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.


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