16 May 2015

Why Pu Zhiqiang is Facing Eight (not 10 or 20) Years in Prison

On 15 May, the Second Branch of the Beijing People’s Procuratorate posted the following message to its Weibo account:

On May 15, 2015, the Second Branch of the Beijing People’s Procuratorate sent the Beijing Number Two Intermediate People’s Court an indictment in accordance with the law against defendant Pu Zhiqiang on charges of suspected inciting ethnic hatred and provoking a serious disturbance. The bill of indictment charges that defendant Pu Zhiqiang used information networks to publish multiple microblog posts over a period of time that incited ethnic hatred with aggravating circumstances and brazenly insulted others with odious circumstances and damage to social order. [On the basis of these acts,] he should be held criminally responsible in accordance with the law.

At this point, I would like to say that I believe these charges to be an untenable violation of Pu Zhiqiang’s right to free expression under China’s constitution. Unfortunately, as Pu Zhiqiang—a tireless advocate for many people charged with speech-related offenses over the years—knows only too well, that argument will have a difficult time winning the day in a Chinese court.

Below, I want to address a very specific issue. One of the obvious questions that many have asked is: if Pu is convicted of these two charges, what might his sentence be? There’s been a great deal of confusion on this point, with claims of a possible sentence of up to 20 years. But Shang Baojun, one of Pu Zhiqiang’s defense lawyers, told Verna Yu of the South China Morning Post that his client was facing a maximum of eight years in prison.

I believe that Shang Baojun is correct. To explain why, it’s necessary to consider a number of things.

First, let’s look at Art. 249, the offense of “inciting ethnic hatred or discrimination.” Here is the text:

Whoever incites ethnic hatred or discrimination, if the circumstances are aggravated (情节严重), shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights; if the circumstances are especially serious (情节特别严重), he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years.

In general, one could thus say that the maximum possible sentence for the offense is 10 years’ imprisonment. But does that apply in this case?

The summary of the charges given in the indictment makes it pretty clearly that Pu’s alleged offense falls under the category of “aggravated circumstances” not “especially serious” circumstances. I don’t believe that the procuratorate chose that language arbitrarily. So, I think this means that the prosecution is seeking a maximum sentence of three years’ imprisonment for this one charge.

Now, let’s look at Art. 293, “provoking a serious disturbance” (or “picking quarrels and provoking troubles,” if you like):

Whoever disrupts the social order by committing any of the following provocative and disturbing acts shall be sentenced to imprisonment of not more than five years, criminal detention or control:

(1) Assaulting any other person at will, with odious circumstances;

(2) Chasing, intercepting, reviling or intimidating any other person, with odious circumstances;

(3) Taking or demanding forcibly or vandalizing or occupying at will public or private property, with aggravated circumstances; or

(4) Making trouble in a public place, which causes a serious disorder of the public place.

Whoever assembles other people to commit the acts as mentioned in the preceding paragraph many times, which seriously disrupt the social order, shall be sentenced to imprisonment of not less than five years but not more than 10 years and may be fined in addition.

This last clause was added to the statute in 2011. Prior to that, the maximum sentence under Art. 293 was five years’ imprisonment. Since the 2011 revision, a heavier penalty may be imposed for those who “assemble others” to commit offenses “multiple times.” If these conditions are not met, then the heavier sentencing range is not available.

So, do those condition apply in Pu’s case? I doubt it. One of the more ridiculous things about the way this charge is being used against Pu Zhiqiang is the way it applies an offense written to cover behavior in physical space on actions that appear to have taken place solely online. For that, we can thank a “judicial interpretation” on “using information networks to commit defamation and related crimes” issued by the Supreme People’s Court and Supreme People’s Procuratorate in September 2013, which states, in Article 5:

Using information networks to insult or threaten others with odious circumstances and damage to social order shall be convicted of provoking a serious disturbance and penalized in accordance with Criminal Law Article 293(1)(2).

The way this interpretation is constructed, it seems unlikely that Pu is being accused of using the Internet to “gather others” to insult people. I believe that if the prosecution wished to make this allegation, it would have been mentioned in its summary of the indictment. Therefore, I see no reason to believe that the prosecution seeks a sentence of more than five years on this charge.

Based on this analysis, the maximum possible sentence on these two charges should be eight years’ imprisonment. But even if Pu were to receive the maximum sentence on both charges, his combined sentence would most likely fall somewhere between the heaviest of the two and the total of the two—i.e., between five and eight years in prison.

UPDATE: The full indictment has been made public, added here for reference:

18 April 2015

Lawyer Zhang Xuezhong: Gao Yu's Conviction is "Perversion of the Law"

The following is a translation of a commentary produced by Shanghai-based lawyer Zhang Xuezhong in response to yesterday's conviction of the 71-year-old senior journalist, Gao Yu.

This morning (17 April 2015), the Beijing Number Three Intermediate People’s Court sentenced Ms Gao Yu to seven years’ imprisonment, with subsequent deprivation of political rights for one year, for the crime of “illegally providing state secrets abroad.” It is understood that the so-called “state secret” in this case is probably the CCP Central Committee’s Document No. 9, entitled “Communiqué on the Current State of the Ideological Sphere.” But in fact, Ms Gao’s actions did not constitute a crime and the Beijing court’s guilty verdict is a perversion of the law.

My reasoning is as follows, based on the provisions of the Criminal Law and the Law on the Guarding of State Secrets:
1. The documents of a political party should not be considered state secrets. A party member has no legal obligation to safeguard secrets (only an organizational obligation), let alone a citizen who is not a member of the political party.

Treating political party documents as state secrets under state law is obviously a mistake based on the failure to separate between party and state or on the substitution of the party for the state. Furthermore, the ruling political party in a state ought to, as much as possible, make public its political program, policy positions, and governing principles so that they may by subjected to criticism and oversight by the full citizenry, who are the source of the state’s sovereignty. If the ruling party treats these things as secrets, it will lead people to have doubts that the interests of the party and state might be opposed to each other.

Even if a political party treats some of its documents as secrets, only party members should be expected to bear the obligation to protect these secrets and this obligation should only be a matter of party discipline. If a party member violates this obligation, at most he or she should receive party disciplinary sanctions, not the sanction of state law. Citizens who are not members of the party should not be under any obligation to protect political party documents that have been designated secret.

2. The document in this case also does not fall under the category of “state secret” as defined in the Law on the Guarding of State Secrets.

According to Article 2 and Article 8(3) of the Law on the Guarding of State Secrets, secrets of political parties may be classified as state secrets if they have “vital bearing on state security and national interests and, as specified by legal procedure, are entrusted to a limited number of people for a given period of time.”

In light of the analysis in point 1 above, these provisions of the Law on the Guarding of State Secrets clearly violate the political principle of separation between political parties and the state. But even if one sets aside this point and the text of the provisions literally, the political party document in this case does not constitute a state secret.

First, as this is a legal provision, the phrase “state security and national interests” must refer to specific and identifable state security and national interests. In other words, it must be the case that any disclosure of the given information would lead to actual, recognizable, and measurable damage to national interests or worsening of state security. Disclosure of information producing some empty or abstract “impact” should absolutely not be treated as damage to national interests or state security as these ideas are specified under law. Otherwise, the result would be for the scope of state secrets to become boundless, and any citizen could potentially be punished unreasonably.

Second, the state secrets in these provisions must be “specified by legal procedure [and] entrusted to a limited number of people for a given period of time.” Here, “legal procedure” must involve a designated state organ carrying out a process of “specification” in accordance with national law. No political party or any of its institutions has the power to act on its own to specify party documents as state secrets.

Based on the reasoning above, I maintain that Ms Gao Yu’s actions should not constitute the crime of illegally providing state secrets abroad.

17 April 2015

16 April 2015

Lawyers Protest Assault against Female Lawyer at Beijing Courthouse

(Original text here. More information here.)

Statement by Chinese Lawyers Regarding
Assault on a Female Lawyer by Judges and Police Officers at the
Tongzhou District (Beijing) Court

On 2 April 2015, lawyer Cui Hui from Beijing’s Hengqing Law Firm went to the Tongzhou District Court in Beijing, where she was physically assaulted twice by Yang Yu and Lai Xiulin, both of the court’s enforcement division, and a court police officer. The assault left her with minor injuries, including contusions on both eyes, bruises on her face, and multiple soft-tissue injuries on her limbs. Lawyer Cui is understood to have previously reported unlawful behavior by judges in the Tongzhou Court’s enforcement division to the Tongzhou District Procuratorate in connection with a case she was handling. This angered the judges, who found many ways of making things difficult for Cui, including this recent violent assault against her inside the court.

As legal professionals, we are concerned about our colleague, Lawyer Cui Hui, and are extremely shocked and angered by the hideous acts committed by judges and court police at the Tongzhou District Court.

With respect to this incident, we are issuing this statement and making the following demands:

1. The Tongzhou District Precinct of the Beijing PSB should investigate this case thoroughly and launch a criminal investigation for intentional injury against Yang Yu, Lai Xiulin, and the court police officer and strictly punish the perpetrators in accordance with the law.

2. The Tongzhou Procuratorate and Beijing Municipality Procuratorate should investigate Yang Yu and Lai Xiulin for unlawful dereliction of duty and severely punish any such wrongdoing they may discover in order to remove any malignant tumors among the ranks of judges.

3. The Tongzhou District People’s Congress Standing Committee should monitor the Tongzhou District Court to ensure that it deals strictly with the court personnel involved in this incident, up to stripping the judges of their adjudication duties.

4. The Tongzhou District Judicial Administration Bureau, the Beijing Municipal Judicial Administration Bureau, the Tongzhou District Lawyers Association, and the All-China Lawyers Association should immediately initiate rights-defense procedures and unite with other lawyers to help Lawyer Cui defend her rights.

5. The Beijing Municipality Women’s Federation and the All-China Women’s Federation should pay attention to Cui Hui’s situation and assist her in defending her rights.

[Signatures of more than 130 lawyers]

12 April 2015

cc: Ministry of Justice
Beijing Municipality Judicial Administration Bureau
Tongzhou District Judicial Administration Bureau
Beijing Public Security Bureau
Tongzhou District Precinct, Beijing PSB
All-China Lawyers Association
Beijing Municipality Lawyers Association
Tongzhou District Lawyers Association
Beijing Municipality Procuratorate
Tongzhou District Procuratorate
All-China Women’s Federation
Beijing Municipality Women’s Federation
Tongzhou District People’s Congress Standing Committee