07 November 2012

Why Criminal Justice in China Still Matters: A Response

Stan Abrams at the China Hearsay blog recently posted a provocative piece entitled “Note to Media: High-profile Criminal Cases Are Not Representative of China’s Judicial System.” If you haven't read it, I  encourage you to do so now in order to make sense of the discussion that follows, because I’m not going to reprise his argument in detail or provide a lot of quotes.

But, in a nutshell, Abrams takes issue with the way that foreign journalists covering China write about China’s legal system—and its courts in particular. Abrams faults these journalists for being overly influenced by “high-profile criminal cases,” ignoring the real story about what the Chinese judicial system actually does on a daily basis, and, because of their single-minded interest in cases involving “hot-button political issues” or “media-savvy dissidents with Western contacts,” providing a skewed view of reality. 

It’s not my intention to offend when I point out that this is not a particularly original argument that Abrams is making, either in the specific version concerning China’s legal system or in the more general version that takes issue with Western reporters’ tendency to seek out negative stories about China. I’d even acknowledge that it’s probably the case that reporting on China’s judicial system is overwhelmingly focused on criminal matters in general and a relatively small number of such cases in particular. I suspect that reporters and their editors could provide (and most likely have already attempted to do so, once or twice) explanations for why this is so, but that is not my main concern.

At its root, Abrams’s plea is for balance. He feels that overemphasis on a few notorious criminal cases does not do justice to a Chinese court system that is able, despite serious capacity issues, to handle successfully the majority of cases put before it. Although he does not say so as directly, I suspect that part of his grievance is also based on a sense that it is important to acknowledge the effort that has gone into bringing Chinese courts to this point over the past three decades, as well as optimism that continued efforts at legal reform and capacity-building will lead to further improvements going forward.

I don’t know Mr Abrams outside of the virtual sphere and I’m not a regular reader of his blog. Based on what I know of him, however, I am willing to bet that he is far more familiar with how civil (and possibly administrative) actions are handled in China than he is with the Chinese criminal justice system. For what it’s worth, I openly acknowledge that my familiarity with China’s legal system is probably the mirror image of his. For that reason, and for the sake of argument, I will grant his basic premise that, at a certain level of abstraction, China’s system of civil litigation functions at a generally high level. And it is beyond question that civil and commercial matters dominate China’s docket, meaning that, as Abrams suggests, most of what Chinese courts do may indeed tend to look like what courts do in other jurisdictions.

However, I think it’s important not to jump to the wrong conclusions about why China’s courts operate as they do. If Chinese courts are highly functional in the civil sphere, it is not because of commitment to “rule of law” as some general, universal principle but, rather, because having an efficient, rational, and predictable legal system supports the economic development project and, therefore, is in the overall interest of the Chinese Communist Party. On the other hand, preserving social stability is another overriding interest of the party (indeed, one that is intertwined with the interest in economic development), and the operation of criminal justice in China has largely reflected that.

It is not, in other words, because Chinese civil-court judges are more advanced in their thinking and committed to rule of law compared to criminal-court judges. In fact, for most of his post, Abrams excludes criminal cases from the kinds of cases in which “rule of law is functioning very well, thank you.” Towards the end, though, he suggests that because the “vast majority” of criminal cases do not suffer from the kind of “political interference [that] is common in certain types of cases,” they should not be used “to make a general assertion about rule of law in China.”

Here, I think the argument is too simple. For one thing, recent research by Professor He Xin suggests that court adjudication committees—committees made up of court officials not directly involved with hearing cases and linked personnel-wise to party organizations responsible for “guiding” judicial work—weigh in on criminal matters far more frequently than in other types of litigation, even in routine cases. Moreover, the presence or absence of such direct political interference in court decision-making is not the only standard against which to measure judicial independence or, particularly, rule of law. New empirical research by Prof. Mike McConville and his collaborators on the recent volume Criminal Justice in China: An Empirical Enquiry shows the extent to which criminal cases of all stripes and at all levels are riddled with procedural flaws that undermine their substantive outcomes. That Chinese courts cannot provide an effective forum to remedy these flaws—even when they violate Chinese law and (especially) when they violate China’s constitution—and routinely hand down criminal sanctions despite them is also an indictment of their lack of independence and powerlessness as promoters of rule of law.

McConville makes another argument that is relevant to Abrams’s post. Taking a comparative perspective on how criminal justice operates in China and other jurisdictions, McConville contends that efforts to reform criminal justice through legislation and other rule-making does not tend to change the way in which actors in the criminal justice system behave as much as it changes the way that they account for their behavior. Internal institutional rules enable actors like the police to make end-runs around black-letter legal proscriptions in the name of “higher goals” valued within the system, such as preserving social stability through crime-fighting.

I’m not as convinced as McConville about the inevitability of this sort of cynical institutional adaptation to reform initiatives, but I do agree that legal reform in China is likely to continue this pattern as long as the legal system serves to further political ends that are not necessarily congruous (and often patently incongruous) with universal human rights principles. In any case, I think that it’s highly misleading to suggest that even the routine operation of criminal justice in China resembles the kind of “rule of law” observable in the civil law space.

So, having said all that, what about the question of fairness that Abrams raises? Because I don’t see China’s judicial system as operating in completely separate modes—an autonomous, rule-of-law mode in the civil sphere and a politically dominated, procedurally challenged mode in the criminal sphere—I think that you don’t really gain much more understanding of how the system “really operates” if you dissociate one from the other. I’m all for paying more attention to the operation of civil justice in Chinese courts, but only if such attention doesn’t simply end at the superficial conclusion that rule of law ideology has taken firm root in Chinese civil courts and criminal courts are simply waiting to catch up. Both spheres operate according to an underlying utilitarian logic that suggests that these divergent descriptions are both accurate and likely to remain so until more fundamental changes are made at the political level.

In other words, high-profile criminal cases are not necessarily the outliers that Abrams suggests they are. And as far as fairness is concerned, then, if asked to choose between pursuing a fair hearing for the efforts of Chinese judges and legal reformers and a fair hearing for suspects and defendants facing imprisonment or death in China’s criminal justice system, I suppose I have already made my choice.

30 October 2012

Bo News is Good News™: More Likely Trial Scenarios

In my last post, I argued that the fact that the criminal investigation against Bo Xilai was being handled by the Supreme People's Procuratorate suggested that his case might be tried in first instance by the Supreme People's Court. While that is still theoretically a possibility, an acquaintance has kindly pointed out to me that the Supreme People's Procuratorate also handled the investigation in the corruption case of former Shanghai party secretary and Politburo member Chen Liangyu, and it appears that the same was likely true in the case of former Beijing party secretary and Politburo member Chen Xitong.

In each of these previous corruption cases, after initial investigation was completed by the SPP, the cases were eventually handed over to provincial-level procuratorates for prosecution. Chen Xitong's case was handed over to the Beijing procuratorate, and the SPP handed over Chen Liangyu's case to prosecutors in Tianjin. (Both Beijing and Tianjin, as directly-administered municipalities, are considered to hold positions in the administrative hierarchy of places equivalent to a province or autonomous region.)

So, the most likely outcome for Bo is probably the same: his case will be transferred to a provincial procuratorate. There is, however, one final question regarding jurisdiction. The trial of Chen Xitong was heard by the Beijing High People's Court (i.e., at the provincial level), which meant that his appeal was heard by the SPC. In Chen Liangyu's case, the trial took place one step lower, at the level of the intermediate court. At which level will Bo's case be heard? My guess would be a provincial high court somewhere, but my track record's not great when it comes to predictions.

27 October 2012

Bo News is Good News™: Jurisdiction Matters

UPDATED: Please be sure to read this important addendum to the analysis in this post.

Just before midnight last night, the Xinhua News Agency issued a terse announcement (English, 中文) that a criminal investigation has been filed against former Chongqing Party Secretary Bo Xilai (a.k.a, "Mr Flamboyant") for unspecified "alleged criminal offenses." Notably, it's the Supreme People's Procuratorate that is carrying out the investigation, which indicates, first, that the main charges against Bo fall under the category (or categories) of corruption, dereliction of duty, or using official authority to infringe upon civil rights and, second, that the case is being considered a "major criminal case of national significance." (See Articles 8 & 13 of the 人民检察院刑事诉讼规则).

This categorization as a "major criminal case of national significance" may mean that the case will be tried in first instance by the Supreme People's Court (see Article 22 of the Criminal Procedure Law). If so, this would be only the second case to be tried in first instance by China's highest court since the trial of the "Gang of Four" in 1981.

Actually, technically speaking, I think Bo's would be the first case to be tried in first instance by the SPC, since the Gang of Four was tried by a "special tribunal" authorized by a 1980 decision of the National People's Congress Standing Committee. At this point, there's no indication that a Bo trial would follow that precedent.

This raises some interesting procedural issues. The first involves the right to appeal. (I'm grateful to Prof. Sam Crane for pointing me toward this line of inquiry.) China's criminal process normally involves a trial of first instance followed, if requested by either defendant or prosecution, by an appellate hearing that results in a final ruling. But if the case is tried in first instance by the SPC, there is no superior venue for appeal, so the first-instance verdict is considered final and there is no avenue for appeal.

Likewise, it appears that if Bo were sentenced to death (either with immediate execution or suspended for two years), he may not be eligible for the "final review" process normally carried out by the SPC. I'm not entirely certain about this last point, as I can't find any discussion in the law or associated regulations that deal with this (obviously rare) set of circumstances, but I suspect that the logic would be the same as for appeal.

Given all of this, I'd say there's still a small chance that Bo will be tried before the 18th Party Congress early next month. Of course, the precedents of Chen Xitong and Chen Liangyu suggest that trial will await conclusion of the congress, but the way this case is being handled by the Supreme People's Procuratorate suggests that those precedents might not be relevant here. Assuming that the central leadership has an interest in having Bo's case resolved prior to the leadership transition, then the removal of potential delays due to appeal seems to facilitate that.

From Xinhua's report, it seems as though the case is still in the investigative stage. Presumably the Central Commission for Discipline Inspection has done much of the investigation of Bo already, and there is also likely to be evidence carried over from the Gu and Wang trials. So, it might not be long before the prosecution sends the case to the court, which was the stage at which, in those earlier cases, more details began to emerge.

So stay tuned, and remember: Bo News is Good News™.

09 October 2012

Book: Liu Xiaobo, Charter 08 and the Challenges of Political Reform in China

While I'm on the subject of Liu Xiaobo, I thought I'd mention that I had the privilege of contributing a chapter to a recent book entitled Liu Xiaobo, Charter 08 and the Challenges of Political Reform in China, edited by Jean-Philippe Béja, Fu Hualing, and Eva Pils. The book was published by Hong Kong University Press in July and, unlike many books published by academic presses, is available in paperback and e-book editions. You can see a preview of the contents here:

Breaking: "No News from Nobel Laureate Again This Month"

It's been two years since Liu Xiaobo was awarded the Nobel Peace Prize, and, for much of that time, his wife, Liu Xia, has been confined to her apartment, constantly guarded by police under a form of extra-legal house arrest that has become too familiar in recent years.

Yesterday, Damian Grammaticas at the BBC asked me for my thoughts on this state of affairs for an online piece they were doing to mark the occasion. It's a very interesting report, with more detail than we've seen in a while on the current situations for both Liu Xiaobo and Liu Xia thanks to an anonymous source close to the family, who confirms what many have long suspected -- that Liu Xia is being punished as a way of putting pressure on Liu Xiaobo (in this case, to go into exile).

Much of what I had to say was included in the BBC story, but I wanted to repost my comments in full here as well, mainly because my current preoccupations don't leave me much time to post anything new to this blog.
I am not aware of any legal authority for restricting Liu Xia's liberty and, indeed, I don't believe the Chinese authorities have attempted to justify her treatment with reference to the law. Her relegation to this ambiguous zone appears to be deliberate, because if you can't treat her treatment as something sanctioned or even covered by law, then how do you begin to challenge it? By denying that she is being held against her will by agents of the state, the authorities carry on the pretense that there is no factual basis upon which to hold them accountable. So, because the relevant authorities can act with such absolute impunity, Liu Xia effectively ceases to exist, both as a human being and as an issue.

And, for that matter, the same can almost be said of Liu Xiaobo, since one of the few ways the outside world has to learn anything about individuals who have been imprisoned in China is through what their relatives learn and observe during periodic prison visits. I don't know the last time that Liu Xia was able to visit her husband, but I am fairly certain that any interaction she has been able to have with him has been under the precondition that she remain silent. So, to the extent that this reflects an official strategy to counter Liu Xiaobo's influence, it would have to be deemed successful. At least as far as the international community is concerned, there's only so much interest that can be sustained by a person's continued absence. That's why you don't see too many headlines proclaiming "No News of Nobel Laureate Again This Month."
One thing I wanted to add at the time, but couldn't quite find the quotable words, is that this effort to render Liu Xiaobo completely irrelevant will ultimately fail, because Liu's value rests in his ideas and, no matter how hard they try, they cannot imprison those ideas, which can continue to have influence even while he remains behind bars.

19 September 2012

Wang Lijun and Defection

Lately, it seems as if everyone I know is taking considerable interest in the details of the Wang Lijun trial held earlier this week. As readers of this blog surely know, the former police chief of Chongqing and Bo Xilai's "right-hand man" (a sobriquet that has recently taken on new meaning) stood trial earlier this week on charges of perversion of the law for private purposes, defection, abuse of power, and taking bribes.

There's much that could be said about this case from a number of angles, but it's the defection charge that has interested me the most, since, under Chinese criminal law, Article 109 falls under the category of "endangering state security." For reasons too complicated to go into here, I was very skeptical of early rumors that Wang would face "treason" charges and have always found defection a more likely possibility. (For what it's worth, I am also dismissive of any narrative that suggests that prosecutors charged Wang with defection "instead of" treason as a result of some kind of negotiation. "Treason" was never seriously on the table, as far as I'm concerned.)

So, I was very interested in this post by Prof. Don Clarke, which argued (provocatively) that there was a technical flaw in the defection charge against Wang. Quoting Prof. Clarke:
Whatever “defection” might mean, there’s no question that it must involve the element of “beyond the border”. (The particular term used, 境外 jingwai, refers to areas beyond the borders of mainland China, that is, all foreign countries plus Hong Kong, Macao, and Taiwan.) Wang Lijun never went beyond the borders of mainland China; contrary to what is commonly supposed, the area occupied by foreign diplomatic missions is not foreign soil but remains Chinese territory. I have no doubt that this is simply a legislative oversight, and that the legislators would have included foreign diplomatic missions had they thought about it. And I would not label as unreasonable an intent-oriented interpretation of the statute as including foreign diplomatic missions. But it’s important to note that this problem exists, even if it’s by no means insoluble. I wonder whether the prosecuting authorities will notice it and, if so, how they will deal with it.

To be honest, I was somewhat less convinced about the problem that Prof. Clarke identified, because I felt that the crucial issue was not whether the US consulate was considered Chinese territory but, rather, whether Wang sought asylum. To me, the act of seeking asylum would be key to distinguishing an unauthorized visit with the Yanks from an attempt to defect.

The latest details, in today's cinematic Xinhua release, touch upon this issue and, to me at least, raise new interesting questions. Toward the end, the defection charge is explained thusly:
公诉人指出,叛逃罪属于行为犯,一经实施,就属于既遂,被告人经过事先预谋,以洽谈工作为由进入美领馆,滞留馆内并书写政治避难申请,属于犯罪既遂。

The prosecution notes that the crime of defection is a conduct crime: once begun, the act is treated as accomplished. The defendant premeditatedly arranged to enter the US consulate on the pretext of discussing work but remained behind in the consulate and wrote an application for political asylum; this falls under the category of a completed crime.
This explication, to a degree, vindicates my earlier interpretation that the act of seeking asylum was key to constituting the offense of defection. But what I really, really want to know now, though, is what is the prosecution's evidence for this? Do they have the application for asylum? If so, how did they get it? Or is their evidence of this fact Wang's confession?

If the evidence for Wang's asylum application is based solely on his confession, then this should be insufficient grounds to convict under Chinese law, since Article 46 of the Criminal Procedure Law states, in relevant part:
A defendant cannot be found guilty and sentenced to a criminal punishment if there is only his statement but no evidence.
To be clear, I am not saying that Wang will (or even necessarily should, within the terms of Chinese criminal justice) be acquitted of defection. I'm merely pointing to what I think is an interesting question regarding evidence. Put simply: what is the evidence to back up this charge? Unfortunately, I'm not optimistic that I will ever see either the verdict in this trial or, through some other means, the evidence disclosed in sufficient detail.


04 September 2012

Translation: "Taking the Pulse of Re-Education Through Labor" (UPDATED)

Last week there was a post making the rounds of Weibo and Twitter that purported to come from the most recent issue of the Guangzhou magazine Window on the South (南风窗). Attributed to Ye Zhusheng (叶竹盛), the post lists 10 facts about the controversial practice of "re-education through labor" (RTL), a practice that has been much in the news lately following renewed efforts to push forward long-delayed reform plans.

I cannot yet confirm that Window on the South actually published this item. (The magazine's website—perhaps coincidentally, perhaps not—has been down basically since the item was published.) The post doesn't appear on Ye's Weibo, and his last post says that he's taking a one-month Weibo holiday to write an article.

But for now, I thought the content was interesting enough to translate and share here, even though I cannot entirely vouch for its authenticity. For what it's worth, the content rings true to me. I've inserted a few comments of my own to provide explanation or to express uncertainty. I'll update if and when the situation becomes clearer.

UPDATE: It has come to my attention that the post I've translated below is a compilation of facts drawn from Ye's full article, which he has posted on his blog here. Having compared the article to the posting, I've made some amendments to the translation and my comments. The magazine's website is still down, but this appears to be unrelated to this particular article.

* * *

Taking the Pulse of Re-Education Through Labor
Ye Zhusheng

1. Of 180,000 people in RTL, about 2 percent qualify as "three illegals": illegal propaganda, endangering state security, etc.
Siweiluozi: I'm not sure what the third component in this "three illegals" category is. My first guess would be "cult" members, but that's unlikely since there are bound to be more than a few thousand of them in RTL nationwide. UPDATE: The original article just mentions "three illegals" without defining it; what's been given here seems to be an interpolation by whoever compiled the post. As far as I can see, the article doesn't seem to mention the figure 180,000, which is interesting because the most widely circulated number is the 160,000 figure that the Ministry of Justice posted on its website for year-end 2008. UPDATED UPDATE: Okay, I now see that "three illegals" is defined in the article as those engaging in "illegal propaganda, disturbing social order, and endangering state security."
2. More than 60 offenses are covered by RTL.

3. There are 350 RTL facilities nationwide, with one in every prefecture-level city.
Siweiluozi: The article says "nearly one in every prefectural-level administrative unit" (emphasis added).
4. The re-offending rate for people sent to RTL is over 40 percent.

5. Under a strict reading of the RTL regulations, nearly 50 percent of people sent to RTL despite being innocent.
Siweiluozi: This is a literal translation, but I'm not entirely clear whether the author means that people are being sent to RTL despite not having committed any offense, not having committed an offense that meets the standards for RTL, or not being an appropriate target for RTL (more on that below). UPDATE: What the article actually says is that if RTL were strictly applied according to the State Council’s Trial Measures on Re-Education Through Labor, the number of people in RTL would drop by 40 to 50 percent. I think "innocent" is a misleading interpretation.
6. In some RTL facilities, they work for more than 10 hours each day.

7. RTL only applies to mainland residents, not people from Hong Kong, Macau, Taiwan, or foreign countries.

8. A public security bureau issued rules stipulating that the revocation rate for RTL administrative reconsiderations and administrative litigation should not exceed 5 percent.
Siweiluozi: There are two options for appealing an RTL decision: pursuing administrative reconsideration with the local people's government or a higher-level RTL management committee OR filing an administrative lawsuit in court against the RTL management committee. This 5 percent figure seems likely to be a standard against which to measure performance, rather than a hard quota (considering that public security rules don't apply directly to courts). UPDATE: According to the article, this was a target set by a local public security bureau in Jiangsu, not a nationwide standard or quota. But ...
9. The Ministry of Public Security once issued a direct request to courts not to rule too easily against RTL approval units in RTL cases involving rural people.
Siweiluozi: According to Article 9 of the State Council’s Trial Measures on Re-Education Through Labor: “RTL is for detaining those individuals who live in medium-to-large cities and require re-education through labor. Those who reside in rural areas but commit offenses in cities, along rail lines, or at large factories or mines and meet the conditions for RTL may also be detained for RTL.” This means that under certain conditions, RTL cannot be used against people with rural household registrations (hukou). In the name of "maintaining stability," however, police sometimes ignore this restriction, and courts have been known to revoke RTL decisions because they were improperly applied against rural residents.
10. Regulations stipulate that RTL management committees should be comprised of members from public security, judicial administration, civil affairs, and labor departments, but in practice public security enjoys an arbitrary monopoly over this power.

21 March 2012

New Pledge of Allegiance for Chinese Lawyers


The front page of today's Legal Daily carries notice of a new directive from the Ministry of Justice that, in future, all new lawyers in the PRC will be required to pledge an oath upon receiving their license to practice law. Turning to another item inside the paper, the content of the oath is revealed:
I volunteer to become a practicing lawyer of the People's Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!
The directive (which can be found here, in its original documentary form) says that the pledge should be recited in a formal ceremony no later than three months after receiving approval to practice. Each lawyer will sign and date two copies of the oath, one of which will be placed in their file.

As far as I can tell, this will only affect new lawyers or lawyers who are re-applying for a license to practice. It would presumably not affect lawyers who already have a license and is not related to the annual registration process through which all lawyers must go.

07 March 2012

On the Criminal Procedure Law and Being "Free of Fear"

Tomorrow afternoon at 4:45pm, there will be a press conference in Beijing during which Lang Sheng, member of the National People's Congress (NPC) Standing Committee and deputy director of the Law Committee of NPC Standing Committee, and Li Shouwei, deputy director of the Office of Criminal Law of the Law Committee of NPC Standing Committee, will discuss proposed amendments to the Criminal Procedure Law (CPL) that are being put forward for deliberation by the NPC during its annual meeting.

Hopefully, this press conference will help to bring some clarity to what the legislation looks like in its final draft form and whether, as has been reported, the "disappearance clause" has been struck from the provision concerning residential surveillance.

As we wait, I thought I'd share the following essay (in typically rough translation and excluding a brief news lede), which is one of the most interesting articulations I've seen in Chinese of why public opinion was right to raise concerns about legitimizing enforced disappearances. It was published last September, during the public consultation period, in China Social Science News (中国社会科学报), the newspaper of the China Academy of Social Science. I don't know much about the author, Shan Shibing, other than that he is a freelance commentator for several newspapers.

CPL Should Make Citizens "Free of Fear"
Shan Shibing

In recent days, the public has been paying close attention to revision of the Criminal Procedure Law. This is because, in an age when the public is increasingly concerned about the level at which private rights are being protected, if a piece of legislation wants to be accepted by the public and acknowledged by public opinion as a sort of progress, it must make society feel that their own rights are being sufficiently cared for by the system, rather than being systematically discriminated against. Even worse is to make the public feel as if they are in danger of [having their rights] systematically plundered and damaged. Even if there is no shortage of highlights in this CPL revision, the fact that it has caused the public to have concerns of an epidemic of “secret arrests” is in itself a major regret.

Over recent years, the awareness of rule of law by Chinese citizens has actually been continually on the rise. From the strong emphasis people paid to the Property Rights Law to their widespread concern about revision of the CPL—all of these interventions by public opinion into the legislative [process] show that the legal literacy of Chinese citizens has already greatly improved. No one ever worries without good reason, and the fear bred in the public’s mind about an epidemic of “secret arrests” is by no means a simple misreading [of the law] by the public. Don’t forget, law is itself an expression of civilization and ought to reflect a love of humanity. Law is to make people feel secure, not to make them feel afraid. If a piece of legislation causes people to feel fear so easily, this is proof enough of its failure.

Law is a regulator of conflicts of interest within society, and behind every piece of legislation there is bound to be a complex “chess match.” In this age, the chess match between citizens’ private rights and public power is already an objective social formation. Behind every violent demolition and removal or citizen petition one can see reflected the ugly face of public power plundering people’s livelihood interests. Which way CPL revision leans in terms of the distribution of interests between public power and private rights thus is itself enough to touch a sensitive nerve in society. If a piece of legislation cannot protect citizens’ rights or reflect a civilized administration of the law to the greatest extent possible, then it cannot be called progress.

No person can bear to see their family member “disappear” or go “unaccounted for.” If a person is missing and even his family doesn’t know where he’s gone, it’s not difficult to imagine what a human calamity that would be. According to the most basic ethical standards, when a person is detained or arrested by public power, his family ought to be notified of his whereabouts. This itself is a kind of universal application of the law. Of course, there are preconditions, and perhaps it will be necessary to withhold notification temporarily from relatives for reasons of public interest or safety. The problem is that it’s entirely possible for “inability to notify” or “notification has the potential to impede the investigation” to become “pocket” excuses in all cases. In this context, it’s currently impossible to see any systemic check that would prevent investigators from using this “pocket” excuse to trample upon citizens’ private rights and create human tragedy. This is the true cause of the public’s worries.

In questions of legislation, one shouldn’t overestimate public power’s self-restraint. This is common sense. In one sense, in order to better regulate and check public power, it is actually better to assume a “bad public authority” when designing relevant institutions. This means that when legislating checks on public power, we must avoid the traditional flaws of “better to leave things vague than to be too specific” and cannot give public power too much room for flexibility. To be sure, we’ve seen the terror caused by “secret police” in many a foreign film. There’s no denying that abuse of public power by the police is not uncommon in some places in China. If we now expand the space for this kind of public power within the system, this will inevitably cause citizens to feel that their rights and dignity may be subject to even more violations.

We cannot completely deny that this kind of “inability to notify” or “notification has the potential to impede the investigation” in the CPL revision has a certain objectivity and reasonableness. But if we approach things from the angle of perfecting procedures in order to monitor and check a potentially transgressive public power, then this legislation will never get the rational agreement of the public. China’s judicial practice already suffers from an extreme emphasis on substantive [justice] at the expense of procedure. One important reason for the miscarriages of justice that have come to light in recent years is the inability of the judicial system in practice to given effect to “procedural justice.” It’s just as Havel said, the path to overcoming fear is “living in truth.” When citizens have no credible sense of the truth and exist with concerns about procedural justice, then it will be difficult for them to be “free of fear.”

In this respect, this sort of CPL revision—one that makes people worry about a potential epidemic of “secret arrests” and fear that its vague provisions won’t keep potentially unregulated power within the cage—is inevitably a kind of legislative setback and can easily produce a bad law that will cause serious harm to rights, civilization, and humanity.

28 February 2012

Good News About Residential Surveillance?

A quick note to register my cautious optimism regarding this latest news on the ongoing revision of China's Criminal Procedure Law.

As I understand what Chen Guangzhong is saying, the exception clause in the provision governing family notification for "residential surveillance in a designated residence" has been struck--or at least amended--in the draft of the legislation set to be submitted to the National People's Congress next week. Depending on the wording, this will likely mean that police will be required to notify the family members of anyone subjected to residential surveillance of this type within 24 hours, regardless of the nature of the crime.

Though I don't have any way of confirming this independently, I consider Professor Chen to be a credible source. If he's right and this reflects the wording of the final draft for submission to the NPC, I would have to conclude that this issue has been relatively settled among the stakeholders at this late stage—publication of the draft is not the relevant indicator, in my opinion.

Making draft legislation public is a relatively new phenomenon in China, and it serves one main purpose: as grist for the mill of public consultation. They've already done that once, and I don't think they ever had any intention of getting additional public consultation on the CPL. On the contrary, they've not published the current draft precisely because the stakeholders have settled on a final draft. There may be a few cosmetic changes left to the NPC, but I basically think the legislative process is over.

The result of all this appears to leave a "disappearance" clause in the provision on criminal detention. Detaining someone for 37 days without notifying anyone is still quite problematic, but 37 days is considerably shorter than six months and at least detentions of this type will have to take place within the (relatively) predictable confines of a detention center. Also, depending on the final wording, it's very likely that, compared to current law, the revision will place substantial limits on the types of cases for which this kind of detention can be used.

As someone who for the past six months has rather single-mindedly focused on this issue as a potentially serious backwards step in China's human rights development, I am prepared to welcome these changes, if they turn out to be accurate, as a substantial improvement over the drafts that were put forward last year. If this indeed comes to pass, it would be a product of domestic and international pressure of both the public and private types.

Special credit for this small but significant victory would have to go to those members of the Chinese public who seized upon the opportunity they were given to make their voices heard about a fundamental piece of legislation and expressed loud opposition to attempts by law enforcement to expand their powers at the expense of due process and procedural fairness.

20 February 2012

What Happens During "Residential Surveillance"?

Last week, I listened to two Chinese men recount details of their experience under "residential surveillance" following last year's crackdown precipitated by the so-called "Jasmine protests." They were held by police in two different cities, each under the form of "residential surveillance" in which a designated location is chosen and each without providing any notification to family members. Each said that they repeatedly asked their captors to transfer them to a detention center, as they felt they would be treated much better there.

This kind of residential surveillance--thus far operating in the blank spaces of the law and the hidden spaces of internal police regulations--will become entrenched in law if, as expected, the current proposal to revise China's Criminal Procedure Law (CPL) is passed next month by the National People's Congress (NPC).

What does this kind of "non-residential residential surveillance" entail, exactly? Below are excerpts from a description by He Depu, a China Democracy Party activist from Beijing who was subjected to the measure in 2002 and subsequently sentenced to eight years in prison for "inciting subversion." His account was included as part of an open letter to the NPC criticizing the proposed revisions to the CPL.
On 4 November 2002, I was blindfolded by the Beijing Public Security Bureau’s Domestic Security Protection Unit (or guobao) and dragged into “residential surveillance in a designated abode.” The guobao stripped me of my clothes and kept me on a wooden bed (on which there was only a plastic sheet and a white cotton sheet), saying to me: “According to the relevant state regulations concerning residential surveillance, we can keep you lying on this bed for half a year and no one will know.”

The guobao entrusted me to the guard of their 27-person custodial unit, which worked in four-person teams taking shifts of two hours apiece. Four guards stood on either side of the wooden bed, each guarding my palms and the soles of my feet. The head of the guards told me that according to the relevant regulations for “residential surveillance in a designated abode,” the palms and soles of the person under residential surveillance must be kept in sight of the guards and the person under surveillance must remain lying on the bed and was not permitted to leave the bed.

It was winter then, and the guards gave me only a thin, quilt made of rayon for the bed. There was no heat in the room and no windows. Each day I was given only three slices of onion or five slices of radish and two small steamed buns. Each morning and afternoon I was given a small paper cup of water. While I was under “residential surveillance in a designated abode,” I was not permitted to shave, cut my hair, clip my nails, or shower.

Since I frequently violated the regulation about “the palms and soles of the person under residential surveillance must be kept in sight of the guards,” each day I faced verbal abuse and beatings from the guards. Each night, four guards would pull on my hands and feet, forcefully stretching my body a dozen times or so in the shape of the character 大.

Having spent a long time in a fixed position on the wooden-plank bed without being allowed to move, my shoulders, back, and hips were in contact with the plank for too long and the skin was all rubbed raw and the white sheet beneath me was covered in bloodstains. I requested to see a doctor and a change of sheets but was told to “shut up.”

Although the guobao did not place my arms or legs in shackles while I was under residential surveillance in my “designated abode,” the inhumane rules during residential surveillance were much more brutal than [that experienced] in prison, detention center, or the prison transfer station. These rules kept my hands and feet in fixed positions on the bed, my body spread-eagled, my hands unable to touch my own body and my feet unable to touch the ground.

Because being on the bed was living hell, it was naturally a “fortunate enjoyment” to be taken from bed to be taken for questioning by the guobao. Sitting in a stool in the interrogation room, I understood the meaning of the word “fortunate.”

11 February 2012

Wang Lijun, Episode One

I'm a fan of the political thriller genre. Not so long ago I was devouring episodes of Homeland as if my life depended on it. I recently read The Spy Who Came in from the Cold and loved it.

So, it is perhaps natural that I should be so intrigued by the unfolding drama in Sichuan involving Chongqing Party Secretary Bo Xilai (left) and his erstwhile right-hand man, Wang Lijun (right), who until recently served as Chongqing's top cop and deputy mayor.
For the past several days, the Internet has been pulsating with reports and speculation that Wang had gone to the US consulate in Chengdu to seek political asylum. It's been fascinating to watch this story unfold, especially to observe how details of a high-level political scandal that once would have remained practically unknown, save for some after-the-fact rumors published in the Hong Kong political press, has been exposed on the Chinese-language Internet, almost in real time.

I'm not going to go into all of the background of this story or analyze its importance (except to remind you of this earlier posting, which may now need to be revised). Xujun Eberlein has posted what I believe to be a very plausible (and concise) account of what appears to have happened and why.

Shortly thereafter, a series of posts appeared last night on the Twitter feed belonging to @lee91741 (who I don't know) that add (embellish?) details on the account as we know it. I've done a rough translation below. I don't vouch for the veracity of any of this, and in fact, there are some details of the story that don't make sense. Just think of this of the outline of a screenplay for the one-hour first episode of a television drama and enjoy it for what it's worth.

1. At 5pm on 6 February, Wang returned home to his residence. The men keeping him under surveillance reported: “All normal!” Then three of the six surveillance teams were dismissed, leaving three teams posted at the front and rear of the house, with one team on call. Each surveillance team consisted of three members. After spending half an hour observing the scene from his window, Wang decided that their guard had slackened. He then immediately made himself up as an old woman, started up a car that he had earlier fitted with normal license plates, and leisurely drove out [of the residence compound]. He then switched to license plates belonging to the Chongqing Public Security Bureau and sped off.

2. As he neared Chengdu, Wang used a disposable mobile phone to call the US consulate in Chengdu. “This is Chongqing Vice Mayor Wang Lijun. I would like to seek political asylum. I am about to enter the Chengdu city limits.” Thirty minutes later, at around 9pm on the 6th, Wang Lijun, the vice mayor of Chongqing Municipality, the People’s Republic of China, drove into the US consulate in Chengdu.

3. After having waited for several hours, US Consul General Peter Haymond* and several vice consuls met with Wang Lijun in a conference room. Wang immediately made a verbal request for political asylum. His proof of asylum: a photograph of one of Wang’s associates who had been secretly arrested and interrogated to death and a video of someone else describing Bo Xilai’s plan to have Wang Lijun murdered. These documents showed that the plot included suicide, a car accident, “disappearance,” and concoction of a trumped-up case in which Wang would be shot down while on the run.

(* The original text refers to him as "US Consul General Cao Cao." Cao Cao was a famous warlord of the immortalized in the Romance of the Three Kingdoms. His zi ("style name") was Cao Mengde, using the same characters in Haymond's Chinese name, He Mengde. I don't know whether any other connection is implied.)

4. After Wang had shared the details with the Americans, the US side told him: “We accept your request for political asylum, but the final decision will require us to report to Ambassador Locke in Beijing. Please understand.” At 11pm, Beijing time, US Ambassador Gary Locke received a telephone report from the Chengdu consulate. Locke immediately reported the details to the White House. During this time, the Americans arranged for Wang Lijun to communicate with his family by code to tell them he was safe.

5. At 5am on the 7th, Beijing time, US Ambassador Locke formally notified the Chengdu consulate that the White House had refused Wang Lijun’s request for political asylum. But the US government gave Ambassador Locke full powers to give Wang Lijun all possible humanitarian assistance. At 6am on the 7th, US officials had breakfast with Wang and discussed how they could help him. Wang himself made a suggestion: “I’ll surrender to Party Central, not to Bo Xilai.”

6. Wang Lijun explained to the Americans: “I came to hide in the US consulate in order to evade political assassination by Bo Xilai.” After discussion, the Americans came to believe that this was the only reason that the Chinese side could accept. At 8am on the 7th, Beijing time, Ambassador Locke notified the Chinese government. The Chinese side immediately sent the State Security Bureau to fly to Chengdu. Their mission: safely retrieve Wang Lijun and, on account of Wang, thoroughly investigate Bo Xilai, [Chongqing Mayor] Huang Qifan, and their subordinates.

7. At 7am on the 7th, Beijing time, the surveillance team realized that Wang had disappeared. Bo Xilai immediately got in touch with his contacts in Beijing and learned that Wang Lijun had gone to the US consulate in Chengdu. He immediately directed Huang Qifan to take 70 police vehicles and set off with great despatch to Chengdu. Finding themselves surrounded by the Chongqing police, the Americans in Chengdu immediately contacted Ambassador Locke in Beijing, who notified his Chinese counterparts that Chongqing police were surrounding the US consulate in Chengdu.

8. Party Central was furious on hearing the news and immediately ordered the Sichuan party secretary to ensure the safety of Wang Lijun and US consular officials and to order Sichuan state security and police into action to drive away the Chongqing police and wait for officials from Party Central to arrive on the scene to handle the affair. At 12 noon, Beijing time, the Chongqing police force led by Huang Qifan was driven out of Chengdu. At 2pm, Guo Qiang and his crack team from the Chinese Ministry of State Security arrived in Chengdu and took over operational command.

9. At 3pm, Beijing time, Guo Qiang met with Bo Xilai and listened to Bo’s explanation. At 4pm, Beijing time, Guo Qiang spoke with Wang Lijun by telephone and relayed instructions from [Hu] Jintao: “Party Central will enforce the law impartially in handling your problem. A good person will not be wronged, but a bad person will definitely not go free.” Wang responded: “I accept investigation by Party Central. I don’t deny my crimes, but I won’t admit things I didn’t do. I accuse Bo and his family of corruption and abusing the law.”

10. Between 4:30 and 5:30pm, Wang Lijun met alone with the US consul general for an hour and gave the Americans some documents. Then at 6pm on the 7th, Beijing time, Wang Lijun walked out of the US Consulate General in Chengdu on his own. At 8am on the 8th, Beijing time, Wang Lijun was personally escorted to Beijing by a vice minister of the Ministry of Public Security.

19 January 2012

What's the Difference Between Subversion and Inciting Subversion?

According to Chinese Human Rights Defenders, on Wednesday the Wuhan Intermediate People's Court convicted Li Tie of subversion and sentenced him to 10 years in prison. This is the latest in a recent series of heavy punishments handed down against democracy advocates in China and illustrates the government's intent to respond harshly to those it views as political threats.

The lede in the Reuters coverage of the sentencing reads:
A Chinese court has sentenced a writer to 10 years in prison on subversion charges for writing essays that urged people to defend their rights, a relative said, the third person to be sentenced on such charges in less than a month.
This initially left me confused. Have three people been sentenced for subversion in China in less than a month? Not if the other two are Chen Wei and Chen Xi, who were both convicted of "inciting subversion." In fact, the Reuters piece accurately goes on to say exactly that, but then reports that the Hangzhou political activist Zhu Yufu was recently indicted on subversion charges. Actually, it was "inciting subversion."

I don't mean to pick on this one piece, as the problem is actually quite widespread. I don't even mean to pick on the foreign press corps in China (though some will probably argue that it's too late) because I suspect the problem often originates at the editing stage, as seemingly superfluous words are cut to save space and facilitate readability.

I'm here to tell you that, as far as the law is concerned, "subversion" and "inciting subversion" are not synonymous or interchangeable. The difference has important ramifications, especially in light of my earlier discussions about sentencing.

***

One possible source of confusion is the fact that these two offenses are defined together in a single article of the Criminal Law, Article 105. The first paragraph sets out the crime of "subversion":
Among those who organize, plot or carry out acts to subvert the state power or overthrow the socialist system, the ringleaders and the others who commit major crimes shall be sentenced to life imprisonment or fixed-term imprisonment of not less than 10 years; the ones who take an active part in it shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; and the other participants shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.
The offense of "inciting subversion," about which I've written before, is defined in the second paragraph:
Whoever incites others by spreading rumors or slanders or any other means to subvert state power or overthrow the socialist system shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention, public surveillance or deprivation of political rights; and the ringleaders and the others who commit major crimes shall be sentenced to fixed-term imprisonment of not less than five years.
First off, you'll see that the two offenses involve different sorts of behavior: "organizing, plotting, or carrying out" subversive acts on the one hand versus "inciting others" to do so "by spreading rumors or slanders or any other means." In other words, "subversion" is primarily an offense of association or concrete action—the individual must be personally involved with actions designed to lead to overthrow of the political system—whereas "inciting subversion" is an offense of expression in which the danger lies in the alleged potential for that expression to lead others to want to overthrow the political system.

As a rule of thumb, then, individuals involved in any kind of organization like the China Democracy Party or the New Youth Study Society will most likely be charged with subversion. Individuals who have published articles critical of the government are usually punished with inciting subversion. Unfortunately, that distinction doesn't alway hold in practice (a point to which I'll return below).

Comparing the two offenses, you should also note the different standards for sentencing. Generally speaking, sentences for "subversion" tend to be heavier than sentences for "inciting subversion." Punishment for "serious" subversion starts at 10 years in prison and carries the possibility of life imprisonment, whereas punishment for "serious" cases of inciting subversion range from five to 15 years in prison (and only very rarely exceed 10 years).

Although I haven't seen the indictment or verdict in Li Tie's case, this report from Radio Free Asia suggests that prosecutors may have aimed to have Li punished under the penalty for "serious" subversion. If so, then the 10-year sentence given to Li would fall in the lower end of that range. By contrast, the 10-year sentences given to Liu Xianbin and Chen Xi were quite heavy for the crime of "inciting subversion," the consequence of treating their crimes as serious and adding on extra time for recidivism.

***

One might ask whether it ultimately really matters whether a person is imprisoned for 10 years for "subversion" or for "inciting subversion"—the end result is the same. If the goal is, as I have previously suggested, getting perceived troublemakers "off the grid" for a long period of time, then one might expect the authorities to use whatever crime seems to "fit" the situation best or even (as is sometimes alleged) decide on the sentence first and then come up with the charges.

Sometimes the "fit" is not perfect. It's hard for me to interpret Li Tie's case without having access to court documents, but it appears as if many of his alleged crimes involved articles that he published—which would ordinarily fall under the category of incitement. On the other hand, He Depu was convicted of "inciting subversion" despite being an active member of the China Democracy Party—whose other members were almost universally convicted of subversion.

The problem is that the offenses of "subversion" and "inciting subversion" were written into law before the Internet came along and destroyed the clear distinction between speech and association. Many Internet cases involve a combination of association and expression. If I post articles advocating the need for an opposition party to a group of people in a chat room, is that organization or incitement? If my articles focus more on the structure or goals of my opposition party, then it might be argued that I'm organizing a subversive group. If my articles focus more on criticizing the tyranny of one-party rule, then it could very likely be construed as incitement.

This question came up for me in the early days after Liu Xiaobo was taken into custody for his involvement with Charter 08. I hypothesized at the time (and still believe) that part of the reason why there was such a long delay before formally charging Liu was because investigators were trying to decide whether Charter 08 was primarily an organization or a political manifesto.

But although there is some ambiguity about how charges of "subversion" and "inciting subversion" are applied in the Chinese criminal justice system, courts ultimately decide on one offense or the other when rendering a verdict. Reporting on Chinese political cases should remain mindful of these distinctions in order to help present the most accurate representation of how China uses state security charges against those who hold different political views.

See also:
Heavy Punishment and the Ongoing Crackdown in China (10 January) and
More on Heavy Punishment and the Ongoing Crackdown in China (13 January)

13 January 2012

More on Heavy Punishment and the Ongoing Crackdown


In my last post, I argued that the most important factor behind the heavy sentences recently handed down in China for "inciting subversion" is not the authorities' crackdown against dissent but, rather, the fact that the individuals who were being punished all had prior convictions for inciting subversion.

I later had a brief exchange on Twitter with someone I know to be knowledgeable about cases like these and the legal issues involved. His comments have led me to a partial rethink of how the sentencing works in cases like this. In this post, I want to look briefly at the example of Chen Wei, whose verdict has been made public by Chinese Human Rights Defenders.

Chinese verdicts are not necessarily a good record of everything that goes into determining a sentence, especially in political cases like these. But one can usually find an outline of the basic legal reasoning used by the court to determine the length of the sentence.

First, though, a word about sentencing for the offense of "inciting subversion." Fixed-term imprisonment for this offense can range anywhere from six months to 15 years, depending on the severity. According to Article 105(2) of the Criminal Law of the PRC, the only guideline is that ordinary offenses should be punished by up to five years in prison, whereas if the crime is "very serious," a sentence of no less than five years is indicated.

There are thus two levels of sentencing for "inciting subversion": from six months to five years for "ordinary" offenses and from five to 15 years for "very serious" offenses. I would argue that in practice there are actually three levels, with the "very serious" level divided in half at 10 years. As far as I know, Liu Xiaobo is the only person who has been sentenced to more than 10 years for inciting subversion since that offense became part of China's criminal code in 1997. I therefore see that upper range as territory "reserved" for those who are considered to be the "worst of the worst."

Towards the end of Chen Wei's verdict, the court explains how it reached its determination of how to sentence Chen. First:
陈卫在互联网上发表的文章多,煽动性强,影响范围大,属罪行重大。

The articles published on the Internet by Chen Wei were numerous, strongly inciting in nature, and the scope of their influence was large; [therefore], his crimes were very serious.
The evidence for this finding is a mixture of subjective and objective factors. The assessment of the "inciting nature" of the articles is based on a reading of the texts themselves, involving the isolation of selected passages illustrating Chen's alleged intent to incite overthrow of the political order. The objective factors are cited earlier in the verdict:
截止2011年2月25日,陈卫在“民主中国”、“中国人权”、“议报”等网站上发表的11篇文章,共计网页链接37个,点击数8 524次。

As of 25 February 2011, the 11 articles Chen Wei posted on websites such as "Democratic China," "Human Rights in China," and "ChinaEWeekly" had links to 37 websites and a total of 8,524 hits.
This evidence is intended to support the prosecution's charge in the indictment that:
(陈卫)所发表的文章被广为链接、转载、浏览,影响十分恶劣

The articles published [by Chen Wei] were widely linked to, reposted, and read, [resulting in/causing an] extremely bad impact.
I am not aware of the existence in China of any objective standard upon which to judge the impact of views expressed on the Internet, though I suspect that there may be some internal regulations on this since this kind of evidence has been showing up in verdicts for "inciting subversion" since at least the trial of Hu Jia in 2008.

In any case, the court makes clear that the alleged impact of Chen Wei's writings pushed him into the "very serious" sentencing range, meaning that a sentence of at least five years could be expected. That is where Chen's prior criminal record comes into play:
陈卫曾因危害国家安全犯罪被判处刑罚,刑罚执行完毕后再犯危害国家安全罪,系累犯,依法应从重处罚。

Chen Wei was previously given a criminal punishment for crimes of endangering state security and again committed a crime of endangering state security after that punishment had been served; this constitutes recidivism, and in accordance with the law punishment should be heavier.
In other words, where Chen's punishment falls within the range of five to 15 years' imprisonment is influenced by his status as a recidivist. Again, I would argue a sentence of greater than 10 years for "inciting subversion" enters territory "reserved" for only those who are deemed to be the "worst of the worst." So, Chen Wei's sentence of nine years satisfies the requirement that he be punished on the heavier end of the spectrum within the range indicated for "very serious" offenses.

Chen's lawyers argued that he shouldn't be treated as a recidivist because there is no legal basis for treating the crime of "counterrevolutionary propaganda and incitement" as an offense under the category of "endangering state security." While technically true, the categories of "counterrevolution" and "endangering state security" have been treated as interchangeable in practice ever since the Criminal Law was revised in 1997. It is therefore not surprising that the court basically ignores the argument and asserts the equivalence of the two types of offense for the purposes of Article 66.

I continue to believe that, as a practical matter, prior conviction for political offenses was a decisive factor in determining the length of punishments given last year to Liu Xianbin, Chen Wei, and Chen Xi. It is therefore misleading to compare the length of these recent sentences with the length of sentences given to first-time offenders like Hu Jia or Du Daobin and say that the difference shows evidence of a crackdown.

I will concede the possibility, even probability, of "crackdown influence" on the criteria determining what distinguishes "ordinary" from "very serious" offenses. Given that these criteria appear to be based on both subjective judgments about what constitutes "incitement" and more objective (but opaque) measures of influence, there is plenty of room for the overall political climate or direct intervention from above to influence sentencing.

But one looks, as I have, at the details of the dozens of known cases for "inciting subversion" that have been adjudicated since 1997, I think it is impossible but to conclude that history of prior convictions is one of the main determinations of where punishment falls in the sentencing spectrum.



10 January 2012

Heavy Punishment and the Ongoing Crackdown in China

Earlier today, the Committee to Protect Journalists issued a news alert on the recent conviction of veteran Chinese democracy activist Chen Xi, who was sentenced late last month to 10 years in prison for "inciting subversion."

In the alert, Bob Dietz, CPJ's program coordinator for Asia, is quoted as saying: "The severe sentence given to Chen Xi for online writing indicates that Chinese authorities are tightening their control of dissent. Penalties against government critics appear to be growing harsher."

As evidence for this trend of harshness, CPJ points to the sentences handed down last year to Liu Xianbin, Chen Wei, and Chen Xi, all in the range of 9-10 years, and rightly contrasts that to the sentences of up to five years normally handed down for that offense. By contrast, they cite earlier sentences given to Hu Jia, Chen Daojun, and Du Daobin, all of whom served less than four years.

I don't disagree that the recent sentences are heavy. I'm less convinced, however, that the sentences themselves are clear evidence of a crackdown on dissent in China. This is because the length of the sentences in each of these cases can be attributed in large part to mandated penalty-intensification under Chinese law.

According to Articles 65 and 66 of the Criminal Law of the PRC, heavier punishment is indicated for offenders who commit a second crime under the category of "endangering state security" after having served a prison sentence for a previous offense under the same category (including "counterrevolutionary" crimes under the 1979 criminal code. There is no time limit for state security offenses, meaning that heavier punishment is automatically mandated for a second conviction.

Let's look at the records of these recent cases:

Liu Xianbin (10 years): sentenced to 2-1/2 years' imprisonment for "counterrevolutionary propaganda and incitement" in 1992; sentenced to 13 years' imprisonment for subversion in 1999.

Chen Wei (9 years): sentenced to 4 years' imprisonment for "counterrevolutionary propaganda and incitement" in 1994.

Chen Xi (10 years): sentenced to 3 years' imprisonment for "counterrevolutionary propaganda and incitement" in 1990; sentenced to 10 years' imprisonment for "organizing and leading a counterrevolutionary group" in 1996.

By contrast, recidivism did not appear to be a factor in sentencing Liu Xiaobo (11 years in 2009), who, though detained for "counterrevolutionary propaganda and incitement" after June Fourth was ultimately exempted from criminal punishment. The harshness of that sentence can thus properly be seen as a direct response to Liu's alleged crimes. Likewise for the sentencing of He Depu (8 years in 2003.

The heavy sentences given to Wang Xiaoning (10 years in 2003) and Zheng Yichun (7 years in 2005) were the result of a different type of mandated intensification. Their state-security crimes were determined to have been committed in league with "overseas entities" and thus subject to heavier punishment under Article 106 of the Criminal Law.

Note that I'm not saying that there is no crackdown underway or that the punishments that were handed down are justified. I believe that China's use of criminal sanctions against "inciting subversion" is a clear violation of international human rights law protecting free expression.

What I am saying is simply that Liu Xianbin, Chen Wei, and Chen Xi were given heavy punishments not simply because of any ongoing crackdown but more because of their persistent and long-standing political activism, for which each of them has spent a considerable amount of the past two decades behind bars. I think it gives us a better understanding of how the government cracks down on dissent to recognize that it's precisely these kinds of veteran activists whom the authorities want "off the grid" and that the legal system is designed to enable them to do so.