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.