilt about mixing it up every once in a while. But there aren't too many people who can get away with not having a steady theme and still get people to give a damn about what they have to say. James Fallows can combine the trivial and consequential and still get eyeballs—but that's because the man is simply a superb writer.

I'm not sure I can really pull that off. I'm technically not a bad writer—I know how to spell, punctuate, present an argument, and all that—but I suffer from crippling anxiety about putting words down on paper (or pixels on a screen). There was a time, half a lifetime ago, when I could sit down and write and write about subjects about which I'd actually thought very little because I believed I knew it all and that there were no consequences. But somewhere between then and now I realized that everything I think I know is contingent on volumes that I don't. That realization simply makes it nearly impossible for me to make too many statements unless I feel convinced that I've covered all the ground and there are no loose ends left behind, the pulling of which would set all to unraveling.

If there's a reason for writing this blog, in short, it's to give myself the opportunity to work on writing more, at least writing in a certain style and voice. It's likely that I'll stick mostly to what I know—or at least what I pretend to know. Hopefully, there won't be too much in the way of self-indulgence or trivia and the result will be something of which I'm willing to take ownership—even if I'm unable to take explicit credit (or blame).

18 April 2009

Zhou Yongkang, Rumors and Predictions

According to the rumor mill, a spreading corruption scandal may soon reach the doorstep of Zhou Yongkang, who, as the head of the Central Politico-Legal Committee (which oversees, from the Party side, China's law enforcement activities), has to be considered one of the more powerful members of the Politburo Standing Committee. According to the report above, Zhou might decide to retire early in order to save the Party from further embarrassment.

This has been a tough few months for the reputation of China's public security apparatus—which Zhou used to head. In addition to police officials being accused of corruption, a series of unexplained—or, rather, ridiculously explained, as in the case of the "hide-and-seek" case in Yunnan or the "nightmare" case in Jiangxi—has forced the Ministry of Public Security to acknowledge the possibility of serious abuses in its detention centers. Disgust with these police scandals have reportedly led ommenters on mainland websites to call for the ousting of both Zhou and the public security minister, Meng Jianzhu.

Reading this news led me to recall something I wrote over a year ago upon learning that Zhou was about to enter the inner circle of Chinese leadership. At the time, I wondered (in a half-hearted predictive kind of way) whether the position of China's police might weaken vis-a-vis other parts of the law enforcement mechanism, such as the courts or the procuratorate. Instead, events such as protests in Tibet and security concerns about last year's Olympics appear to have strengthened Zhou's influence and the power of China's police.

So much for making predictions about anything in China, let alone the impact of elite leadership movements.

Maybe, though, if these current rumors have a grain of truth to them, it's all part of the effort to rein in China's police through other means. In a country where so much decision-making power is concentrated in the hands of a few people who have little, if any, accountability to the country's citizens, factional politics play an important role in achieving balance between different interests. After a strong run, it appears that the "stability-above-all-else" crowd led by Zhou might be under pressure from within the Party, but from whom? If China's lucky, it will be those who, though no doubt believing in the importance of maintaining stability, believe that this goal is more effectively realized by building institutions that truly promote "rule of law" (rather than "rule by law").

17 April 2009

Wang Shuai, the "Lingbao Post" case, and the Limits of Free Speech

Oiwan Lam at GlobalVoices has a good run-down (aside from some rather sloppy editing) of a case that's been attracting a great deal of attention in China over the past week or so but has so far gone relatively unnoticed by the foreign media. The case involves a young man named Wang Shuai who posted photographs on the Internet that implied criticism of local officials in his hometown of Lingbao City, Henan, for some shady deals involving land deals and misuse of public funds.

Wang's post upset local officials so much that they sent city police to Shanghai, where Wang lives, to place him under criminal detention on charges of "slander." After eight days, Wang was released from custody, but when the case was made public by China Youth Daily it caused a firestorm of criticism that has led most recently to a formal apology from the head of the provincial public security department and Wang has been offered compensation.

Domestic press coverage, Internet comment, and popular support have been solidly on Wang's side from the beginning, seeing what happened to him as a particularly egregious case of abuse of power and an attempt to stifle rightful criticism of misconduct. Today, in opinion pieces like this one from CASS scholar Yu Jianrong, we see calls for the importance of protecting individual free speech as a necessary check on official malfeasance. This fits in nicely with the proposal in China's "National Human Rights Action Plan" to establish a "nationwide complaint information system" to ensure citizens' voices are heard. Could Wang Shuai's case follow that of Sun Zhigang in promoting reform that ultimately protects individuals from abuse of their human rights?

Maybe. But what's missing from all of this public support for Wang Shuai is any mention that "slander" is also part of the definition of the crime of "inciting subversion," a crime under which activists like Hu Jia, Gao Zhisheng, Liu Xiaobo, and dozens of others are currently incarcerated. If it's improper to use "slander" to silence Wang Shuai, why is it proper to use "inciting subversion" to silence these others (on grounds of "state security," no less)?

In other words, what distinguishes the abuse of power to stifle criticism in Wang Shuai's case from the abuse of power in cases like these? Is it simply that the authorities have an interest in allowing criticism to root out rotten local officials (for which it can take credit for taking the lead in anti-corruption efforts) but are decidedly un-interested in having anyone hear criticism of the broader political system that enables such local abuses of power?

Is it really that simple?

16 April 2009

"Human Rights Are Sacred, Not a Favor to be Granted"

I really liked this opinion piece by Li Qiong 李琼, a commentator for Wuhan's Changjiang Daily 长江日报. Perhaps I read too much into the article, but I felt that Li was articulating a critique of China's "National Human Rights Action Plan" that, more explicitly in some places and more subtly in others, echoed some of my own critiques of the plan: the need for less talk and more concrete implementation and the reminder that human rights in all their varied forms are inherent in all humans and not something that is bestowed upon us by the governments who rule where we happen to live.

Anyway, I did an English translation of the piece for The Dui Hua Foundation's Human Rights Journal blog.

China and the Future of Universal Human Rights

The following was something I wrote after attending China's Universal Periodic Review session in Geneva but was never able to get published. It explains some of the reasons why I've been so consumed with the idea of universal and indivisible human rights.

Earlier this year, representatives of more than 100 countries lined up outside a meeting room at the United Nations in Geneva for a chance to speak for two minutes on the subject of China’s human rights. The occasion was China’s turn on February 9 before the UN Human Rights Council as part of a new process known as “Universal Periodic Review” (UPR), in which each member of the United Nations is subjected to a uniform review of its compliance with international human rights provisions.

Only half of them got a chance to speak during during the three-hour interactive session that forms the main part of the UPR process. One speaker after another, lines were soon drawn between those countries who came to applaud China’s remarkable successes in alleviating poverty, protecting the rights of women and children, and promoting education and healthcare and those countries who came to criticize China for the shortcomings of its criminal justice system, its restrictions on free expression and religious belief, and its repressive measures towards restive minority populations like Tibetans and Uyghurs.

From the first group of countries, mostly developing nations from Asia and Africa, China was praised as a country that takes its commitments to human rights seriously and can serve as a model for best practices in the field of economic and social development. To the latter, mostly developed countries in Europe and North America, China still has far to go and much work remaining to do in order to safeguard the civil and political rights of its citizens. When the time came for China to choose which recommendations it would accept and which it would not, unsurprisingly it was the more critical comments calling on China to combat torture, restrict the widespread use of capital punishment, ensure the rights of all criminal defendants and their defense lawyers, extend religious freedom, and enhance the autonomy afforded to Tibetans and Uyghurs that did not make the cut.

This division—between economic and social rights on the one hand and civil and political rights on the other—reflects a rupture in the theory of human rights that has been festering for decades. In the 1948 Universal Declaration of Human Rights, which serves as a founding document for both international human rights law and the institution of the United Nations itself, an array of economic, social, cultural, and political rights were envisioned as inherent, inalienable, and universal manifestations of human dignity. Individuals possess these rights automatically as part of their humanity, and it is the responsibility of states to establish institutions to safeguard those rights.

China and many other countries see things rather differently. To them, economic and social rights—rights ensuring an adequate standard of living, for example—are more fundamental than other rights. For developing nations facing serious challenges of poverty, lack of education, scarce resources, and overpopulation, use of strong measures to quell lawlessness or quiet dissent is often seen as necessary for maintaining the stability upon which economic development depends. Thus, the governments of countries like China prefer to consider “national circumstances” before choosing whether to extend or withdraw citizens’ rights. At best, civil and political rights are acknowledged only as aspirations for the future, after society’s economic needs have first been met; at worst, they are respected in name only, but in practice become empty rights, devoid of any real meaning.

Countries like China argue with some conviction that the theory of “human rights” was dreamed up in the west, adopted as a universal principle without real input from most of the peoples of the world, and has inevitably been used to attack developing countries and keep them subservient. They see the Human Rights Council and the UPR process as an opportunity to revisit these principles and, ideally, refashion a new rights theory that gives states more leeway to decide which rights are most important for their peoples. Such a conceptualization, likely to enjoy the support of a majority of countries, would be more “democratic,” they argue—tossing back another so-called universal principle they view with considerable skepticism.

If the will of this so-called majority—one composed of not a few governments with dubious claims to truly represent the peoples they govern—is allowed to prevail and the rights of individuals turned from something universal into something dependent on political or cultural boundaries, then many civil, political, and cultural rights will simply disappear over vast stretches of the earth. Seeing the Human Rights Council allowed to become a forum for this idea, the question becomes: is there be any institution left with the credibility and authority to stand up for the principle of universal human rights?

15 April 2009

Human Rights as Indivisible, Interdependent and Interrelated

I've been spending some time looking at China's recently published "National Human Rights Action Plan" for 2009-2010 and thinking about China's motivation for carrying out this exercise. Well, that led me to the Vienna Declaration and Programme of Action, a document that came out of the World Conference on Human Rights in 1993. The call for countries to establish human rights action plans originates there.

As I was reading over the VDPA, I noted the reiteration of an idea that's been occupying a great deal of my attention of late: that human rights are indivisible and interdependent and not comprised of some rights that somehow are more fundamental than or have precedence over other rights. This is one of the most sacred principles of human rights law, enshrined in the Universal Declaration of Human Rights.

I've been returning to this idea to rebut the Chinese argument that, because of particular national circumstances related to culture, history, level of development, etc., China chooses to focus on the promotion of economic and social rights as somehow "more fundamental" than civil or political rights. (Cultural rights are the black sheep of human rights, often forgotten.)

What I've often forgotten is that in 1993 the call to remember the integrality of human rights was primarily aimed at those countries—like the United States—that sought to make civil and political rights "more fundamental" than economic, cultural, and social rights. Promoting the importance of economic, social, and cultural rights was meant as a corrective, but might China be trying to take this too far?