26 December 2011

China's Criminal Procedure Law Revision Revisited

On Monday, China's National People's Congress Standing Committee reviewed a new draft revision of the Criminal Procedure Law (CPL), marking one step closer to the expected passage of the legislation at the full session of the NPC in early March.

Presumably, the present CPL draft incorporates at least some of the comments and criticisms submitted by the public during the month-long period of public consultation that followed the publication of the full text at the end of August.

One of those criticisms, as loyal readers of this blog will recall, concerned a proposal that would allow investigators to hold suspects in certain types of cases (involv ing offenses of endangering state security, terrorism, and major corruption) to be held under "residential surveillance" in a designated location without providing any notification to family members of the detainee's whereabouts or alleged offense. This proposal has been roundly criticized both inside and outside China as a measure that would legitimate the practice of secret arrest and enforced disappearance and put China in contravention of its obligations as a signatory to the International Covenant on Civil and Political Rights.

Yesterday's news saw headlines suggesting that the latest CPL draft would "eliminate 'secret detention.'" More specifically, it appears to refer to elimination of a provision in the earlier draft that would allow police to avoid notifying relatives of formal arrest of a suspect within 24 hours "in cases involving serious offenses such as endangering state security or terrorism" when doing so would possibly impede the investigation.

Since the full text of the current draft hasn't been made public, it's hard to know whether similar changes have been made to problematic provisions concerning criminal detention and "residential surveillance." If so, then it would truly be a improvement to the legislation and a retreat from embracing measures that have been criticized as an unacceptable strengthening of law enforcement authority at the expense of individual rights.

But if the only change has been made to the one provision on formal arrest, then it would be wrong to accept the characterization of the revision as "elimination of 'secret detention'" and hard to accept the change as a satisfactory step to address public concerns.

It would be a bit like a surgeon removing a tumor from a patient while ignoring other, equally cancerous tumors elsewhere in the patient's body. The surgeon knows that the tumors are there, because they have been pointed out to him by other cancer experts, but the surgeon only removes the one, believing that he can satisfy the patient, the patient's family, his fellow physicians, and the public at large by displaying what he's done. Meanwhile, the cancer continues to ravage the patient's body.

It may not be the best metaphor for the ongoing CPL revision, but hopefully it gets my point across. Public pressure, both domestic and international, may be the only hope if China is to avoid passing a CPL including such rights-abusing measures as the proposed provisions on "residential surveillance." If the claim that such provisions have been "eliminated" is taken seriously without clear proof and the pressure dissipates, then the cancer of unchecked police power to target those deemed as political threats will metastasize.

UPDATE: According to this article from Southern Metropolis Daily, it appears that the second draft of the revised criminal procedure law has not eliminated the exceptions for criminal detention and residential surveillance that would allow investigators not to notify a suspect's family members under certain conditions. The newspaper quotes Chen Guangzhong, an establishment legal scholar who has been promoting criminal procedure reform in China for much of the past three decades, as voicing a certain amount of concern, saying: "There's nothing frightening about not notifying the family for a 37-day criminal detention, but not notifying the family for a six-month residential surveillance is rather long."

14 December 2011

Bo Xilai, Meng Jianzhu, and the 18th Party Congress

As the 18th Party Congress of the Chinese Communist Party approaches, there is already lots of speculation as to the composition of the next Politburo Standing Committee (PBSC), the party's core leadership group. There are an unusually large number of expected vacancies this time around, with only two incumbent members, Xi Jinping and Li Keqiang, remaining on while the other seven current members step aside after having passed the conventional retirement age. With so many spots up for grabs—and not just one, but two former party leaders representing very different political constituencies likely to stick around throughout the decision-making process—the behind-the-scenes jockeying is likely to be energetic.

A lot of the current speculation is focused on the question of whether Bo Xilai, who is currently the party boss in Chongqing Municipality, or Wang Yang, Guangdong party boss, or both, will be elevated to this elite leadership group. Each is seen to represent two distinct political styles, with Bo's populism, promotion of "red culture," and emphasis on social equality posing a sharp contrast to Wang's more liberal attitude toward economic and political reform. If one is elevated at the expense of the other, it could hint at the preferred political tone of the next leadership group. If both make the standing committee, it creates the potential for competition or even fragmentation within the leadership of a kind that the CCP has been keen to avoid ever since 1989.

A related issue that is of particular interest to me is who will become the next head of the Central Politico-Legal Commission (CPLC) and take the reins from Zhou Yongkang as China's "security czar." For months, I've been predicting that Bo Xilai might wind up being the man for the job, especially given his high-profile campaign against corruption in Chongqing. This would potentially be a bad news for any remaining hopes that China would move more resolutely towards rule of law, given that Bo's campaign has not shown much appreciation for procedural justice or the role of defense lawyers.

There are those, however, who think that Meng Jianzhu, currently heading the Ministry of Public Security (MPS), will get the nod for CPLC secretary. (For example, such a scenario was put forward in the most recent issue of Hong Kong's Open Magazine.) The thinking seems to be that the party's overriding interest in preserving social stability necessitates having police interests represented within the top party leadership, and since present CPLC head Zhou Yongkang was a former MPS head, he creates a kind of legacy or precedent for moving the MPS chief into the CPLC position.

I'm still skeptical about Meng's chances. Since 2002, the secretary of the CPLC has been a member of the PBSC. There is no known requirement that this be so, though, so it's possible in theory that the CPLC position could be given to a member of the full 25-member Politburo. However, I suspect that assigning the position to a "mere" Politburo member would be seen as a reduction of power for the security portfolio, and given the importance of political and social stability in present-day China, it just doesn't seem likely.

On the other hand, giving Meng Jianzhu a seat on the PBSC would represent a serious elevation of his position within the party, considering that he is presently only a member of the Central Committee (which has hundreds of members) and not the Politburo. My reading of recent history leads me to conclude that it is unusual for party members to be named to the PBSC without having already been a member (or at least an alternate member) of the Politburo. Unusual but not unheard of: both Xi Jinping and Li Keqiang were named directly to the PBSC without prior membership on the full Politburo, but one should perhaps see those as moves made to groom future national leaders in anticipation of a transition to a new leadership generation. There is no such rationale for Meng, who will turn 65 in 2012 and thus (like Zhou) only be eligible to serve a single term as CPLC secretary.

Wang Shengjun, the current president of the Supreme People's Court, would be an interesting choice for CPLC secretary, especially given the apparent move away from having public security chiefs hold the concurrent position of politico-legal committee secretary at the provincial level. Like Meng, Wang is currently only a member of the Central Committee, but he has the advantage of experience within the party's politico-legal committee system as well as a stint as the head of public security in Anhui Province. But Wang will be 66 years old next year, presumably making him too old for a spot on the PBSC. Moreover, there have been recent online rumors that he is suffering from cancer.

Unless I'm missing something, then, I just don't see Meng Jianzhu getting bumped up to the PBSC just in order to have another former Minister of Public Security hold the CPLC post. And, of the other "candidates" whose names have been put forward for possible elevation to the PBSC, I don't see any others besides Bo who would fit "naturally" into the CPLC portfolio. In fact, one could imagine that part of Bo Xilai's motivation for engaging in his high-profile crime-busting campaign in Chongqing was to justify a spot for himself on the PBSC, since there are apparently some party leaders who see him as a bit of an opportunist and a wild-card who might upset the delicate consensus that has been cultivated within the party leadership since the early 1990s.

So, for now at least, my "money" is still on Bo Xilai. But I am but an amateur in the field of Zhongnanhai-watching, which is (with all due respect to those who engage in it for a living) a bit of a fool's game to begin with. As I may have mentioned before, I'm a historian by training and temperament, so predicting the future is not my forte. When I was in college and reading Western analyses of the Cultural Revolution written as it was unfolding, I came across a quote that I attribute (and paraphrase—both with some uncertainty) to John K. Fairbank, the great historian of late imperial China: "The historian's after-the-fact reconstruction of the past is less courageous—and less foolhardy—than trying to predict the future."

19 November 2011

Pu Zhiqiang: Initial Opinions Regarding the "Fake Tax Case" (Translation)

Some have taken exception to the "knee-jerk" way in which Western media have approached Ai Weiwei's case, feeling that they have uncritically presented this as the heroic struggle of a dissident artist against government repression without inquiring into whether there might be any validity to the tax charges against him.

It is legitimate to ask whether Ai Weiwei or, more accurately, the Fake Cultural Development Company, owes taxes. One might think that this is merely an objective fact, but, actually, it is a determination that should be based upon a proper, fair, and transparent procedure. As lawyer Pu Zhiqiang details in his recent analysis of the case, which I have translated below, there is good reason to challenge the legitimacy of the determination that has been made.

I believe it is also legitimate to raise questions about political motivations behind the prosecution because of the particular way in which the police intervened in this case prior to any investigation by tax authorities (something that Liu Xiaoyuan noted previously), the fact that Ai's disappearance was carried out in the context of dozens of other detentions of activists and lawyers that were unambiguously political in nature, and the way in which the propaganda machinery has been mobilized to smear his reputation and "cast him out" of the ranks of the people.

That's all I'll say for now, because I've expended my allotment of brain cells for today and you still have a lot of reading left to do.
We have been entrusted by Beijing Fake Cultural Development Limited (hereafter “Fake Company” or “Fake”) to provide legal services in that company’s tax matters (hereafter “Fake tax case” or “tax case”). At the request of Fake Company and after making initial acquaintance with the background and associated matters concerning the “tax case” and having ascertained the circumstances of the “disappeared” Ai Weiwei, Wen Tao, Liu Zhenggang, Hu Mingfen, and Zhang Jinsong, our analysis and opinions are as follows:

I. The detention of Ai Weiwei et al. appears to have “exceeded authority” and been in violation of the law

On the morning of 3 April 2011, renowned artist Ai Weiwei was taken away by police before completing border-exit formalities at Beijing International Airport. Up until 22 June, when Ai Weiwei was “released on guarantee pending further investigation” and returned home, his family never received any official notification and had no means of knowing the charges alleged, the coercive measures taken, or the place of detention.

At 12 noon on 3 April, the Beijing Public Security Bureau carried out a search of Ai Weiwei’s residence for nearly 12 hours, seizing a total of 127 items, including computers, portable hard drives, video discs, and books. The inventory of items seized was issued in the name of the Chaoyang District Branch of the Beijing Public Security Bureau. No search was made of the finance office of Fake Company. Ten employees of Ai Weiwei’s studio were taken by police to the Nan’gao Police Station for questioning until the early morning [the next day].

At 2 p.m. on 3 April, Ai Weiwei’s assistant, Wen Tao, was forced into a black Buick by four men wearing plain clothes and taken away. Having lost contact with him, his relatives went to the Nan’gao Police Station [responsible for] the area where the incident occurred and reported a kidnapping. On the evening of 24 June, Wen Tao was escorted home by Beijing Public Security personnel, who demanded that he not discuss details of his detention publicly or have any contact with Ai Weiwei. During Wen Tao’s disappearance, his family did not receive any paperwork. Wen Tao to this day does not know for what offense he was secretly detained for 83 days.

At approximately 11:30 p.m. on 6 April, the Beijing Local Taxation Bureau and the [Beijing] Public Security Bureau went to Beijing Huxin Financial and Accounting Services Limited, which had been entrusted to keep the accounts of Fake Company, and seized original vouchers, accounting vouchers, accounting documents, tax vouchers, balance sheets, and profit/loss statements and other accounting documents of Fake Company dating from 2000 until February 2011. One hour later, at 12:47 a.m., Xinhua News Agency issued a report in English, stating: “Ai Weiwei is being investigated according to law on suspicion of economic crimes.”

On 7 April, the Beijing Public Security Bureau Economic Crime Investigation Unit brought Fake Company accountant Hu Mingfen, who had been visiting relatives in Lanzhou, back to Beijing, at which point Hu lost contact with family. Up until 13 June, when Hu was “released on guarantee pending further investigation,” [Hu’s] family never received any official paperwork [regarding her whereabouts]. The conditions of Hu Mingfen’s “release on guarantee” was that she leave Beijing and have no further contact with anyone at Fake Company or publicly discuss the circumstances of the case.

On 7 April, Ministry of Foreign Affairs spokesman Hong Lei told a press briefing: “Ai Weiwei is being investigated according to law by the public security organ on suspicion of economic crimes.

At 3 p.m. on 8 April, the Beijing Local Taxation Bureau and Beijing public security agents went to the accounts office of Fake Company and seized all financial and accounting documents, contracts, and chops from 2005 to 2010, at which point for the first time Fake Company was issued a Tax Inspection Notice and Inquiry Notice and the company’s legal representative Lu Qing was requested to go to the Beijing Local Taxation Bureau on 12 April for questioning.

At 7 p.m. on 9 April, Fake Company shareholder and financial manager Liu Zhenggang (male, age 49) was forcibly dragged away from his residential community in Haidian District by four men in plain clothes and taken to an unknown location. His wife later went to the Dazhongsi Police Station in Haidian District to report a kidnapping. From that point until the time on 11 June when [Liu] was “released on guarantee pending further investigation,” his relatives did not know his whereabouts and received no official paperwork. Liu Zhenggang was “released on guarantee” on condition that he leave Beijing and have no further contact with anyone at Fake Company or publicly discuss the circumstances of the case.

At 1 a.m. on 10 April, Ai Weiwei’s driver Zhang Jinsong (male, age 43) lost contact after leaving his friends. His relatives went to the Nan’gao Police Station in Chaoyang District to report him missing. Up until 23 June, when he was “released on guarantee pending further investigation,” [Zhang’s] relatives did not know his whereabouts and never received any official paperwork.

At 9:30 a.m on 12 April, after the company had been searched numerous times and four employees “disappeared” one after another, the No. 2 Audit Office of the Beijing Local Taxation Bureau carried out its first questioning of Fake Company legal representative Lu Qing.

On 15 May, Lu Qing was taken to the Chaoyang District [Branch] Public Security Bureau to see Ai Weiwei, who had been brought there from his secret place of detention. Ai Weiwei had been required not to reveal anything about his detention or questioning, and Lu Qing was told that Ai was only “suspected of economic crimes.”

On the evening of 22 June, Ai Weiwei was “released on guarantee pending further investigation.” That evening, Xinhuanet issued a short news item saying: “The public security organ carried out an investigation of Ai Weiwei in accordance with the law on suspicion of economic crimes and discovered that Beijing Fake Cultural Development Limited, which is actually controlled by him, carried out criminal acts such as evasion of a large amount of tax and intentional destruction of accounting documents. In light of Ai Weiwei’s good attitude in admitting his crimes and the fact that he suffers from chronic illness, combined with his multiple expressions of willingness to pay the taxes owed, Ai Weiwei has been released on guarantee pending further investigation in accordance with the law.”

Ai Weiwei notes that during the 81 days that he was secretly detained, the focus of questioning was on “suspected inciting subversion of state power.” After Ai Weiwei was “released on guarantee,” police issued no legal document and Ai Weiwei to this date is not clear about the charge under which he has been “released on bail pending further investigation.”

On 27 June, the No. 2 Audit Office of the Beijing Local Taxation Bureau [issued a] Notice of Administrative Penalty for Taxation, saying that Fake Company had evaded taxes and needed to a tax penalty of 12.21 million yuan. The office clearly stated that “the target of punishment is Fake Company, not Ai Weiwei.”

The company’s business license and tax registration form make clear that Beijing Fake Company was established as a limited liability company on 29 November 2000 with registered capial of 100,000 yuan, of which 80,000 had been put up by Lu Qing and 20,000 by Liu Zhenggang; that the company’s legal representative was Lu Qing and that Liu Zhenggang was the person responsible for financial matters and taxation matters; and that there were four employees. Its scope of operations was: organizing cultural and artistic exchanges, organizing exhibits, corporate image planning, graphic design, film and television planning, photographic services, arts and crafts design, furniture design, home design, and home decoration and design. From its establishment in 2000 until the present, Fake Company had continuously entrusted Beijing Huxin Financial and Accounting Services Limited to handle its accounts and file its tax returns.

Ai Weiwei was merely a designer for Fake Company and not a manager, accountant, or cashier responsible for financial matters; thus, he is not a “person of primary responsibility or other directly responsible person” as defined in [Article 31 of the] Criminal Law, and there is no concept of so-called “person in actual control” in tax cases. The Tax Management Law does not provide for holding anyone other than the taxpayer (which in this case is Fake Company) responsible, so there is clearly no factual or legal basis for the Ministry of Foreign Affairs or the Xinhua News Agency to say that “Ai Weiwei is suspected of economic crimes” or that “Fake Company, which is actually controlled by Ai Weiwei, evaded a large amount of tax. This is [an instance of] the law enforcement agency using the Ministry of Foreign Affairs and Xinhua News Agency to release fabricated information to frame a party.

According to the law, the public security organ does not have legal authority to handle administrative matters concerning taxation; only when Fake [Company] resists enforcement of an administrative punishment over taxation and the taxation authorities transfer the tax case to the public security organ may public security file a case for investigation and pursue criminal responsibility of the relevant responsible person. Therefore, there was no legal basis for the public security organ to step in before taxation authorities had begun investigating the “Fake tax case” and secretly detain Ai Weiwei and four others and search Fake [Company’s] accounts and seize items on 6 April and 8 April. [By doing so,] they exceeded their authority and violated the law in their handling of the case.

II. Beijing taxation authorities’ handling of the “Fake tax case” involves multiple procedural violations and unclear factual determinations, and its administrative act lacks legality and should be revoked in accordance with the law

On 29 June, Fake Company submitted a written request for a hearing. Fake [Company] reminded the taxation authorities numerous times that its accounts should be “returned in full” as soon as possible in order to ensure Fake’s ability to exercise its right of defense, but the taxation authorities replied verbally that “the books are with public security.” Twice, Fake expressed written opposition to the local taxation bureau about [the decision] not to hold a public hearing. The local taxation bureau replied verbally that because the case concerned the “commercial secrets” of a third party, a public hearing could not be held.

On 14 July, the No. 2 Audit Office held a secret “hearing.” Besides Fake’s legal representative and appointed counsel, no others were allowed to observe the proceedings, during which the local taxation authorities were unable to produce any request by a third party to protect its secrets. Clearly, this closed hearing was in violation of the law. During the hearing, the taxation authorities were unable to produce any original documents that had been seized by public security, making it impossible for Fake’s counsel to express an opinion about the authenticity and integrity of the photocopied documents.

Fake contends that it cannot accept a decision make by the tax authorities based on faulty procedure and inconclusive evidence and, moreover, that it is impossible for it to take responsibility when financial records may have been destroyed or altered during this period [of investigation]. On 19 July, the taxation authorities notified Fake to go to the Shibalidian Police Station in Chaoyang District to review the original account books, but because public security organs are not legally authorized to “handle tax matters” and a police station is not an appropriate place to store financial records, we recommended that Fake Company refuse these arrangements to “review the files.” A the same time, we again demanded that the taxation authorities return the accounts in full and select another date to hold an open and legal hearing.

On 1 November, the No. 2 Audit Office finally issued a Decision on the Handling of Taxes and a Decision on Administrative Penalty for Taxation, ordering Fake to pay within 15 days a total of more than 15.22 million yuan in taxes, late fees, and fines, of which more than 8.45 million yuan was taxes plus late fees and 6.77 million yuan was the fine.

We maintain that the aforementioned decisions were based on factual findings that are not clear and serious procedural violations and that the [tax] authorities were clearly cleaning up for the public security organ’s “Ai Weiwei case.” In order to protect Fake Company’s legal rights, we recommend requesting that an administrative review be held in accordance with legal procedure and that a decision about whether to file an administrative lawsuit be held in reserve, pending the conclusion of the administrative hearing.

III. Analysis of Fake’s way to protect its rights in accordance with the law

According to Article 88 of the Tax Collection and Administration Law of the PRC, Fake can only request an administrative review if it first pays back the more than 8.45 million yuan in taxes and late fees or puts up a commensurate guarantee. Given that Fake does not acknowledge the legalist of the [tax authorities’ decisions regarding taxation and penalties] we do not recommend that Fake “pay back the taxes” and instead should pay a tax guarantee in order to have the right to pursue review and litigation without resulting in outside misunderstanding and misinterpretation.

To help Fake “buy itself a way” to protect its rights, Ai Weiwei’s mother Ms Gao Ying and his younger brother Ai Dan decided to mortgage Ai Qing’s former residence in exchange for Fake’s right to have an administrative hearing. Beginning on 2 November, we entered discussions with the taxation authorities about the procedures for mortgaging [the property], but the Property Rights Exchange Center notified us that only an individual or a financial institution, not an administrative organ like the taxation authorities, could serve as the mortgagee. This meant that oversights in the policies between government agencies would result in Fake being unable in fact to mortgage Ai Qing’s former residence as a taxation guarantee.

On 9 November, the taxation authorities issued a Tax Affairs Notice ([file number] 2d Aud. Tax Not. [2011] No. 7), demanding that Fake “select one of the three methods of guarantee, mortgage, or pledge” in accordance with the Provisional Measures for Tax Payment through Guarantee.

People from throughout society came to aid and support Ai Weiwei’s tax dilemma and, in only 10 days between 4 and 13 November, nearly 30,000 people remitted more than 8.69 million yuan in loans. This demonstrates that the public supports Ai Weiwei personally and supports his “guarantee” that Fake Company will use judicial channels to protect its rights, and Fake has won the opportunity to defend itself and seek a just resolution to the problem. Fake decided to pledge its bank book as a pledge to guarantee its payment of taxes. Even though the law clearly provides for this, the local taxation bureau notified us that bank regulations prohibit an administrative organ like the local taxation bureau from acting as the lawful recipient of a pledge, so it would be impossible to put up the bank book as a pledge.

Since the deadline imposed by the taxation bureau was drawing near, on 16 November Fake Company was forced to agree to the local taxation bureau’s method of transferring cash into a tax guarantee funds account. Having completed the relevant procedures, [Fake] has obtained the right, in accordance with the law, to request an administrative review within 60 days.

Fake Company will select a date to request an administrative review. We will take good care of this opportunity to protect [the company’s] rights, one that came at an incredibly high cost, put forth all effort in the review and any possible litigation, and report the progress of the administrative review to the public in a timely and detailed manner.

Pu Zhiqiang
Counsel in the Fake Tax Case

18 November 2011

16 November 2011

Translation: "Elimination of 'Ai Weiweis' is the Trend of Society"

I'm not sure why I feel compelled to translate these things. As a piece of invective, it pales in comparison to this earlier example. But since there seems to be no shortage of interest in this story and I'm never one to back down from a diversion, here it is.

This is a very rough and sometimes loose translation the latest attack on Ai Weiwei to appear in the pages of the Global Times newspaper, in a commentary most likely penned by the editor, Hu Xijin. I didn't bother to check whether the Global Times already produced an English version of this masterpiece. If not, then I suppose I've just done them a favor. I hope they'll make sure to contact me so that I can tell them where to send their check.

Elimination of “Ai Weiweis” is the Trend of Society
“Shan Renping”

Ai Weiwei, who has been “borrowing money to pay his taxes,” recently told the foreign media that 30,000 people had “lent him” US$1.4 million (approximately 8.8 million yuan). The foreign media also quoted Ai Weiwei’s supporters as saying that this is the result of “official pressure” and that the response was much greater than donations to the Red Cross. It seems that Ai Weiwei really wants the outside world to believe that he has received the support of “all of Chinese society.”

Is 30,000 people a large number? China has a population of 1.3 billion, and it is said that there are more than 100 million people using Sina Weibo! Ai Weiwei hoped to “borrow” 15 million yuan; to date he has received just over half that amount. If the funds received had greatly exceeded 15 million and the “lenders” reached several tens of thousands or even a million, it would be a perfect bit of “political performance art” for Ai Weiwei to shout his “thanks” on the one hand while returning the excess cash on the other. It’s too bad that Ai Weiwei has to prove to the world that, even though he was only able to borrow half the funds, the money received is still really “a lot.”

Ai Weiwei symbolizes the “political dissident” that the Western world supports with all their might. All Chinese people who are interested in politics know who he is. Ordinary Chinese who never heard of him or cannot recall who he is mostly have no interest in his kind of games of political opposition.

The West has supported many Chinese “dissidents.” The Western press once widely called Wei Jingsheng “the father of Chinese democracy.” That “father” is now in some corner of the United States carrying out “small actions” that Western reporters don’t even bother reporting on.

Ai Weiwei is just the freshest name on a very long list of people who have mostly been forgotten. The West supports Ai Weiwei and the others on the list, so small circles of people who surround them form in Chinese society. People like Ai Weiwei shouldn’t think that the reason those small circles don’t extend to all of society is all because of “government repression.” True popular sentiment cannot be suppressed. Over the past 30 years, “Ai Weiweis” have periodically sprouted up only to crash to earth like a meteor. Contrary to their predictions, China has only continued its rise. Their elimination through this great progress is the true trend of society.

China is an amazing country, one in which everyone has a story to tell and opinions about the country are hard to unify. There are an infinite number of irritants along China’s overall path, any one of which can be easily magnified in the Internet age into a “sign of the times” so that it drowns out things of much greater significance. Ai Weiwei’s true market is overseas, so to avoid being drowned out within China he has to do these controversial things non-stop.

It must be said that without the support from foreign powers, Ai Weiwei would be “nothing.” The pressure Ai Weiwei’s actions face from Chinese realities is actually a reaction to external forces that use Ai Weiwei to push China around. Ai Weiwei is only willing to be a fulcrum for Western leverage against China.

Of course, Ai Weiwei and others like him are not completely without opportunities. If the Chinese government makes a huge mistake or Chinese society loses its judgment under the encouragement of outside opinion, then the future is up for grabs. Actually, the future of “Ai Weiweis” is linked to China’s misfortune.

I think it’s probably better that those “Ai Weiweis” be unlucky. Let their appearance serve as a warning to China in its flourishing period. As I said earlier, there will always be [those who] pressure a rapidly developing China to move in reverse, and they always represent their opposition to the people as “representing the people.” From Wei Jingsheng to Ai Weiwei, this effort never really goes anywhere, but it also never really stops. China’s hidden worries are eternal.

I wonder how many of those 30,000 people who lent money to Ai Weiwei were from inside China and how many were from outside. I hope that the Chinese among them really understood what they were doing and weren’t simply following some sensationalist slogans.

08 October 2011

A New Tourism Promo for Dongshigu Village?

Over the last several weeks, ever since the first anniversary of Chen Guangcheng's release from prison, there have been several waves of people making the very risky journey to try to visit him at his home in Dongshigu Village, in Shandong Province's Yi'nan County. Without exception, they have been intercepted by the local thugs who guard the perimeter of the village, roughed up, and sent away.

The situation in Dongshigu has been intractable for such a long time, with all efforts to leverage international or domestic pressure leading nowhere. Foreign diplomats and journalists have experienced the same kinds of thuggish behavior on their attempts to visit Chen, though obviously the ordinary Chinese citizens who are making this effort do so with much greater risks involved.

The central government appears to have abdicated all responsibility for what is going on in Dongshigu, blaming the problem on patriotic locals who are angry about the black eye Chen Guangcheng's public activism has given their area, which takes pride in its contribution to the Communist revolution.

It's hard to see where to exert leverage here. I'm not entirely convinced that ordinary citizens putting their lives in danger by going to Dongshigu is the most effective strategy, but it's hard to know what else might work. Meanwhile, for want of a solution, Chen and his family remain under illegal lockdown, cut off from the world, unable to live a normal life.

Below, I translate an item posted on Twitter last night by the activist Hu Jia, a good friend of Chen Guangcheng:

Do you want to experience stability-maintenance? Please go to Dongshigu, in Yi'nan, Shandong Province.

Want a taste of organized crime? Please visit Dongshigu.

Want to get robbed? Please go to Dongshigu.

Want to witness police and bandits in league with each other? Visit Dongshigu.

Want to have your dignity trampled upon? Please visit Dongshigu.

Want to fully understand the value of freedom? Please go to Dongshigu, in Yi'nan, Shandong Province.

05 October 2011

Research Note: When Does Gao Zhisheng's Sentence Expire?

In mid-August, the family of disappeared rights lawyer Gao Zhisheng issued an appeal calling on the Chinese government to provide news of his whereabouts. The appeal was timed with the fifth anniversary of Gao's detention by police back in 2006, the first step in his prosecution on charges of "inciting subversion of state power"—charges for which he was convicted on 21 December of that same year and sentenced to three years' imprisonment, suspended for five years.

Several media outlets published reports on Gao's continued disappearance, placing special emphasis on the the timing of the appeal. For example, a report in the UK paper The Telegraph began with the following lede:

According to Chinese law, Gao Zhisheng's five-year probationary sentence came to an end on Sunday. However, the 45-year-old lawyer remains missing.
Reports from the Reuters and DPA wires similarly suggested that Gao's sentence expired back in August, adding an extra layer of illegality (as if that were even possible) to the authorities' treatment of the lawyer.

It turns out, though, that Gao's sentence doesn't actually expire until December. Allow me to explain:

Ordinarily, when an individual is sentenced to imprisonment in China, he or she is given credit for time spent in pre-trial custody. So, if Gao had been given a straight three-year sentence back in 2006, he would have been released from prison in mid-August 2009 (not three years after his December 2006 sentencing).

But suspended sentences are counted differently. The "probationary" period—which for Gao lasts five years—doesn't commence until the sentence becomes final. In non-capital criminal cases, a sentence becomes final in one of two ways: when a court of second instance issues its appellate decision or when the ten-day period following a first-instance verdict expires with neither party filing an appeal.

The Beijing Number One Intermediate People's Court issued its verdict against Gao on 21 December 2006. It is my recollection that Gao did not appeal, which would mean that his sentence became final on 31 December. That would mean that Gao's probationary period will not actually expire until the end of the year. At that point, his "supplementary punishment" of "deprivation of political rights" for one year will commence.

I don't fault the reporters above or Gao's family for getting this wrong. This is some pretty esoteric knowledge of the criminal law and criminal procedure law and even involves some interpretation of ambiguous phrases (see this discussion, for example, if you're really interested). To be honest, I'm not entirely sure if I've gotten the date right, though I think I should be correct within one day on either side of 31 December.

And of course it should go without saying that all of this discussion about the letter of the law is rather trivial in the face of the blatant illegality of the way Gao Zhisheng has been treated and the Chinese government's seeming indifference to his fate. In short: even if Gao's sentence has not technically expired, that does not provide anyone with any legal justification for making him disappear.

31 August 2011

Lawyers Express Criticism of Criminal Procedure Law Revision Draft

Yesterday, the controversial draft revision of China's Criminal Procedure Law (CPL) was finally published on the National People's Congress. As usual, Forgotten Archipelagoes has provided a set of useful links to relevant documents, including a chart comparing the current and proposed texts side by side.

My last post on the subject of the draft's troubling "residential surveillance" provisions seems to have sparked a strong protest. Outside China the issue has been covered widely by the international media (a recent example from Reuters), while, after a short delay, the issue is now being discussed on microblogs and BBSes inside China as well.

Since the publication of the text yesterday afternoon, a number of commentators have given critical assessments. The general feeling is, as one lawyer put it, "The bright spots are all very theoretical, while the regressions are all very concrete." For example, Zhang Peihong, a criminal defense lawyer perhaps best known for representing Stern Hu during the Rio Tinto trial, published the following 18 points on his Weibo account.

The NPC has given the public until the end of September to comment on the CPL revision draft. It will be worth watching whether and how public criticism of some of the draft's provisions has an impact on the legislation.

1. Considering that it's taken 14 years to revise and that it won't be revised again for another long while, you'll have to forgive me for my disappointment after having read the entire CPL draft revision. Around 2000 or so, I recall seeing the first draft containing opinions and recommendations from a group of scholars (running to about 600-700 articles). Honestly, this current draft doesn't measure up to what came out a decade ago, either in terms of its concepts or its measures.

2. Its normal for legislation to get tangled up in trying to balance "protection of society" with "safeguarding human rights," but it's an undeniable fact that China's CPL over-emphasizes "protection of society" while ignoring—even infringing on—"human rights." In the face of this grim situation, the draft offers no answer as it elaborates on the "mandate and basic principles" of the criminal procedure law.

3. For a long time, there has been an abnormal system that has never been fixed—namely, the procuratorate's so-called "power of legal oversight" over the courts. In a trial between prosecution and defense, the procuratorate is one of the competitors—how can they then also act as a check on the referee during the contest? This pernicious influence from the former Soviet Union seriously influences the court's independence. Unfortunately, the draft retains this.

4. I also want to say something about the system of the court of second instance issuing the final verdict. In truth, even considering the workload and pressure already facing the judicial system, we should change to a three-stage trial system. In light of present realities, we can set up an independent hearing procedure prior to the third trial stage to consider whether or not the case needs to be heard. This would help to reduce the amount of litigation-related petitioning and protect the legal rights of defendants. Unfortunately, the draft makes no mention of this.

5. A bright spot is that lawyers have been clearly granted the role of "defense counsel" during the investigative stage. But when you look closely at the draft, you find that what defense counsel is able to do [at that stage] is not much more than "lawyers providing legal assistance" have been allowed to do up to now. In other words, the significance of this change lies merely in the change of phrase from "lawyer" to "defense counsel." This so-called bright spot just got darker.

6. On the issue of meetings [between lawyers and suspects], the CPL draft incorporates some provisions from the new Lawyers Law, meaning that in the majority of cases lawyers can expect to arrange meetings within 48 hours [of detention]. But in the second part of the same article [i.e., Article 37 of the draft], it also says that in major criminal cases involving more than one suspect, like corruption, permission must still be sought from the investigating organ. I ask you: What corruption case isn't "major"? What corruption case doesn't involve more than one suspect? This is truly a setback.

7. It's never been made clear whether the defense counsel's responsibility is to prove [innocence] or to rebut [the prosecution's charges]. Since the new Lawyers Law eliminated the word "prove" from the provision describing the responsibility of defense lawyers, this revision does the same for the CPL [in Article 35]. But it's still not clear whether this means that the defense counsel's responsibility is to rebut the charges and not to prove innocence, because of a tautological error in the original text.

8. As expected, there's no provision giving criminal suspects and defendants a "right to remain silent" during the criminal proceedings. Therefore, it's hard to expect much from the new provisions about "no person may be compelled to incriminate himself" [Article 49] or "evidence obtained illegally should be excluded" [Article 53]. In particular, the prosecution can simply switch personnel to "resolve" the problem of illegal evidence. In fact, this is the same as no exclusion of illegal evidence. That's no good!

9. Release on guarantee pending further investigation should be the standard practice in the majority of cases. Pretrial incarceration should be used with great caution. We've always done the opposite, and to cover up our mistakes we sentence the innocent to suspended sentences. This results in many murky cases. Looking at the draft, it seems the legislative organ isn't interested in changing this situation. Otherwise, all they'd have to do is change Article 64's "may" [release on guarantee] to "shall" [release on guarantee].

10. Residential surveillance, in my experience, has basically become a synonym for disguised detention. Many suspects would rather be arrested and sent to detention centers, rather than sleep with police investigators or even military police. The draft further intensifies the original provisions, in effect legalizing past mistakes. Already this year we've seen the harm caused by this provision in a number of individual cases. Put simply: it's extremely terrifying.

11. There's a very irrational change in the area of time limits. An earlier judicial interpretation says that "if the last day of the period is a holiday, the time limit will expire on the first day after the holiday." Now [the draft] says [in Article 101(4)] that detainees do not get an extension because of holidays. The problem is that if a verdict is handed down before the holiday and the time limit expires during the holiday but the lawyer has no way to meet [with the defendant] because of the holiday, how can you prepare an appeal? This provision betrays ulterior motives!

12. Investigators are all laughing at the extension of the period of criminal summons from 12 hours to 24 hours [in Article 106(2)]. As everyone knows, the first 24 hours undergoing investigation are tough on a criminal suspect. Given people's physiological cycles, this provision can be seen as an endorsement of disguised torture.

13. Let's now look at the problem of Article 117's provision concerning "shall truthfully answer" investigators' questions. "Truthfully answer" means one must speak in a way that is "not contrary to the facts." If a criminal suspect is guilty, then clearly to answer truthfully would be "self-incrimination." So then how are we supposed to understand Article 49's provision concerning "no person may be compelled to incriminate himself"?

14. Whether you accept it or not, technical and secret investigations have always existed—from ancient times to the present, in foreign countries and here in China. The problem is what sort of restrictions to place on [these investigations]. If you say [in Article 150] that a county-level public security official can authorize wiretaps and secret surveillance, that's too frightening! I think that only the provincial-level public security organ or the county-level people's congress standing committee should be able to authorize such measures.

15. [Requiring] witnesses and police to testify in court is a bright spot. But the provisions [in Article 186] aren't clear enough. For example: "People's police officers should testify in court as a witness about criminal activity witnessed in the course of carrying out their duties, in accordance with the above provision." Well, what if he carried out torture? Should he appear in court to face cross-examination? The draft is so considerate!

16. No longer can there be an endless cycle of appeal and remand for retrial. The CPL revision draft states [in Article 224(2)] that the court of second instance must issue a decision [on an appeal of a case that has already been sent back once for retrial]. This is a small improvement. At least we won't see any more poor bastards sentenced to death four times for the same case, each time having the case sent back for retrial.

17. I'm cautiously optimistic about the draft's first-ever mention of "settlement agreements between the parties" [in Articles 274-276]. I have reservations, though, about whether it's necessary to include this process in the criminal procedure law.

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

26 August 2011

China Set to "Legalize" Enforced Disappearance?

On her Forgotten Archipelagoes blog, Flora Sapio has compiled a most useful summary of some of the proposed revisions currently being considered for China's Criminal Procedure Law. Since the text of the draft itself has not been made public, our understanding of what might be included must be based on various media reports, for which Flora helpfully provides many links.

One of those links in particular caught my eye. According to this article on the Legal Daily website, the draft legislation includes a new exception to the provision on residential surveillance that would allow police to detain suspects in a "designated residence" other than their home in state security, terrorism, or major corruption cases "where carrying out residential surveillance in the home may impede the investigation." Such a decision would need to be approved by the procuratorate or public security organ at a higher level. And, again, in state security and terrorism cases, the police would not be required to provide notification to the suspect's family "if such notification would impede the investigation."

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

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

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

If you're accused of one of China's many vague state security offenses, though, your rights apparently mean little compared to the interest of the state.

22 August 2011

"I've Only Begun to Scratch the Surface": Liu Shihui Reveals Details of 108-Day Detention

Chinese lawyer Liu Shihui was one of the first casualties of the crackdown on activists and rights defenders that began intensifying last February. Brutally beaten by unidentified assailants as he attempted to take photos of planned street protests in Guangzhou on 20 February, Liu subsequently joined the ranks of the "disappeared," spirited off by police for 108 days of incommunicado detention on charges of "inciting subversion."

I once met Liu briefly, and I followed his posts on Twitter. The connection to Liu and several of the the other victims of this year's crackdown made its injustice all the more personal and palpable to me.

Six months after he was first attacked, Liu has returned to Twitter to reveal details of his ordeal. I've done a rough translation of most of those tweets, which were sent out over a 3-1/2-hour period last night.

Hello to all the friends who follow me! Because of the "flower affair" I was imprisoned under so-called "residential surveillance" for 108 days from 25 February to 12 June on charges of "inciting subversion of state power." On 12 June, this was switched to "release on guarantee pending further investigation" (without time limit), and I was sent back to my hometown in Inner Mongolia. (ZH)

At 2 a.m. on 25 February, police busted down the door, leaving the steel outer door twisted like a pretzel. They searched my house, turning everything in the room upside down, and took away my computer, books, discs, case files, copies of poems about June Fourth, USB drives, an MP5 player, my mobile phone, and a stock-market tracker. (ZH)

My newlywed Vietnamese wife and I were both taken into custody. If we hadn't been stuck in Guangzhou waiting for the Vietnamese consulate to notarize a document, we would have already gone to my hometown in Inner Mongolia to register the marriage. (ZH)

At the time [of the detention], I repeatedly explained that my wife was a foreigner who didn't understand Chinese and asked [police] not to give her any trouble. If they insisted on taking her, I asked that they produce the relevant procedural documents. But without following any of the relevant procedure, this young foreign woman who had no idea what I had done was taken away on the pretext of a "criminal summons." She was then illegally detained for 17 days before being sent back to Vietnam. (ZH)

On the evening of 25 February, the Guangzhou police informed me that they were placing me under "residential surveillance" on charges of "incitement." (ZH)

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

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

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

The security police fabricated a lie when they sent my wife back [to Vietnam]: they said that someone had accused me of defrauding them of some money and implied that I was a swindler and a scoundrel. (The security police later told me about this.) I'll never forgive them for destroying our newlywed bliss. What angers me the most is that my new wife never even knew why I'd been arrested and left China with this misunderstanding. (ZH)

The security police showed me video of my Vietnamese wife being sent back. When I heard the interpreter reading the letter I had written to her (in which I was absolutely forbidden from discussing the case), I suddenly began sobbing uncontrollably. (ZH)

Other than the questioning, the only other thing I could do is pace around and around. In 108 days of detention, I walked the 5,000 miles from Guangzhou to Beijing. (ZH)

My Vietnamese wife was held by them for 17 days. I have no clue what happened to her during the time she was in their hands. (ZH)

When I was released, I had lost seven or eight pounds. Perhaps someone like Ai Weiwei can take comfort in this free weight-loss regime, but for a skinny guy like me it was like a disaster had befallen me. Now I have all sorts of illnesses. I can only sleep four or five hours a day, and I can't get back to sleep after waking at two or three in the morning. (ZH)

Besides my wife and my house, they also seized property rights worth more than 300,000 yuan earned as a lawyer. Forced to leave Guangzhou, these rights are as good as gone. (ZH)

If I don't even dare reveal the humiliation of having my newlywed wife stolen from me, then God wasted his time making me a human! Haven't I been "released pending further investigation"? Whatever they do to me, it'll still be the same lousy fate! (ZH)

Beginning on the evening of 20 February -- when I went into the provincial hospital after having been beaten -- I was unable to cancel my mobile account. When I was released, I though I'd be able to continue using it. So I called China Mobile, but they said there were orders from above and there was no way. I still had about 150 yuan of airtime on account! (ZH)

I feel better to talk about this a little. Otherwise, I'd explode! (ZH)

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

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

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

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

Some Twitter followers say that I'm revealing everything. On the contrary -- I've only begun to scratch the surface! I'll stop here for now. (ZH)

18 August 2011

Translation: "What is This Thing Called 'Street Crime'?"

I'm easing back into this blogging thing, so no extensive commentary to accompany my translation of an opinion that first appeared in the 16 August edition of the Beijing Evening News under the name Zhen Yan (which, incidentally, sounds exactly like "the truth" in Chinese). Since then, it's been republished widely newspapers and website around the country.

I'm no media critic, so I'll just say that I'm hopeful that its appearance on the opinion page of the normally liberal Beijing News indicates that at least some of the reprinting is being done on direction from above.

But you never know.

How is There Such an Offense as "Street Crime"?
Zhen Yan
Beijing Evening News
16 August 2011

In early August, social unrest broke out in London and several other English cities. The British government mobilized thousands of police to suppress [the riots], and more than 2,000 “criminals” were arrested. British Prime Minister Cameron announced “zero tolerance for street crime” and appointed Bill Bratton, an American expert in fighting “street crime,” as a consultant for British police responding to urban street-gang culture and large-scale rioting.

This kind of news leaves people confused. What sort of crime is “street crime”? What sort of culture is street-gang culture? It seems this only exists in Western countries’ definition of crime and, when the same type of thing occurs in other countries, Western governments and media don’t seem to talk about this kind of offense. Rather, they glorify it as “democracy movement” or “anti-tyranny,” something with absolutely no relation to criminality. Dressed up as “democracy” or “human rights,” it then becomes an excuse for Western governments and media to pressure other countries.

This is a strange way of judging the difference between right and wrong. Whenever social unrest or incidents occur in developed Western countries, they are called extremism or violent behavior. But when the same incidents happen in non-Western countries—especially China—a completely different judgment is reached, with talk of human rights violations and suppression of “peaceful protest.” The 14 March [2008] incident in Lhasa and the 5 July [2009] incident in Urumchi were unquestionably violent crimes that caused ordinary citizens to incur serious death, injury, and property damage. But Western governments and media incredibly stood on the side of the rioters, criticizing the Chinese government for upholding social order and lecturing [China] while wearing the guise of a human rights defender. Is Cameron’s “zero tolerance” applicable only to England, or is it “universal”?

Most incomprehensible and illogical is that whenever hideous incidents occur in Western countries like England, the United States, or Norway, they are treated as random and apolitical or else isolated individual cases. Even when riots break out in several British cities, they cannot be called political rioting. But in other countries, even incidents involving individuals get inflated into problems with the political structure. And it’s not only Western media and governments who repeatedly say these things. Following their lead, some media in China have begun to parrot these things and chime in with their own excuses, becoming wholesale mouthpieces of Western government and media and losing their fundamental value judgment and standard of right and wrong. Have they forgotten the ugly performance by Western governments and media at the time of the olympic torch relay processions in London and Paris? Or the farce of the Norwegian Nobel Peace Prize? The standpoint of Chinese media should be firm, clear, and uniform. This is seeking truth from facts and reflecting the desires of the entire Chinese people.

Each can draw his or her own conclusions about what’s right and wrong. The world is complex and there are differences between cultures and national circumstances. But there should be a common standard for judging right and wrong. “Don’t do to others what you would not have them do to you.” If you, yourself, consider it to be a crime but insist on packaging it as “justice” to attack others, you’ll just wind up shooting yourself in the foot. Why don’t you talk in “universality” now? You use one standard for others, and another for yourselves. It seems that “universality” is nothing more than a fraud, the emperor’s new clothes. With control of the world’s resources and opinion, Western countries have sailed along for several hundred years. But now they’ve encountered hard times and keep making fools of themselves. The “superior political system” that Americans always boast of is now shown to be full of defects and has become the biggest obstacle to the ability of the United States to weather the [economic] crisis. Europe is deep in the mire of debt and has lost control over social order. Without reform, there is no solution. History and practicality tell us that the road is ours to choose. History and the facts will judge whether or not the path is correct. Today, the Chinese people have the confidence to take their own road. Faced with the current fluctuations in the world, we must be even more resolute.

23 June 2011

How to Translate 取保候审: A Modest Proposal

I'm an "early to bed, early to rise" kind of guy, so it was not until just now that I learned of the release of Chinese "maverick" artist Ai Weiwei, who has been held under mostly mysterious conditions by Beijing police since the beginning of April, presumably as they investigated him for tax fraud.

As observers have noted, Ai has been released from custody but he is still under investigation. Technically, the police have changed the coercive measures (强制措施) imposed upon him during their investigation from "residential surveillance" (监视居住) to something called 取保候审.

What is 取保候审 and how should we understand it? Well, first of all, 取保候审 in pinyin is qubao houshen, but if you're unfamiliar with Chinese characters you probably can't read pinyin, either. So, I'm going to stick with characters.

Professor Jerome Cohen has posted an insightful response to Ai's release on the blog of the US-Asia Law Institute that explains 取保候审, from the perspective of both procedural law and pragmatic usage. He writes:
Qubao houshen (QBHS) is a technique that the public security authorities sometimes use as a face-saving device to end controversial cases that are unwise or unnecessary for them to prosecute. Often in such cases a compromise has been reached in negotiation with the suspect, as apparently it has been here. Of course, we will have to hear what Ai says upon release, recognizing that, as part of the agreement and as a consequence of long incommunicado detention, the released suspect is usually subdued in any public remarks made upon release (recall Xu Zhiyong, for example).

Concretely, QBHS usually means that the investigation can continue for up to one year while the suspect is allowed to have freedom of movement, if not freedom of speech, within his city of residence. His travel documents are usually kept by the police and he must seek their permission to travel elsewhere in China and certainly abroad. Often during the subsequent year in such cases, the investigation is quietly dropped so long as the suspect behaves himself in accordance with whatever deal was struck and nothing occurs to mar the agreement.
The analysis is excellent, and I recommend reading it in full. My only quibble (and the reason I'm posting) is the decision to translate 取保候审 as "obtaining a guarantee pending trial." I think that understanding 候审 as "pending trial" here obscures more than it elucidates. Why? Well, Professor Cohen points to the answer himself when he writes:
It is important to remember that, although the announcement claims Ai has “confessed his crimes”, no formal charge has ever been made against him; he was apparently not even formally arrested” (逮捕), not to mention indicted (起诉). Ai has thus not had to plead guilty to any crimes, although the term “renzui” (认罪), or admitting guilt, has been used in the press report. He can end the tax obligations by payment with interest, and perhaps a fine, as the press report says he is willing to do.
Under the provisions of the Criminal Procedure Law, 取保候审 may be imposed at any stage of a criminal investigation/prosecution, from first contact by police to final adjudication by a court. In Ai's case, as Professor Cohen rightly notes, the measure has been taken against him prior to the stage of formal arrest. Since the case hasn't even been submitted to the procuratorate for indictment, how can there be a "pending trial"?

Instead, I always translate 候审 as "pending further investigation," reading 审 here as 审查, or "investigation," rather than 审理, which I would translate functionally as "examination through trial." The use of the somewhat vague "investigation" mirrors the ambiguity of "审" and allows it to refer broadly to any of the investigative stages during the criminal process.

That's it, a perhaps pedantic tangent to the main story here. In short, I humbly propose a new translation for 取保候审 as "obtaining a guarantee pending further investigation." There's a history of established usage to overcome, but I think the change is necessary.

28 May 2011

The Vituperative Mode of Chinese Criticism: "The Life and Times of Ai Weiwei"

A subject that has interested me for much of the past two decades is how nations, and particularly China, define themselves through discourse. My approach to this issue has generally focused on questions of discursive boundary definition and especially the treatment of those who transgress those boundaries.

As an undergraduate, I was fascinated by the denunciatory rhetoric of the Cultural Revolution and looked at the way in which editorials around the crucial period of May 1966 established themes of conspiracy and the need to do violence to that conspiracy. The subsequent period of violence and chaos was a logical outcome of the “life and death struggle” to combat the enemies within that threatened the future of the new Chinese state.

Mobilization against threats of conspiracy is not unique to China. One sees that it has been a common feature of all revolutionary societies (see Russia, France, the USA). More generally, one might very well see it as characteristic of the republican form of government, since investing sovereignty in the people (rather than, for example, in divine right) raises the question of whether all those people can be trusted to protect the interests of the state.

Moral virtue is thus one of the measures of fitness to be included as a member of the nation. This is perhaps even more the case in China, where virtue also plays an essential role in defining the political and social orders of the pre-modern state.

I found this especially true in later research I did in graduate school, in which I looked at pamphlets published in post-war Shanghai that denounced the various “traitors” (hanjian) who had been active during the period of Japanese occupation. Of particular interest to me were the denunciations of “cultural traitors,” mainly writers who had stayed behind during the occupation and continued to publish their work.

The fact that many of these “cultural traitors” were women — very popular writers like Su Qing and the young Zhang Ailing (Eileen Chang) — made for some interesting dynamics, given the extent to which discussions of moral virtue in these pamphlets invariably revolved around sex. To the authors of these screeds, the Chinese “nation-race” (minzu) was perennially in danger of being contaminated by weakness, corruption, and fornication. The first step in protecting the nation in its time of danger was to expose these cowardly, corrupt, and extravagant men and seductive and bewitching women and their polluting effect on the minzu.


All this is a long way of saying that it was with an odd sense of nostalgia that I endeavored to translate the following denunciation of the enemy of the Chinese people du jour, the artist Ai Weiwei. This item first appeared in the May 2011 edition of Bauhinia magazine, under the name “Sha Liu” — who may very well be the same person as "Liu Yiheng," who has contributed other similar denunciations of Ai in Wen Wei Po (where the piece below was reprinted on May 23).

In its title — “The Life and Times of Ai Weiwei” — the piece explicitly echoes other examples of the genre, notably a similar exposé against Liu Xiaobo. (There may be earlier antecedents as well — feel free to enlighten me in the comments.) The themes of corruption, decadence, and conspiracy are, as the author might say, “there for anyone with eyes to see.” Compared to the post-war “cultural traitor” condemnations I remember, the conspiracy element is much more pronounced here and may remind more people of Cultural Revolution-era pieces.

As I was working on this, I kept asking myself why I should bother translating this. I’m no expert, but the piece below doesn’t strike me as being particularly well-written. I don’t consider myself a particular enthusiast of contemporary art, let alone performance art. I’ve never followed Ai Weiwei’s comings and goings with much interest until now, when it’s the legal (or “illegal,” as the case might be) aspects that interest me. Still, though this piece is not about justice in the sense I normally think of it, the way that Ai Weiwei is rhetorically cast out and made into an enemy of the people is almost mesmerizing.

There’s no doubt more that could be said, but if you’ve read this far, you’re probably ready to move on to the main event.

The Life and Times of Ai Weiwei
“Sha Liu”
Bauhinia Magazine (Hong Kong), May 2011

Ever since mainland “performance artist” Ai Weiwei was taken by police for investigation in accordance with the law on suspicion of economic crimes, there have been a few overseas observers who have complained loudly about the injustice being done to him. But traces of Ai Weiwei's suspected crimes of tax evasion, bigamy, and dissemination of obscene materials were long ago revealed by Ai himself to everyone on the Internet. All are equal before the law. No matter if some western media ignore the basic facts of the case and read politics into Ai’s situation—Chinese legal institutions will handle the case based on the facts and the law and will not succumb to any pressure.

Faced with the decadent manner in which Ai Weiwei lives his life, the hysterical way he insults his own nation, and his willful challenges to basic standards of law, morality, and ethics, good and honest people have to ask themselves, “How could this happen? Who is behind all this?” After I interviewed some other artists and experts, I began to come away with a portrait of Ai Weiwei’s multi-faceted life.

In 1978, having just reached the age of 20, Ai Weiwei began studying at the Beijing Film Academy. In 1981, thanks to China’s policy of opening and reform, Ai—without having even graduated from university—went to America, where he commenced his decade-long career away from home. While studying in New York, Ai first began to reveal his true self and his worship of subverting orthodoxy.

Ai Weiwei returned to China in 1993. At that time, China had re-entered a new phase of rapid development under the strong push of Deng Xiaoping’s “southern tour.” Wearing the halo of the foreign-trained artist and son of a celebrity, all sorts of opportunities came Ai Weiwei’s way, like exchanges with and funding from Europeans and Americans. He reaped a windfall of fame and fortune. Who would have imagined that Ai Weiwei was not satisfied with his lot as an artist? His “performance art” and unrestrained opinions flooded the media and every place where there was a “scene.” People in art circles constantly whispered about his decadent private life, and there was endless gossip about his womanizing and his son born out of wedlock. If that were the end of it, it would be merely another case of a badly-behaving “performance artist.” But Ai Weiwei kept going further and spread his “alternative” way of doing things into other realms.

( I )

China is open and tolerant of diversity, embracing all types of artistic endeavor. But Ai Weiwei’s so-called “performance art” always confused people, with its deviant and renegade mode of expression and controversial style. He liked to use nude bodies in much of his so-called performance art. His so-called photo “Eighteen Little Birds Together in Flight” was criticized by a netizen as having “ruined the essence of art.”

A distinguished art critic characterized his performance art as extremely shallow and said that he merely tricked a group of so-called vanguards and pioneers into thinking it was complex and profound. Under Ai Weiwei’s charms, naïve and inexperienced young people abandoned all shame and trampled underfoot traditional ethics and the order of things while giving outlet to their carnal desires. Relying on vulgar nudity to grab attention, Ai attracted followers who had not yet developed proper views on life and art. There are thus photos like the thoroughly disgusting so-called “One on Four” (“Tiger with Eight Tits”), in which Ai Weiwei places himself in the starring role while surrounded by four completely naked women striking coy poses.

In reports in media outlets and websites like Lianhe Zaobao, Sina, and Twitter, many artists at home and abroad criticize Ai Weiwei disdainfully, saying: “Ai Weiwei just likes to go online to expose himself in front of a crowd and seek stimulation” or “His forms are earth-shatteringly, detestably ugly.” The way that Ai Weiwei has tarnished art is something that no normal artist would dare to do.

An artist lamented: “It’s not that we can’t do the same stuff that Ai Weiwei does. We don’t dare cross the line of basic morality. Normal people would worry about being discredited in the eyes of their friends and family and aren’t willing to make that sacrifice. Artists are people first. You can’t be completely reckless. You must have a sense of propriety and impropriety.” In fact, Ai Weiwei’s performances have nothing to do with art.

Clearly, in choosing an artistic path to follow, Ai Weiwei also made a choice about values. In a country with a 5,000-year-old cultural tradition, one in which propriety and a sense of honor are deeply ingrained in its people and in which there is a strong national artistic heritage, Ai Weiwei's “maverick” behavior seems particularly unexpected. Those artists who stick to the middle road and rationality cannot help but ask, “Why is he doing things this way?”

There are many bright stars in the mainland artistic world, with no shortage of talents. As China has become more and more open, there have been more frequent artistic exchanges between China and the rest of the world. But anyone with eyes can observe two things about contemporary Chinese artists favored by the western powers: First, there is no hint of anyone who does traditional Chinese painting, for they have no eyes for this traditional cultural legacy. Second, those Chinese artists who follow the main European and American artistic paths will never gain favor, even if they are extremely accomplished. What kind of artists do they favor? Precisely the kind of so-called performance artists like Ai Weiwei who turn against the nation and rebel against Chinese traditions.

Western grantors toss a few scattered pieces of silver in support of this handful of Chinese “maverick” artists, and what they hope to get in return is clear to all: They attempt to use these ingratiating and compliant ones in China to tear down China's cultural traditions and China's mainstream ideas, morality, and fashion. If they do not comply or they admit that they later realize the error of their ways, then they will be criticized from all sides. People cannot help but ask: where are they trying to lead the culture of the Chinese people?

( II )

Ai Weiwei chose and had great praise for a kind of lifestyle, one that he never grew tired of. According to reports on BBC, DWNews, Lianhe Zaobao, and Twitter, Ai Weiwei took advantage of his work and gradually turned employees of his studio into mistresses. He also had ambiguous relationships with several so-called female “democratic” figures and even extended his hand to some radical-thinking but naïve and inexperienced young female students and young women. For him, lingering among all these different young bodies is probably some kind of “artistic voyage.”

He did not hide any of his actions from his family. Ai Weiwei's family all knew about his illegitimate son. His sister even remarked, “If there's bigamy, then Lu Qing should be the one to make the complaint.” Clear-eyed people might ask why, as Ai Weiwei's legal wife, Lu Qing did report him? The answer is plain and simple: either Lu Qing tacitly accepts Ai Weiwei's lifestyle or else she herself is an advocate of this kind of lifestyle.

Experts say that we should not underestimate the negative effect of Ai Weiwei's libertine lifestyle on teenagers. A casual attitude toward sex led to the “Beat Generation” in America. The relevant authorities in the mainland should take a responsible attitude for teenagers and make a serious effort to wipe out pornographic images and stop their spread. China's national fortunes are tied to its youth, and no power can be allowed to lead them towards depravity.

( III )

These days, Ai Weiwei has descended into the muck of politics. In a so-called performance art photographs, Ai Weiwei gives the finger to Tiananmen and bares his chest with the word “fuck” written on it in front of Tiananmen. Not only does he insult a lawful political regime, he also shows contempt for China's 5,000-year outstanding traditional culture.

Unlike others who comment on politics, Ai Weiwei openly challenges everything connected to the Chinese government and attacks and abuses the government's every policy and action. Anything the Chinese people consider glorious and worthy of pride, he will stop at nothing to slander and vilify it. He habitually pours salt in people's wounds and manufactures confrontation among the masses.

When Beijing successfully held the 2008 Olympics, Ai Weiwei insisted on raining on the parade, attacking the games as “lacking soul” and disparaging the Chinese nation's long-held dream.

During the 2010 Shanghai Expo, he placed a closed-circuit TV system in the space where the Little Mermaid statue usually sits in Copenhagen, Denmark, so that people could view the Little Mermaid exhibit at the Expo and understand “how the Chinese people live under a kind of surveillance in their daily lives.”

On the DWNews website, Lianhe Zaobao, and Twitter, there was an item that said: “May 16, 2008: On the one hand, you have children trapped beneath the debris of the great Sichuan earthquake, in their final struggle to stay alive, and people racing against time to rescue every possible remaining life in the disaster zone. On the other hand, there was Ai Weiwei and his gang, who were beside themselves with joy carrying on live oral sex shows as performance art and posting images on his blog for all to see as a deliberate provocation to the basic moral consciousness of humanity.”

As if this weren't bad enough, recall that in July 2008, a young man from Beijing named Yang Jia stormed into the law-enforcement building in Shanghai's Zhabei District and attacked police officers with a knife, leading to the deaths of six police officers. Three months later, Yang Jia was convicted of murder and executed in accordance with the law. In this case—one handled entirely in accordance with Chinese law—Ai Weiwei made unwarranted accusations and filmed a documentary about Yang Jia entitled The Outcast in order to sow confusion in people's minds.

One day in February 2010, seven people were beaten up while defending the 008 Art Zone in Beijing's Chaoyang District from demolition. This should have been an ordinary criminal case, but that afternoon Ai Weiwei organized his so-called “Tiananmen stroll” protest. One of the people involved in the incident, an artist named Yu Gao, wrote an exposé on her blog entitled “Ai Weiwei, You Acted Too Rashly and Your Audacity is Shameless.” She wrote: “I heard that you went to Zhengyang that afternoon to encourage everyone to march, but no one paid any attention to you. So you started scolding: 'After 60 years, you all still believe the government. You should take a look in the mirror and curse yourselves three times for being idiots!'” Yu Gao also revealed that Ai Weiwei had someone telephone each of them to say that if the police started asking questions, they must not mention Ai Weiwei. The dust has already settled on this affair, but it shows that Ai Weiwei will only be happy when China is in chaos.

In 2011, Ai Weiwei's studio produced a documentary interview on the execution of a young man from Inner Mongolia named Hugejiletu. It goes without saying that, by sticking his nose in so-called ethnic problems, his intention was to confuse people, create rifts, attack the government, and “tear apart” society. The aims of Ai Weiwei and the powers that support him are clear: they are trying to import instability to China.

( IV )

Why does Ai Weiwei do all these “alternative” things? Some good and honest people might ask: why are there so many plots in this day and age?

It just so happens that I have at hand a copy of the “Ten Commandments” for dealing with China that are included in the “Rules of Operation” for the intelligence service of a certain country that everyone knows. Let me excerpt a few passages:
  • Try to use material [culture] to lure and corrupt their youth and encourage them to despise, scorn, and gradually oppose openly the ideological education they have received.
  • Create a lively interest in and opportunities [to access] pornography and further encourage their sexual promiscuity.
  • You must shift the attention of young people from their tradition of placing the government at the center [of their worldview] and concentrate their minds on pornography and make them feel no shame about being shallow or vain.
  • Periodically fabricate some deliberately provocative incidents to plant separatist ideas in people's subconscious.
  • You must especially look for opportunities among minority ethnic groups, create regional, ethnic, and emotional divisions between them, and manufacture hatreds among people.
  • Whenever you see an opportunity, no matter the size or how tangible, you must take advantage to promote the “democracy movement.”
  • Continually manufacture “news” to discredit their leaders.
  • Use all resources to undermine their traditional value system and destroy their morality.
Thinking over what I've just read, I feel a sense of horror. Aren't these just the kinds of things that Ai Weiwei was engaging in? Isn't his so-called avant-garde, vanguard “performance art” [aimed at] destroying China's outstanding cultural traditions, attacking the value system of human civilization, undermining ordinary social order, and disparaging the prestige of the government? Isn't Ai Weiwei advocating sexual decadence and promiscuity and fabricating provocative incidents? Regardless of what his actual status might have been, in recent years Ai Weiwei has ultimately been dutifully carrying out these orders. It's no wonder, then, that as soon as Ai Weiwei was placed under investigation, certain western powers got so upset. Even before China's judicial institutions had handed down any punishment of Ai Weiwei, they were ready to jump in and make a ruckus.

The days are past when China was poor and weak and could be carved up and humiliated by others. Those of Ai Weiwei's ilk who are blinded by lust for gain have underestimated China's determination and will to safeguard its national interests, its people's welfare, its social stability, and the dignity of its legal system. The feudal era is over, and no longer is anyone exempted from criminal responsibility because of any imperial “get out of jail free” card. Ai Weiwei, who so loved “judging” Chinese society, should also be judged by the law.

26 May 2011

Li Tiantian: The Fable of the Hornet, the Bird, and the Tortoise

Lawyer Li Tiantian was one of several Chinese rights lawyers to disappear during a major crackdown that began in mid-February. She has finally re-emerged, posting this brief item (translated below) to her Sina blog. Even the most literal-minded among us should be able to get the picture.

(UPDATE: Shortly after posting this, Li Tiantian's Sina blog was deactivated, so the link above won't lead you anywhere. The full text has been preserved below.)

(UPDATE #2: Also, be sure to check out some of Li Tiantian's tweets describing her experience in custody, translated here at Global Voices Online.)

May 24: I was Discharged from the Hospital

It's been a while since I've been in touch. First, let me tell you a story.

One day, a hornet worried unreasonably that a little bird would stir up its nest. (As it happened, some distant hornet nests had recently been stirred up.) The hornet grabbed the little bird and began stinging it frenziedly. Unable to bear the hornet's stings and thinking there was no point to suffering this ordeal, the bird realized that no one would gain anything and that there was no way to change the hornet's ways. So, the bird kneeled down to the hornet and kowtowed in order to extricate itself. The hornet, knowing that the force of justice was on the increase in the animal world, didn't dare do anything rash to the bird and came up with a plan that would satisfy everyone. It agreed to release the little bird, but only if the bird promised: (1) not to speak of the past few months; (2) not to damage the hornet's reputation; and (3) not to urge other animals to stir up the hornet's nest. Finally the bird was free.

By the way, as for me, I've been in hospital for the past few months recovering from slightly elevated blood pressure. I went in on February 19 and was discharged on May 24. During this period I haven't gone online, and the doctors have asked me not to go online so much in the future. In order to preserve my health and live a few extra years, I will go online less in the future. I'm sure everyone's been worried about me -- thank you, you can rest easy now. I'll bet that there will be others in the future who, like me, will become increasingly mute, and I now know why many online friends from before have vanished from the Internet. After all, living is the most important thing. Under the present circumstances, there's nothing wrong with being a tortoise hiding its head -- at least they live to an old age. Maybe everyone should learn from me and be a tortoise hiding its head, for it's because I've done this that not a single hair on my body has been harmed. Of course, perhaps there's been a huge earthquake inside my heart.