Category: Criminal Justice

It’s the Police? How to Make Sense of Judicial Reform & the Civil Society Crackdown

By , April 29, 2015

P1000689Last week, Young China Watchers asked a question that many who study China’s legal development have been grappling with: how to gel the Chinese government’s call for greater judicial authority, announced at October’s Fourth Plenum, with its current crackdown on anti-corruption and civil society.  China Law & Policy was fortunate to be invited to comment on this important question along with Jeremy Daum, senior research fellow at the Yale China Law Center, founder of China Law Translate, and recent participant in a China Law & Policy interview.

While we both reached the conclusion that these two phenomena – a call for judicial reform and the current crackdown  on civil society – are not mutually exclusive, we came at it from very different directions.

Jeremy Daum: “Far from constraining the Party’s power, these legal reforms are designed to reinforce the legitimacy of Party rule by creating more complete and effective mechanisms for the implementation of Party policy through all levels of government……The leadership’s ongoing concern with stability, which includes not just preventing social unrest, but also maintaining continuity of Party rule, resists the development of such perceived alternative sources of influence in civil society. 

Elizabeth M. Lynch: “[W]hat we are seeing are not necessarily two mutually exclusive ideas.  Instead, it is the reflection of the increased dominance of the public security forces. The Party’s calls for judicial independence – eliminating local government control of the judiciary and seeking to appoint legal professionals to the judiciary – can still occur even as this crackdown is happening since the proposed rule of law reforms do nothing to reign in the public security forces….”

The discussion, which can be read in its entirety here, proved an interesting one and even I don’t know who is right.  Feel free to read for yourself and offer any comments!

Read the Full Text of the Young China Watcher’s Conversation by clicking here.

Update – Good or Bad? Five Chinese Female Activists Released on “Bail”

By , April 14, 2015

how-does-bail-workNormally it is an embarrassment when you get something wrong, but in this case, I could not be more relieved to be completely mistaken.  Yesterday, I blogged that Wang Man, Wei Tingting, Zheng Churan, Li Tingting and Wu Rongrong would likely be officially arrested.  However, last night, each was released “on guarantee pending further investigation” (取保候审), a concept akin to bail in the United States. 

Human Rights in China goes into detail on the legal requirements of “release on guarantee pending further investigation” and as a result, we won’t go into further detail other than to say, this is not complete freedom.  Basically, for the the next 12 months (CPL Art. 77 limits bail to 12 months), the women are at the whim of the local public security bureaus, allowed to be called in for questioning as the police further investigate the charges.  Under the Criminal Procedure Law (“CPL”), the women’s freedom will be limited.  They must remain in their home city and depending on what the police determine should be the conditions of their bail, they may be prevented from organizing any further demonstrations, activities or working together (see CPL Art. 69(2): may not meet or communicate with designated persons; CPL Art. 69(3): must not engage in designated activities).  Their passports may also be taken away.

But again, although there is a written document that lists the conditions of their “release on guarantee pending further investigation,” no where in the Ministry of Public Security Regulations (“MPS Regulations” or “MPS Regs”) does it state that this document must be physically given to the suspects.  In fact, the MPS Regulations only require that the conditions of bail be read aloud to the suspect (MPS Regs. Art. 79).

However, the fact that there is a release on “bail” is a positive development and many foreign agenthave praised the international outcry for precipitating the women’s release.   Certainly the international and media attention to the detention of these activists on the eve of International Women’s Day likely played a role in influencing some in the government to realize that backlash would only increase if these women were formally arrested. 

But one can’t help but wonder whether this international influence is a double-edged sword in the current NGO environment in China.  Presently, Chinese grassroots NGOs, who operate in a legal netherworld, have been under increasing scrutiny by the Chinese government with a draft Charity Law in the works that could make life more difficult for these organizations.  The government’s goal: to determine how much funding the the domestic NGOs receive from abroad.  It’s this international funding and influence that the Chinese government has begun to increasingly fear and view as a Western attempt to undermine the Chinese Communist Party (see Julia Famularo’s brilliant essay on this in The Diplomat).  And it is not just domestic NGOs that the Chinese government is seeking to restrain.  Allegedly a confidential, draft regulation or law, colloquially called the “Anti-Foreign Agent Law,” is in the works to regulate foreign NGOs working in China. 

International demonstrations to Free the Five

International demonstration to Free the Five

Thus, the international uproar, likely also a result of Chinese NGO Yirenping’s effective advocacy campaign for the freedom of their staff and former staff (three of the women are currently or have been affiliated in the past with Yirenping), while being applauded in the West, might be the type of example that will give supporters of a harsh Charity Law and severe Anti-Foreign Agent Act the evidence they need to make sure it passes as is. 

To Arrest or Not to Arrest – Prosecutors Have to Today to Determine Fate of Five Female Activists

By , April 13, 2015

Women Hold Up Half the Sky? And Half the Detention Centers?

On Thursday, the New York Times reported that the Beijing police requested that the local prosecutor formally arrest the five Chinese women detained for planning an anti-sexual harassment demonstration on Intentional Women’s Day (March 8).  According to the detained women’s lawyers, the recommended charges are “organizing a crowd to disturb public order” (Article 291 of  China’s Criminal Law), a charge different than the initial basis for detention: “picking quarrels and provoking trouble” (Article 293(4) of China’s Criminal Law). 

Since the inception of these detentions on March 6, 2015, little has been transparent, even to the lawyers for the women.  In fact, according to the New York Times, the women’s lawyers were not even informed that a request for arrest had been made to the prosecutors on April 6, 2015.  According to a phone interview with Liang Xiaojun, one of the detained women’s attorneys, the police’s April 6 request for arrest means that the prosecutors must decide by today if there is enough evidence for such an arrest.  (see also Criminal Procedure Law (“CPL”) Art. 89 requiring that the prosecutor’s office determine within 7 days whether to formally arrest the suspect).  But like everything else that has been happening in this case, likely the detained’s lawyers will continue to be kept in the dark of today’s decision.   

Two years ago the Chinese government heralded the passing of its amended

Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

Criminal Procedure Law, which was intended to bring China more inline with the international community.  Scholars and government officials praised the law for its greater protection of criminal suspects’ rights and improved access to defense lawyers early in the process.  But the detention of these five women, exemplifies the continued weaknesses of the Criminal Procedure Law and its failure to protect suspects’ rights.  Where it does offer some protections, what’s happened to these five women, demonstrate that Chinese police and prosecutors continue to skirt the law with impunity.  This post will review some of the major issues with the detention of China’s five women activists.

The Police Have Not Issued Any Document with the Charges. Is That Legal?

China's Amended Criminal Procedure Law

China’s Amended Criminal Procedure Law

No.  In a phone interview with Liang Xiaobin, Wu Rongrong’s attorney, Mr. Liang informed China Law & Policy that the police have yet to issue any formal document regarding the detention or potential charges against his client.  But Art. 123 of the Ministry of Public Security’s “Procedural Regulations on the Handling of Criminal Cases by Public Security Organs (revised 2012)” (“MPS Regulations” or “Regs”) which implements the CPL, a detention notice must be issued to the family of the detained within 24 hours of detention.  That detention notice would list the charges being investigated. Presumably if such a notice was provided to Wu’s family, it would be transmitted to Liang.  But Liang has yet to obtain any verification of any charges other than those verbally communicated to him.

The Police Did Not Inform the Five Women’s Lawyers that it Had Recommended Arrest.  Is This Legal?

Yes, and this is where one of the major weaknesses in the new Criminal

Will the five women be formally arrested?

Will the five women be formally arrested?

Procedure Law and its implementing regulations is obvious.  During the pre-arrest phase, even when a suspect has retained a lawyer, that lawyer has very little ability to access any of the police or prosecution documents.  In fact, neither the CPL nor the MPS Regulations require that the police or prosecutor inform the lawyer of what is happening in the case.  There is some information that has to be told to the detained’s family (that the suspect has been detained (CPL Art. 83 & MPS Reg Art. 123); that the suspect has been formally arrested (MPS Reg. 141)), but the police do not have to affirmatively inform the family that the police have recommended arrest to the prosecutor, even though there is a paper trail for all of this (see CPL Art. 85 & MPS Reg. Art. 133 both requiring a written formal request be made by the police to the prosecutor)  Without this information, it becomes difficult to hold the prosecutor to the 7-day limit to decide whether to arrest (CPL Art. 89).

Chinese defense lawyers kept in the dark

Chinese defense lawyers kept in the dark

But no where in the CPL or the MPS Regulations does anyone have to inform the retained lawyers of anything.  It is not until the prosecutor begins to investigate for indictment (审查起诉) do rights attach to the defense lawyer.  When that occurs – and again, the law is unclear if anyone has to be affirmatively informed that such a review is occurring – can defense counsel access information from the state.  At that point, the prosecutor’s office is required to share the case file (CPL Art. 38).  But up until that point, keeping the defense attorney in the dark is completely legal.   

Allegedly, the Women Were Denied Easy Access to their Lawyers & When Able to Meet, Conversations Were Recorded.  Is this legal?

No.  The amended CPL was specifically modified to rid the Chinese criminal justice system of these patently unfair practices.  But according emails issued by Yirenping, a Chinese-NGO that many of the women are affiliated with, many of the lawyers’ requests to meet with their clients have been ignored.  The few times the lawyers have been able to meet with their clients, according to Yirenping, the conversations have been recorded. 

Article 37 of the CPL clearly requires that detention centers promptly schedule meetings between lawyers and their clients when the suspected charges do not include national security; such meetings must be scheduled no later than 48 hours after the request.  The MPS Regulations reiterate that right (MPS Regs. Art. 48).  Further, Article 37 of the CPL plainly states that conversations between the lawyer and his or her client are not to be monitored (see also MPS Reg. Art. 52).

Is the Limit for Detention 30 days?

Detention in China

Detention in China

This is unclear.  Although the lawyers for the five women have stated that detention can only be for 30 days before moving to the next stage of the case (here, the police formally requesting that the prosecutors arrest the women) and the police have conveniently stated that it did in fact move the case forward on April 6 (approximately 30 days after the initial detentions), it is unclear whether there is in fact a 30 day limit to detention.  Article 89 of the CPL states that detention, without a request for arrest, is generally limited to three days.  But the police can unilaterally extended that limit for an additional four days (making for a total of seven days). 

But for suspects being investigated for “multiple crimes” (like the women here) or “crimes across multiple regions” (again, like the women here), the police may add an extra 30 days to the detention (CPL Art. 89).  In both the English and Chinese, it is unclear if that 30 days is added on top of the seven that was permissible or if 30 days is the outer limit of detention before request for arrest.  Although both the attorneys in this case and the police seem to maintain that 30 days is the limit, the law is not clear.  But at the most, 37 days is limit for detention. 

Was it legal to bring Wu Rongrong and Zheng Churan to Beijing for detention?

One of the five detained, Wu Rongrong, founder and executive director of the Weizhiming Women’s Center in Hangzhou

One of the five detained, Wu Rongrong

Yes.  Of the five women detained, two – Wu Rongrong, director of the Hangzhou-based Weizhiming Women’s Center and Zheng Churan, staff member at Yirenping Guanzhou, live outside of Beijing.  Both  were planning their International Women’s Day demonstrations in their respective cities and both were initially detained by the public security officials in each city.  But both were eventually transferred to Beijing’s Haidian Detention Center where the other three women, Wang Man, Wei Tingting and Li Tingting, all residents of Beijing, were being held. 

Both the CPL and the MPS Regulations permit the easy movement of suspects between cities, counties and provinces when appropriate.  Although the default presumption is that jurisdiction of a criminal case is where the crime was committed (see CPL Art. 24; MPS Regs Art. 15), both the Criminal Procedure Law and the MPS Regulations contemplate instances where that might not be the case, especially when there are multiple crimes and/or multiple defendants.    

In fact, an entire Chapter of the MPS Regulations – entitled Cooperation in Case-

One of the detained, Zheng Churan, 25, and staff member of Yirenping based in Guangzhou

One of the detained, Zheng Churan

Handling (Chapter 11, encompassing Articles 335-344) – specifically deals with these situations.  Unlike in the United States, where extradition from one state to another is a formal affair, here the transfer of a criminal suspect is more informal (see MPS Regs Art. 335 requiring local public security bureaus to cooperate with a request to detain a suspect & Art. 336 requiring only a “letter of cooperation” to obtain the locality’s cooperation). Presumably the Beijing PSB provided such a letter to the Hangzhou and Guangzhou PSBs in order to detain and eventually transfer Wu Rongrong and Zheng Churan to Beijing. 

Will the Women Be Arrested?

Their Fate is in the Prosecutor's hands

Their Fate is in the Prosecutor’s hands

Increasingly likely.  The fact that the police have changed the charges and have added more incidents to the charge, such as the women’s street performance demonstration against domestic violence where they dressed up in wedding dresses with fake blood and their “occupy men’s toilets” day to demonstration the insufficiency of women’s toilets in public places, provides for more evidence for arrest.  Further, adding extra incidents and making this multi-crime case, arrest and continued detention is all but certain.  According to Article 139(1) of the People’s Procuratorate’s Criminal Procedural Regulation (revised 2012), the prosecutor’s implementing regulations of the CPL, arrest is necessary when the criminal suspect may commit a new crime.  What provides evidence that the suspect might commit another crime if not detained?  The fact that “the suspect has committed multiple crimes, changed locations in committing multiple crimes, committed related crimes…” 

Within 24 hours of the police’s decision to arrest, the police must inform the family (MPS Reg. Art. 141).  Under Chinese law, the world should know by Tuesday if an arrest was made.  But that’s assuming that anyone actually follows the law.

Without Committing a Crime, Five Female Activists Detained in China

By , March 15, 2015

International Women's DayWhile the rest of the world celebrated International Women’s Day (March 8) with gender equality marches, women empowerment conferences, and female-oriented concerts, the Chinese government opted for a decidedly different approach: detaining a number of Chinese women activists.

On March 6 and 7, 2015, in various cities across China, public security officials rounded up at least 10 women, each of whom sought to mark International Women’s Day with a nation-wide campaign highlighting the increase in sexual harassment on public transportation.  Their goal?  To pass out leaflets and stickers calling for the end of such sexual harassment and for the police to take some action against sexual harassment on public transportation.

One of the five detained, Wu Rongrong, founder and executive director of the Weizhiming Women’s Center in Hangzhou

One of the five detained, Wu Rongrong, founder and executive director of the Weizhiming Women’s Center in Hangzhou

While five of these 10 women have been released, five were officially criminally detained on Friday allegedly under the Chinese government’s increasing catch-all for ideas and speech it does not like: “picking quarrels and provoking trouble.” (Article 293(4) of China’s Criminal Law).

“It is extremely alarming that these five young women have been criminally detained for ‘picking quarrels and provoking trouble’” Dr. Leta Hong Fincher, author of Leftover Women: The Resurgence of Gender Inequality in China, wrote in an email to China Law & Policy.  “The women were merely planning to commemorate International Women’s Day by raising awareness about sexual harassment on public transportation – hardly an issue that would threaten the central government’s power or social stability in any way.”

In fact, the Chinese government itself has noted the growing problem of sexual harassment – including groping, rubbing and pictures taken under one’s skirt – on public transportation.  Unfortunately, instead of stepping up law enforcement of this quality-of-life crime, the Chinese government has largely left it to women to combat this harassment, urging female riders to forgo wearing mini-skirts or “hot pants” and looking to have women-only subway cars during rush hour.

Another of the detained, Wei Tingting (right), the director of Ji’ande, an LGBT rights organization based in Beijing

Another of the detained, Wei Tingting (right), 27 and director of Ji’ande, an LGBT rights organization based in Beijing

“The detention of these women reveals the hollowness of [the] Chinese government claims of commitment to gender equality, particularly as China prepares to co-host the 2015 Global Women’s Summit at the United Nations, and the world marks the 20th anniversary of the Fourth World Conference on Women in Beijing” Dr. Hong Fincher wrote to China Law & Policy.

But if you think detaining people for leafleting an issue we can all get behind is scary, here is the real frightening part: these five women – Wu Rongrong, Zheng Churan, Wei Tingting, Wang Man and Li Tingting – never actually committed a crime, even under Chinese law.  By detaining these women prior to March 8 – when they were going to distribute their stickers and pamphlets – the women never caused a public disturbance as required by Article 293 of China’s Criminal LawPu Zhiqiang, Cao Shunli, Xu Zhiyong, all detained, arrested or jailed for “picking quarrels and provoking troubles,” were at least able to partake in their “public disturbance” before the authorities took them away.  These women did not.  At most, in their attempt to make this a nation-wide campaign, they amassed an online following, all eager to partake in the March 8 events.

One of the detained, Zheng Churan, 25, and staff member of Yirenping based in Guangzhou

One of the detained, Zheng Churan, 25, and staff member of Yirenping based in Guangzhou

But, as Jeremy Daum at China Law Translate has noted, the Supreme People’s Court (SPC) and Supreme People’s Procuratorate’s (SPP) Joint Interpretation of Article 293 (July 2013) makes it clear that causing a disturbance by picking quarrels must happen in some kind of public venue – a bus station, a market, a train station, a park, or “other public venue.” In prosectuting an Article 293(4) case, the courts are required to analyze the totality of the circumstances, including the type of public venue, the number of people attending the event, etc.  (See Article 5 of the Joint Interpretation of Article 293).

Further, as Daum has highlighted, even the SPC’s and SPP’s controversial Joint Interpretation on Internet Speech Crimes (Sept. 2013), which does interpret Article 293(4) of the Criminal Law, would only apply in situations where the individual has spread rumors on the internet or other online network.  The only public prosecution under Article 293(4) involving the internet – the case of blogger Qin Houhou – is precisely this situation.  In addition to being charged with violating Artcile 293(4) – the picking quarrels provision – Qin was also charged and convicted of criminal slander.

Another detained activist, Li Tingting, 25 and Beijing-based manager of the LGBT program at the Beijing Yirenping Center

Another detained activist, Li Tingting, 25 and Beijing-based manager of the LGBT program at the Beijing Yirenping Center

By criminally detaining these women, the Chinese police have stepped up this game, making a formal arrest and prosecution more likely.  While prosecution under Article 293(4) usually has a maximum prison sentence of five years, that sentence can be extended to 10 years where the defendant organizes others to commit the disturbance multiple times.  Given that these women likely were the organizers of the event, a 10 year prison term is a possibility.  Even though the current charge is groundless under Chinese law.

On Friday, the U.S.’s Ambassador to the United Nations, Samantha Power, tweeted her disgust with the Chinese government’s detention of Wu Rongrong, Zheng Churan, Wei Tingting, Wang Man and Li Tingting.  But the United States, and the rest of the world, must maintain this rhetoric.


Fifth detained activist, Wang Man, Beijing-based coordinator for the Global Call to Action Against Poverty (GCAP).

Fifth detained activist, Wang Man, Beijing-based coordinator for the Global Call to Action Against Poverty (GCAP).

Twenty years ago, in Beijing China, Hillary Clinton ignored Chinese pressure to soften her remarks at United Nation’s Fourth World Conference on Women.  Instead, she rocked the world by forcefully stating that ” human rights are women’s rights, and women’s rights are human rights, once and for all.”  It’s time that Secretary Clinton, a potential presidential candidate, renew that sentiment and call for the release of these women – innocent even under Chinese law.

Translation – Beijing News Interviews Tian Wenchang on Custody & Education

By , June 25, 2014
Criminal Defense Lawyer Tian Wenchang

Criminal Defense Lawyer Tian Wenchang

With the hoopla surrounding actor Huang Haibo’s six month sentence under China’s Custody & Education (“C&E”) system – an administrative punishment outside of the court system – on June 9, 2014, Beijing News ran an article examining that system. Included with the article was a telling diagram that highlighted the lack of a legal basis for C&E. The article effectively called for the repeal of C&E.

For an explanation of C&E and the current debate, see China Law & Policy’s previous post here.

That article is no longer available on the Beijing News website. However, it can still be found here. Additionally, below, China Law & Policy translates the portion of the article that was an interview with Tian Wenchang (pronounced Tea-en When-chang), one of China’s most famous attorneys and the current director of the Criminal Law Committee of the All-China Lawyers’ Association. In the short interview, Tian persuasively argues for C&E’s abolishment.


Beijing News [BJN]: As one of the people pushing [for reform], why do you want think to do this?

Tian Wenchang [TWC] (Director of the Criminal Law Committee of the All-China Lawyers’ Association): The fact is that after Reeducation through Labor (“RTL”) was abolished, people forgot about Custody & Education (C&E). But because a case relating to C&E recently emerged, society is once again examining C&E, questioning whether it is legitimate and whether it should still exist.

BJN: What do you consider to be the biggest problem with C&E?

TWC: The biggest problem is with C&E is the same as with RTL: administrative agencies can deprive individuals their liberty without due process, so lots of problems appear in implementing it.

BJN: What kinds of problems?

TWC: For example, for sex workers and their clients, after undergoing an administrative punishment [under the Public Security Administrative Punishment law], public security bureaus are able to decide on their own whether the individual should also receive a C&E sentence. There are no specific standards to guide this decision. For example, six months to two years of custody, how is this term determined; it’s very possible that there are variations in the implementation. Without due process and public transparency, it’s easy for there to be a hidden agenda.

BJN: Six months to two years, is that too heavy a punishment for prostitution and solicitation?

TWC: Under the Public Security Administrative Punishment Law, [the police] are able to keep someone in custody for 15 days for a prostitution-related offense. But under C&E, the maximum sentence may be up to two years. This is often more severe than the punishment under the criminal law. Whether this [disparity] is fair or not is pending discussion.

Repealing C&E Will Likely Take A Long Time

BJN: Based on your observation, do local public security bureaus often use C&E as a form of punishment?

TWC: My understanding is that in the overwhelming majority of provinces in the country, C&E is not used very often. But this does not mean that the public security bureaus do not have the right [to use C&E]. So long as they have this right, there will be problems.

BJN: What is the relationship between C&E and RTL?

TWC: Because both are systems that restrict personal liberty, in essence they are the same. It is only the people targeted and the length of the punishment that are different. Furthermore, both are systems that don’t go through the judicial process and instead the administrative agencies unilaterally make the decision. In looking at the legal principles governing C&E, the public security bureaus don’t have a problem; rather the C&E-related legal provision are not in line with the current law. As a result, they must be repealed.

BJN: How likely do you think are the proposals to abolish C&E?

TWC: It will be like RTL which took a long time to repeal; I think repealing C&E will be like that.


Interview Portion of the Beijing News Article on C&E – Full Article Can Be Found Here
























It’s a Man’s, Man’s, Man’s World: Current Efforts to Abolish China’s Custody & Education System

By , June 23, 2014
Actor Huang Haibo

Actor Huang Haibo

Unfortunately, it took the detention of a famous male actor for the Chinese media to criticize an unlawful detention system that has long been used against low-income female sex workers. Last month, actor Huang Haibo (pronounced Hwang Hi-bwo), affectionately known as China’s clean-cut “son-in-law,” was detained after he was found with a prostitute in his upscale Beijing hotel room.

Prostitution is illegal under China’s criminal law (Crim. L. Arts. 358-59), but neither Huang nor the sex worker was formally arrested. Neither was charged with a crime. Neither ever saw the inside of a courtroom. But both received a six-month sentence under China’s “Custody and Education” (“C&E”), another punishment in China’s myriad administrative detention system where the police serve as prosecutor, judge and jury. Under C&E, the police can unilaterally detain sex workers and their clients for anywhere from six months to two years.

C&E continues even though last November, the Chinese government herald its abolishment of another administrative detention punishment: the notorious “Re-education Through Labor” (“RTL”). Now, with the detention of one of China’s most famous actors, the spotlight is on C&E. China’s media, including the state-run media, is calling for its abolishment. But will C&E go to the same way as RTL?

C&E’s Dubious Legal Status

It’s not surprising that C&E, formally in existence since 1991, has not garnered much press prior to the detention of Huang Haibo. It is a punishment that is reserved exclusively for sex workers and their clients and according to Asia Catalyst‘s seminal report on the topic, the punishment has largely fallen upon lower-income women who often have no other career options, not your usual feel-good story that mainstream media prefers.

But the Beijing police diverged from the usual pattern when, on May 15, 2014, it went after Huang Haibo and presumably a high-end

Sim Chi Yin for The New York Times

Potential Victim of China’s Custody & Education System (Photo Sim Chi Yin for The New York Times)

prostitute. Immediately following the May 15 detention, the Beijing police – through their Weibo account (China’s version of Twitter) – alerted the world to Huang’s detention. At first, the police gave Huang and his cohort a lighter sentence of 15 days administrative detention under the more generic Public Security Administrative Punishment Law. But on May 30, 2014, the Beijing police unilaterally decided to continue Huang’s detention, sentencing him and his cohort to six months in C&E which falls under the regulation entitled Measures for the Management of C&E Centers (“C&E Management Measures”).

It was that six-month sentence – a much more serious deprivation of liberty than the prior 15 days – that caused popular uproar with various editorials questioning C&E’s legal status. But even prior to the Huang Haibo incident, back in early May, many China human rights lawyers, including Pu Zhiqiang (pronounced Poo Zhir-chee-ang), recently arrested for “creating disturbances and illegally obtaining personal information,” signed a petition calling for C&E’s abolishment stating that under Chinese law, C&E is illegal.

Recent editorials, including an interview with the director of the Criminal Legal Affairs Committee of the All-China Lawyers’ Association, Tian Wenchang (pronounced Tee-an When-chang), have echoed the arguments found in that May petition which received scant attention at the time. Almost every editorial notes the non-transparent nature of C&E. There is no impartial judge that the individual can appeal to; there is no lawyer. Instead, under the C&E Management Measures, the police have complete power to determine if C&E is appropriate and the length of the sentence. While there is an appeal mechanism, the first step is to ask the police to reconsider the sentence (Art. 20). Only after that reconsideration can the individual seek to bring a lawsuit against the state. But without a lawyer, that rarely happens.

An RTL camp in Shijiazhuang, Hebei province. (File photo/CFP)

An RTL camp in Shijiazhuang, Hebei province. (File photo/CFP)

Similar factors – the unilateral decisions of the police and absolutely no judicial oversight – pushed the public to call for RTL’s abolition.  But those due process violations alone were not enough to overturn RTL. Also instrumental was the fact that RTL was not based in law. According to the China’s Legislation Law, the law that sets the basic ground rules on how all other laws and regulations are to be written, “[o]nly national law may be enacted in respect of matters relating to. . . (v) . . . compulsory measures and penalties involving restrictions of personal freedom. . . .” (Art. 8). Thus, only the National People’s Congress (“NPC”) or the NPC’s Standing Committee is entitled to make “national law.” And any attempted to deprive an individual of his or her liberty must be based on laws passed by the NPC or its Standing Committee.

In the case of RTL, the three sets of rules that governed the system – the 1957 Decision, the 1979 Supplemental Decision and the 1982 Trial Rules – were instituted by the State Council and the Ministry of Public Security, not by the NPC or its Standing Committee. As a result, RTL was in violation of legal procedure. Making its abolishment legally necessary.

Similar arguments are being made in regards with to C&E.   C&E was first established by the 1991 Measure on the C&E of Prostitutes & Their Clients which was in fact passed by the NPC’s Standing Committee. In that document, the Standing Committee delegated to the State Council the right to draft the C&E Management Measures, the measures which deal with the deprivation of individuals’ liberty. But again, the China’s Legislation Law, this time Article 9, clearly does not permit the NPC or its Standing Committee to delegate the right to draft regulations pertaining to the deprivation of liberty. As a result, the State Council’s 1993 C&E Management Measures are without legal effect, making the whole C&E system in violation of the law.

Will C&E Go the Way of RTL?

There are certainly strong if not convincing legal claims for C&E’s abolition. But one thing to factor in is the amount of money which the

Cha-ching! Women in a Custody & Education Center (Photo from Weibo)

Cha-ching! Women in a Custody & Education Center (Photo from Weibo)

public security bureaus (“PSB”) make off of C&E as highlighted in the Asia Catalyst report. Under C&E, detainees are required to work and although the Management Measures imply that the detainees be paid (Art. 13), they very rarely are. Instead, the income goes to the local PSB’s coffers.

Another source of income: the detainees themselves. Ironically, the Management Measures require that the detainees completely cover the costs of their own detention (Art. 14); RTL did not contain such a provision. As the Asia Catalyst report documents, these costs are substantial and likely inflated – six months in a C&E costs an individual between 5,000 to 10,000 yuan (US $820 to $1,639). Also inflated are the costs of goods. According to the Asia Catalyst interviewees, goods are several times more expensive than on the outside.

With the free labor and the ability to charge detainees for their custody, C&E centers are an important profit center to local PSBs. It’s the local PSB’s profit-motive that will make abolishing C&E more of a challenge. As the Asia Catalyst report points out, local PSBs did not fare so well when China became a market economy and have had to find ways to support themselves. One way is through C&E centers.

Allegedly the woman found with Huang Haibo - a Chinese "any one"?

Allegedly the woman found with Huang Haibo – a Chinese “any one”?

And on some level, the Chinese government and local PSBs have to recognize that sex workers and their clients do not garner the same level of societal sympathy as those who were getting caught up in RTL. Tang Hui (pronounced Tang Hway), a mother of an 11 year old girl who was raped and sold into prostitution, became the poster-child for the dangers of RTL. After her daughter’s rapists, kidnappers and pimps were given a slight slap on the wrist, Tang protested. But that protest is what landed her in an RTL camp. When she got out, she sued, receiving a tremendous amount of public support and highlighting the dangers of RTL. Similarly, in 2003, when China abolished Custody & Repatriation, another form of administrative detention, the public was aghast that an innocent college student, Sun Zhigang (pronounced Son Zher-gang) could get caught up in such a system and end up dead in police custody.

Tang and Sun were China “any ones” – anyone could be a grieved mother; anyone could be a young

Will public attention to C&E pass once Huang Haibo is freed?

Will public attention to C&E pass once Huang Haibo is freed?

college student. Anyone could have been entrapped by such an unjust system. But here, with C&E, the individuals involved are sex workers, and lower-income, less-educated sex workers. Although C&E has the same abuses as RTL, most Chinese do not fear that they will find themselves entangled in the C&E system. There is a high likelihood that the public spotlight that is currently on C&E will fade once Huang Haibo is freed.

But at the very least the Huang incident has caused the international media to focus on the C&E

system. Supposedly the Chinese Communist Party was intent on repealing RTL because it is an obvious roadblock to its ability to ratify the UN’s Convention on Civil and Political Rights, a treaty which forbids the deprivation of liberty without due process of law and court oversight. But C&E – now that it has been exposed more publicly as a result of the Huang Haibo incident – needs to be abolished before China can ratify that treaty.

Fuzzy Jurisdiction & Four Years: The Xu Zhiyong Verdict

By , January 28, 2014
Fuzzy Jurisdiction

Fuzzy Jurisdiction

On Sunday, in a verdict that surprised no one,  the Beijing No. 1 Intermediate Court found human rights lawyer Xu Zhiyong guilty of gathering crowds to disrupt public order (Criminal Law Article 296).  The Court sentenced Xu to four years, only one year shy of the maximum.

The Court’s verdict which runs close to twenty pages when converted to a word document, details the prosecutor’s evidence that formed the basis of the Court’s decision.  The length of the document itself belies a Court confident in its decision on a case that they know the world was watching.

There is certainly much to be parsed out in the decision but one thing that is interesting are the jurisdictional issues that China Law & Policy raised last week prior to Xu’s trial.  Namely, why Xu – who is being accused of the same crimes as many of the other defendants – was being tried in an higher level court, Beijing’s No. 1 Intermediate Court, while his compatriots are being tried in the lower level Haidian People’s Court.

The verdict attempts directly answers this question and in doing so present a frightening future for defendants:


The Court acknowledges defense counsel’s two jurisdictional-based objections: (1) that the Intermediate Court should not hear the case and (2)

Xu Zhiyong, awaiting trial in the detention center

Xu Zhiyong, awaiting trial in the detention center

Xu’s case should be tried with the other defendants.   According to the Court, its jurisdiction is based upon Article 26 of China’s Criminal Procedure Law (“CPL”), a provision that permits a higher level court to re-assign cases to other courts when jurisdiction is unclear.  According to the Court, because the Haidian District, the Chaoyang District and the Xidan District People’s courts all had jurisdiction over the case (presumably because some of the public demonstrations accorded in each of those districts), the prosecutor filed his case with the Intermediate Court and the Beijing Municipal Higher People’s Court determined that the Beijing No. 1 Intermediate Court could hear the case, thus giving it jurisdiction.

The verdict pays no mind to defense counsel’s objections; it does not explain what these objections were let alone why the Court rejected them. By flat out ignoring these objections, the Court seems to imply that as long as the law was followed by the prosecutor and the courts, then the decision will be permitted regardless of defense counsel’s arguments.  Unfortunately, this does seem to be what Article 26 says although neither the Interpretation of the Supreme People’s Court on the Implementation of the CPL (“SPC Interpretation”) nor the Interpretation of the Supreme People’s Procuratorate on the Implementation of the CPL (“SPP Interpretation”)  explicitly permit the prosecutor to file a criminal case with a higher level court.  Although at the same time, it does not forbid it.

It doesn't matter how loud defense counsel gets, his objection is never heard

It doesn’t matter how loud defense counsel gets, his objection is never heard

While there might be a basis in law to permit the Intermediate Court to have jurisdiction, what there appears no basis for is the Court’s cursory denial of defense counsel’s request to try the other defendants with Xu.  In a two sentence analysis, the Court states that under the law it is within the discretion of either the Court, the prosecutor or the public security organs to decide whether joint defendants should be tried separately.  The Court fails to cite any provision of any law or regulation that states that premise.

As for defense counsel’s objection – which convincingly cited to Article 13 of the SPP Interpretation requiring all cases to be joined before a higher court if one is to be heard there – the Court conclusory stated that defense counsel’s objection was “untenable” (不能成立) and therefore the Court was right to reject it.  The verdict provides no reason or explanation as to why the objection was untenable.  Given that defense counsel was able to sight to regulation for its argument and the Court here cites to no law, defense counsel’s objection seems worlds more tenable than anything the Court provided.

But that would be for a trial that was based on rule of law, something that is missing here where the Court rules by executive fiat regardless of laws of regulations.  For all the Chinese Communist Party’s recent rhetoric about the need to have a “strict adherence to legal procedure,” the CCP again chose to ignore that procedure in the one case where it felt like its power was being threatened.


Jumping the Shark? Xu Zhiyong’s Closing Statement to the Court & the CCP Reaction

By , January 23, 2014
Xu Zhiyong

Xu Zhiyong

On Wednesday, the Beijing No. 1 Intermediate Court concluded the trial of Xu Zhiyong on the charge of disrupting public order, a crime that can carry up to 5 years in jail.  At the conclusion of the trial, Xu was invited to make a final statement, a right afforded to him by Article 193 of the amended Criminal Procedure Law.  According to his attorneys, ten minutes into his closing statement, Xu was shutdown by the judge.  According to Article 235 of the Supreme People’s Court Interpretation on the Application of the Criminal Procedure Law, the Court is permitted to stop a closing statement:

“After the chief judge announces the conclusion of courtroom debate, the collegial panel shall ensure the defendant’s full exercise of the right to a final statement. Where the defendant in his final statement repeats his opinions several times, the chief judge may stop it. Where the final statement is contemptuous of the court or public prosecutor, harms others or the common interests of society, or are irrelevant to the case, they shall be stopped.” – translation courtesy of China Law Translate

Fortunately, Xu’s lawyers have released his closing statement in its entirety and Yaxue Cao over at the blog Change China has posted the English translation.  The document is an important read in understanding the New Citizens Movement, its principles, and why the Chinese Communist Party (“CCP”) is so afraid:

“While on the face of it, this appears to be an issue of the boundary between a citizen’s right to free speech and public order, what this is, in fact, is the issue of whether or not you recognize a citizen’s constitutional rights.

On a still deeper level, this is actually an issue of fears you all carry within: fear of a public trial, fear of a citizen’s freedom to observe a trial, fear of my name appearing online, and fear of the free society nearly upon us….” – Read the Full Translation Here Courtesy of Change China.

While this drama was unfolding in the courtroom, a separate drama was unfolding outside with various foreign journalists being physically harassed by both Chinese police and plain-clothed thugs likely hired by the Chinese police.  All of it caught on camera.  Here is Martin Patience of the BBC first harassed by police then by a group of thugs:

And here is Mark Stone of Sky News being manhandled:
Finally, CNN’s David McKenzie pushed into a police van and taken away against his will:


On some level, this is comical.  Harassing foreign journalists from filming outside of a courthouse?  The police had already cordoned off the perimeter of Beijing’s No. 1 Intermediate Court.  These guys were going to get no where near the courthouse in the first place.  All they wanted was just a backdrop of the courthouse for their story on the trial of Xu Zhiyong.


But instead, they got a whole other story – how the thug-like police state is willing to go on camera and push around foreign journalists with impunity.  Granted, with the Chinese government’s fairly strong control of the internet and its ability to prevent videos from getting through firewall, very few Chinese will see these videos.  But the rest of the world will.  The rest of the world will witness the mafioso-mentality, with hooded, hidden thugs, carrying out what are likely the orders from a high-level Public Security Bureau (PSB) official.  Was the trade-off worth it?  I would say no.


But does the CCP care what the rest of the world thinks of it?  Is this an arm-flexing exercise of the CCP?  That international opinion does not matter to them?  Certainly these videos are not ones the Chinese tourist industry wants potential tourists to see, but what about Western businesses?  Will they think twice now about betting on China?  If the past is to provide an answer, Western businesses will continue to look to China for their profits.


Or does it show a CCP that has jumped the shark?  That its grip on power is so feeble that it will go to any lengths, including ordering thugs to harass foreign journalists?  In his closing statement, Xu Zhiyong seems to think so – that a free society is nearly upon China.  But if history is to serve as any guide, the CCP has an uncanny talent of retaining power even when it looks like it is at its weakest.  This June will mark the 25th anniversary of the Tiananmen protests.  Twenty-five years later, the Party that ordered the massacre is still in control.  And the people’s protests are still the same.

Why an Intermediate Court? The Impending Criminal Trial of Activist Xu Zhiyong

By , January 21, 2014
Xu Zhiyong in better days - on the cover of Chinese Esquire in 2009

Xu Zhiyong in better days – on the cover of Chinese Esquire in 2009

On Wednesday, the Beijing Municipal No. 1 Intermediate People’s Court will hear the trial of rights-defending lawyer Xu Zhiyong (pronounced Sue Zhi-young).  His alleged crime?  Disturbing public order, a charge that the Chinese government has used with abandon since China’s new president Xi Jinping rose to power at the end of 2012

Xu was not always the Chinese government’s Enemy No. 1.   Early in his career, Xu was celebrated for his ground-breaking work.  In 2003, Xu, along with rights-defending attorneys Teng Biao and Yu Jiang, successfully pushed for the abolishment of China’s custody and repatriation system, a form of extrajudicial detention that resulted in abuse and on one occasion the death of a college student.   In 2008, Xu, through his legal assistance organization the Open Constitution Initiative (“OCI” or in Chinese “Gongmeng”) represented parents whose children were poisoned by contaminated powdered milk, keeping the issue in the press and obtaining some form of justice for the parents.  These cases, in addition to investigations into the use China’s “black jails” – extrajudicial, ad hoc and secretive holding cells used to house government-defined trouble makers – brought both domestic and international fame.  In 2008, Xu was featured in China’s Economic Observer and by 2009, he would grace the cover of China’s Esquire magazine.

But Xu’s success also brought the attention of the Chinese government at a time when it was beginning to look less and less favorably upon the rights-defending movement.  In July 2009, Xu was detained on charges of tax evasion.  After being held for almost a month, Xu was freed on bail and his organization was fined a stunning 1.46 million RMB.  Such was the end of OCI.

Fortunately for the Chinese people it was not the end of Xu Zhiyong or his rights-defending work.  Instead, Xu looked to take his ideas and create

Emblem of the New Citizens Movement - calligraphy of Sun Yatsen

Emblem of the New Citizens Movement – calligraphy of Sun Yatsen

a more organized grassroots movement.  Working with other rights-defending lawyers, journalists, activists and average citizens, the movement called on the Chinese people to uphold the rule of law and seek to protect their civil rights.  By May 2012, Xu named this movement “New Citizens Movement” (in Chinese, Xin Gongmin Yundong) and called upon the new citizens to unite and help to establish a rule of law, protect constitutionally-guaranteed rights, end corruption in government and change the role of the Chinese people from subjects to full-functioning citizens.  Xu’s essay describing the movement was quickly removed from the internet.

Although many describe Xu’s approach as moderate, it is still too radical for the Chinese government, especially a Chinese government with a new president eager to solidify his power.  Over the past year, the Chinese government has detained over 100 activists, many of whom are New Citizens.

In July 2013, Xu’s time had come; the police detained him and various other activists and in August 2013, formally arrested him for disturbing public order.   In its December 2013 indictment, the Beijing police charged Xu with organizing and being the ringleader of protests held in Beijing calling on the government to require that senior government officials disclose their financial holdings and assets (see video below of one of the protests).

The fact that the Chinese Communist Party has recently initiated such a pilot program of asset disclosure is irrelevant.  Last Friday, Xu appeared before the Beijing Municipal No. 1 Intermediate Court where he learned that his trial is set for Wednesday, that he will not be permitted to call witnesses, and will not be permitted to cross-examine the prosecution’s witnesses.  As protest, Xu will remain silent during Wednesday’s trial.

There are many things to question about Xu’s impending trial, but one aspect that jumps out as out of the ordinary is the fact that Xu’s trial will not be held in a basic trial court.  Instead, the intermediate court has jurisdiction; many of the other defendants arrested and charged for the same crimes will have their case heard in the Haidian Basic People’s Court.   Why is Xu different?  Why is his case being heard by a higher court?

Beijing's No. 1 Intermediate Court

Beijing’s No. 1 Intermediate Court

According to the China’s amended Criminal Procedure Law (“CPL”), an intermediate court automatically has jurisdiction if the case involves charges of endangering state security or involves terrorist activities, or if the case has a penalty of life imprisonment or death  (see CPL, Article 20).  Here, the charges do not involve state security or terrorism and the penalty is a maximum of five years imprisonment.

However, according to the Supreme People’s Court’s Interpretation on the Implementation of the Amended CPL (“SPC Interpretations”), even when a case does not involve state security, terrorism, a life sentence or the death penalty, the lower court can ask the intermediate court to hear the trial if (1) the case is large or complex, (2) is a novel and difficult case, or (3) is a case that is significant and thus would provide general guidance to other case (see SPC Interpretations, Article 15).

If Article 15 of the SPC Interpretations is the basis of the Intermediate Court’s jurisdiction, then the Intermediate Court must issue a written decision accepting the transfer and submit that decision to the lower court and the prosecutor.  Article 15 does not require that the written decision be provided to defendant or his attorney (see also SPC Interpretations, Article 14: Higher people’s courts deciding to try a first-instance case within the jurisdiction of a lower people’s court, should send down a written decision to change jurisdiction to the court below, and notify the procuratorate at the same level in writing”).

Unfortunately, none of the articles about Xu trial – either in Chinese or English – explain why his case is being heard by the Intermediate Court and not, like the other defendants accused of the same crimes, by the Haidian Basic Court.

But regardless of the reason why the Intermediate Court is hearing Xu’s case, the SPC Interpretations are fairly clear that where a case involves

Xu Zhiyong, awaiting trial in the detention center

Xu Zhiyong, awaiting trial in the detention center

multiple defendants and the case is elevated to a higher court for one defendant, then all defendants should be tried by the higher court (see SPC Interpretations, Article 13: “For multiple crimes by a single person, joint crimes or other cases that need to be joined for trial, if one person or crime belongs to the jurisdiction of the higher level court, the higher level court has jurisdiction of the entire case”).

New Citizens activist and rights-defending lawyer Xiao Guozhen speculates that the police and prosecutors sought to separate the trials so that the statements of the other participants can be used against Xu in his trial.  According to Xiao, in a trial with multiple defendants, one co-defendant cannot serve as a witness.  But when the trials are separated, the other defendant’s statements and confessions can be used in the trial against Xu.  But this all supposes that the other accused will speak out against Xu.

Hopefully Wednesday we will know although as Prof. Jerome Cohen points out, the authorities has done all that it can, such as using one of the smallest courtrooms in the courthouse for Xu’s trial to guarantee that the trial is all but closed to the public.  Another violation of the amended CPL.

Truth, Lies or Justice: Defamation in the Chen Yongzhou Affair

By , November 14, 2013
The crime of defamation

The crime of defamation

The detention of journalist Chen Yongzhou, his employer New Express’s front page editorial pleading that he be set free, and Chen’s subsequent televised confession to accepting bribes and writing false articles against Changsha’s Zoomlion, all the while in Changsha police custody, is, even for China, unusual.  But the question is – was it all legal?

Last week, China Law & Policy examined whether Changsha police followed proper procedures in detaining Chen, especially since they went to Guangzhou to find him.  Today, we look to the underlying charges – mainly the claim that Chen defamed Zoomlion and thus is subject to arrest.  Is defamation a crime?

Watch What You Say…..Criminal Defamation is Legal in China

Like it or not, China’s criminal law covers defamation.  Article 246 makes it criminal to “publicly humiliate another person or invent stories to defame,” providing a potential prison term of not more than three years.  But as Mei Ning Yan stated in Criminal Defamation in the New Media Environment – the Case of the People’s Republic of China, Article 246 covers defamations of actual persons, not corporations.

That is why immediately following Chen’s apprehension, state-run news outlets like Xinhua stated that Changsha police had detained Chen on suspicion of “damaging business reputation,” a defamation-like charge found in Article 221 of the Criminal Law which subjects the defendant to up to two years in prison.

According to Chinese news reports, on September 9, 2013, after over a year of alleged defamatory articles published by New Express, representatives of Zoomlion complained to the Changsha police about the articles.  The Changsha police investigated the charges and on October 18, 2013, went to Guangzhou to apprehend Chen (see Stealing Suspects to understand the law surrounding cross-province detention).  On October 30, 2013, Chen was formally arrested on charges of damaging Zoomlion’s reputation.  The allegations and the charges are all legal under Chinese law

People in Glass Houses…..the U.S.’ Use of Criminal Defamation

The rise of commercial media in China

The rise of commercial media in China

While many Americans are surprised to learn that defamation can carry prison time in China, China is not alone in criminalizing defamation.  As of 2006, seventeen states in the U.S. still maintain active criminal defamation or criminal libel statutes.  While in most states the charge is a mere misdemeanor, one state – Massachusetts – provides for a prison sentence of up to one year.  In 1966, in Ashton v. Kentucky, the United States Supreme Court examined Kentucky’s criminal defamation statute and although held it unconstitutional, it was only on the grounds that the use of “disturbing  the peace” to define the crime was too vague to pass muster.   The crime itself was not a problem; just the way it was defined, or more aptly not defined.  The seventeen states that retain a criminal defamation or libel statute have much more clearly defined laws that could potentially pass the Ashton test.

Since the 1966 Ashton case, criminal defamation has rarely been prosecuted.  But more recently, there has been a bit of a revival in the United States, at least in examining these statutes intellectually in light of the internet age.  Criminal libel and defamation statutes are seen as a possible to deterrent what has become a more common problem in the United States: cyberbullying.  In “Kiddie Crime: The Utility of Criminal Law in Controlling Cyberbullying,” Megan Rehberg and Susan W. Brenner note the recent rise in the call to use current criminal law, including criminal defamation statues, to criminalize cyberbullying.

While Legal, the Use of Criminal Defamation is an Odd Choice in this Case

Criminal defamation is a rarely used tool in the United States because individuals and corporations have an alternate option: civil defamation claims.  Bringing the case civilly entitles the victim to compensation.  For most, especially for businesses, monetary compensation is a lot more rewarding than having the perpetrator sit in a jail cell.

Although an October 29, 2013 op-ed by Ku Ma in the English-language version of  the China Daily asserted that there is no ability to bring a civil defamation claim, that is just not true (and might explain why that op-ed has been pulled from the China Daily website although still available here).  Since the 1987 adoption of the General Principles of the Civil Law (“General Principles”), where reputation has been harmed, civil defamation claims are permissible under Article 120 for both citizens and “legal persons” (businesses).

Chinese policeUnder the General Principles, the victim can sue the perpetrator for the following remedies: (1) to stop the defamation; (2) to restore his reputation; (3) for an apology; and (4) for compensation, both economic and emotional.  These remedies are not available under the Chinese criminal law.

And the victim can bring the civil defamation claim in his home jurisdiction.  According to the Supreme People’s Court’s  1998 Interpretation of the General Principles, the “consequences of the crime” in defamation cases can be the plaintiff’s hometown.  So for a company like Zoomlion – where the provincial government as its controlling shareholder and it is an important economic force in Changsha – bringing a civil defamation charge in Changsha would likely have a close to 100% success rate.  According to a 2006 study by Prof. Benjamin Liebman examining defamation cases in China, cases brought in the plaintiff’s home jurisdiction have an 82% success rate.  That rate increases to 88% where the plaintiff is also a Party-State actor.

So if you are Zoomlion, why bring the criminal action?  Why not go for the civil claims and at least get paid?  Prison time for Chen doesn’t necessarily make you whole.  And Zoomlion gets the apology either way.

Only Zoomlion knows why it choose to go the criminal route and not the civil one.  But in trying to find some rational reason, one can’t help but wonder that maybe Zoomlion wanted to avoid a civil trial.  A confession from Chen, held incommunicado in Changsha, would mean that a court would only have a short criminal trial with little testing of the evidence (in China, “plea bargaining” doesn’t avoid a criminal trial, it just shortens it.  See here for a detailed explanation).   With Chen’s confession, Zoomlion would not have to worry about “truth” as a defense to defamation.

But with a civil defamation trial, New Express would likely play an active role and even though Zoomlion would likely win, New Express might want to bring them down with them, exposing even more evidence of Zoomlion’s corruption.

Another alternative theory is that the Party-State wants to send a signal to an increasingly aggressive media:  the government is still in charge; that under China’s new president, Xi Jinping, the commercial media will be reigned-in.  The years 2008 to 2012 witnessed the central government’s clamp down on a once increasingly vibrant public interest lawyer bar.  While still active, that bar is under constant assault.  Does 2013 begin the start of a similar and severe clamp down on the commercial media?

But these theories are speculation.  Perhaps Chen is guilty of accepting bribes from Zoomlion’s competitor and wrote false articles.  The only one thing we know for sure is that Chen’s televised confession and his “trial by television” (as Peter Ford has coined the term) does a disservice to a rule of law.  Instead, like the Gu Kailai trial and subsequent Bo Xilai one, the Chinese government has merely continued to demonstrate that for legal cases that would test the system and challenge vested powers, its merely sham justice.  Who the Chinese government thinks it is fooling is unclear.

Panorama Theme by Themocracy

%d bloggers like this: