Siweiluozi's Blog

What's the Difference Between Subversion and Inciting Subversion?

2012-01-19T18:20:00.001+08:00

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.

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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.

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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)

More on Heavy Punishment and the Ongoing Crackdown

2012-01-13T09:30:00.003+08:00

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.

Heavy Punishment and the Ongoing Crackdown in China

2012-01-10T07:18:00.007+08:00

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.

China's Criminal Procedure Law Revision Revisited

2011-12-26T23:32:00.007+08:00

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

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

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

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

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

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

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

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

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

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

2011-12-14T09:30:00.006+08:00

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

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

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

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

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

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

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

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

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

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

2011-11-19T18:23:00.012+08:00

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

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

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

That's all I'll say for now, because I've expended my allotment of brain cells for today and you still have a lot of reading left to do.

We have been entrusted by Beijing Fake Cultural Development Limited (hereafter “Fake Company” or “Fake”) to provide legal services in that company’s tax matters (hereafter “Fake tax case” or “tax case”). At the request of Fake Company and after making initial acquaintance with the background and associated matters concerning the “tax case” and having ascertained the circumstances of the “disappeared” Ai Weiwei, Wen Tao, Liu Zhenggang, Hu Mingfen, and Zhang Jinsong, our analysis and opinions are as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pu Zhiqiang
Counsel in the Fake Tax Case

18 November 2011

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

2011-11-16T11:01:00.006+08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

A New Tourism Promo for Dongshigu Village?

2011-10-08T07:24:00.012+08:00

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

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

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

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

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

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

Want a taste of organized crime? Please visit Dongshigu.

Want to get robbed? Please go to Dongshigu.

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

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

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

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

2011-10-05T21:49:00.006+08:00

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

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

According to Chinese law, Gao Zhisheng's five-year probationary sentence came to an end on Sunday. However, the 45-year-old lawyer remains missing.

Reports from the Reuters and DPA wires similarly suggested that Gao's sentence expired back in August, adding an extra layer of illegality (as if that were even possible) to the authorities' treatment of the lawyer.

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

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

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

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

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

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

Lawyers Express Criticism of Criminal Procedure Law Revision Draft

2011-08-31T09:16:00.016+08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

China Set to "Legalize" Enforced Disappearance?

2011-08-26T10:33:00.007+08:00

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

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

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

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

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

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

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

2011-08-22T09:20:00.009+08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2011-08-18T12:11:00.003+08:00

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

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

But you never know.

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

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

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

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

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

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

How to Translate 取保候审: A Modest Proposal

2011-06-23T06:36:00.011+08:00

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

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

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

Professor Jerome Cohen has posted an insightful response to Ai's release on the blog of the US-Asia Law Institute that explains 取保候审, from the perspective of both procedural law and pragmatic usage. He writes:

Qubao houshen (QBHS) is a technique that the public security authorities sometimes use as a face-saving device to end controversial cases that are unwise or unnecessary for them to prosecute. Often in such cases a compromise has been reached in negotiation with the suspect, as apparently it has been here. Of course, we will have to hear what Ai says upon release, recognizing that, as part of the agreement and as a consequence of long incommunicado detention, the released suspect is usually subdued in any public remarks made upon release (recall Xu Zhiyong, for example).

Concretely, QBHS usually means that the investigation can continue for up to one year while the suspect is allowed to have freedom of movement, if not freedom of speech, within his city of residence. His travel documents are usually kept by the police and he must seek their permission to travel elsewhere in China and certainly abroad. Often during the subsequent year in such cases, the investigation is quietly dropped so long as the suspect behaves himself in accordance with whatever deal was struck and nothing occurs to mar the agreement.

The analysis is excellent, and I recommend reading it in full. My only quibble (and the reason I'm posting) is the decision to translate 取保候审 as "obtaining a guarantee pending trial." I think that understanding 候审 as "pending trial" here obscures more than it elucidates. Why? Well, Professor Cohen points to the answer himself when he writes:

It is important to remember that, although the announcement claims Ai has “confessed his crimes”, no formal charge has ever been made against him; he was apparently not even formally arrested” (逮捕), not to mention indicted (起诉). Ai has thus not had to plead guilty to any crimes, although the term “renzui” (认罪), or admitting guilt, has been used in the press report. He can end the tax obligations by payment with interest, and perhaps a fine, as the press report says he is willing to do.

Under the provisions of the Criminal Procedure Law, 取保候审 may be imposed at any stage of a criminal investigation/prosecution, from first contact by police to final adjudication by a court. In Ai's case, as Professor Cohen rightly notes, the measure has been taken against him prior to the stage of formal arrest. Since the case hasn't even been submitted to the procuratorate for indictment, how can there be a "pending trial"?

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

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

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

2011-05-28T12:30:00.010+08:00

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

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

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

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

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

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

***

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

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

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

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

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

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

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

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

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

( I )

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

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

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

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

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

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

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

( II )

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

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

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

( III )

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

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

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

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

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

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

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

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

( IV )

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

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

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

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

2011-05-26T09:10:00.008+08:00

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

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

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

May 24: I was Discharged from the Hospital

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

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

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

5月24号，我出院了

好久没有联系，先给大家讲个小故事吧。

一天，马蜂无端怀疑一只小鸟要捅下他们的马蜂窝（那段时间，恰巧远处的几个马蜂窝被捅下），马蜂就把那只鸟抓了去一顿狂蜇，鸟被马蜂蜇得无法忍受，考虑到这样受折磨毫无意义，既没有造富一方，也不能让马蜂改掉毛病只好给马蜂下跪磕头，以求解脱自己，马蜂考虑到动物界正义势力不断强大，也不敢轻易把鸟怎么样，就想了个两全其美的办法。答应放小鸟出去，但小鸟必须承诺并保证：一，决不说出这几个月的经历。二，决不败坏马蜂的名誉，三，决不鼓动其他动物捅下马蜂窝。最后，鸟自由了。

顺便告诉大家，我，我因为血压有点高在医院静养了几个月，2月19号晚入院，5月24号，我出院了，所以这段时间没有上网，医生要求以后也要少上网。为保命并多活几年，我以后要少上网了。大家一定很担心我，谢谢了，大家可以放心了。我估计，以后还会有很多人象我一样变的越来越变哑巴的，我也知道了为什么以前的很多网友陆续在网上销声匿迹了。因为我就要这样做了。毕竟活着是第一位的，就目前的状况来说，做缩头的乌龟王八没有什么不好，起码活的长。大家有可能不妨向我学----做个缩头的乌龟王八，我因为这样做身体几乎没有损失一根汗毛，当然内心可能已经发生了一场大地震。

Liu Xiaoyuan on the Investigation of Alleged "Tax Evasion" by Ai Weiwei

2011-05-23T08:48:00.011+08:00

I worry about Liu Xiaoyuan.

At a time when so many other outspoken lawyers in China have been silenced, he is one of a handful who continue to speak out publicly about sensitive cases. When, as frequently happens, one of his blog posts is taken down by censors at Sina, he posts the notification he receives. (Sometimes, even those messages get censored.)

Liu is also one of the few Chinese rights lawyers still actively posting to Twitter. That might be because, for over a month, he's been on a kind of "probation" over at Sina Weibo, where every post needs to be examined first before it can be put online.

Lately, Liu has been especially vocal about the case of his friend, the artist Ai Weiwei, who disappeared into police custody on 3 April. Late last week, in a terse notice, the Xinhua News Service issued the first confirmation that Ai had been placed under "residential surveillance" (jianshi juzhu) while police investigated alleged tax evasion by his company, Beijing Fake Cultural Development.

Procedurally speaking, the way the police have used residential surveillance in this case is extremely questionable and reminiscent of the way that Liu Xiaobo's case was handled two years ago. In a series of posts on Twitter earlier this morning (translated roughly below), Liu Xiaoyuan also raises some interesting questions about the way the investigation of tax evasion charges has been handled.

I don't know whether Liu is right about the way that tax evasion cases are normally handled in China, but his analysis certainly rings true to me.

1. After Ai Weiwei was taken away from the airport, the police went to his workshop to conduct a search and took away other employees for investigation. At the time I believed that they weren't pursuing economic charges. Why did I think that? Because they only seized the office computer and the video discs of some social actions, not the company accounts. Only after the case had attracted international attention did they shift their focus to economic problems. So, they then carried out a second search to seize the account books.

2. Before Ai Weiwei was taken into custody, the tax authorities never investigated any tax issue at the "Fake" Company. In other words, if the tax authority never uncovered any issue regarding tax payment at the "Fake" Company, how did the public security organ come to their discovery, then?

3. Determination of whether or not a company has been evading tax should result from of an investigation by the tax authorities. If they discover tax evasion, the tax authorities issue an [administrative] penalty. If the company doesn't pay the missing tax or disregards the penalty, and if the amount in question meets the standard for launching a criminal investigation, the tax authority will hand the tax-evasion case over to the police for investigation and the law-enforcement authorities will pursue criminal responsibility in accordance with the law.

4. In Ai Weiwei's case, the police detained him before the tax authorities had issued a ruling about any investigation. So, at the beginning they were not pursuing any economic issues. Think about it: if Ai Weiwei hadn't been paying attention to social problems and didn't conduct himself in an "unconventional" manner, would anyone really be looking into any "economic issues"?

5. People have said to me that those in art business all have economic problems. I'm not too familiar with the art circles, so I don't dare comment on this. But I think that if this is such a common problem, why don't we see more artists being investigated for economic problems? It seems that more often than not, artists get investigated for their "unconventional" behavior.

UPDATE (25 May 2011): As a commenter notes below, Liu Xiaoyuan was apparently pressured to remove 16 of his Tweets related to Ai Weiwei. You can find the ones I translated among the others here: http://loveaiww.blogspot.com/2011/05/liuxiaoyuan-52416.html?spref=tw.

What's So Magic About 37 Days? (Or: "The Law Will Not Protect You")

2011-05-10T15:04:00.009+08:00

It's been 37 days since Ai Weiwei was taken away by police in Beijing. Because China's Criminal Procedure Law sets a maximum deadline of 37 days on initial criminal detention before a decision on formal arrest must be issued by the procuratorate, many think that some sort of movement in Ai's case is likely to happen today. Given the recent willingness of police in Beijing and elsewhere in China to ignore legal procedure when it suits them, I'm less optimistic.

I think the analysis posted earlier on Twitter by Liu Xiaoyuan, a Beijing-based rights lawyer and prolific blogger, is generally right on the money, so I've translated his comments below:

Today is the 37th day since Ai Weiwei was taken away by police. If, on the day he was taken away, the police issued a decision to place him under criminal detention, then the criminal detention period expires today. Since his freedom has not yet been restored, it's possible that he has been [formally] arrested or else transferred to "residential surveillance." But even if he has been arrested, the police can use the excuse of "hindering the investigation" and not notify his family [of his status].

Another possibility is that after Ai Weiwei was taken away, he was placed under residential surveillance. According to the law, as long as a criminal suspect has a legal residence in the location where the case is being handled, [residential surveillance] should be carried out in that legal residence. But in law enforcement practice, we cannot exclude [the possibility] that [residential surveillance] has not been carried out in accordance with the relevant regulations. Even if the residential surveillance is being carried out in a designated location, according to the provisions of the law his family and lawyer should be able to see him. But the problem is that there is no way to be certain that he has been placed under residential surveillance.

The third possibility is that he is in a "gray area" outside the provisions of the law. If this is the case, the 37-day deadline is irrelevant. If, after being taken away, criminal detention has never been imposed, there is naturally no question of arrest. Of course, when a person has been taken away for this long without criminal detention, arrest, or residential surveillance, this is not in accordance with legal procedures. In my analysis, Ai's situation will unlikely remain unclear until the report on his tax account has been completed.

As Ai Weiwei's friend and as a lawyer, I hope that his case can be clarified and begin following normal legal procedures as soon as possible.

Pusillanimous Punditry

2011-03-04T14:32:00.007+08:00

One of my biggest criticisms of myself is that I often rely on generalizations and have a hard time grappling with issues at any real depth. If I wanted to make myself feel better, I could dress that up as a talent at expressing complex issues simply and straightforwardly, but mostly I think it's a symptom of laziness or, more precisely, a reluctance to stake out strong positions on very complex issues. Rather than risk saying something that might be controversial (or, even worse, wrong), I opt for the control of saying nothing all that interesting.

In short, everyone else usually seems to have something more profound to say than I do. The other day I was asked to respond to a few questions about what's been happening in China lately. To gather my thoughts, I sat down and wrote the following, which pretty much captures my thinking perfectly but doesn't say anything terribly original. But, to get it off my chest (and to distract me further from the dozen or so things that I ought to be doing right now but just can't seem to), I post these somewhat unfinished thoughts here. Because, after all, what's the point of having a blog?

The survival of the one-party system in China is largely premised on the ability to deliver sustained levels of growth and economic development, and that, in turn, relies on social stability. In the view of the Chinese authorities, these things are all intertwined: the Communist party can’t stay in power without delivering economic and social stability, but you also can’t have economic and social stability without the one-party system. And so anything that calls this formulation into question— whether it be calls for political change or protests over property rights, environmental damage, or ethnic autonomy—the government believes these have to be nipped in the bud before they threaten the existing order.

The concern about stability is not merely felt by the authorities; it is shared by a large segment of society as well. Many, perhaps most, Chinese recognize that their lives have improved substantially over recent decades and, what’s probably even more important, they have reason to expect the good times to continue. They may be dissatisfied with many government policies, specific officials, or certain ways in which government operates, but they believe—in part because they’ve been told this over and over—that the alternatives would be much, much worse.

Though voices of dissatisfaction may not always be representative of majority opinion, they are nevertheless strong and get fullest expression online through blogs, electronic bulletin boards, and other new media. It is much harder for the authorities to deal with this pressure from below, because information spreads so quickly over the Internet and networks of individuals are organized in virtual, as opposed to physical, space.

So when you have calls for people to take their grievances to the streets, however peacefully, the authorities have to worry about what might happen if all that scattered dissatisfaction were to become concentrated and those virtual networks become physical linkages between people from different social strata and across cities throughout the country. The government’s display of force over the past couple of weeks is in large part intended to intimidate and ensure that this doesn’t happen.

But even if one agrees that maintaining the political status quo really is the best thing for China right now, one can still question whether the authorities are employing the right measures to preserve it. I tend to agree with those who think that, instead of relying on the more traditional tactics of police repression and propaganda, Chinese society would be much more stable if the government did more to promote a more independent, just legal system, open up more space for the media to act as a watchdog over government, and allow the development of more autonomous civil society organizations.

Rule of law is something that the Chinese government itself professes to want, but when security forces resort to arrests, disappearances, and harassment to deal with perceived threats to stability and voices expressing legitimate criticism, it erodes confidence in the sincerity of the government’s commitment. This lack of confidence, in turn, makes people less likely to see the government as an honest broker, which increases the likelihood of grievances boiling over in potentially destabilizing ways.

Yang Hengjun: "Big News!"

2011-02-23T09:05:00.005+08:00

Blogger, novelist, and "democracy hawker" Yang Hengjun posted the following tongue-in-cheek item to his Sina Weibo and Twitter accounts about an hour ago. After being reposted over 400 times in no more than 40 minutes, it was deleted by Weibo.

特大喜讯：中国成功输出价值观得到承认的铁证：利比亚国家领导人、革命导师卡扎菲同志电视讲话表示，将学习中国坚决抵制外国势力干涉内政，不惜武力粉碎动荡分子，维护稳定与国家统一。这是迄今为止外国领导人唯一一次公开倡导学习中国经验。

Big news! Solid evidence acknowledging China's export of its values: Libyan state leader and revolutionary leader Comrade Qadafi said in his televised speech that he would study China's resolute resistance to foreign powers' interference in internal affairs and spare no military force in crushing those causing unrest in order to preserve stability and national unity. This is, to date, the only time a foreign leader has publicly advocated learning from China's experience.

This is Your Paradise

2011-02-11T09:11:00.006+08:00

Earlier today, the influential liberal Chinese journalist Cheng Yizhong posted the following item to his Sina Weibo microblog. Weighing in at exactly the 140-character limit, I think it is the perfect statement, so I've translated it below:

中国挺好的。只要你懂得、适应、善用这里的潜规则，并且觉得政治不文明制度不成熟权力无制衡未来无着落没什么大不了的，对法制不张正义缺失社会不公贫富悬殊视而不见，不需要言论自由信仰自由免于贫困的自由及免于恐惧的自由，对资源枯竭环境崩溃空气水源土壤污染也满不在乎；那么，这里便是你的乐土。

China’s great, as long as you understand, adapt to, and make good use of the implicit rules here. And as long as you feel it’s no big deal if politics aren’t civilized, the system isn’t mature, there’s no balance of power, and the future is uncertain; if you turn a blind eye to the rule of law not being set out, the lack of justice, unfairness in society, and the disparity between rich and poor; don’t need freedom of expression, freedom of religion, freedom from poverty, or freedom from terror; and if you don’t care about resource depletion, environmental collapse, and the pollution of the air, water, and soil—well, this is your paradise.

Update (10AM): Shortly after I posted this, Cheng's post disappeared. But the re-post on my own Weibo microblog still existed long enough for me to take this screenshot:

Update (12:45PM): Cheng has responded angrily to the deletion of his earlier post. My language skills are sadly deficient in the area of delivering curses in Chinese, so I'm not going to try to translate this right now.

给新浪微博下最后通牒：你怎么那么敏感，哪里都不能碰都不给摸，还想不想快活嘛！你以为我是吃饱了撑的，非得在你这里免费打工吗？你以为依靠那些不关痛痒只问风月的心灵鸡汤插科打诨迎来送往¥€$#能持续下去吗？再删微博，后果自负！

Trying to Visit Chen Guangcheng

2011-01-11T08:04:00.011+08:00

Late last night, word went out on Twitter that a young woman named He Peirong (known online as @pearlher) had gone missing. She was last known to be just outside of a village in Shandong's Yi'nan County, where she had gone in hopes of finding Chen Guangcheng. Chen, a well-known rights activist, and his entire family are reportedly being held under tight security by unknown authority ever since his release from prison in September. His whereabouts and safety have been a cause of international concern, especially in light of the violent, thuggish treatment given to lawyers, reporters, diplomats, and others who have tried to visit in the past.

As of this writing, Ms He's whereabouts are still unclear, although local police claim that she is safe. Her fate has spurred me to finish translating an account of another attempt to meet with Chen Guangcheng, written by a Chengdu activist named Chen Yunfei (no relation). I don't have time to comment further or annotate completely, and I offer the translation "as is." It at least gives some sense of what kind of place is Chen Guangcheng's "home turf."

(Bonus: Here's Prof. Jerome Cohen speaking about Chen Guangcheng recently:)

Chen Yunfei's Visit to Shandong to See Chen Guangcheng

On November 30, 2010, I incautiously wandered into Chen Guangcheng’s “home” in Yinan, Shandong.

I’d heard that this was the site of the [1947] Battle of Menglianggu [between Nationalist and Communist troops], a place frequently haunted by jackals and wolves with ghosts everywhere. I was trembling with fear even before I entered the “village.”

Just past 4:30 in the afternoon, I reached the entrance of the Yi’nan County Public Security Bureau. After asking someone to take my photo as was a memento, I went up to the guard.

I said: “Officer, I’ve come from far away and would like to have a word with your bureau's domestic security police.”

The guard stared at me blankly and asked me what was domestic security police? (This strange phrase “domestic security” is probably something known only by veteran public security officers, counterrevolutionaries, and the domestic security police themselves.) He said: “I’m new here and don’t know.” Pointing to the office building inside, he said: “Go inside and have a look.”

I went into the building and was told I could find the domestic security office on the fourth floor. I knocked at the office for a while, but there was no answer. So I went back downstairs to the bureau office.

Luckily, an armed policeman and a female plainclothes officer were on duty. I gave them basic information about myself (omitting, of course, my frequent illegal feasting activities) and asked them to contact the domestic security police because I wanted to discuss Chen Guangcheng with them. As soon as they heard the name Chen Guangcheng, they looked as if they were allergic. They looked at me and said: “We aren’t in charge. The boss just went out but she’ll be back soon. Wait and ask Section Chief Gao.”

Sure enough, Section Chief Gao soon returned to the office. I repeated my request and she sternly asked me my name and address. She told me to have some tea and wait a moment and then left the office.

Not long afterward, she came back and said: “The domestic security police have gone out on a case. They’ll be back soon.”

So, I sipped my tea and chatted with them about the local weather, urban development, the population . . . . I couldn’t help mentioning the foul atmosphere in Chengdu. Every once in a while someone would come to the door and have a look in, but I paid them no mind.

About a half hour later, a fair-skinned man wearing street clothes came in and said: “Are you Chen Yunfei? You’re looking for us domestic security police?”

I answered: “Yes, I’m Criminal Chen. I’d like to discuss Chen Guangcheng with you.”

He said: “Then come with me.” I followed him up to his office on the fourth floor, carrying the two plastic bags I’d brought with me.

He poured me a cup of hot water and the two of us chatted idly for a while. When I asked this guy (who I’ll call Officer A for short) his name, I couldn't for the life of me make out his reply—even though he repeated himself three times—but I pretended to understand him anyway. (I couldn’t bring shame to the great, glorious, and correct Party and government by letting them know they’d brought up a student who couldn’t even understand the language.)

He asked me again about my particulars, including my occupation, and I told him: “My main occupation is landscaping, but I tame animals on the side.”

When I told him I’d been divorced for several years, he seemed to get excited and asked me, mockingly: “If you can’t manage your own marriage and family, who are you to stick your nose in important national matters?”

I told him: “I’m not interested in any important national matters, but I’m anxiously awaiting the arrival of communism.” After a sip of water, I continued: “Do you know about the marriages of Chairman Mao and Liu Shaoqi? Do you know about the Indian premier who’s been a bachelor all his life? Do you know about the female American governor who’s over 45 and has still not married?”

He again mocked me, asking: “Are you comparing yourself to Chairman Mao?”

I answered: “I cannot compare to him. When [Mao's first wife] Yang Kaihui was in prison, Mao and [second wife] He Zizhen established a deep revolutionary friendship. When He Zizhen went abroad to “make revolution,” Mao and [third wife] Comrade Jiang Qing fought side by side.” I thought about telling him the reason I’d left my former wife was because her [political] consciousness was too low—she wasn’t a League or Party member—and was holding back my own consciousness. Or that my current criteria for selecting a spouse was to aim first for Party members, then League members; Young Pioneers were a possibility after some training. But he shifted the subject to why I’d never taken the lawyer’s exam if I wanted to do rights-defense work.

I asked: “Do you know Teng Biao?”

He said: “Sure!”

I said: “Teng Biao is a lecturer at China University of Politics and Law. You probably know his lawyer’s permit was suspended?”

I didn’t wait for his response and said: “I couldn’t pass the exam, but that doesn’t prevent me from defending rights as a citizen. I defend rights to express the rights we should have, a way of telling more people who are the creditors and who are the debtors.”

As we were chatting a skinny plainclothes officer of average height (who I’ll call Officer B) came in with a pen and some paper to begin the main event of the day.

Officer B asked me for my name and native place, so I voluntarily took out my identification card and gave it to him. As he began to write, I asked: “Does this count as an interrogation record?”

Officer B quickly answered: “It’s just some notes.”

Officer A added: “Why don’t you tell us why you've come to us!”

I said: “First, I’d like to tell you how I see the current social contradictions and problems. I’m not in favor of avoiding, covering up, or exacerbating [problems]. I support positive dialogue between officials and the public and not opposition. I support democracy and rule of law and oppose dictatorship and class struggle. We’re all black-eyed, black-haired, yellow-skinned compatriots. The blood and tears of many decades of class struggle have taught an important lesson, I think.”

Officer A was quick to praise me, saying: “Your coming here first instead of taking radical steps shows trust in the government, and that's a positive thing.”

I continued: “The reason I've come is to discuss Chen Guangcheng with you. There are all sorts of rumors on and off the Internet, saying he's confined to a restricted area—one that's heavily guarded, impenetrable, an impregnable fortress—and that his entire family's movement is restricted and they depend on his elderly mother in her 80s for their livelihood.”

Officer A: “Have you been in touch with Chen Guangcheng in the past? How do you know him?”

I answered: “I've never met Mr Chen Guangcheng before, so I've of course never been in touch with him. I just said I learned about this online. Outside the “Great Firewall,” it's all over the place; inside the Firewall, too, despite the tenacious struggle of online commentators fulfilling their duties . . . .”

Officer A: “Do you believe all this is true?”

I answered: “I've come here to seek confirmation. If it's false, it's a slander on the image of the Party and the government. We can't give these anti-China hostile foreign forces any excuse for spreading propaganda. At the same time, after I learn the truth I can go around and refute these rumors.”

I took a sip of water and continued: “If what's being said on the Internet is the truth, I want to do two things. First, I'd like to see Mr Chen Guangcheng and carry out ideological work on him to understand why he's being so obstinate, refusing to change, and opposing the Party and the government so stubbornly. I want to tell him about the excellent situation outside under the leadership of the Party and the government, as well as the unprecedented 'harmonious' stability and prosperity. And I want to encourage him to mend his ways as soon as possible, re-enter society, and stop this bad influence. Second, no matter how incorrigible Chen Guangcheng may be, his child is innocent. I want to visit his child, personally give her some spending money, buy her things like a book bag, school supplies, and toys.”

Officer A: “You don't need to meet Chen Guangcheng. Our local people there have surrounded the place nice and tight, so you couldn't see him even if you wanted to. Also, the people there won't be polite with you, and we won't take any responsibility for what might happen. Even we domestic security police don't go there. I've never seen the guy, and I don't want to.”

Officer A's next words filled me with anxiety: “He's not like you. He's a traitor! He sold out national interests to the foreigners.”

Amazed, I said: “Wow, what national interests did he sell out?”

Officer A: “You don't need to know about this, it's a secret.” Then he said: “He had lots of contacts overseas. Exactly how many contacts, we're still in the process of finding out. You'd best not get mixed up in his affair. Hurry on home.”

Hearing this, I broke out in a cold sweat, thinking: “'Traitor'? The Battle of Menglianggu ended so many years ago, what 'traitors'? What's wrong with having contacts with foreigners? Wasn't Marx a foreigner? Lots of state leaders, including General Secretary Hu Jintao, often embrace foreigners—does this mean they've sold out to the foreigners?

I said, timidly: “Then I'll go to the town to meet with village cadres, members of the public, and the child.”

Officer A said: “That's no good!”

My repeated efforts to negotiate were all firmly rejected. Officer A became agitated, saying: “Who do you think you are? Do you represent the province? The central government? You think you can see whomever you want?” Then he continued to chew me out, his voice becoming sharper and sharper and more nagging, like he was running me out of town.

I finally gave up and said: “Then let me give the child's spending money to you or a village cadre to give to her. Just leave your name or the cadre's name. How's that?”

Officer A said: “The family is doing just fine, and the child doesn't need any money. Yi'nan is a poor county, and we welcome donations. Do you want to donate a million in cash or by check?”

I wanted to top him by saying, “I'm a poor farmer's assistant.” But I'm an “animal” trainer, even if only in my spare time, and I've studied [Liu Zongyuan's] “The Donkey of Guizhou” [in which a donkey is eventually eaten by a tiger after exhausting his abilities to scare the tiger away]. So I quickly said: “If you're not going to let me see him, then your not going to let me see him. Sorry to waste your time!”

Outside the window I could see the evening glow. As I was about to shake their hands and depart, Officer A said: “You can't go yet. We need to find a car to escort you back to Linyi.”

I said: “There's such comfortable weather and beautiful scenery in Yi'nan, and the evening scenery is especially lovely. I want to spend the night here, someplace near the public security bureau, perhaps the bureau guest house.”

Officer A said firmly: “No way. You must leave now.”

I said: “I'll leave after I eat.”

“No.” He then told Officer B to hurry up and arrange a car.

I knew all along that Chen Guangcheng's home was closer to Linyi than it was to Yi'nan, so I could leave from Linyi tomorrow and go to his house. So, I went downstairs with Officer B and left the public security bureau gate. Officer B pushed me aside and said a few words in the local dialect to the taxi driver. At the end, I vaguely heard Officer B say: “Take him to Linyi and find him a guesthouse, one not-too expensive.” Then we got in the car.

As we were driving, I asked several times to stop and take photos to remember the beautiful night scenery, but Driver Liu tactfully refused, saying time was short and he had to pick someone up. (Later, I realized that the domestic security police had already instructed him not to allow me to stop along the route and get out of the car, in case I should run away.)

We sped the whole way and arrived in Linyi around 8:30 p.m. I asked the driver to take me to a guesthouse near the long-distance bus station. He waited while I got the invoice and registered, then he said goodbye and departed. After he’d gone, I claimed I needed to find a cash machine because I didn’t have enough cash and hurriedly left the guesthouse and checked into a cheaper private hostel. I had a bowl of noodles and then fell soundly asleep.

At around two in the morning, I awoke and suddenly remembered that petitioners had gone [to visit Chen]. Could I get any firsthand information from them or find a guide in Linyi? After much effort, I finally got hold of the contact number for Liu Guoyan, a petitioner who had gone to seen Guangcheng and been bloodied.

I met with Liu Guoyan after 9 a.m. on December 1. She recounted in detail her terrifying experience of going to visit Chen Guangcheng and warned me not to go because I’d be in danger with my non-local accent. In the end, I promised her I would first go to Shuanghou Town, near where Chen Guangcheng lived, and consider my options. Then she contacted another petitioner to discuss with us. I worried that they’d come to harm after I left, so I gently refused their offer to act as my guide.

After 10 a.m., I caught a bus passing through Shuanghou. Since I didn’t know the route and didn’t understand the local dialect, I kept asking the ticket collector to let me know when we got there. We arrived at Shuanghou Town around 11:30 a.m.

The town was small, and I, keeping up my courage, quickly located the town government office. I wanted to have a photo taken, but there wasn’t a person to be found near the entrance. After a while, a middle-aged woman came out of the town government office with two children. I rushed over and asked her to help, but she looked me over cautiously and told me she couldn’t help. A little while later, a minibus with tinted glass all over drove up and parked about 50 meters to the left of the government office. (Only later, when it was taking me to the police station, did I realize it was a mobile surveillance vehicle.)

A bit later still, a man in his 30s got out of the minibus and started walking toward the government office. As he approached the entrance, I called to him to stop and help me take a photo. As he went inside, he snarled at me: “What are you taking a photo for? You can’t take photos here—get out of here!” I knew I was exposed and hurried off to photograph the government office entrance from a distance, pretending to prepare to slip away.

I had just turned the corner when I saw seven or eight men come out of the government office and head straight for me. I quickened my pace. When I reached an intersection, a crowd of people arrived, some in cars, some running. Some were tall, some short; some were heavy, others thin. Nearly all were wearing black. I was trapped. They were looking at me fiercely, as a ferocious wolf would look at its prey.

If I hadn’t been in this situation before, I would’ve pissed my pants. I coolly asked them: “What are you doing? What do you want from me?”

The man who told me not to take photographs said: “What are you doing? What the hell are you running for?”

I didn’t have to answer him, but in an attempt to avoid exacerbating the situation I said: “I’ve been looking unsuccessfully for a university classmate. I thought while I was here I’d buy a gingko tree to take back with me for landscaping.”

I then asked them if they knew where I could find a gingko tree. One of them had bought the act and said his relative had one. I asked him to contact his relative and tell him I wanted to have a look. He gave me a card and told me to contact him myself.

So I tried negotiating with the leader of the pack. I insisted I wanted to find a telephone to do my gingko-tree-purchasing business. The guy who had prevented me from taking the photo (a man of high consciousness and strong principle—good traits for a domestic security policeman) said: “First wait a minute, then make your call.” I tried several more times without success.

Another vehicle came by a bit later to take me to the police station. I thought I might as well go, since a police station was a very familiar place to me. I got in without arguing.

When we arrived at the police station there were already a lot of police officers and auxiliary police there to gloat. They had me wait in the duty office for a while, then an officer took me to another room.

Entering, I had a look around and saw a “tiger bench” used in questioning. This was the kind of interrogation room you hear stories about!

They poured me some water. I inspected the identification of the officer questioning me and made a note of his name. He was the first official I’d encountered in my effort to visit Chen Guangcheng whose name I knew.

Then we started talking. I gave him the same speech I’d given at the public security bureau.

He said he understood that the rights-defense movement was aimed at establishing rule of law quickly and was out of concern for the nation and the people. He also believed that the mighty tide of democracy could not be turned back. Along the path to democracy, the distance between the government’s efforts and our reform ideals would gradually decrease.

Because of the fact that he’d told me he had studied humanities, his friendly face, and the calm way he’d let me inspect his police identification, I decided right away that he was all right. I gave him my name card and wrote down my QQ account, telling him this was my personal account and that I hoped we’d keep in touch in the future. A curious police officer tried to get a look at the card, and when I asked him to keep it private he hurriedly put it away.

Then, he told me with great seriousness that he had spoken with Chen Guangcheng. He said [Chen] was in good spirits. I asked after his daughter, and he told me that she was attending school. I warned that they shouldn’t discriminate against her and let this bad blood spread even further. They should take special care of her.

He promised they wouldn’t [discriminate against her].

Then, he inspected my mobile phone and, according to their rules, deleted the only two photos I’d taken as mementos in Yi’nan.

Finally, he simply asked me how I’d come to Shuanghou and noted down what I said. He went to report on what I had said to his superior, then came back and said: “We don’t want to keep you, or else it will delay your return trip. I just want to make three suggestions on behalf of the police. First, don’t stick around; hurry on home. Second, don’t worry about Chen Guangcheng. Worrying won’t do you any good. We’ll resolve this soon. Third, we hope that after you leave you won’t reveal any of what you’ve seen and heard here.”

I replied: “No problem on the first point. Second, my concern for Chen Guangcheng is sensible, rational, and lawful. There doesn’t need to be any benefit to me. If you resolve his situation soon, I definitely won’t concern myself. As for the third thing, if you become friends with me on QQ and promise that you’ll solve the problem of Chen Guangcheng’s freedom as soon as possible, I can promise to refrain from publicizing.”

It was almost 1 p.m., and I asked if I could have a meal in the town before leaving. They politely refused. They arranged for a police car and, under watch of three police, took me back to the main intersection in town. Twenty minutes later, they flagged down a bus and escorted me aboard. The police had a few words with the driver. (When I got off in Linyi, I asked the driver: “Did the police tell you to watch to make sure I didn’t get off someplace along the way?” He answered affirmatively.)

It’s been more than 20 days since I returned home, and Chen Guangcheng’s situation hasn’t changed and we still don’t know if he’s dead or alive. I’ve written this out of worry and shout with anger: Yi’nan government, you can't keep using “family” law against Chen Guangcheng! Please stop your barbarous illegal detention of citizens immediately! Your millions in “stability maintenance” expenditures and secret political calculations have seriously crossed the line in terms of law, morality, and humanity. Serious legal punishment and the judgment of history will be brought against you and those behind the scenes who are directing you to carry out these criminal activities!

Ma Ying-jeou's "Thoughts on June Fourth"

2010-06-04T12:42:00.005+08:00

To mark the 21st anniversary of the crackdown on protesters in Beijing, Taiwan President Ma Ying-jeou's office issued a statement earlier today, which I translate into English below:

Thoughts on June Fourth

Today is the 21st anniversary of the June Fourth Tiananmen incident.

We commemorate this day just as we commemorate Taiwan’s 1947 February 28 Incident and the white terror of the 1950s. We profoundly hope the mainland authorities will consider Taiwan’s experience and sincerely confront the major human rights incident of June Fourth—not only in learning the painful lessons and preventing tragedy from repeating itself, but also in taking necessary actions to provide comfort for the harm and redress for the injustice done to victims and their families.

Historically, in any conflict between a government and its people that results in bloodshed, the government must bear the primary responsibility because of its control over public power. The existence of a government is closely tied to the trust of its people. Whenever a government uses force against the people, it is not only the people who are harmed—the trust between government and people is damaged as well, such that a long time is needed to repair it. For this reason, any government facing such a problem must confront it courageously and seek reconciliation through great patience and forgiveness.

The peoples on both sides of the Taiwan Strait are all Chinese, all descendants of the Yellow Emperor. We ought to support each other and cooperate with sincerity. Setting aside human rights, about which there have been many criticisms from outside, the people of Taiwan have been deeply impressed by the way that the mainland authorities have in recent years begun to promote Chinese culture, develop the economy, and improve people’s standard of living. The improvement in cross-strait relations and the major decrease in tensions in the Taiwan Sea have received widespread approval from peoples on both sides of the Strait, as well as the international community.

Under these new historical conditions, we hope that the mainland authorities will take this opportunity to display new thinking on the subject of human rights and, with full sincerity and confidence, take steps to resolve the problems this major human rights incident has left behind and be more open-minded towards those holding different opinions. This will not only do much to enhance the trust felt by people on the mainland towards the mainland authorities; it will also help to narrow the human-rights gap between the two sides of the Strait and convince the people of the world that the rise of the Chinese mainland is not only peaceful, but also reflective of the universal values of freedom, democracy, and human rights.

Where is Liu Xiaobo (and, more importantly, why)?

2010-05-18T20:22:00.006+08:00

Edited 7 June 2010 to reflect the fact that Liu's province of birth is Jilin, not Liaoning. His hukou was transferred to Liaoning in the 1990s, reportedly after he and his first wife divorced.

We all remember that on Christmas Day last year, one of China's best known political dissidents, Liu Xiaobo, was convicted of inciting subversion and sentenced to 11 years in prison. Liu appealed that decision to the Beijing Municipality High People's Court, which upheld the lower court's verdict on 9 February of this year.

Under China's legal system, a defendant in a criminal trial has the right to appeal a decision only once, and the decision of the appellate court is final. Once that decision takes legal effect, we can normally expect commencement of the process of transfer from the detention center (run by the police) to a prison (managed by the local arm of the Ministry of Justice).

In Beijing, where Liu was convicted, this post-trial transfer process works a bit differently than in other parts of China, because special regulations in the capital restrict non-Beijing residents from serving their sentences in Beijing prisons. Convicted criminals whose place of household registration (hukou) is elsewhere are first held in a special "repatriation" detention center pending transfer to serve out the remainder of their sentences in their home provinces.

The verdict in Liu's case made clear that, despite having lived legally in Beijing for many years, his household registration remained in ~~the province of his birth,~~ Liaoning. (The fact that his status in Beijing could be considered "temporary"—an interpretation that, though not entirely convincing, has at least some basis in Chinese law—helps explain why Liu's initial six-month period of "residential surveillance" was not carried out in his home.) Under these circumstances, we should expect Liu to serve his sentence in a Liaoning prison.

But, as this Twitter post by the Chinese writer Yu Jie reminded us today, Liu Xiaobo remains in the Beijing Detention Center, where his wife and lawyers have reportedly been prevented from visiting him.This is highly unusual and, frankly, rather mysterious.

One would think the Chinese government wouldn't want to draw attention to Liu's situation by treating him differently for so long. Odd departures from expected and established practice invite all sorts of speculation—e.g., either Liu's being subjected to special punishment or a deal is in the works for some kind of early release. I don't happen to believe either of those scenarios are especially likely, but I must admit I'm hard-pressed to explain what's going on here.

Zeng Jinyan's Appeal for Hu Jia (Translation)

2010-04-12T16:39:00.007+08:00

I've done a very, very rough translation of the latest news regarding Hu Jia posted earlier today by his wife, Zeng Jinyan. There are some additional details (in Chinese) available on Zeng's Twitter feed.

Application for Medical Parole for Hu Jia Formally Rejected

The head of Beijing Prison Hospital called Hu's mother on 4/12, told her that Hu had been transferred back to prison on 4/9 and that the growth on his liver was a hemangioma [benign tumor of endothelial cells] and that his cirrhosis does not meet the conditions for medical parole. His high fever and diarrhea in March was diagnosed as "subclinical hyperthyroidism."

I have concerns about the statements of the prison authorities.

I subsequently contacted the prison administration department and requested written copies of all of Hu's medical records, but the prison administration department employee refused.

On April 8, when we spoke with the hospital director, the director of prison administration and the person responsible for medical parole, there was no indication that Hu would be released from hospital the next day. On the afternoon of the 8th, I went public with the information that Hu was in hospital and called for his immediate release on medical parole.

I [previously] applied for medical parole on 5/12/09 and was told that Hu could not be released on medical parole.
The verbal response today to the 4/8/10 request for medical parole is that Hu's cirrhosis doesn't meet the conditions for medical parole.

Since 5/09, the prison has refused to provide the family with copies of any medical test reports, only informing the family of test results verbally. The authorities lied about the test results following Hu's 41-day disappearance in 2006, leading to a failure to treat Hu's cirrhosis. Given this, I am extremely worried.

In January 2009, Hu stopped taking lamivudine antiviral medication because his body had grown resistant to it. The prison provided Hu with Silybin Meglumine (produced by Hunan Xieli Pharmaceutical Co.)

I have asked Hu Jia to keep a health diary, and from his letters home we discovered that his health has been continually worsening. For years, he has been unable to recover from colds and suffers from frequent abdominal cramps, dull stomach pains, diarrhea, loss of appetite, fever, and weight loss. The condition of his cirrhosis is extremely unstable. On March 30, because of continued high fever, diarrhea, and an unknown 3cm growth on his liver, Hu was admitted to Beijing Prison Bureau's Central Hospital.
My demands:
By whatever means, Hu must return home for treatment and recuperation as soon as possible to prevent continued and accelerating worsening of his condition.
While Hu remains incarcerated, he should be moved to a new cellblock, he should be provided with an appropriately nutritious diet, he should be given an appropriate amount of time to rest, and he should not be required to do any physical labor.
The prison should provide the family with written documentation of all medical tests.

Zeng Jinyan
12 April 2010

See also: Medical parole? What's it worth to you? (27 May 2009)

No Dissidents in China?

2010-02-12T07:05:00.005+08:00

Yesterday, during the twice-weekly press conference at the Ministry of Foreign Affairs, spokesman Ma Zhaoxu* responded to a reporter's question about "dissident" Liu Xiaobo (whose 11-year sentence for "inciting subversion" was just upheld) thusly:

"There are no dissidents in China . . . In China, you can judge yourself whether such a group exists. But I believe this term is questionable in China."

(For more, see China Digital Times.)

In response, the well-known artist and prolific blogger Ai Weiwei posted this deconstruction of the "multi-layered" meaning of Ma's statement, the core of which I translate below:

1. Dissidents are criminals.
2. Only criminals have dissident ideas.
3. The distinction between criminals and non-criminals is whether they have dissident views.
4. If you think China has dissidents, you're a criminal.
5. The reason China has no dissidents is because they have already become criminals.
6. Does anyone have a dissenting view about what I've said?

-------
* Prior to this, Ma had perhaps been best known for his recent cavalier statement about missing lawyer Gao Zhisheng: "He is where he should be."

"Looking Back at Those Years" (6): Yang Zili's Memory Tweets

2010-02-03T20:58:00.005+08:00

More tweets from Yang Zili, co-founder of the New Youth Study Society:

Looking Back at Those Years (30–35):

30.
The guard in charge of ideology often came to speak with me. He said we'd have problems if I said that the period under Mao, as dark as it was, was much worse than today. But if I said that there'd been much progress since Mao's time, they'd be very happy to hear this.

31.
I wasn't allowed to have visits from family members when I was in the detention center, but once Xiao Han came to see me in his capacity as a lawyer. According to him, the prison wouldn't allow me receive a copy of Fortress Besieged. When they saw The Federalist Papers, investigators asked what kind of book it was. Xiao Han told them it was about patriotism, so they let me read it.

32.
During family visits at the prison, we were separated by a glass window. If there was something important, relatives would write it down on a piece of paper and inmates would write on their hands. The most convenient approach was to bribe a guard.

33.
The head of the detention center carried out an inspection ahead of the 16th Party congress and asked me my opinion. I said it was progress. My fellow inmate Old Huo asked me,” Aren't you always criticizing [the Party]?” I answered, “If someone slaps you and then kicks you day after day, when they stop kicking you, naturally that's progress. But you're still going to object to them slapping you!”

34.
When after two years there still hadn't been a verdict in our case, a guard said to me that in his experience this was a good sign. Even if it didn't mean being set free, it could mean a light sentence. Maybe it's actually like that for ordinary prisoners, but those charged with subversion or incitement better not harbor any fantasies.

35.
My fellow inmate Old Huo said that back when Zhu Rongji centralized all of the provincial branches of the Bank of Communications, local officials complained. Zhu hinted that they could take back the credit unions in the cities. This is how private banks became nationalized. Of the more than hundred heads of Beijing credit unions, more than 90 percent have been taken into custody.

"Looking Back at Those Years" (5): Yang Zili's Memory Tweets

2010-01-27T09:35:00.001+08:00

This is the final installment (for a while, at least) of my translations of tweets by Yang Zili, one of the founding members of the New Youth Study Society, recalling his detention, trial, and days in prison. As long as he keeps writing, I'll keep translating, but for a while I'm going to turn my attention to other things.

Looking Back at Those Years (23–29)

23.
According to the theory of class dictatorship, prisoners are all targets of the dictatorship. Only by owning up to one's crimes can one be rewarded with sentence reduction or parole. Even humanitarian treatment such as phone calls to family members is premised on confessing guilt. Of course those who are truly treated unjustly will file a petition [to have their case reconsidered], with the result being they have to spend N more years in prison for nothing. The more innocent you are, the more cruel they treat you, while real murderers and robbers get their sentences reduced with an easy conscience.

24.
Once a month we cleaned the detention center, and everyone's personal belongings were washed and sorted. Afterwards, they made all the inmates strip naked, even giving our rectums a look. If you'd pissed off a guard, he would take this opportunity to humiliate you. If he had a decent impression of you, he would just check quickly. Each time, Old Hua would joke: “Here comes the proctologist!”

25.
Tobacco and alcohol were forbidden in prison, but inmates could always get cigarettes if they wanted them. Alcohol was controlled more strictly, but it could still be had. An inmate only had to find a guard with whom he had a good relationship to sell it to him at a high price. I even saw inmates watching pornographic movies on a Playstation Portable.

26.
An inmate heard I was sentenced unjustly and said, “So, you were offering opinions to help the Party govern better?” I told him no. “Then no one treated you unjustly,” he said. “You were trying to overthrow the Communist Party.” I said, “I denounced them on behalf of rural people because I didn't want rural people to have to endure any more injustice.” He wasn't convinced. I explained: “Am I having this conversation with you because I'm trying to serve you? No. Is it because I'm trying to harm you? Also no. It's easy to understand, so long as you don't get bogged down in the 'Party nucleus.'”

27.
During the prosecutor's questioning at my appeal trial, I said in my defense that we hadn't done anything to oppose the government. She said that what we said and wrote wasn't in line with the Central Committee. Who knew that being out of line was a crime? No wonder Chinese people have no way to innovate!

28.
Something I overheard while in prison: An inmate read in the newspaper that an accomplice of his had been arrested, so he immediately turned himself in, saying that the two of them had once killed a man. He turned himself in out of fear that what the other guy would say might put his life at risk. But the police told him, “The killer in that case has already been executed, so you have nothing to worry about!”

29.
BH, a friend of mine in prison, told me that he'd originally been sentenced to death but that his sentence had been suspended for two years during the final review of the case. One day, he was taken for a physical examination at the hospital, where he heard the doctor say: "This guy's a Hui Muslim, so you have to bury him when he's dead. Examining him would be a complete waste of time!" [Translator's note: The implication here is that the physical examination was to determine the suitability of his organs for transplantation after execution.]

"Looking Back at Those Years" (4): Yang Zili's Memory Tweets

2010-01-25T21:18:00.006+08:00

Here's the fourth installment of my translations of Twitter posts by New Youth Study Society founding member Yang Zili. The first three installments can be found here, here, and here.

Looking Back at Those Years (19–22)

19.
One of my fellow-sufferers in the detention center was Hua Di, who according to Internet rumors back in 2001 was jailed in exchange for Lee Wen Ho. According to him, the Ministry of Foreign Affairs invited him to return [to China from the US] and join a high-level think tank, but shortly after he returned he was arrested for leaking secrets. Whenever evidence that might benefit him was presented, the judges turned their heads and didn't look at it! First the indictment was withdrawn and then resubmitted, then the original 15-year sentence was overturned on appeal and a new trial ordered, after which he was sentenced to 10 years. The twists and turns in his case seemed to correspond to the progress of the Lee Wen Ho case, so it seems those Internet rumors weren't false.

20.
During my three years in the detention center, every evening we watched television as a group. Once, we watched the documentary New Fourth Army. Though the film lauded them for it a great deal, in their greatest victory over the Japanese during the Cheqiao Campaign, they killed, wounded, or captured [only] 800 Japanese and puppet soldiers, most of whom were puppet soldiers. On the other hand, they wiped out 50,000 Nationalist soldiers during the Huangqiao campaign. At the time, my fellow-sufferer Hua Di recalled his days as a teenage soldier in the New Fourth Army, extorting money and other movable property from landlord households and hanging up landlord wives for a beating. He even went up to get in a kick of his own.

21.
The repatriation center for out-of-town offenders, formerly called the Southern Building, is a transfer facility where people are collected from the detention centers before being sent to [other] prisons. The forced labor and harsh treatment there is the worst. Prisoners are forced to shout “Reporting! Here! Yes, sir!” until they're hoarse. Prisoners from outside Beijing are especially mistreated. [Fellow New Youth Study Society member Zhang] Honghai's household registration is in Zhejiang, and in his unit they not only had to get up early and work until after dark, they weren't even allowed enough water to drink. Prisoners had to secretly drink the water used to flush the urinals.

22.
When I was in the detention center, I heard about a fellow-sufferer named Chen Shaohua, from Jiangxi, who shortly after graduating from university was sentenced to three years for postings he made online. I heard that in the spring of 2004, after being transferred to the repatriation center, he was beaten for resisting the guards and put in solitary confinement, feet shackled. The guards intentionally made him wear new shackles that rubbed his ankles until they were raw and bloody. I wonder where this younger brother is now? He was so damn young, yet so steadfast and refused to give in. When one is filled with righteousness, why fear tyranny?

"Looking Back at Those Years" (3): Yang Zili's Memory Tweets

2010-01-22T23:00:00.004+08:00

Here's the third installment of tweeted recollections by Yang Zili, founding member of the New Youth Study Society. The first two segments are here and here. I've included two extra tweets at the end that I thought were particularly worth sharing.

Looking Back at Those Years (12–18+2)

12.
The first year I was in the State Security Bureau Detention Center, I ate really well because I was a Hui Muslim. The second year, I ate really poorly, also because I was a Hui Muslim and got no preferential treatment. When the third year began and there was still no end in sight for my case, I complained to the warden about the terrible food. The warden really responded and the food returned to normal. You have to fight for your rights.

13.
My interrogator asked me, “Why did you write this article?” “That's the way I thought,” I answered. “Don't I have freedom of thought and freedom of speech?” He answered: “As long as its in your mind, you have freedom of thought. As soon as you speak, it becomes action!” Looking at it this way, since the constitution says nothing about “freedom to breathe,” every breath I take must be illegal.

14.
After our first-instance trial opened in November 2001 we waited 1-1/2 years, then in came a woman from the court and her male assistant. “You've gained weight,” the woman said, laughing. “Have we met?” I asked, taken aback. “I'm the presiding judge in your trial,” she answered. All throughout, Judge [Bai Jun] was kind and considerate to us. Only after the sentence was handed down did I realize that even the most humane people in the criminal justice system were still machines.

15.
In the same cell was a judge named Qiao. According to him, judges could decide cases with a maximum three-year sentence themselves. Cases with a maximum five-year sentence could be decided by the three-person panel of judges, but actually it was the presiding judge who decided with the other two only accompanying. Cases that might bring ten years or more, cases that had some social impact, or political cases all needed to be decided by the adjudication committee. On the adjudication committee, the judges only offered legal advice. Instructions from above were most important, and others' opinions were for reference. Basically, the court president had the final say.

16.
My interrogator yelled, “Tell me! Didn't you shout”—his voice suddenly lowering—“ʻDown with the Communist Partyʼ?” Hearing this humorously abrupt change in his tone of voice, I realized it was because he was afraid that a recording of these five words might someday be used against him.

17.
While in the detention center, I had a fellow inmate named Jiang who challenged me every time I said something against the “Three Represents.” I was surprised when, as he was leaving, he said to me in a low voice, “They should be overthrown!” All Jiang's hard work wasn't for naught: his sentence was reduced from 13 years to 10 years on appeal, which I'm told was something never before seen in cases handled by the State Security Bureau. Later, Jiang even got a sentence reduction and actually only served less than seven years—more than a year less than me. Some people can really adapt to their surroundings!

18.
Jin Xing, the judge in our appeal trial, was worried that we'd hold a grudge against him, so he explained, “What I've said doesn't represent my personal views; it's the court's opinion.” Of course, we knew well that the decision to convict us came from above, but Jin Xing gave no advance notice [of the decision], didn't allow our relatives to attend the trial, didn't let me borrow a pen to take notes, didn't let our lawyers state our defense, and didn't allow witnesses to appear in court—were all these violations of the criminal procedure law on the instruction of the court president, Qin Zheng'an?

Bonus 1:
A person of conviction with less than five years to spend in prison can basically remain steadfast. With between six and ten years to serve, most people can't hang on. Anyone serving more than ten years who can remain committed is a saint. The understanding and support of family and the outside world are crucial factors governing how long [a prisoner] remains steadfast.

Bonus 2:
How long a person has to serve is not unimportant: Jiang Qisheng served four years, which for him was like the Monkey King entering the alchemy furnace. Liu Jingsheng served 12 years, of which eight years was spent struggling [against the verdict] and four years spent taking a softer approach. To this day, he feels those eight years weren't worth it. Hu Shigen served 16-1/2 years, the first twelve of which he remained faithful and unyielding; afterwards, he could only bow his head. For myself, I had high morale during the first six years, but during the last two years days passed like years. If I'd been sentenced to fifteen years, I'd probably confess guilt after the seventh year.

"Looking Back at Those Years" (2): Yang Zili's Memory Tweets

2010-01-22T09:03:00.000+08:00

More tweets from Yang Zili, one of the founding members of the New Youth Study Society:

Looking Back at Those Years (5-11)

5.
If you're ever arrested and the police fly into a rage or even torture you, you can be secretly glad: they have no evidence with which to convict you. On the other hand, if they don't seem to care whether you talk or not, that means they've got plenty of evidence to convict you with.

6.
Because I continued to make statements against Communism while in the cell, they didn't turn on the air-conditioning during the heat of summer, saying it was collective punishment. With such methods, if you want to play the maverick, the other inmates won't allow it. You really have to admire such excellent techniques of rule.

7.
A cellmate named Old Huo was extremely harsh towards others, and after sharing a cell with him for 2-1/2 years, we had countless arguments. I tried my best to tolerate it, since he'd been sentenced to death, but he consistently picked fights. When we were finally separated, Old Huo said lots of nice things about me in his new cell. All along he was picking fights just so that we would be separated! I guess even bad people aren't all bad at heart.

8.
The Beijing State Security Bureau Detention Center is known as "the only unspoiled place in Beijing," because it's managed so strictly and there's absolutely no perversions of justice. It's so much so that some people with good connections are held there. But there was a correctional officer there surnamed Lü who was in charge of [the inmates'] money who took advantage of the fact that family members were not allowed to send books and sold only coffee-table books that he bought at a discount and resold at list price. Inmates with money could buy books other than these coffee-table books, but if you had little money you got no such treatment. Before I left, Lü even tried to take a cut [of my funds]. It seems even this "unspoiled place" isn't so unspoiled.

9.
In the courtroom, the judge picked up a piece of evidence, my address book, and asked, "Any objections?" "No," I said. Then he grabbed one of Xu Wei's letters. "Any objections?" "No." All of this turned out to be evidence of our crimes. If we had any experience, of course we'd have raised objections. What does this evidence prove? If it doesn't prove anything, of course it should be thrown out.

10.
Many people don't understand why Xu Wei was sentenced to 10 years despite having broken no taboos. Actually, it's simple: he was the nominal director of the study society. For this, he was a "chief culprit" subject to 10 years or more according to the law. This is rule of law in a dictatorship, where all it takes is will to turn innocence into guilt and where a lighter punishment is impossible because things must be "handled in accordance with the law." It's this kind of thinking that sends someone to prison for life for withdrawing cash from a broken cash machine.

11.
Jin Xing, the judge in the appeals trial, asked if we wanted to request he recuse himself. Haike said that if he couldn't guarantee to be fair, he should voluntarily recuse himself. At first I thought we should request that he recuse himself, given that he was a Party member and we were charged with opposing the Party. But then I considered that we needed him to allow the witnesses to appear in court, so I didn't raise it. It turned out that he didn't allow the witnesses to appear in court after all, meaning we simply wasted an opportunity. It seems that in a political case whose fate has already been sealed, you can only resist, not fantasize.

"Looking Back at Those Years" (1): Yang Zili's Memory Tweets

2010-01-21T21:07:00.010+08:00

Yang Zili, one of the founding members of the New Youth Study Society (which I blogged about previously here) was released last March after serving eight years in a Beijing prison for subversion. (If you haven't read the definitive account of the New Youth Society by the Washington Post's Phil Pan, do it right away.) Another society member, Zhang Honghai, was released from a Zhejiang prison at the same time, while two other members, Jin Haike and Xu Wei, are still in prison.

Yang recently joined Twitter and has been posting a series of brief takes on his arrest, trial, and days in prison. They seem to be pretty popular, and I thought it'd be worth translating them into English. Since I'm not aware of anyone else taking it on, I thought it'd be a good project for me. Here's the first batch:

Looking Back at Those Years (1–4)

1.
A few days before I was arrested, some plainclothes police moved in across the way. The landlord came to me in a panic and said there'd be trouble if I didn't move. I felt I was innocent and, besides, where could I run to? Not long after, I was arrested by the state security bureau. To this day, whenever I see a policeman, including a domestic security agent, I feel a true sense of intimacy!

2.
When he was at the China University of Geosciences, [Jin] Haike was an outstanding Party member. He did everything according to the standards of a Party member, including, naturally, being concerned about national affairs. In forming the society, he even took a page from the ceremony for entering the Party and even wanted to subject everyone to “organizational discipline.” In the end, not only did no one pay attention to the discipline, this idea actually violated a great Party taboo!

3.
[Fan] Erjun was pressured to give false testimony, saying that Haike and Xu Wei wanted to subvert the government through violence and that I was for peaceful evolution. The two of them were sentenced to 10 years, and I got eight years. After giving the false testimony, Erjun was rewarded as an outstanding Party member in Haidian [District] and was promoted to vice chairman of the student work department of his school's Party committee. When he finally discovered his conscience and insisted on appearing in court to testify about the true situation, he was drummed out of Beihang University and wound up setting up the “Utopia” website and making a living there. Clearly, fraud and deceit will lead to official promotion, but seeking truth from facts is something the Party-state cannot bear.

4.
The prosecutor asked me, “Were you a threat?” “No,” I answered. He retorted, “By the time you were, it would be too late! If we let you grow bigger, you might try to overthrow [the government], so now it's a crime!” According to this logic of “nipping evil in the bud,” I committed a crime by getting married: I might pass on dangerous ideas to the next generation!

Thoughts in Reaction to the Execution of Akmal Shaikh

2009-12-30T10:07:00.004+08:00

Akmal Shaikh, a naturalized British citizen, was executed by lethal injection in Urumchi yesterday after being sentenced to death for the crime of drug smuggling. I wrote about this case before briefly and have thought about it more since then. I offer these thoughts as a sort of summary of my reaction. (I don't know whether it's fully coherent, and I should probably come back and add a few links here and there when I have a bit more time.)

As far as I'm concerned, this case was less about the morality of capital punishment and more about due process. Chinese law provides a mechanism for psychiatric evaluation of mental competence at the time of the crime to be introduced as evidence that could exempt the defendant from punishment or mitigate that punishment. In practice, that mechanism is flawed in many ways, because the court has near total discretion in deciding whether an evaluation is warranted, evaluations are not independent, and the defense has little recourse to challenge the evaluation or submit its own evidence.

There's still a lot about this case I don't know. My understanding, based on some of the Chinese reporting, is that Akmal Shaikh was from the very beginning opposed to any "insanity defense," but that such was at least raised at the insistence of his (court-appointed?) attorney. I also understand that it is that it's often difficult to get the court to consider new evidence after the first-instance verdict has been handed down, which may have contributed to frustrations as the case went on.

Akmal Shaikh's mental state appears to have been the sole point of controversy in the entire trial, a controversy made manifest by the rambling, incoherent testimony he presented at trial that reportedly so amused the judges. Given that the existing procedure is so heavily tilted in favor of the state, I still cannot understand why the court didn't order an evaluation simply to provide itself some cover from that particular controversy.

Though international appeals were often framed in terms of leniency, that only wound up enflaming the (in many ways justifiable) Chinese reactions about hypocrisy, interference in the judicial process, etc. But to have the court order a psychiatric evaluation on a man of questionable sanity facing the law's ultimate sanction is not to ask for leniency or an exception to be granted by virtue of foreign citizenship; it is to ask the court to grant Akmal Shaikh the same procedural protections that a Chinese defendant should have under the same circumstance -- but, to be sure, is also not guaranteed.

The British and European governments may oppose application of the death penalty in principle, in which case the death penalty would be unacceptable regardless of whether the judicial process had been carried out differently. But what makes this case so disturbing (to me, at least) is the refusal to acknowledge the need for visible justice by not one, but three courts.

(There is some ambiguity about whether the Supreme People's Court ever initiated a formal psychiatric evaluation during its review. That was stated in a China Daily article yesterday, attributed to an elderly law professor from Hubei who, as much as I respect him, I don't believe to be intimately familiar with the case. Based upon what I've read in the Chinese press, including the SPC's own statement, it seems more likely that the SPC, like the lower courts, made a judgment based on other evidence—AS's own statements, in particular—that no evaluation was necessary.)

Finally, what may ultimately have been a deciding factor in the case was the possible difference in the understanding about what sorts of psychiatric conditions can qualify for mitigation. I've seen some acknowledgement in the Chinese press that Akmal Shaikh may have suffered from a "personality disorder" but that this not only did not meet the criteria for mitigation but also did not meet the criteria for necessitating a psychiatric evaluation. (This would at least better explain the courts' refusal to order an evaluation.) Something worth investigating (probably by someone other than me) is whether bipolar disorder (the illness Akmal Shaikh is said to have suffered) is recognized in Chinese psychiatric diagnosis and whether there is any precedent for its use in mitigating criminal culpability in China.

Liu Xiaobo Set for a Christmas Trial?

2009-12-16T12:37:00.006+08:00

The other day, someone posted on Twitter that Liu Xiaobo had been informed that his trial for "inciting subversion" would open "next week." I've been trying to find out more information, but so far I've only seen other hints that a trial may be imminent, nothing definite.

According to Article 119(4) of the Supreme People's Court "Interpretation on Several Questions Concerning Implementation of the Criminal Procedure Law of the PRC," the Beijing Number One Intermediate People's Court is required to notify a defendant and his or her defense attorney five days before the trial is set to open and get information about defense witnesses and evidence. If this was the basis for the notification given to Liu Xiaobo, it would suggest that the trial could open as early as Monday, 21 December.

If the case is to be tried in open court, the court is supposed to make a public announcement three days prior, which, if the trial were set for Monday, would mean today. (Anyone in Beijing want to venture over to the courthouse and have a look at the announcement board?)

Of course, it's not clear to me at this point whether Liu's case will be tried in open court or whether authorities will invoke the need to protect state secrets in an effort to keep everyone out of the courtroom. (Even if the trial is nominally open, however, good luck finding a seat in the courtroom that's not already occupied by some off-duty law-enforcement officer or government official.)

Nearly every year in my recent memory, some arrest, conviction, or other incident that would otherwise receive international scrutiny gets carried out during the week between Christmas and New Year's Day, when foreigners' attentions are turned elsewhere. (Hu Jia's arrest in December 2007 is a good example.) Even if Liu's trial opens next week, there's no guarantee that he'll be sentenced by Christmas, though the process appears now to be moving with an alacrity rarely seen in cases against people charged with political crimes in China.

Watch this space . . .

Huang Qi Sentenced to 3 Years, Verdict Denied to Family

2009-11-23T12:15:00.003+08:00

According to this report from Chinese Human Rights Defenders (CHRD), Huang Qi was sentenced to three years in prison at around 11 a.m. this morning on the charge of "illegal possession of state secrets." Huang, who previously served five years in prison from 2000 to 2005, is one of China's veteran "rights defenders" and, through his 64tianwang website, a pioneer in the use of the Internet to promote justice and rights in China.

The conviction is unfortunately not unexpected. What is a bit more unusual is that, according to the CHRD report, the presiding judge in the trial at the Wuhou District People's Court in Chengdu, Sichuan, refused to provide Huang's wife, Zeng Li, with a copy of the verdict, arguing that since Huang is an adult, it's unnecessary to provide family members with a copy. (The implication is that only relatives of juvenile defendants are provided copies of the verdict.)

Well, unless there are "special" rules that haven't been made public, the judge's excuse is ridiculous. According to Article 182 of the 1998 Supreme People's Court "Interpretation of Several Issues Concerning Implementation of the Criminal Procedure Law of the PRC" (最高人民法院关于执行《中华人民共和国刑事诉讼法》若干问题的解释):

第一百八十二条
当庭宣告判决的，应当宣布判决结果，并在五日内将判决书送达当事人、法定代理人、诉讼代理人、提起公诉的人民检察院、辩护人和被告人的近亲属。定期宣告判决的，合议庭应当在宣判前，先期公告宣判的时间和地点，传唤当事人并通知公诉人、法定代理人、诉讼代理人和辩护人；判决宣告后应当立即将判决书送达当事人、法定代理人、诉讼代理人、提起公诉的人民检察院、辩护人和被告人的近亲属。判决生效后还应当送达被告人的所在单位或者原户籍所在地的公安派出所。被告人是单位的，应当送达被告人注册登记的工商行政管理机关。

"After the verdict is announced, [the court] should immediately deliver a copy of the verdict to the parties to the case, their legal representatives or litigation representatives, the People's Procuratorate making the prosecution, defense attorneys, and close relatives of the defendant."

I'd read someplace before that Huang and Zeng were divorced, but I don't know if that's a fact. If so, perhaps that has some bearing on her status as a "close relative." Otherwise, though, the judge's argument that relatives can only be provided with copies of the verdict in cases involving juveniles is bogus.

Uyghur Journalist Heyrat Niyaz Reportedly Detained on State Security Charges

2009-10-30T08:46:00.008+08:00

Over the past week there have been an increasing number of reports that Uyghur journalist Heyrat Niyaz (海来特·尼亚孜 or 海莱提·尼亚孜) has been detained by Chinese police on state security charges. According to the most recent report I've seen:

Heyrat Niyaz, age 50, well-known Uyghur journalist and former senior reporter for the Xinjiang Economic News, was taken by police from his home in Urumchi on 1 October. One 4 October, his family received a detention notice specifying that the cause of his arrest was "endangering state security." Police also said that it was because Heyrat gave several interviews following the 5 July Urumchi incident. He is currently being held in Urumchi's Tianshan Detention Center.

Most notably, Heyrat Niyaz gave an interview to the Hong Kong-based news magazine Yazhou Zhoukan in July, which I previously translated here, in which he claimed to have warned local officials that trouble was brewing and that the riots appeared to have been a premeditated effort coordinated by Hizb-ut-Tahrir al Islami (Islamic Liberation Party).

"Endangering state security" is not a specific crime; under Chinese law, it refers to a group of specific crimes under Articles 102–113 of the criminal code. Police are supposed to indicate a specific crime when they issue a detention notice, but it's not unusual for them to be vague like this in state security cases.

Given the circumstances, it seems most likely that Heyrat Niyaz is being investigated on suspicion of "illegally providing state secrets or intelligence to overseas entities" (为境外非法提供国家秘密、情报罪) in violation of Article 111 of the criminal code. It's a crime that, under serious circumstances, carries the death penalty, but I wouldn't expect that to be under consideration in this case.

Article 111 has been frequently used in past years to punish individuals who provided foreign media or organizations with information about ethnic unrest. A few examples:

Rebiya Kadeer was sentenced to eight years in prison in 2000 for sending newspaper clippings to her husband, who was living in the United States.
In 2003, Abdulghani Memetimin was sentenced to nine years in prison for providing newspaper clippings and other information to an overseas Uyghur organization.
In 2008, Ekberjan Jamal was sentenced to 10 years for transmitting audio of a protest to friends overseas, who then gave it to Radio Free Asia.
Also last year, Tibetans Phuntsog Dorje, Sonam Drakpa, Sonam Tseten, Sonam Yarphel, Tsewang Dorje, and Yeshe Choedron were sentenced to 9–15 years in prison for providing information about the riots and protests in Lhasa and elsewhere that began in March 2008.

It thus appears that Heyrat Niyaz may be facing serious prison time for revealing details about the 5 July riots that weren't part of the official narrative of events. Given the attention that was given to the interview in question (I doubt anything I have ever done has been read by so many people), his fate deserves our continued attention.

Some Notes on Mental Illness and Criminal Responsibility in China

2009-10-14T10:11:00.006+08:00

In light of the case of Akmal Shaikh, a British national of Pakistani origin who has been sentenced to death in Urumchi on drug charges, I've been doing a bit of reading on the subject of China's laws regarding mitigation of criminal responsibility due to mental illness.

Article 18 of the Criminal Law is fairly straightforward:

If a mentally ill person causes harmful consequences at a time when he is unable to recognize or control his own conduct, following verification and confirmation through legal procedure, he shall not bear criminal responsibility, but his family members or guardian shall be ordered to keep him under strict watch and control and arrange for his medical treatment. When necessary, the government may compel him to receive medical treatment.

Any person whose mental illness is of an intermittent nature shall bear criminal responsibility if he commits a crime when he is in a normal mental state.

If a crime is committed by a mentally ill person who has not completely lost the ability to recognize or control his own conduct, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment.
Any intoxicated person who commits a crime shall bear criminal responsibility.

So, depending on the nature of the mental illness, criminal responsibility can be either completely nullified or a lighter punishment may be imposed if it has been found to have impaired the ability to recognize or control one's actions. All of this is dependent on a psychiatric evaluation to be carried out by an appointed medical professional and introduced as evidence according to relevant legal procedure.

Such an evaluation was carried out for the trial of Deng Yujiao, and it was the certification of her psychiatric condition that was cited by the court in its decision to exempt her from punishment. Meanwhile, in Yang Jia's murder trial, a psychiatric evaluation was reportedly conducted despite Yang's insistence that he was not mentally ill. The evaluation was negative, and Yang was executed.

Yet in this case—a case in which defense counsel is reported to have raised the issue of mental illness and in which the Times reports the defendant was "apparently so delusional during an appeals hearing in May that the judges could not help but laugh out loud"—the court evidently saw no need to conduct a psychiatric evaluation. Discretion to order such examinations on incarcerated suspects clearly rests solely with criminal justice authorities, and apparently that discretion can be exercised quite arbitrarily in China.

Akmal Shaikh's actions may or may not have been a result of impairment due to mental illness, but shouldn't the ultimate determination be made on the basis of a proper medical evaluation, especially in a death penalty case where an allegation of mental illness has been made? I certainly hope that the judges conducting the final review of the death sentence in this case would recognize this glaring failure to safeguard Shaikh's human rights, vacate the verdict, and order a new trial.

Final Update on the Wu Baoquan Defamation Case

2009-09-17T11:50:00.006+08:00

I've written before about Wu Baoquan, one of a series of questionable criminal defamation cases that were reported on earlier this year in the Chinese media. In this post, I expressed hope that the court would review whether the defamation charge was applied properly, given that a public prosecution for defamation (as opposed to charges brought by the aggrieved party) is only supposed to be pursued when there is a serious threat to social stability or national interest. I question whether that threshold was reached in this case, but according to this update from Southern Metropolis News today (translated by the EastSouthWestNorth blog here), the court seems merely to have accepted the claim of serious threat to social stability, rather than examine it more closely. A missed opportunity to take a stand on proper legal procedure, but I guess I shouldn't be too surprised.

Wu decided not to pursue any more appeals, which makes sense given the number of times he's been found guilty so far and the fact that he's due for release (after credit for time served in detention) in just over a month.

UPDATE: I just realized that the ESWN post above left out the final paragraph of the original story, which to me is crucial:

"The handling of this case was seriously in violation of the law," said Liu Xiaoyuan, a lawyer with the Qijian Law Firm in Beijing. If Wu's [actions] truly constituted defamation, the aggrieved party should have filed suit in court himself. One cannot simply believe that, because the party affected by the "defamation" is an official, that [the speech] therefore disrupts social order and thus treat it as a case for public prosecution. This is a clear abuse of power.

A Dissenting View on Internet "Rumors"

2009-09-05T07:32:00.002+08:00

I'm not prone to spend time translating items whose premise I disagree with, especially on a Friday night. But the following opinion piece, which appeared in Thursday's Beijing Daily (a paper with a reputation for taking hard-line "leftist" positions) struck a bit of a nerve.

A lot of people have now read the translation I did last week of Hu Yong's piece on Xiong Zhongjun's 10-day detention for items he posted online suggesting that law-enforcement authorities in Hangzhou had allowed the perpetrator of a notorious traffic accident to go free and let a "surrogate" stand in for him at trial. Hu (and several other commentators) have been questioning whether Xiong's statements—wrong and misleading though they may have been—should have been punished with jail time for "disrupting public order."

As the collection of posts on my blog can attest, the subject of how laws and regulations are being used (and misused) in China to constrain speech online is a subject I find quite interesting. So, it was natural that I entered into a discussion on this subject with an acquaintance from the mainland the other night over dinner.

This individual, who I would expect to carry the Party's water enthusiastically, started off with exactly the same argument that is the core of the piece below: that China has freedom of speech, but that free speech is not absolute. He then proceeded to raise a number of examples of speech that could have serious consequences for stability—such as rumors about poisoned water or Uyghur attacks on Han.

But he (and the article below) really avoided what to me is the central question here: what serious social consequences does raising suspicions about the credibility of government agencies really have? It seems to me that the harm is simply assumed, and it betrays the lack of self-confidence that the author of the piece below suggests is necessary. In a society that for so long has used the media as a tool to shape public opinion, the possibility for free Internet speech to "mislead" public opinion is simply too scary to behold. So, it's okay to have critical views, but the government won't provide space to air them publicly, lest they contaminate others'

When my dinner companion said for the n-th time that "Xiong Zhongjun's attacks on the fairness of Hangzhou's court caused people to doubt China's legal system, and this can't be tolerated," I couldn't help but ask in return, "Don't posts like Xiong's get written (and attract attention) precisely because many people already question the fairness and credibility of China's legal system?" I didn't receive a real response to this question, and the matter had to be left as one of those unresolvable differences between "you foreigners" and "we Chinese."

This debate—which, after all, is taking place inside China, too—between those who support freer online speech and those who maintain that restrictions are necessary to maintain stability strikes me as being a lot like other "discussions" these days (and not just in China)—they're more like two sides talking past each other, entrenched in their positions, and not really considering the arguments made by the other side. How any progress develops from this state of affairs is beyond me.

Anyway, on to the translation:

Detention of the Poster in the "Hu Bin Surro-gate": Online Speech Freedom Not Absolute
Zong Yuan

Xiong Zhongjun, who used the Internet to fabricate and spread the rumor that Hu Bin, the defendant in the "May 7" traffic accident case in Hangzhou was a "surrogate," was recently punished with a 10-day administrative detention.

Prior to this Xiong Zhongjun, using the name "Liu Yiming," posted more than 10 items on the Internet, claiming that the Hu Bin facing judicial punishment was a surrogate and presenting a large amount of "evidence" as confirmation—which led many netizens to question the credibility of the judicial organs. Police in Xiong's hometown of Ezhou, Hubei, charged that his "spreading rumors" led netizens to harbor suspicions and misled public opinion. He disrupted public order and violated the Public-Order Administration Punishment Law, so [police] decided to punish him with administrative detention.

Some people support this punishment, seeing it as just desserts for spreading rumors; others harbor doubts, saying this will lead to criminalizing speech and threats to citizens' freedom of speech. So how should we view this?

His "suspicious" article not different opinion
Contains large amount of speculative and inflammatory language

Article 25 of the Public-Order Management Punishment Law states: "The following acts are subject to between five and 10 days' detention and may be accompanied by a maximum 500 yuan fine; if the circumstances are minor, detention of five days or less or less than 500 yuan may be imposed: (1) spreading rumors; falsely reporting danger, epidemic, or alarm; or intentionally disrupting public order by other means . . . ." Is what Xiong Zhongjun did spreading rumors?

The prerequisite for spreading rumors is fabricating facts, making up the truth, and then broadcasting it. Some believe that Xiong Zhongjun did not spread rumors and that it was only based on [an examination of] news photos of Hu Bin taken on different days from which he judged that the Hu Bin who appeared in court was not the driver of the car on that day because there were many differences in the face, expression, and physical characteristics in the two photos. There's nothing wrong with this sort of suspicion, as all citizens have the right to express their own views and opinons. Even though his his view is mistaken, that doesn't constitute the "fabricating facts and making up the truth" that is spreading rumors.

To be sure, if Xiong Zhongjun had only expressed his own contrary opinion, then no matter how many mistaken things he said he should not be punished for it. But having read what Xiong Zhongjun wrote online, I've found that this is not what happened.

In his posts, Xiong Zhongjun included a great deal of speculative and inflammatory language, such as: "Hu Bin's family is, unsurprisingly, wealthy, brash, and well-connected, and after the drag-racing case occurred all in Hangzhou's law enforcement agencies were hell-bent on tilting the scales of the law in their favor," "When interviewed, employees of the [Hangzhou Xihu District] court shamelessly said that statements of suspicion were 'baseless,'" "The Hangzhou judicial agencies can really be called master thespians, but it's too bad their performance isn't seamless," and "[The Hangzhou judicial agencies] can only keep lying to the end in order to protect their official posts. They would never admit that 'the leopard has turned into a prince.'" I'm afraid it's hard to say these "statements" are rational suspicions.

Spreading rumors about individuals might constitute defamation
Complaints about the government that don't affect stability shouldn't be punished

Imagine for a moment that I, based on hearsay, "discovered" that a co-worker was having an affair and, claiming "iron-clad evidence," went around announcing that "so-and-so may have a mistress" and "so-and-so's life is indiscreet"—but this co-worker actually wasn't doing any of the deviant things that I suspected. I ask you, wouldn't my behavior qualify as "spreading rumors"? The answer is certainly, and that co-worker most likely would bring defamation charges against me.

Xiong Zhongjun has a right to air any suspicion he may have about the case, but if he engages in improper conjecture and recklessly spreads unsubstantiated hearsay, it could threaten social stability by misleading social opinion.

I also believe that Xiong Zhongjun truly fabricated and spread rumors, however his actions were not yet punishable. If Xiong Zhongjun posted an article online that hurled abuse at an individual citizen, that would clearly be an act of defamation that should be punished for perhaps violating the criminal law and at least violating the Public-Order Administration Punishment Law. But the target of Xiong Zhongjun's accusations and attacks was not an individual, but rather the relevant judicial agencies. So this ought to be treated differently.

In everyday life, ordinary people may occasionally complain or express dissatisfaction about government agencies because of some lack of trust or misunderstanding—this is understandable. Being lenient toward people's various criticisms of government agencies is a sign of society's progress and an expression of the government's self-confidence and diligence. What's wrong with ordinary people criticizing or rebuking the government a bit, so long as it doesn't lead to serious consequences or threaten social stability. But if it really leads to chaotic consequences, that's another story.

Following rumor-filled posts makes people stop and think
Online freedom of speech is not absolute

It's normal that Hu Bin's appearance would change from the time he was arrested to the time he faced trial. Way back during the Warring States period, there was the story of Wu Zixu, whose hair turned white overnight after his father and brother were murdered. After being jailed for several months, it's no wonder that Hu Bin's appearance would change. As for the "points of doubt" in those few news photos and videos, these are all created by [different] photo resolutions, shooting angles, and lighting directions. Xiong Zhongjun's articles lacked proof and were full of flaws, conjecture, and speculation. Yet it was precisely because of these vulnerable views that attracted many netizen followers. This, I'm afraid, is an issue more worth thinking about than Xiong Zhongjun's detention.

On today's Internet, with its high degree of information proliferation, only those maverick articles can attract netizens' attentions and only "startling language" attracts the highest number of hits. This is precisely why Xiong Zhongjun's posts on the Hu Bin surrogate [issue] were able to "stand out from the crowd" and receive notice. For netizens, online commentary is largely a form of entertainment consumption, and they mostly pay attention to whose views have the most impact, rather than whose argument is the tightest. Thus, many netizens gave their approval to Xiong Zhongjun's articles without thinking.

Xiong Zhongjun's detention reminds netizens that in this open Internet space, speech is free but this freedom is not absolute. The openness of the Internet determines the openness of Internet speech, and expressing one's views is not the same as complaining at home or having a heart-to-heart chat with friends. One must pay attention to the possible effect [of speech] on society, try hard to be reasoned, and avoid infringing on the interests of others or society.

An Update on Gao Zhisheng

2009-09-03T08:44:00.004+08:00

Since disappearing in February, there have been a lot of rumors about what might have happened to the crusading Chinese rights lawyer, Gao Zhisheng. Given that Gao was allegedly treated savagely during a previous disappearance, the more time passed, the more ominous the predictions of his fate became, with some even suggesting that Gao may have been killed.

Now, Beijing legal scholar and rights activist Teng Biao is reporting via his Twitter feed that Gao was briefly in contact with family members as recently as late July. If this news is true, it should allay some of the worst fears about Gao's well-being, but it leaves unanswered serious questions about why he has apparently been deprived of his liberties and under whose authority.

Teng's message, translated into English below:

Is Gao Zhisheng dead? In May and June, quite a few people were privately spreading the word [about this possibility]. In June, Gao's brother went to Beijing to contact the police, and police told him he'd hear something by the end of the month. In July, Gao made a brief telephone call to his relatives in Shaanxi, saying that he was okay. Since then, there has been no further news. Actually, "okay" means "not okay." It seems that Old Gao's not dead, but for the past seven months since 4 February, no one's seen hide nor hair of him.

Hu Yong Looks at the Crackdown Against Online "Rumors"

2009-08-30T12:13:00.009+08:00

Beijing University journalism professor Hu Yong has just published another excellent opinion piece in Saturday's Southern Metropolis News that looks at the continued efforts by Chinese authorities to crack down on criticisms that appear on the Internet. Following on his critique of the use of criminal defamation charges to punish individuals who posted information about the Yan Xiaoling case (see also here and here), this piece looks at how the authorities also punish people for "spreading rumors" online—even when those "rumors" are really little more than inaccurate information or opinions based in error.

Below I've translated a fuller version of Prof. Hu's piece that appears on his blog.

The Public's Right to Question Shouldn't Be

Misconstrued as Spreading Rumors

Hu Yong

The Hangzhou “70 MPH” incident that was once such a sensation has again created a wave of controversy—all because local police placed Xiong Zhongjun, from Ezhou in Hubei Province, under 10-day administrative detention for using the Internet to spread a rumor that the defendant who appeared in court in the drag-racing case was a “surrogate” for Hu Bin.

In fact, just as the debate over the “surrogate theory” was at its most intense, a netizen on the Tianya forum worried over whether the theory's originator would wind up being “extradited” for defamation. The charge against Xiong Zhongjun isn't defamation, perhaps because this charge has recently become rather notorious after being used indiscriminately. But the actions taken by the relevant authorities really are no different this time, placing him under criminal detention for fabricating and disseminating rumors to disrupt public order. The rate at which this vague crime has been trotted out in a series of past Internet cases is extremely high.

If we look back a bit we see that a legal trick frequently used by the relevant authorities in major public safety incidents in recent years has been to treat statements that have a certain factual basis but are not entirely accurate as rumors and crack down with force. The result is that during major social and safety incidents, statements made by Chinese citizens can carry great legal risk.

Articles 105(2), 181, 221, and 291(a) of China's criminal code have provisions criminalizing the use of rumors and other means to incite subversion of state power, the fabrication and spread of false information to adversely affect securities trading, the fabrication and spread of false stories to damage the commercial reputation of an individual or the reputation of a commercial product, and the intentional dissemination of alarmist information known to be fabricated. Article 25(1) of the Public Order Administration Punishment Law states that “those who disseminate rumors, falsely report danger, epidemic, or alarm or intentionally disrupt public order through other means” are subject to administrative fine or detention.

With respect to the publication and dissemination of rumors via new media, the PRC Telecommunications Regulations enacted on 25 September 2000 state that no organization or individual shall use telecommunications networks to produce, reproduce, publish, or disseminate information that “spreads rumors, disrupts social order, or undermines social stability.” In the National People's Congress Standing Committee's 28 December 2000 “Decision on Safeguarding Internet Security,” it says that acts such as “use of the Internet to spread rumors, slander, or express or disseminate other harmful information, incite subversion of state power or the overthrow of the socialist system, or incite splitting the nation or undermining national unity,” “use of the Internet to fabricate and disseminate the trading of securities or futures or any other false information that disrupts financial order,” or “use of the Internet to defame others or fabricate facts to slander others” should be punished according to the provisions of the criminal law. The “Regulations for the Administration of Internet News Information Services” issued by the State Council Information Office and the Ministry of Information Industry on 25 September 2005 require that Internet news information services contain nothing that “spreads rumors, disturbs social order, or undermines social stability.”

These provisions appear vague because they lack concrete determinative criteria. For example, in order to hand down an administrative punishment there must be consequences that “disrupts public order,” but precisely what constitutes “disruption of public order” in such cases is subject to debate. Moreover, the law treats spreading rumors and making false reports of danger, epidemic, or alarm as the same, and the requirement of the subjective element of “intention” creates a problem: if an individual unintentionally publishes or disseminates information that is not entirely factual, should he or she bear the corresponding legal responsibility?

From the “Zhang Zhijian affair” in 2006 to [the cases of] “Red Diamond Empire” in 2007 and “SS Mountain Division” in 2008, there has been a series of cases in which netizens have been arrested or detained by law enforcement agencies throughout [China] for “re-posting” or “commenting” online. In other instances, individuals have been charged with crime for text messages. For example, in January 2007 Beijing police stated that individuals could be sentenced to five years or more for sending text messages with rumors about “tainted pork.” During the Lake Tai blue-green algae contamination, police in Wuxi placed a local resident surnamed Ding under public order detention for sending a text message by mobile phone to more than 130 people, saying that the “carcinogen level in Lake Tai water was 200 times above [the acceptable level].”

If one carefully differentiates between these cases according to the laws and regulations, it is not difficult to discover clear abuse of the law by the government. First, the government has a tendency to treat any hearsay that is not entirely factual as a rumor in the legal sense of the word. At the time when “SS Mountain Division” reposted [information about casualties in a major railroad accident], the relevant agencies were in the process of investigating and handling the train collision on the Ji'nan-Qingdao railway line and information was confusing. Even though the post inaccurately reported the number of casualties, it still confirmed that the accident resulted in a large number of casualties. In fact, in the relatively short period immediately after a major disaster or accident occurs, even the government has difficulty immediately judging whether statements are true or false. The authorities confuse the difference between disseminating rumors to disrupt public order and spreading gossip out of concern for one's personal safety—the latter simply cannot be characterized as an illegal act. Following major disasters, many people have spread gossip without knowing whether it is true or false. Warn your friends and relatives to take care—given the current legal system, nearly every one of them could wind up arrested!

Second, the point of departure for handling rumor cases should be [consideration of] whether or not the rumor “intentionally disrupts public order” or is enough to “seriously disrupt social order” and not whether the information spread is true or false. The posts by “Red Diamond Empire” and “SS Mountain Division” reposted and quoted [other information]. The [author's] tone may be extreme, but whether a post constitutes “disruption of public order” depends on the extent of its impact and the objective consequences to which it leads—for instance, the scope of a post's circulation, whether it resulted in public fear or had an affect on the normal order of production, work, education, or daily life.

In this case, Xiong Zhongjun simply questioned whether judicial authorities fairly enforced the law. This will not cause public fear or lead to great chaos in the city's public order. Moreover, the authorities claim that Xiong fabricated and spread the rumor about “Hu Bin's surrogate,” causing netizens to be suspicious and misleading public opinion. They seem to want to prove the rumor-monger's subjective intent, but how can one determine whether Xiong's judgment about a “surrogate” was not made out of the spirit of citizenship and the rational desire to encourage the judicial authorities to accept public oversight? The so-called dissemination of the “Hu Bin surrogate” rumor is nothing more than an individual's analysis and suspicion based on a news photo—how can this be called a “rumor”? Those who claimed that Zhou Zhenglong faked his photograph of a tiger must be breaking out in a cold sweat—if Zhou truly photographed a tiger, all those who claimed otherwise could face extradition!

It's especially important to emphasize that the public has the right to question or refute the veracity of any report, even government announcements. If a member of the public sends a text message or reposts relevant posts, even if they contain some untruths they should be seen as [an effort to] protect onself or exercise the right to monitor [public affairs]. To soothe people's worries and eliminate inaccurate speech, the government must release more public, transparent information. Countries with rule of law have long held the view that one should use the criterion of “clear and present danger” to judge whether speech is a threat to public order, For example, one important reason to be tolerant of reports by the media and public concern following a disaster is that these can prevent further danger and save more lives. By comparison, the possible fear and chaos [these reports might create] is a lesser evil that must be tolerated. Rather than concocting ways to crack down on criticism, as a remedy for the biases that might be created by those expressing [mistaken information], the government can reduce the impact by releasing the truth as a means of clarification and exposing the false information that has been disseminated.

After Xiong Zhongjun was detained, one point of view held that many netizens haven't yet grasped the difference between questioning and spreading rumors and thus abuse their “right to question.” Pray tell: Can we not question court judgments? Can we not question the state's public authority? Is a citizen's right to question really something that needs to be officially granted? Some say that netizens have “overstepped their oversight” [rights] in the Hangzhou drag-racing case, but everyone knows that citizens have only just begun [to exercise] their right to oversight—how can we possibly have overstepped our rights after taking a single step?

In the face of questioning and oversight from the public, the relevant authorities should reflect on why their credibility with the public is the way it is. It's not that the Chinese public is too suspicious, but rather that they have just started to learn to be suspicious. As Li Chengpeng says: “Suspicion is a progressive force in society and is the least tolerance our country can show the public. If someday our laws were to say 'suspicion is forbidden,' then everyone can only obey mother and go home for dinner.”

Heyrat Niyaz on the July 5 Riots in Urumchi

2009-07-26T13:28:00.006+08:00

In its August 2 issue, the Hong Kong newsweekly Yazhou Zhoukan interviews Heyrat Niyaz (海莱特·尼亚孜), a Uyghur journalist, blogger, and AIDS activist. In the interview, which I've translated roughly below, Heyrat tells of how he tried to warn officials that "blood would flow" in Urumchi on July 5 and gives his thoughts about the background to the ethnic rioting.

UPDATE: Here's a link to the original item from Yazhou Zhoukan's website.

* * *

YZ: When did you feel that something could occur on July 5?

HN: After the incident in Shaoguan, Guangdong, I felt that something big would happen, that blood would flow. Before the Shaoguan incident, there were already seeds of a disturbance in Xinjiang. After the Shaoguan incident, I wrote a series of three blog posts analyzing the impact of the incident and, the more analysis I did, the more certain I felt about my prediction.

YZ: Do you believe the July 5 incident was organized and premeditated?

HN: Looking at it from today, it was certainly organized. As for premeditated, between June 26 and July 5, there was already plenty of time for that. But the most crucial thing was that the government did not take prompt measures to prevent deterioration of the situation. On July 4, I was continually listening to Radio Free Asia and the Voice of America. On that day, World Uyghur Congress President Rebiya [Kadeer] and others were truly a bit out of the ordinary on that day, with nearly all of the leaders going on the air to speak.

Around 8 p.m., I called a friend of mine in the government and said, "Something is going to happen tomorrow. You should take some measures." I gave him the URL of Rebiya's speech so that they could listen for themselves. They said they would report to their superiors.

The next morning, I called again. At around 10 a.m., I went with a friend to see a high official in the regional government. I told him that as an ordinary person of conscience, I have an obligation to remind you that blood will certainly flow today. You should immediately take steps and mobilize emergency preparations. Then, I made three recommendations: First, Xinjiang Uyghur Autonomous Region Chairman Nur Bekri must make a public speech before 12 noon. Second, notify Han merchants in predominantly ethnic neighborhoods to close shop early and go home. Third, mobilize as many troops as you can, cordon off ethnic neighborhoods and block and patrol crucial intersections. After the close of business, impose martial law.

At the time, the official said he would make a phone call to seek instructions. In the end, not a single one of these recommendations was taken. In fact, I was not even the first person to warn the relevant government agencies on July 4. Just after 6 p.m. on July 4 another person had provided a warning.

YZ: You said that prior to the Shaoguan incident there were already seeds of a disturbance in Xinjiang. What do you mean by that?

HN: There are two direct reasons that led to something like what happened on July 5. First is the promotion of bilingual education, and the second is the government's arrangements to send Uyghurs away to work. These two policies were strongly opposed by many Uyghur cadres, but anyone who dared to say "no" was immediately punished.

The first to bear the brunt of the bilingual education policy were teachers who had previously taught in ethnic languages. Tens of thousands of teachers faced being laid off because their Chinese was not up to standard, and this led to unstable popular feelings among grassroots educators.

As for sending Uyghurs away to work, in the eyes of [Uyghur] nationalists you can joke all you like, but don't joke about our women. Almost all of the workers initially organized to be sent out to work were 17- and 18-year-old girls. At the time, some elders said, "Sixty percent of these girls will wind up as prostitutes; the other forty percent will marry Han Chinese." This led to enormous disgust [among people]. In carrying out this policy, the government first failed to carry out proper education work and, second, failed to realize that such a small thing could have such major repercussions.

YZ: Before the promotion of these two policies, how were ethnic relations in Xinjiang?

HN: In the 1950s, even though Mao Zedong criticized "great Han chauvinism" in Xinjiang, contemporary ethnic policies in Xinjiang never led to a rupture. Ethnic relations in Xinjiang really became more tense over the past 20 years or so. After taking office, Party Secretary Wang Lequan adopted a high-handed posture that would not allow for any ethnic sentiment among minority populations. For example, if a ethnic cadre were to express the slightest complaint during a meeting, he would definitely not be promoted and might even be sacked. [Wang] overemphasized and exacerbated the anti-separatist issue. In fact, border provinces in any country that have cultural, linguistic, or ethnic ties with foreign countries are bound to have such tendencies. The current anti-separatist struggle in Xinjiang is not simply something [being carried out] by law enforcement agencies but has become something [carried out] in the whole society.

YZ: Have these tense ethnic relations led to increased thoughts of independence among Uyghurs?

HN: My father took part in the "Revolution of the Three Districts" [in which ethnic partisans revolted against Chinese rule in 1944 and established the second East Turkestan Republic] as a soldier. Logically, he should be a classic example of someone with thoughts of independence, but as far as I know not even someone like him is pro-independence—much less so someone like me.

In fact, looking historically, the Uyghur people transformed early on from a desert-based [nomadic] people to an agricultural society and developed an extremely exquisite civilization. The nature of this people has become such that we don't spread or seek conflict. Even during its strongest point, this society was never expansionary. When the Khitan came, Uyghurs quickly surrendered. When the Mongols came, the Uyghurs basically surrendered without a fight. Historically speaking, Uyghurs don't like to fight and have no foundation for independence.

YZ: How do you view the issue of "East Turkestan"?

HN: This phrase "East Turkestan" is something invented by Europeans and not something that Uyghurs themselves came up with. However, it has been built up by the Turks and forcibly thrust upon us. We Uyghurs have no concept of "East Turkestan." From historic times to the presnt, Uyghurs have called Xinjiang "Land of the Uyghurs." No one has ever called it "Land of the Turks," much less "Eastern Land of the Turks."

YZ: If this is so, why do so many pro-independence types in Xinjiang make a fundamental claim for "East Turkestan"?

HN: At the time of the Silk Road, Uyghurs had opportunities to travel about in neighboring countries and their thinking was more open. Later, when maritime navigation became dominant, Uyghurs found themselves isolated and closed-off. In such a backwards circumstance, it's easy to think that "monks from outside can really chant the scripture" [i.e., outsiders have the answers]. It's just as when China first opened up, all sorts of ideas flowed in, both good and bad, and it wasn't clear which were good and which were bad. Moreover, over the past several decades local Uyghur elites suffered under the repression of the Communist Party's leftist policies and there were no opportunities to develop thought. The moment a few people shout "East Turkestan," many among our people have no idea what to think.

YZ: How do local Uyghur intellectuals view Rebiya [Kadeer]?

HN: They're not interested. Rebiya basically has no ideas.

YZ: For outside forces to be able to organize the July 5 incident, doesn't it mean that they have considerable influence inside China?

HN: Yes, definitely. I believe that the July 5 incident was organized by "Hizb-ut-Tahrir al-Islami" [ILP, Islamic Liberation Party], an illegal religious organization that has spread extremely quickly in southern Xinjiang. I've studied this group, which was founded by an Afghan. When the Afghan died, a Pakistani doctor among his followers carried out a reorganization and recruitment drive. Whether in China, Afghanistan, or Pakistan, the ILP is an underground movement. In 1997, when the ILP had just begun to appear in Xinjiang, there were probably only several hundred members. According to statistics made public last year by the relevant agencies, the organization may now have close to 10,000 members in Xinjiang.

On July 5, I was on Xinhua South Road watching as rioters smashed and looted. More than 100 people gathered and dispersed in an extremely organized manner, all of them wearing athletic shoes. Based on their accents, most were from the area around Kashgar and Hotan, but I did not see any of them carrying knives. I suspect they were from the ILP because of their slogans. The rioters were shouting "Han get out!" [and] "Kill the Han!" Other than these [slogans], there was also "We want to establish an Islamic country and strictly implement Islamic law." One of the main goals of the ILP is to restore the combined political and religious authority of the Islamic state and strictly implement Islamic law; it is a fundamentalist branch.

This organization is extremely disciplined and its composition rather unusual. It attracts young men around the age of 20, mostly from rural areas. In fact, this organization is extremely backwards, so that even among Uyghurs without any basic social underpinning, those with even a bit of education don't have any interest [in the ILP]. The influence of groups like this that have infiltrated from abroad is ultimately quite small, because they bring nothing to the table. A serious attack from the organs of state power could totally wipe them out. There's no need for anti-terrorism measures throughout society in Xinjiang.

YZ: What do you think is the main problem for Xinjiang at the moment?

HN: I don't think the main problem for Xinjiang is ethnic separatism. The key problem for Xinjiang is still economic development. Actually, so-called ethnic conflict is really conflict over interests. Last year during the "two meetings," I watched video of President Hu Jintao's meeting with the Xinjiang delegation many times. President Hu said that Xinjiang should emphasize development and only at the end did he say anything about stability. Subsequently, I decided to write a series of articles clarifying my views on this.

Hu Yong on the Yan Xiaoling Defamation Case

2009-07-18T13:09:00.005+08:00

I've just finished a rough translation of an opinion piece by Hu Yong (胡泳)that appeared in this morning's Southern Metropolis News in which he criticizes the use of criminal defamation charges to punish individuals who posted critical comments against local government officials' handling of the Yan Xiaoling case.

Defamation Can No Longer Be
Used to Restrict Netizen Speech
Hu Yong

The public security bureau in Mawei District, Fuzhou, recently detained Guo Baofeng and several other netizens. The lawyer for these detained netizens says that they were detained for posting or re-posting items on the Internet about the “Yan Xiaoling case” in which [Yan was] “brutally gang-raped to death by eight people.” Police have given the reason as “suspected defamation”; when the lawyer requested to meet with the detained individuals, police refused on the grounds that the case “involved state secrets. (See the July 17 Xin Kuai Bao report.)

These detentions sound quite familiar to us. Like the cases of Wang Shuai, Wu Baoquan, and others, they form a part of a long, long list of names of those bloggers and netizens who have been detained or convicted by organs of public authority for exposing the deeds of local governments. There are two basic elements of most of these types of cases. One is the fervor with which ordinary people use the Internet and employ text or video to expose and broadcast local injustice on popular Internet forums or blogs. The second is the habitual way that certain local governments, faced with suspicion or criticism, use the crime of defamation as a weapon of public power to attack private rights and try to restrict people's expression on the Internet.

Police have not said yet who the victim of defamation is [in the case of the] netizens detained this time in Mawei. But according to the provisions of Article 246 of the Criminal Law, “Whoever, by violence or other methods, publicly humiliates another person or invent stories to defame him, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance, or deprivation of political rights.” One should notice that this article is placed under Chapter IV of the Criminal Law, entitled “Crimes of Infringing upon Citizens' Rights of the Person and Democratic Rights.” That is to say that the crime of defamation is for serious acts of intentionally inventing and spreading false stories to damage a person's character or destroy their reputation. The object of this criminal infringement must be a citizen and not the reputation of a business, government organ, or other organization. This is why defamation cases typically can only be brought following charges from the victim and are only prosecuted when the victim files suit [directly] with the court. Only in defamation cases where there is serious threat to social order and national interest can the public security apparatus mobilize public authority to pursue criminal responsibility.

Among the posts regarding the “Yan Xiaoling case,” a few individual officials from the public security bureau and procuratorate have been mentioned by name. Could it be simply because of their official position that [the case] has become connected with social order and national interest? Moreover, the day after the posts appeared the relevant government agencies in Fuzhou made public statements denying the claims made in the posts. Even if the items by the posters and re-posters created a negative impression of the government agencies concerned, that doesn't necessarily make it unlawful or illegal acts that necessitate mobilizing the coercive power of the state for punishment. If criticism of public officials' actions [in carrying out] public authority can be punished as criminal defamation, the inevitable result is that no one will dare to carry out oversight of public authority and there will be no way to safeguard the highest value of citizens' freedom of speech.

Freedom of speech naturally includes the freedom to express mistaken ideas, and it is especially the freedom to question authority. This requires public officials who face criticism or even fabrications that exaggerate the truth to not automatically invoke defamation on the grounds of their rights of reputation or privacy—much less use the state's apparatus of violence to satisfy their own personal interests. Yet one after another, there have been cases [of individuals who] have been convicted for sending text messages or posting items on the Internet, many times with senior local officials availing themselves of the resources of public authority they have at hand and habitually attacking all criticism of their policies as if it were damage to their personal reputations—even not hesitating to rely on personal retaliation and stigma to clamp down on speech, thereby creating a society and environment for opinion in which everyone feels at risk.

In the situation in Mawei, not only has defamation been used as a catch-all, vague charge, but the authorities concerned have even resorted to using a new magic weapon—the use of “state secrets” to answer efforts by netizens and reporters who seek to understand the truth of the situation. To carry out an investigation for public prosecution of the “defamation” of a local official is already a mistake; to completely block the public and lawyers from understanding and investigating this case of public prosecution on the grounds that it “involves state secrets” only compounds the error. Can those who hold public power really use “defamation” and “state secrets” so arbitrarily to muzzle people's voices? There's no way to explain the logic of these parties: we can only conclude that their overbearing rule originates in their belief that they personally represent the authority of the law and administration and that any oversight and criticism is a threat to this authority. If this kind of scary logic is allowed to spread further, a malignant tumor will spread through local governance.

A netizen should both enjoy the freedom of speech protected by Article 35 of the constitution and rely on Article 41, [which gives] the right to criticize and make suggestions or even make complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state functionary. There can be no arbitrary deprivation of these kinds of rights. As a netizen put it on kdnet: “As netizens, we pay attention to many issues, people, and phenomena be they from the past, present, or future, and we create original posts and re-post some items. As members of the public, we have the right to question—including parties concerned and the police. There are many things about which we don't have all the facts, so we must try to understand. You can explain, you can cross-examine, but you cannot break the law in the process of enforcing the law. Who gives you the right to use public authority to turn civil 'defamation' into criminal prosecution? Who is the victim of defamation here? If being concerned is a crime, then we are all guilty of this impardonable crime.”

Update: Deng Yonggu Convicted of "Defamation," Exempted from Punishment

2009-07-17T08:46:00.009+08:00

The case of Deng Yonggu, which I've posted about here, here, and here has finally concluded, with the Pengxi County People's Court in Sichuan finding Deng guilty of the crime of defamation but exempting him from punishment. Meanwhile, another major defamation case is brewing in Fujian, with six people detained so far for Internet posts critical of a police cover-up of a brutal gang-rape. I hope to have time to post something on this soon.

The New Youth Study Society Case and the Saga of Li Yuzhou

2009-06-29T08:41:00.007+08:00

In 2004 Phil Pan, former Beijing bureau chief for the Washington Post and author of the award-winning Out of Mao's Shadow, wrote a masterfully moving article about the case of the New Youth Study Society, an informal group of young people in Beijing who met to discuss subjects concerning social and political reform. Four key members of the group, Xu Wei, Jin Haike, Yang Zili, and Zhang Honghai, were sentenced in 2003 to seven to ten years on charges of subversion. As Pan revealed, one of the key sources for the prosecution in the New Youth case was Li Yuzhou, a police informant who had infiltrated the group for the Ministry of State Security. When he discovered what his reports on the group had resulted in, Li tried unsuccessfully to recant his testimony and ultimately fled to Thailand, where he sought refugee status.

This weekend, the AP put out an excellent piece by Alexa Olesen that updates the case to the present day. Li Yuzhou, it seems, has lost his refugee status and is in danger of being deported to China, where he fears retribution for his efforts to derail the New Youth prosecution and his pro-democracy organizing activity inside of Thailand. Meanwhile, two of the four New Youth Study Society members he helped imprison have been released at the end of their terms. While they still puzzle over Li's motivation for ratting them out, they express some sympathy for his current plight and don't wish to see him imprisoned in China.

The details of this story are so rich, they would make a good basis for a novel, with themes of youthful idealism betrayed, the weight of guilt and efforts to seek absolution, and the fate of individuals who dare to challenge the authoritarian system.

Liu Xiaobo Meets with Lawyers, Willing to Take "Full Responsibility" for "Charter 08"

2009-06-27T08:07:00.004+08:00

I'm not sure why I didn't think of this earlier: If Liu Xiaobo's case weren't about "Charter 08," then why would the police prevent renowned criminal defense attorney Mo Shaoping (another "Charter 08" signatory) from representing him?

In any case, Liu has now met with two other lawyers from Mo's firm, Shang Baojun and Ding Xikui. Chinese Human Rights Defenders has a good summary of the meeting here (in English), and another summary (in Chinese) can be found here.

It appears I was right to think that "Charter 08" could be used as the basis of an incitement charge against Liu Xiaobo, but it seems that some of his other writings over the years are also in the mix. Liu has reportedly told his lawyers that he's "willing to take complete responsibility" for "Charter 08," but he has denied breaking the law.

I still think there's a possibility that police will turn this case into a "subversion" case and start arresting other "co-conspirators," but in case that investigative thread doesn't pan out, they appear to have someone on whom they can pin blame for this vile act of expressing aspirations for a freer, more transparent, more democratic China.

Liu Xiaobo and (Inciting) Subversion

2009-06-25T11:12:00.004+08:00

Yesterday, I translated part of an analysis by Beijing lawyer Liu Lu concerning the formal arrest of veteran dissident Liu Xiaobo. I agree with most of this analysis but have a different opinion about the significance of the charge—"inciting subversion" (Article 105.2 of the criminal law).

Liu Lu reasons that because Liu Xiaobo has been charged with "inciting subversion," it's most likely that the "crime(s)" in question concern some of the many articles that Liu Xiaobo has written over the years, rather than "Charter 08"—which is what most people have been assuming. If "Charter 08" were the main issue, Liu Lu argues, the charge would be "subversion" and we would see additional arrests.

First of all, I agree that it's quite possible that police are charging Liu Xiaobo on the basis of the many non-"Charter" items he has published on the Internet over the years. But that doesn't mean that the initial decision to detain Liu and the determination to keep him incarcerated is not connected with "Charter 08." The timing of Liu Xiaobo's detention simply doesn't allow for too many other explanations. (To be fair, I don't think Liu Lu is arguing otherwise.)

As I understand it, the key to making a subversion charge under Article 105.1 is proving that some sort of organization—or attempt to create one—lies behind the supposedly subversive activity. I have suspected all along that the police investigating "Charter 08" have been trying to establish that it was created by people who formed or tried to form such an organization, rather than an informal coalescing of like-minded individuals around an expression of common beliefs. I suspect the authorities haven't been able to find any solid evidence of such organization—not least because one doesn't appear to have existed—and thus have keyed in on Liu Xiaobo as a key drafter of the document (whether he actually was or not).

So, I believe it's still possible that the police are actually building their incitement case around "Charter 08," a document that can be (mis-)interpreted as calling for the overthrow of the one-party state. But the question then remains, why is Liu Xiaobo the only one so far who has been treated to this extended stay in police custody?

It wouldn't be unheard of, however, for the charge to be changed to subversion at a later stage in the investigation and see others charged as well. By formally arresting Liu Xiaobo (as opposed to sending the case directly to prosecutors), police have bought themselves more time to figure it out as they—or the higher-ups actually calling the shots—go along.

Liu Xiaobo Formally Arrested on Incitement Charges

2009-06-24T15:19:00.005+08:00

Word came down earlier today through the Xinhua wire that veteran dissident Liu Xiaobo has been formally arrested on charges of inciting subversion. (See, e.g., this report by the New York Times.) This is a disappointing development, but not totally unexpected.

I'm literally about to run out the door and don't have a lot of time to weigh in here, but I wanted to excerpt from this post by Beijing rights lawyer Liu Lu (刘路), who offers his analysis and predictions:

1. The "criminal facts" for which [Liu] Xiaobo has been charged likely are limited to the articles he has written over the past few years and is not related to "Charter 08." Otherwise, the crime would be subversion and not incitement and the [Xinhua] article would mention ["Charter 08"] in order to frighten the other signatories. Also, there would be other arrests and trials.

2. It's likely that [Liu] Xiaobo will be indicted within a month and tried quickly. I predict that a trial would conclude before the end of July and that Xiaobo's sentence would be five years or less. If the procuratorate decides to prosecute him for "major crimes," the sentence could be greater than five years, but no matter what it would not exceed 10 years.

3. The phrase "Liu Xiabo has confessed to the criminal facts" really means that Xiaobo has acknowledged that he wrote articles but doesn't imply any value judgment regarding whether the articles constitute a crime. In other words, Xiaobo likely just admitted the facts and has not admitted wrongdoing. The authorities are playing word games here.

I agree with most of this, though I don't think that the point made in (1) is as clear-cut as he does. More later.

News on Revised State Compensation Law Draft

2009-06-23T20:03:00.005+08:00

There were a number of reports (e.g., here) over the past couple of days regarding the National People's Congress Standing Committee's second reading of the draft revised State Compensation Law, legislation that has some interesting ramifications for criminal justice matters in China. (Note: Civil law is not an area I feel comfortable opining on at any length, so I'm basically just going to lay out the facts as I understand them.)

The first issue concerns death or disability suffered while in detention. The draft legislation being reviewed would put the burden on the detention center or prison to prove that an individual's death or disability was not a result of its negligence. This seems pretty straightforward, but it actually appears to me to be a fairly big step forward to shift the burden of proof to state institutions here. We'll see if the provision survives into the final legislation.

A second revision concerns the scope of eligibility for compensation on the grounds of wrongful detention. Currently, as I understand it, individuals are only eligible to request compensation if they are detained or arrested for a crime they did not commit. The legislation under consideration would expand eligibility to include anyone detained or arrested whose case was subsequently dropped, whom prosecutors declined to indict, or who was acquitted by a court.

This is very interesting and strikes me as quite a broad definition of "wrongful." I don't know how this compares with similar laws in other countries, but it seems potentially revolutionary for China. For one thing, it seems designed to encourage increased use of non-custodial measures such as bail or—dare I say it, given the fate of Liu Xiaobo—"residential surveillance." This would complement anticipated revisions to the Criminal Procedure Law that are also expected to place more emphasis on the use of bail.

It's important to note, though, that law enforcement agencies have secured safety provisions that would deny compensation to those whose unlawful behavior, if not punished in the formal criminal justice process, is handled through administrative sanctions—presumably including "re-education through labor." So, it's probably too early to send your condolences to China's police over the imposition of restrictions on their broad powers.

Bad news for Liu Xiaobo, worse news for rule of law in China

2009-06-09T21:42:00.006+08:00

According to this report from the BBC, police have informed Beijing lawyer Mo Shaoping that they intend to continue holding veteran dissident intellectual Liu Xiaobo (right) under "residential surveillance" while they continue their investigation into unspecified charges.

This is despite the fact that Chinese law clearly prohibits the police from holding Liu in this manner beyond the six-month period that has just elapsed. As I wrote elsewhere this week, the authorities had lots of other legal options at their disposal for continuing to keep Liu in custody, options that would have, however, carried the inconvenient requirement for them to at least provide Liu's wife with official notice of the charges against him and, in some circumstances, even allow Liu access to a lawyer.

Clearly, none of these options were preferable to the one in which the police simply ignore the law and do whatever they want. In fact, they've been in violation of the law from the beginning in this case with their decision to carry out his "residential surveillance" in what is most likely a police-affiliated guesthouse in the Beijing suburbs, rather than in Liu's actual residence.

This brazen contempt for the law on the part of China's police somehow still manages to surprise me, even after so many cases over all these years.

Counting Chinese Executions Isn't Easy

2009-05-31T08:47:00.008+08:00

Last week, Amnesty International's latest report on the state of human rights throughout the world included new figures for the use of capital punishment in China. As the headline in Hong Kong's South China Morning Post alarmingly put it on Friday (subscription required for full article): "Mainland executions up 260 [percent], report says." Clear evidence of a worsening human rights situation in China? Not really.

What Amnesty's report says is this:

Amnesty International estimates a minimum of 7,000 death sentences were handed down and 1,700 executions took place. However, the authorities refused to make public national statistics on death sentences and executions and the real figure is undoubtedly higher.

Unfortunately, it doesn't offer much context for those three claims, leaving a lot of room for misunderstanding. (For example, what is "the real figure is undoubtedly higher" referring to in the final sentence, the number of death sentences or the number of executions?)

My understanding of what Amnesty does here is catalog all reports of executions that are published in the Chinese press. This is a fraction of the actual total, a closely-guarded figure treated as a "state secret" and unknown to all but a select group of people inside China. In 2007, Amnesty recorded 470 executions but acknowledged clearly that "this number is based on public reports available and serves as an absolute minimum."

A more accurate headline in the SCMP would have been "260 percent increase in the number of executions found by Amnesty in published Chinese reports." When you're dealing with a known portion of an unknown quantity, you simply cannot draw conclusions about the whole based on the part without much more analysis of the relationship between the two.

The fact that Amnesty counted more executions in 2008 compared to 2007 could mean that more executions were carried out. Or it could mean that the Chinese press was given more leeway to report on executions in 2008. Or it could mean that Amnesty had a more attentive team of researchers in 2008. It could even be a combination of all three. What it doesn't mean is that there was a 260 percent increase in the total number of executions in China.

In its report for 2007, Amnesty cites the Dui Hua Foundation's estimate of around 6,000 executions that year—a significant decrease from previous years due to the return of final review over all capital cases to the Supreme People's Court earlier that year. My personal view is that total executions in China probably remained basically flat or decreased slightly in 2008, but even if there was an increase, it would likely only be on the order of 5–10 percent.

We're all grasping at straws and trying to interpret dim shadows thanks to an intentionally opaque system that hides the extent to which capital punishment is used in China. Amnesty's annual recording of executions in the public record provides important data that is really some of the best that's available, but we should all be clear about the serious limits to what it can tell us. The SCMP clearly didn't comprehend that and jumped to unsupportable conclusions in pursuit of an eye-grabbing headline, though Amnesty probably could have done a better job at explaining its own thinking behind this estimate, too.

Medical parole? What's it worth to you?

2009-05-27T12:32:00.007+08:00

Earlier today Zeng Jinyan, wife of imprisoned Chinese human rights activist Hu Jia, reported that prison officials have rejected the family's most recent petition to seek medical parole for Hu, who suffers from hepatitis B and serious liver damage.

Zeng reports that an official told her: "Regardless of how serious his illness is, without major political environment, he has no chance of medical parole."

I'm not exactly sure what Zeng (or, rather, the unnamed official) means by "political environment" means here, but my interpretation is that officials at Beijing Municipality Prison won't release Hu early without getting orders from above to do so and that such orders would likely only be issued if China's top leadership considered it politically expedient to do so.

Or, reading between the lines: "Perhaps Hu Jia's serious medical condition would qualify him for medical parole if he weren't Hu Jia the renowned activist, but since Hu is so important to the international community, we are going to hold on to him as long as we can to see what we can get for him in return."

This mentality—which critics deride as "hostage diplomacy"—was a regular feature of the Jiang Zemin era, with splashy releases of political prisoners on the eve of state visits by world leaders like President Clinton. But it has been conspicuously missing under Hu Jintao's leadership. Hu has been reported to find the practice personally distasteful, but there are probably larger factors at work as well. These days, Beijing can offer foreign leaders much more than the release of a few political prisoners, especially in light of the global financial crisis. Another possible explanation would be that the current leadership has concerns that releasing prisoners might be read as a sign of weakness, particularly by the more conservative wing within the Communist Party. Certainly, a gene for political risk-taking appears to be absent from the current leadership's genetic make-up.

But, having said that, one cannot simply assume that a deal of some sort is totally out of the question. I'm guesing that the person who spoke to Zeng Jinyan is not in a position to know Hu Jintao's mind on the subject and was speaking in general terms, perhaps extrapolating from historical analogy. But a certain newly elected foreign leader who enjoys widespread popularity is slated to visit Beijing later this year. Perhaps personal intervention by this person would be just the kind of stimulus needed to convince Beijing to part with one of its most "valuable" political prisoners.

Hu Xingdou Successfully Sues ISP for Shutting Down Website

2009-05-22T08:49:00.001+08:00

According to this report from Radio Free Asia (in Chinese), Professor Hu Xingdou of the Beijing Institute of Technology has won his lawsuit against the host of his "China Issues" website, Beijing Xinwang Co. Hu filed suit with Beijing Daxing District People's Court in March when his ISP closed down his site for a day on grounds that an anti-corruption article posted on the site constituted illegal content. for closing down the site for one day on the grounds that an anti-corruption article posted on the site constituted "illegal content." The decision is reportedly the first success an individual has had in suing a hosting provider for closing down a site on such grounds. Hu contends that the closure of his site was ordered by the Internet monitoring division of the Suzhou Public Security Bureau, where officials took issue with the post's content. He expressed surprise and joy at the outcome, saying that when he filed the suit, he didn't even really expect the court would even accept it. He says he plans to file suit against the Suzhou Public Security Bureau next.

This is a significant, if not game-changing, decision, an important step in the struggle to preserve space for free expression on the Internet in China. Prof. Hu shouldn't be too surprised, though, if his suit against the Suzhou PSB doesn't get as far.

Seeking Truth From Facts: The 20th Anniversary Edition

2009-05-19T16:13:00.006+08:00

I was interviewed for the radio the other day on the subject of the number of individuals who remain imprisoned in China in connection with the protests 20 years ago. As I wrote last week, Dui Hua publicly revised its estimate for this, cutting it by half. I sensed as I was giving the interview that the reporter was challenging me more than usual, questioning whether the sources behind this estimate were reliable and, subtly, suggesting that I may have some kind of agenda behind minimizing the number of individuals imprisoned from that time.

Perhaps I'm too sensitive. I don't mind being challenged—though I'd be lying if I said I enjoyed it—because I can usually provide a good explanation of the basis for my reasoning and assumptions. A good example of that happened just the other day, when I was challenged to explain my estimate for the number of state security arrests in China last year. I have a whole spreadsheet of data and calculations that underlies that one.

In the case of June Fourth, I'll be the first to admit there are a lot of unknown variables, but I'm reasoning on the basis of information that, frankly, no one else has really bothered to aggregate and analyze—at least not for quite some time. That's why I found it a bit frustrating when the reporter who interviewed me chose to add a "rebuttal" of my estimate—from someone whose work I respect a great deal but who has not spent even a fraction of the amount of time I have spent considering the evidence at hand—that said, in effect, "It seems kind of low. I just have to believe there are more prisoners out there who haven't been accounted for."

But as I was fuming, I realized: the emotional stakes are likely higher, or at least different, for this person than they are for me.

Someday, there will be no more June Fourth prisoners in prison. That's simply a fact and, in my opinion, that day will arrive within a matter of a few years. But it's also a fact that, given the lack of transparency in China's criminal justice system, particularly with respect to sensitive events like this, without fuller knowledge of the fates of those detained 20 years ago it's unlikely that we'll ever know when that date actually arrives. But it seems certain that it will precede the day when the official verdict on the "counterrevolutionary turmoil" of 1989 is overturned and the victims of that period are duly accounted for. I just don't see signs of that one anywhere on the horizon.

Under those circumstances, it makes some sense to interpret the reluctance to believe that there are so few remaining prisoners as originating from a fear that, once there are no more prisoners, it will be that much easier to "let go of the past and focus on something more positive" and "let bygones be bygones" (as it was so insensitively put in a recent column in Hong Kong's Standard) and the memory of what happened in 1989 will fade even further. To me, it is rather reminiscent of the way that some in the US cling to the belief that there exist POWs or MIAs from the Vietnam War, despite mounting evidence to the contrary.

All I can say is that I have no intention to minimize the suffering of those who paid a price for participating in the events of 1989, nor am I trying to erase historical events from memory. Otherwise, why would we spend so much time trying to bring these obscure prisoners' names into the public eye? My commitment to that history is to "seek truth from facts," not fight one mythology by perpetuating another.

Accounting for 20 Years of Pain: Li Hai's List

2009-05-12T21:35:00.011+08:00

In late April, as part of the effort to commemorate the 20th anniversary of the Chinese pro-democracy movement and the bloody suppression in Beijing that brought it to an end, the indispensable Chinese-language news and opinion website Boxun published valuable historical documents that, as far as I know, have never been previously published in their original form. A series of painstakingly hand-copied records lists the details of more than 100 men imprisoned in Beijing Number Two Prison after being given long prison sentences for criminal acts allegedly committed during the riots that broke out in Beijing after troops descended on the center of the city.

These were not the students, intellectuals, and labor activists who had occupied Tiananmen Square for much of the spring of 1989, nor were they "political prisoners" in the usual sense of the term. These were mostly young men from the same working-class backgrounds as those who made up the bulk of those felled by military gunfire that night, men who tried to use whatever means necessary to block the advance of military and police vehicles and who vented their anguish over Chinese soldiers firing their weapons on unarmed civilians by setting fires, attacking troop convoys, and seizing rifles and ammunition.

Of the thousands of Chinese from across the country who were arrested following the crackdown in June 1989, these "ruffians" or "hooligans," as they came to be known, are the only ones who remain imprisoned 20 years on. They were given life sentences or suspended death sentences subsequently commuted to life imprisonment for crimes like arson, robbery, theft of weapons, or "hooliganism." It's important to remember that the protests were national in scope: besides Beijing, violent demonstrations took place in other Chinese cities in the spring of 1989, with large numbers of arrests in Shanghai, several different cities in Hunan Province, Xi'an, and Chengdu.

Despite being given heavy sentences, over the years it seems that most of those convicted of violent criminal activity were granted sentence reductions or paroled. The Dui Hua Foundation, which in recent years has made a special effort to use its resources to track these cases and come to some understanding of how many individuals might still be imprisoned from that period, has just released a new estimate putting the number between 25 and 35 and called on the Chinese government to show them clemency in an effort to achieve some measure of reconciliation with this painful period of history.

That we know anything at all about these all-but-forgotten prisoners is mostly thanks to the efforts of a few individuals who have taken it upon themselves to rescue their names from obscurity. One who mustn't be forgotten is Li Hai—the man who 15 years ago compiled the Beijing Number Two list that was recently published. Li, who was active during the 1989 demonstrations and subsequent political activity in the early 1990s, such as the "Peace Charter" movement, paid a heavy price for compiling this and other prisoner lists that eventually wound up in the hands of overseas human rights organizations. He spent nine years in a Beijing prison, much of it reportedly in solitary confinement. Since his release from prison in 2005, Li has remained politically active and was a signatory of the latest in a long series of expressions of Chinese aspirations for fundamental political reform, a document in which he identified his occupation as "human rights defender."

(I wrote this primarily to pay tribute to Li Hai, but also to see whether writing about this subject will kill access to my blog in China. I truly hope not, but if it happens, well there's not much I can do about it. I didn't start writing this blog to subject myself to some regime of censorship. I realize that all of the links probably won't be reachable to Chinese readers without access to the unfiltered Internet, and for this I apologize.)

Phurbu Tsering, Deng Yonggu and Delayed Verdicts

2009-05-06T20:27:00.010+08:00

I've been spending a lot of time recently tracking cases of Tibetans who've been detained over the last year since March 2008. Contrary to what the Chinese media would have you believe, most of these detentions did not involve people who "burned, smashed, or looted" in the violent incidents in Lhasa on March 14. In fact, the vast majority of detentions have been of individuals who engaged in peaceful protests in Tibetan areas in Qinghai, Gansu, and especially Sichuan provinces—areas known as Amdo and Kham to Tibetans.

One of these cases was much in the news over the past couple of weeks, that involving a Tibetan lama and "living Buddha" named Phurbu Tsering, who is well respected in and around Kardze (Ganzi). Phurbu Tsering has been charged with illegal possession of a firearm and illegal appropriation of government property and faces 15 years in prison. Part of what makes his case so noteworthy is that he is being defended by two well-known Han Chinese defense attorneys from Beijing, Li Fangping and Jiang Tianyong, who have so far provided a strong defense poking many holes in the prosecution's case.

One of the things that makes Li and Jiang so good is their work with the international media. When Phurbu Tsering went on trial, they emphasized that under Chinese law the court had one week to render its decision. This created a sense of urgency, a neat time-frame for a focused international campaign to develop and move forward. I'd be extremely surprised, however, if either of them was surprised when, one week having elapsed, the Kangding [Dartsedo] County People's Court opted to postpone issuing a verdict.

It was in this context that I was mightily amused last week to read "legal experts" quoted in an update on the case as saying the decision to delay issuing a verdict in Phurbu Tsering's case was "rare." The only way such a decision could be considered "rare" or "unusual" is if you completely discounted both the international attention being paid to the case and the likelihood of further protests erupting if the court decided to convict this esteemed local figure. (Dozens of nuns were detained in protests following his detention in May 2008.)

Now, I haven't had the time to muster conclusive evidence—and given the lack of transparency in China's criminal justice system, any such evidence would be anecdotal at best—but I can probably think of at least a couple of dozen cases in which this particular procedural one-week deadline for courts to render a verdict in a criminal trial has been ignored. The fact is that for controversial cases like this one it is more-or-less expected that judges will not rush to issue a judgment but, rather, sit and wait for instructions from above about how (and when) to rule—especially, I would argue, when the trial is being held by a basic-level court.

For example, as far as I know there is yet no ruling in Deng Yonggu's criminal defamation trial held nearly two weeks ago. Given all of the attention that's been paid to abuse of criminal defamation charges to stifle criticism of local misconduct—not to mention the connection of Deng's case to last year's Sichuan earthquake, which is about to mark its first anniversary—the lack of a timely verdict is unsurprising.

This doesn't even factor in the flouting of numerous other deadlines in the course of prosecuting criminal cases, particularly sensitive cases involving "state security" charges. As I wrote in this essay, one of the things that made the prosecution of Hu Jia on charges of "inciting subversion" so unusual was how quickly it was carried out. Most of these cases simply drag on and on and on, with no consequences. And that's the part that most people familiar with, for example, the American justice system forget: in China, violations of defendants' rights do not result in cases being dismissed. They are simply ignored.

For this reason, I'm not sanguine about the delay in sentencing for Phurbu Tsering. It's probably true that one of the reasons the sentencing was delayed is because of the international attention the case has garnered. And Phurbu Tsering's lawyers are right to use the delay to create a case for increased, continued pressure. But I fear that the delay merely means that the authorities will seek an opportune moment when the world's attention is focused elsewhere to deliver the bad news. I hope I'm wrong, but many years of tracking these kinds of cases does not give cause for much optimism. It's a sad fact that in individual Chinese cases international pressure seems to work best only after an individual winds up in prison.

Ran Yunfei: The Shameless, Hidden Facts of the Deng Yonggu Case

2009-04-29T22:25:00.006+08:00

(I promise to write about something else eventually, but there's simply too much good stuff out there concerning the three criminal defamation cases that I've been writing about for the past two weeks. The following is my somewhat rough translation of an April 23 blog post by Ran Yunfei 冉云飞 on the subject of Deng Yonggu.)

The shameless, hidden facts of the Deng Yonggu case
Ran Yunfei

With respect to the extent, depth, and number of individuals involved, I'm afraid Chinese corruption today is second to none any time, any place. Corruption spread out over large areas and involving large numbers of people and huge amounts of money is spreading rampantly, all thanks to this political system and government of ours that has no real oversight. At the root of this inability to curb the rampant spread of corruption is a political sphere with no real oversight or healthy competition. In this abnormal political system, it is the fate of the people to be passively governed; if on occasion, they disagree, they can only make formal allegations or petition. The risks involved in making allegations or petitioning are great, basically the same as putting oneself in prison. Time and time again, government officials at all levels punish those individuals who criticize or oppose them. We can only gaze in admiration at the diversity of their methods, the speed with which they arrest people, the efficiency of their punishments. The three recent cases of Wang Shuai, Wu Baoquan, and Deng Yonggu all involve accusations made against local corrupt officials who levied exorbitant taxes and caused all kinds of disaster.

For making a signed accusation of corruption in the reforestation work being done in Gaosheng Township, Deng Yonggu has been falsely accused by the Pengxi County Procuratorate of defamation. Considering the principle under which there should be no crime if no one brings suit, for the public prosecutor to bring suit in this case is, from one perspective, a colossal joke. Even if one's criticisms of the government turned out not to be factual, it should never constitute defamation—this is basic common sense. If the officials who were criticized feel that they were libeled, why shouldn't they bring suit themselves and, at the same time, allow neutral investigators to examine whether what Deng Yonggu alleged is true? By not making the truth public and not discussing the truth of what Deng Yonggu alleged, prosecutors have taken it upon themselves to exonerate and illegally shield these few officials tagged as “scum.” It looks like the Pengxi procuratorate and many other procuratorates are already very good at offering protection to other officials, giving these officials so much love that the officials don't have to bring suit because prosecutors will do it for them. This is truly ridiculous! This kind of clearly illegal behavior, where the procuratorate willfully violates the law, truly epitomizes the wretched state of China's law enforcement bodies.

Deng Yonggu has been making accusations about reforestation work for many years, writing letters to provincial and central disciplinary committees and writing about it publicly on his blog. Not a single government agency at any level has endeavored to investigate his allegations and make their findings public. Rather, in a classic case of local governments and officials with guilty consciences, they deleted his blog on Sina.com in an effort to conceal the truth. Governments and officials shouldn't try to obstruct and censor information that is not in their interests; instead, they should make the facts known publicly in an open, fair, and balanced way so that the public and media can scrutinize them. Lacking the true facts, it is a classic abuse of power for the procuratorate to stick Deng Yonggu with the crime of defamation when they have no standing to bring charges and the aggrieved party has not come forward. Even more important, I believe that punishing the innocent Deng Yonggu with defamation is connected to his revelations that the Pengxi government fraudulently obtained earthquake relief funds after the May 12 earthquake. Misappropriation of earthquake relief funds is something that causes considerable public anger. The local government treated his accusations of official corruption in reforestation work as “defamation” in an effort to shut him up and prevent him from continuing to expose the fraudulent use of earthquake relief funds. This is the true, behind-the-scenes nature of Deng Yonggu's case.

Following the earthquake, I had some interactions with Deng Yonggu here on the 1510 website, where he was known as “Taking the Broad View.” Later, he posted an article accusing Pengxi officials of fraudulently obtaining earthquake relief funds (see link below) and “Villagers from Gaosheng Township, Pengxi County, Unite in Opposition to Local Government's Fraud in Obtaining Earthquake Relief Funds” (see photo linked below) and sought to use my blog to help expose these things. After I posted this information, I was contacted by concerned individuals who expressed hope that I would delete this information and agree not to publish anything on this subject again. I told them there was no way I would delete any blog posts. I have never voluntarily deleted anything from my blog because when I write I focus on the facts, discuss evidence, and put forward the truth. It's an unassailable fact that the information published by Deng Yonggu is absolutely true, as evidenced by the more than one hundred villagers who signed their names and gave their thumbprint as witness to the the government's fraud with respect to earthquake relief funds. How could such a minor forestry bureau employee can get the signatures and thumbprints of so many villagers if the facts weren't true? Corruption in the distribution of and application for earthquake relief funds is definitely not limited just to Pengxi. In many counties where the earthquake damage was relatively minor, false reporting of the need for post-quake reconstruction funds has brought many benefits to local governments and officials and few benefits to the public. They exaggerate the extent of local damage and use the public as a pretense for obtaining relief funds, skimming their share in the process.

Putting Deng Yonggu in prison for exposing false reporting for earthquake relief funds would attract too much attention to the circumstances surrounding Pengxi's earthquake relief funds and increase the pressure on the government there. Therefore, the local government took advantage of the speed, efficient, and cooperative law enforcement agencies and killed two birds with one stone by putting him in prison on a ridiculous “defamation” charge for his accusations on a completely different matter. Please, friends, note that not only Huang Qi and Tan Zuoren have been put behind bars for seeking the truth in the aftermath of the earthquake—there is also Deng Yonggu. I call for the immediate acquittal of Huang Qi, Tan Zuoren, and Deng Yonggu and restoration of their freedom.

Further links [to Chinese items provided in Ran's original article]:

Updated Update: Ordos Law Enforcement Officials "Clearing Their Thoughts" Regarding Wu Baoquan

2009-04-27T13:19:00.005+08:00

I've been working on a longer article about China's recent "defamation" cases and haven't had time to post anything lately. I meant to post something new here today, but I can't resist noting the latest on Wu Baoquan's case.

This article in today's Legal Daily confirms what I predicted last week: that the "judicial supervision" review of Wu's case would result a decision to hold a new trial in the case. I wouldn't hold out much hope for an acquittal, though. Other hints in the article lead me to believe that authorities there are preparing the ground for a face-saving "compromise" (for them, at least) whereby Wu will remain convicted on the charges and essentially sentenced to time already served in detention.

Why do I say this? Because the Legal Daily article makes an effort to point out a difference between the cases of Wu Baoquan and Wang Shuai that could account for the vastly different punishments handed down (first a one-year then a two-year prison sentence for Wu, eight days of detention followed by having the case thrown out, an apology, and compensation for Wang).

The article notes that according to the vice president of the Ordos Intermediate People's Court, Zang Jianping, in the first appeal trial, the court found that the prosecution offered little justifcation for filing a public prosecution on criminal defamation charges, namely that there was a "serious threat to social order or national interests." But the court's decision to uphold the two-year sentence in the end stemmed from a new consideration of the negative social impact of Wu Baoquan's Internet posts, such as a "noticeable increase in frequency and regularity of mass petitioning activity requiring the dispatch of police on more than 20 occasions."

By revealing this "fact" in the media, I believe that the court (and the press) are signaling to the public that the relative level (or, perhaps, existence) of "serious social consequences" explains the difference in the application of punishment between the two cases. Assuming that this assessment of the social harm caused by Wu Baoquan does not change between now and the time his third trial opens, then the main criterion for bringing a criminal defamation charge can be argued to have been met.

The way I see it, the choices then are two: either convict but exempt from punishment or convict and sentence in such a way that Wu doesn't serve additional time. If the court were to acquit, it would be a major sign that the threshhold for bringing criminal defamation cases in China has just gone higher. I'm just not sure the powers-that-be are quite ready to do that yet. However, it must be noted that the article goes on to state that "all agencies involved in this case are 'clearing their thoughts' (梳理思路) with respect to the case," so perhaps we can hope for some fresh thinking.

It is certainly clear that law enforcement is feeling the pressure created by negative public opinion over its handling of the case. Perhaps, then, someone will be able to answer the bigger question posed by Wu Baoquan's case (and the one that has attracted the most attention and ridicule from critics): why the court was essentially allowed to invent the crime of "defaming the government" in its conviction of Wu Baoquan.

Update: Review Underway in Wu Baoquan's Case

2009-04-22T14:33:00.004+08:00

The Ordos Intermediate People's Court's rejection on April 17 of Wu Baoquan's appeal against his conviction on defamation charges is, technically speaking, a "final decision." This means that Wu has no automatic right under the criminal procedure law to appeal further. His only options are to have the case reopened are to petition a higher court to reopen the case or to have a court review the case as part of the process of "judicial supervision."

Well, according to this report from today's Southern Metropolis News, the Ordos Intermediate People's Court has decided to initiate "judicial supervision" of the case, which means that another retrial is likely and there is a possibility that the case will get thrown out.

At issue, most likely, will be the key question of whether the defamation charge was applied properly. According to the criminal code, prosecution for defamation is intended to be initiated by charges brought directly to the court by the aggrieved party. Only when there is serious threat to social stability or national interest should the police and procuratorate be involved. This is partly what led the police to drop charges against Wang Shuai, so I wouldn't be surprised to see this factor into a new decision in Wu's case as well.

Incidentally, this report reveals the official reason why Wu's sentence was extended by a year in the second trial. Apparently he had been in contact with petitioners while released on bail awaiting the verdict, and the court took this as insufficiently remorseful behavior.

Public Opinion and the Administration of Justice in China

2009-04-21T09:31:00.009+08:00

Following on the heels of the "Lingbao post case," recent days have seen Chinese media report yet another case involving local authorities using charges of "defamation" to silence critics. In this instance, a man named Wu Baoquan was detained by police in Ordos, Inner Mongolia, after he criticized illegal land grabs online. Initially sentenced to one year in prison, Wu appealed the conviction and saw the appeals court send the case back for retrial on the grounds that the lower original court's finding of fact had been unclear. The case was retried, with no introduction of additional evidence, and Wu saw his sentence increased to two years!

The main lesson being drawn from cases like these is that it is necessary to allow greater public oversight of Chinese law enforcement. In fact, I dare say that one reason why so much ink has been spilled on these cases in Chinese papers of late (here, for example) is because journalists are engaging in a public plea for more leeway to carry out their professional duties in China's restricted media environment.

In a column in today's China Youth Daily, Xie Yuhang writes: "Judges decide cases independently, but the fairness of their judgments must undergo examination by the public, who serve as arbiters. . . If the public accepts the fairness of a judgment, it determines the authority and value of the court and, ultimately, the effectiveness of the judgment's implementation."

On the surface, Xie's argument in favor of greater public scrutiny and oversight of the judiciary sounds good as a remedy for clear miscarriages of justice. In these cases, public opinion tends to be on the side of justice for individuals whose rights are not being protected. But I was struck as I read this: isn't it equally possible to imagine cases where having judges be guided by public opinion might lead to other kinds of miscarriages of justice? Cases involving less sympathetic characters whose rights nonetheless deserve protection under the law?

This is, in my reading, part of the concern that's been raised with regard to the "three supremes" policy that is currently guiding China's judicial system. As Professor Jerome Cohen has pointed out, this shifting emphasis towards making judges more accountable to public opinion seems to have come at the expense of promoting the creation of a more professional, independent judiciary in China. While more public oversight (which, by the way, assumes greater transparency) over China's courts is probably a good thing as a general rule, it's not the only—or even the best—solution to the problems facing China's courts and the problem of how to ensure justice for Chinese defendants. A better trained, more professional, less overworked judiciary given space to decide cases on the basis of the provisions or the law and the constitution seems a much preferable, long-term strategy to me.

Rumination on Becoming a Blogger

2009-04-20T21:00:00.004+08:00

I'm not sure what's needed to get more people to read this blog, and frankly I'm not sure I necessarily want the pressure of knowing that there's an audience—particularly an unknown audience—out there expecting something from me. For various reasons, I'm being coy about my identity at present, but I'm not so vain to think that if I had my name up here more people would necessarily come flocking to to site to see what I have to say.

The fact is, I'm not convinced I'm someone whose thoughts on anything in particular are going to attract all that much attention. More likely, some people are going to wind up here by accident and I'm not going to be able to sustain their attention. There are some subjects about which I probably have something to say that a handful of others might find interesting. Certainly, China and human rights issues are what I spend a lot of my time thinking about, as they're both part of my professional life. But if I have something really interesting or important to say on these subjects, I'll most likely have to say them in a professional capacity, rather than in this personal space.

If I think about the bloggers that I read regularly, the ones I appreciate the most are those who aren't so single-tracked that they feel any guilt about mixing it up every once in a while. But there aren't too many people who can get away with not having a steady theme and still get people to give a damn about what they have to say. James Fallows can combine the trivial and consequential and still get eyeballs—but that's because the man is simply a superb writer.

I'm not sure I can really pull that off. I'm technically not a bad writer—I know how to spell, punctuate, present an argument, and all that—but I suffer from crippling anxiety about putting words down on paper (or pixels on a screen). There was a time, half a lifetime ago, when I could sit down and write and write about subjects about which I'd actually thought very little because I believed I knew it all and that there were no consequences. But somewhere between then and now I realized that everything I think I know is contingent on volumes that I don't. That realization simply makes it nearly impossible for me to make too many statements unless I feel convinced that I've covered all the ground and there are no loose ends left behind, the pulling of which would set all to unraveling.

If there's a reason for writing this blog, in short, it's to give myself the opportunity to work on writing more, at least writing in a certain style and voice. It's likely that I'll stick mostly to what I know—or at least what I pretend to know. Hopefully, there won't be too much in the way of self-indulgence or trivia and the result will be something of which I'm willing to take ownership—even if I'm unable to take explicit credit (or blame).

Zhou Yongkang, Rumors and Predictions

2009-04-18T19:23:00.004+08:00

According to the rumor mill, a spreading corruption scandal may soon reach the doorstep of Zhou Yongkang, who, as the head of the Central Politico-Legal Committee (which oversees, from the Party side, China's law enforcement activities), has to be considered one of the more powerful members of the Politburo Standing Committee. According to the report above, Zhou might decide to retire early in order to save the Party from further embarrassment.

This has been a tough few months for the reputation of China's public security apparatus—which Zhou used to head. In addition to police officials being accused of corruption, a series of unexplained—or, rather, ridiculously explained, as in the case of the "hide-and-seek" case in Yunnan or the "nightmare" case in Jiangxi—has forced the Ministry of Public Security to acknowledge the possibility of serious abuses in its detention centers. Disgust with these police scandals have reportedly led ommenters on mainland websites to call for the ousting of both Zhou and the public security minister, Meng Jianzhu.

Reading this news led me to recall something I wrote over a year ago upon learning that Zhou was about to enter the inner circle of Chinese leadership. At the time, I wondered (in a half-hearted predictive kind of way) whether the position of China's police might weaken vis-a-vis other parts of the law enforcement mechanism, such as the courts or the procuratorate. Instead, events such as protests in Tibet and security concerns about last year's Olympics appear to have strengthened Zhou's influence and the power of China's police.

So much for making predictions about anything in China, let alone the impact of elite leadership movements.

Maybe, though, if these current rumors have a grain of truth to them, it's all part of the effort to rein in China's police through other means. In a country where so much decision-making power is concentrated in the hands of a few people who have little, if any, accountability to the country's citizens, factional politics play an important role in achieving balance between different interests. After a strong run, it appears that the "stability-above-all-else" crowd led by Zhou might be under pressure from within the Party, but from whom? If China's lucky, it will be those who, though no doubt believing in the importance of maintaining stability, believe that this goal is more effectively realized by building institutions that truly promote "rule of law" (rather than "rule by law").

Wang Shuai, the "Lingbao Post" case, and the Limits of Free Speech

2009-04-17T18:16:00.001+08:00

Oiwan Lam at GlobalVoices has a good run-down (aside from some rather sloppy editing) of a case that's been attracting a great deal of attention in China over the past week or so but has so far gone relatively unnoticed by the foreign media. The case involves a young man named Wang Shuai who posted photographs on the Internet that implied criticism of local officials in his hometown of Lingbao City, Henan, for some shady deals involving land deals and misuse of public funds.

Wang's post upset local officials so much that they sent city police to Shanghai, where Wang lives, to place him under criminal detention on charges of "slander." After eight days, Wang was released from custody, but when the case was made public by China Youth Daily it caused a firestorm of criticism that has led most recently to a formal apology from the head of the provincial public security department and Wang has been offered compensation.

Domestic press coverage, Internet comment, and popular support have been solidly on Wang's side from the beginning, seeing what happened to him as a particularly egregious case of abuse of power and an attempt to stifle rightful criticism of misconduct. Today, in opinion pieces like this one from CASS scholar Yu Jianrong, we see calls for the importance of protecting individual free speech as a necessary check on official malfeasance. This fits in nicely with the proposal in China's "National Human Rights Action Plan" to establish a "nationwide complaint information system" to ensure citizens' voices are heard. Could Wang Shuai's case follow that of Sun Zhigang in promoting reform that ultimately protects individuals from abuse of their human rights?

Maybe. But what's missing from all of this public support for Wang Shuai is any mention that "slander" is also part of the definition of the crime of "inciting subversion," a crime under which activists like Hu Jia, Gao Zhisheng, Liu Xiaobo, and dozens of others are currently incarcerated. If it's improper to use "slander" to silence Wang Shuai, why is it proper to use "inciting subversion" to silence these others (on grounds of "state security," no less)?

In other words, what distinguishes the abuse of power to stifle criticism in Wang Shuai's case from the abuse of power in cases like these? Is it simply that the authorities have an interest in allowing criticism to root out rotten local officials (for which it can take credit for taking the lead in anti-corruption efforts) but are decidedly un-interested in having anyone hear criticism of the broader political system that enables such local abuses of power?

Is it really that simple?

"Human Rights Are Sacred, Not a Favor to be Granted"

2009-04-16T18:33:00.001+08:00

I really liked this opinion piece by Li Qiong 李琼, a commentator for Wuhan's Changjiang Daily 长江日报. Perhaps I read too much into the article, but I felt that Li was articulating a critique of China's "National Human Rights Action Plan" that, more explicitly in some places and more subtly in others, echoed some of my own critiques of the plan: the need for less talk and more concrete implementation and the reminder that human rights in all their varied forms are inherent in all humans and not something that is bestowed upon us by the governments who rule where we happen to live.

Anyway, I did an English translation of the piece for The Dui Hua Foundation's Human Rights Journal blog.

China and the Future of Universal Human Rights

2009-04-16T16:36:00.001+08:00

The following was something I wrote after attending China's Universal Periodic Review session in Geneva but was never able to get published. It explains some of the reasons why I've been so consumed with the idea of universal and indivisible human rights.

Earlier this year, representatives of more than 100 countries lined up outside a meeting room at the United Nations in Geneva for a chance to speak for two minutes on the subject of China’s human rights. The occasion was China’s turn on February 9 before the UN Human Rights Council as part of a new process known as “Universal Periodic Review” (UPR), in which each member of the United Nations is subjected to a uniform review of its compliance with international human rights provisions.

Only half of them got a chance to speak during during the three-hour interactive session that forms the main part of the UPR process. One speaker after another, lines were soon drawn between those countries who came to applaud China’s remarkable successes in alleviating poverty, protecting the rights of women and children, and promoting education and healthcare and those countries who came to criticize China for the shortcomings of its criminal justice system, its restrictions on free expression and religious belief, and its repressive measures towards restive minority populations like Tibetans and Uyghurs.

From the first group of countries, mostly developing nations from Asia and Africa, China was praised as a country that takes its commitments to human rights seriously and can serve as a model for best practices in the field of economic and social development. To the latter, mostly developed countries in Europe and North America, China still has far to go and much work remaining to do in order to safeguard the civil and political rights of its citizens. When the time came for China to choose which recommendations it would accept and which it would not, unsurprisingly it was the more critical comments calling on China to combat torture, restrict the widespread use of capital punishment, ensure the rights of all criminal defendants and their defense lawyers, extend religious freedom, and enhance the autonomy afforded to Tibetans and Uyghurs that did not make the cut.

This division—between economic and social rights on the one hand and civil and political rights on the other—reflects a rupture in the theory of human rights that has been festering for decades. In the 1948 Universal Declaration of Human Rights, which serves as a founding document for both international human rights law and the institution of the United Nations itself, an array of economic, social, cultural, and political rights were envisioned as inherent, inalienable, and universal manifestations of human dignity. Individuals possess these rights automatically as part of their humanity, and it is the responsibility of states to establish institutions to safeguard those rights.

China and many other countries see things rather differently. To them, economic and social rights—rights ensuring an adequate standard of living, for example—are more fundamental than other rights. For developing nations facing serious challenges of poverty, lack of education, scarce resources, and overpopulation, use of strong measures to quell lawlessness or quiet dissent is often seen as necessary for maintaining the stability upon which economic development depends. Thus, the governments of countries like China prefer to consider “national circumstances” before choosing whether to extend or withdraw citizens’ rights. At best, civil and political rights are acknowledged only as aspirations for the future, after society’s economic needs have first been met; at worst, they are respected in name only, but in practice become empty rights, devoid of any real meaning.

Countries like China argue with some conviction that the theory of “human rights” was dreamed up in the west, adopted as a universal principle without real input from most of the peoples of the world, and has inevitably been used to attack developing countries and keep them subservient. They see the Human Rights Council and the UPR process as an opportunity to revisit these principles and, ideally, refashion a new rights theory that gives states more leeway to decide which rights are most important for their peoples. Such a conceptualization, likely to enjoy the support of a majority of countries, would be more “democratic,” they argue—tossing back another so-called universal principle they view with considerable skepticism.

If the will of this so-called majority—one composed of not a few governments with dubious claims to truly represent the peoples they govern—is allowed to prevail and the rights of individuals turned from something universal into something dependent on political or cultural boundaries, then many civil, political, and cultural rights will simply disappear over vast stretches of the earth. Seeing the Human Rights Council allowed to become a forum for this idea, the question becomes: is there be any institution left with the credibility and authority to stand up for the principle of universal human rights?

Human Rights as Indivisible, Interdependent and Interrelated

2009-04-15T18:39:00.002+08:00

I've been spending some time looking at China's recently published "National Human Rights Action Plan" for 2009-2010 and thinking about China's motivation for carrying out this exercise. Well, that led me to the Vienna Declaration and Programme of Action, a document that came out of the World Conference on Human Rights in 1993. The call for countries to establish human rights action plans originates there.

As I was reading over the VDPA, I noted the reiteration of an idea that's been occupying a great deal of my attention of late: that human rights are indivisible and interdependent and not comprised of some rights that somehow are more fundamental than or have precedence over other rights. This is one of the most sacred principles of human rights law, enshrined in the Universal Declaration of Human Rights.

I've been returning to this idea to rebut the Chinese argument that, because of particular national circumstances related to culture, history, level of development, etc., China chooses to focus on the promotion of economic and social rights as somehow "more fundamental" than civil or political rights. (Cultural rights are the black sheep of human rights, often forgotten.)

What I've often forgotten is that in 1993 the call to remember the integrality of human rights was primarily aimed at those countries—like the United States—that sought to make civil and political rights "more fundamental" than economic, cultural, and social rights. Promoting the importance of economic, social, and cultural rights was meant as a corrective, but might China be trying to take this too far?