Posts tagged: Criminal Law

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

By , April 13, 2015
P1010037

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

 

新京:作为推动人之一,为什么想到做这个事情?

田文昌(全国律协刑事专业委员会主任):实际上在废除劳教制度后,收容教育制度正在被人们遗忘。但是最近相关案件的出现,让社会重新对它开始有所审视,这个制度到底合不合理,应不应该存在。

新京:你认为收容教育制度最大的问题是什么?

 

田文昌:最大问题是它和劳教制度一样,行政机关可以直接剥夺人的人身自由,没有经过正当的司法程序,执行过程中会出现很多问题。

 

新京:会有哪些问题?

田文昌:比如说,一个卖淫嫖娼人员,在经过行政处罚后,公安机关可以决定是否进行收容教育,这个决定没有特定的标准。再比如6个月到2年的收教,这个期限怎么判定,很可能出现执行偏差。没有正当的司法程序,没有向社会公开,里面容易有猫腻。

 

新京:6个月到2年的收教期限,对于卖淫嫖娼处罚重吗?

田文昌:按照治安处罚法,卖淫嫖娼犯罪行政拘留15天。但是收容教育最高可到两年,这个在很多时候比刑罚还要严重,合不合理是有待商榷的。

 

  废止收容教育或需很长时间

 

新京:据你观察,各地公安机关用收容教育制度惩戒的情况多不多?

田文昌:据我了解,全国绝大多数省份用这个制度的已比较少了。但是这并不表示公安机关没有这个权力,只要有这个权力,就可能出问题。

 

新京:收容教育和劳教制度有什么关联?

田文昌:本质上都属于限制人身自由的制度,是相同的,只是针对的人群和惩戒的期限不同。另外,它们都是没有经过司法程序,行政机关就可以单方决定的制度。从法理上看,收容教育制度并不是公安机关的问题,毕竟以前有这样的相关法规,但是已经和现在法律制度不协调,所以应废止。

 

新京:你认为这次建议废止收容教育制度的可能性有多大?

     田文昌:和劳教制度一样,推动废止需要很长的时间,我想废止收教制度也是如此。

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.

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.

An Uncomfortable Truth: Use of Criminal Law in China’s Economic Development

By , August 4, 2013
Food safety inspectors reviewing a restaurant in China

Food safety inspectors reviewing a restaurant in China

Over at the Council on Foreign Relation’s China blog, Prof. Margaret K. Lewis of Seton Hall’s School of Law has written an interesting and timely piece about the role that criminal law plays in advancing China’s economic “miracle.”

As Lewis notes, and following up on recent articles in the New York Times (see here, here and here), China’s civil legal system and its regulatory state largely failed in dealing with some of China’s new economic problems – namely food safety, financial markets and environmental degradation.

But as Lewis goes on to highlight, this failure of the civil and regulatory systems does not mean that the Chinese government has not tried to stem these problems.  In fact, as Lewis observes, it has, through the use of the criminal law.  Recently, the Chinese government has stepped up the threat of severe criminal sanctions, including the death penalty, in an attempt to try to police this situation.

Lewis’ blog post is based upon her new research regarding how, since Deng Xiaoping’s 1978 “Reform and Opening” policy, the Chinese government has used the criminal law to propel its economic development.  See Margaret K. Lewis, Criminal Law’s Contribution to China’s Economic Development (August 1, 2013). Available at SSRN: http://ssrn.com/abstract=2298923.

In fact, one of Deng’s first actions after assuming leadership was to publicly prosecute the Gang of Four, signaling the changing of the guard from

The Gang of Four

The Gang of Four

political extremism to a focus on economic growth.  From there, Lewis recounts the formation of many of the laws that would underpin Deng’s policy of economic growth, showing that the intention of many criminal laws was to find the “growth-enhancing sweet spot.”  It’s no wonder that today in China, economic criminal liability is much broader than in most other developed countries including the United States.

Lewis’ well-researched analysis makes a strong argument for her point: that you cannot analyze China’s economic growth without looking at how it has used the criminal law to assist in that growth.  But even still, it leaves you uncomfortable – there is something about the use of criminal law to propel growth that seems at odds with its purpose.  This Lewis notes is likely more the result of how the West has come to define patterns of economic growth.  To achieve a sustainable market economy, the government sets in place a regulatory state with certain ground rules and then lets the actors – usually companies and individuals – duke it out within the confines of an independent legal system.

But that is not what is going on here in China and it’s this bucking of the traditional historical trajectory of growth that forces scholars to look elsewhere for its explanation.  In China’s case, that elsewhere might be the criminal law.

Criminal Law’s Contribution to China’s Economic Development” is a must read for anyone who wants to understand the relationship between law and economic growth in an authoritarian state.  But it also raises many questions – is this use of the criminal law sustainable?  Can China solve its regulatory failure problems through state-dominated use of the criminal law?  Lewis examines a few problems with its usage, especially in attempting to deter official corruption where the Chinese Communist Party is too hesitant to prosecute its own.  She also explores the use of economic criminal liability to suppress dissent that officials determine is too “destabilizing” to development.

RMBFrom Lewis’ review of recent criminal legislation, interpretations and call for greater criminal liability, it becomes obvious that she is right – the Chinese government is attempting to use criminal law to support its market reforms.  But in a country of 1.3 billion with a land mass close to the size of the United States, how sustainable is this approach?  That is a question that we hope Prof. Lewis answers in her next article.

Glenn Tiffert on the Role of the Party-State in the Bo Xilai Affair

By , October 14, 2012

A few weeks ago, Glenn D. Tiffert, a Ph.D. candidate in History at the University of California, Berkeley with a focus on the legal history of the PRC, posted an article on traditional problems of jurisdiction, issues that any legal system would have – which courts have the right to hear a case and why.

But China’s legal system is far from traditional. Tiffert makes that clear in his new article “Hold the Champagne: The Bo Xilai Affair, the Party-State, and Rule of Law,” posted below. How are criminal trials of government officials handled in a one-Party state, where the overlap between the Party and the state is strong and omnipresent? What does the fact that Gu Kailai and Wang Lijun went through the criminal legal process and not the Party’s disciplinary process mean for the rule of law? And does the fact that Bo Xilai was very much handled by the Party disciplinary process mean anything else?

Hold the Champagne: The Bo Xilai Affair, the Party-State, and the Rule of Law

by Glenn D. Tiffert

Part 2 of a two-part series on the Bo Xilai Affair. Click here for Part 1.

With its personal and political dramas, and its broader implications for leadership succession, the Bo Xilai Affair (“the Affair”) has captivated observers of the People’s Republic of China (“PRC”). But beneath the headlines, the Affair affords an opportunity to take stock of the evolving relationship between the Chinese Communist Party (“CCP”) and the PRC state, a task this post briefly undertakes in the context of discipline and punishment.

Although China today largely has a market economy, the Leninist political concept of the “Party-state” remains a useful one. The term suggests a duality in which each component maintains a distinctive identity amid mutual, deep entanglements.

According to one recent description: “The Party is like God. He is everywhere.”Its tendrils penetrate every corner of Chinese political, economic,

Vladamir Lenin: His Ghost Still Lives on in the Chinese Party State

social, religious and cultural life, and it tolerates no organization it cannot monitor or control. Hence, in principle, every institution of significance in China has internal Party representation that links to a parallel, external hierarchy of Party organs. This arrangement is intended to maintain the Party’s intimacy with Chinese society and leadership of it, and facilitate tight discipline over ideology as well as policy formation and implementation.

Yet, the boundaries and terms of the Party-state duality are far from stable. Historically, they have generated fierce contestation and fluctuated widely, not just in the PRC, but also under the Nationalist regime that preceded it. In short, Party and state, though tightly entwined, variously face one another in tension.

The Bo Xilai Affair illustrates the ongoing complexities of the Party-state relationship well, particularly as it pertains to the legal system. To explore this more concretely, let us reconstruct from the public record the differential handling and case procedural histories of the Affair’s principal players –Bo, his wife Gu Kailai, and Chongqing police chief, Wang Lijun.

A Tangled Web: Discipline Through Both Legal and Party Means

Generally speaking, the PRC maintains three official channels of discipline and punishment for government officials and Party members. These channels may overlap or intersect in specific cases.

The first channel involves ordinary criminal liability. All citizens accused of crimes – including officials and Party members – are subject to the state legal system familiarly comprised of police, procuratorates and courts. But, Article 74 of the PRC Constitution exempts deputies to the National People’s Congress (“NPC”) from arrest or criminal trial without the consent of the NPC Presidium or its Standing Committee. At the time the Affair erupted, both Bo and Wang were NPC deputies.

The second channel, also governed by state law, involves administrative sanctions and applies specifically to government officials and Party members, who are subject to a thicket of regulations and laws enforced by an assortment of agencies, including the Law on Public Servants and, in complex or serious cases, investigation and sanction by agents of the Ministry of Supervision pursuant to the Administrative Supervision Law.

The third and final channel exists in parallel to the state legal system and is purely Party. Under the Party Constitution and subsidiary rules and regulations, CCP members are subject to Party discipline. In fact, the CCP maintains a hierarchy of internal Discipline Inspection Commissions charged with investigating both concrete cases and maintaining the overall organizational and ideological health of the Party.

Attempt to Separate Legal Liability and Party Discipline

Deng Xiaoping takes power in China and the early 1980s sees "reform & opening"

When the CCP began reconstructing its state legal and internal disciplinary organs in the early 1980s after the disruption of the Cultural Revolution, an effort was made to assert their separateness. Thus, the Party’s Central Discipline Inspection Commission and Organization Department jointly opined in 1982 that CCP members could be arrested and tried in the state legal system under the criminal law without first waiting for the Party to dispose of their cases internally, and that the Party disciplinary process could even begin after a judicial verdict. They added that punishment under the criminal law should, with limited exceptions, result in expulsion from the Party. Indeed Article 38 of the Party Constitution declares in part that “Party members who seriously violate the criminal law must be expelled from the Party.”

Very little public information is available on the operation of the Party disciplinary process, but observable practice indicates that this stab at separation did not get very far. Although the 1982 Party Opinions intended to loosen the chains that bind the state legal process to the Party disciplinary process, in practice, the Party exercises a right of first refusal towards suspected criminals within its ranks. Accordingly, Party officials suspected of offenses prosecutable under the criminal law are routinely held to account only through internal disciplinary channels, where anecdotal evidence suggests they often get off more leniently than the criminal law would allow – in many cases effectively suffering no more than setbacks to their careers. This amounts to a double standard of justice for Party members and understandably outrages those who believe that everyone in China should be equal before the law.

It appears that the Party countenances prosecution by state judicial authorities only of members suspected of especially serious or notorious crimes, crimes that in its estimation cry out for punishments heavier than mere internal Party discipline, or in which the Party wishes to set a public example. Consistent with its 1982 Opinions, the Party may in these instances allow the police and procuratorate to originate a case in the state legal system, or it may refer a case to them after exhausting its own internal disciplinary process. Of course, the latter – in which the Party has already made its own internal decision – effectively constitutes a form of political guidance on the expected outcome of the state criminal prosecution and trial.

In addition, because police and procuratorial personnel often participate in Party disciplinary investigations, they are familiar with the details of the referred case before it formally enters the judicial process. What is more, at the time of referral, the Party forwards to them the report of its Discipline Inspection Commission and the official findings therein. Thus, the Party disciplinary process – even though it appears on paper as separate from the legal system – contaminates the judicial process at multiple points, making independent adjudication that much more difficult.

How Does the Party-State Discipline Model Play Out in the Bo Xilai Affair?

How do these arrangements bear on the Bo Xilai Affair? The three principals – Bo Xilai, his wife Gu Kailai, and Wang Lijun – were all members of the CCP. So far as we know, Gu Kailai held no Party or state offices, but Wang Lijun held both, and Bo Xilai held Party, but no state, office. As the table below indicates, these facts determined the channels through which their cases publicly traveled.

- The Case of Bo Xilai

The Party’s handling of Bo Xilai exemplifies a classic sequence of discipline and punishment for Party members: (1) suspension of Party posts pending the results of disciplinary investigation, (2) expulsion from the Party upon the completion of that investigation, (3) seamless referral to the state judicial system for prosecution and, eventually, (4) conviction. The key outstanding questions concerns the specific charges that will be leveled against Bo and the severity of his ultimate sentence.

Bo Xilai

Deconstructing his case further, as a member of the Politburo, Bo fell directly under the Party jurisdiction of the Central Committee. Thus, on March 15, 2012 and pursuant to the Party’s internal Regulations on Disciplinary Punishment (中国共产党纪律处分条例), the Central Committee removed him from his Chongqing Party posts, chief among them Party Secretary. Further following the sequence mentioned in the prior paragraph, on April 10, 2012 the Party suspended his membership in the Politburo and the Central Committee and announced that his case would be sent to the Central Discipline Inspection Commission (CDIC) for investigation of “serious disciplinary violations.” On September 28, 2012, after considering the CDIC report on his case, the Politburo of the Central Committee expelled Bo from the Party and referred him to judicial authorities for prosecution. Divested of his Party membership, on September 29, 2012, Chongqing municipal authorities formally requested that the National People’s Congress (NPC) strip Bo of his seat (and the immunity it conferred) in order to formally clear the way for prosecution. As of this writing, we await the trial and sentence.

Another outstanding question concerns Bo’s whereabouts since his last public appearance in mid-March. As a subject of Party investigation, he was likely held under shuanggui (双规), an extra-legal form of detention used by the Party in its disciplinary process to investigate and interrogate members suspected of violating Party rules or state law. Party rules restrict shuanggui to a term of six months, which coincides well with Bo’s mid-March disappearance. We may learn at trial that he was transferred to state custody on a date that falls plausibly within this six-month time limit.

- The Case of Wang Lijun

Wang Lijun’s case traveled a different route. On February 7, 2012, Wang left the United States Consulate in Chengdu and surrendered

Wang Lijun

immediately to central authorities, reportedly from the Ministry of State Security, disappearing from view until his trial in mid-September. However, Wang was not formally arrested by State Security until July 22, 2012, having been stripped of his NPC seat and the immunity it conferred several weeks before, on June 30.

Authorities have offered no public account of his whereabouts between early February and late July. Three possibilities suggest themselves. First, in China, the police can detain an individual for investigation in a detention center or jail without arrest for up to 37 days, though they may be able to reset that clock and lawfully extend detention further by tacking on charges with strategic timing. A five and a half month detention, however, would have stretched that to the point of unlawfulness and, while hardly unprecedented, the intra-Party stakes would arguably have made the Party averse to tainting its handling of this case with that kind of procedural irregularity.

A second, more remote, possibility is the extra-legal Party form of detention called shuanggui, discussed above. Third, Wang may have been placed under “residential surveillance (监视居住),” a controversial form of prolonged detention famously used against government critics that, contrary to its connotations, is frequently served at a place or facility designated by the police. Under the Criminal Procedure Law, residential surveillance is limited to a period of six months, which fits Wang’s disappearance from public closely.

Gu Kailai

- The Case of Gu Kailai

Gu Kailai’s detention raises the same questions. She disappeared from public view in mid-March, was not formally arrested until July 6, 2012 and reappeared only at her trial for the intentional killing of Neil Heywood on August 9, 2012. Nearly four months separated her disappearance and arrest, and again the official record offers no explanation. Investigatory detention for that length of time for a single charge of homicide too would have been unlawful.

Foregrounding the State: CCP Reticence in the Gu & Wang Cases

Wang and Gu were both Party members, but interestingly the Party has only spoken of their cases in the context of the state legal system; it has studiously avoided associating them with its internal disciplinary process. This would favor residential surveillance, rather than shuanggui, as the explanation for their extended disappearances.

The Party’s inhibitions about connecting these two cases to discipline manifests in another important way as well. Wang and Gu have both been convicted of “serious” crimes, but no public announcement of Party disciplinary sanctions, most obviously expulsion, has followed; Article 38 of the Party Constitution requires expulsion.

In the past, such announcements routinely arrived at the outset of the state legal process. The practice of announcing expulsion just prior to referring the case to judicial authorities suggested a convention that Party members in good standing were immune from state prosecution, irrespective of the 1982 Opinions. Bo Xilai’s case, for example, conforms to this model, as did those of Chen Xitong and Chen Liangyu before him. There are signs, however, that this practice has changed, at least for some defendants.

For cases like Gu’s and Wang’s, which originate in the state legal system rather than with a disciplinary investigation, the Party is no longer consistently publicizing the disciplinary consequences of conviction. One might read this as a positive development if it indicates that the Party has rediscovered the spirit of the 1982 Opinions and is again loosening the chains that bind the state legal system to its internal disciplinary process. After all, given the clarity of the Party Constitution on the consequences of conviction for serious crimes, one may assume with good reason that Wang and Gu have been, or will be, expelled. On the other hand, with public faith in the capacity of the CCP to police its own at a nadir, continued silence on their standing in the Party, especially in light of their notoriety, invites cynicism and conspiratorial theorizing.

Discipline Through the Administrative Channel: Greater Rule of Law by the Party?

In addition to the Party disciplinary and state criminal processes discussed so far, there remains another channel: the state administrative process. A dizzying array of state administrative organs regulate malfeasance by government agencies and their personnel. The relation of these various administrative organs to one another and to the Party disciplinary process is not always clear, though one example stands out from the pack and demonstrates how intertwined the state administrative disciplinary process is with the Party’s.

Historically, the crowning organs of the state administrative and Party disciplinary channels have had overlapping memberships, with key cadres concurrently holding leadership positions in both. For example, the current Minister of State Supervision, Ma Wen, also serves as a Deputy

The Downfall of Bo Xilai begins with the Party

Secretary of the Party’s Central Discipline Inspection Commission, just as her predecessor, Qian Ying, did in the 1950s, when Qian established the precedent. In fact, the correspondence between these organs extends deeper still: in 1993, the Central Discipline Inspection Commission actually absorbed the Ministry of State Supervision in a merger, and while they remain distinct on organization charts, their twin apparatuses often function as alter-egos in concrete cases.

Strictly speaking, only one of the three defendants held state office at the time the Bo Xilai Affair erupted, Wang Lijun, and I will have more to say about him in a moment. But in a curious twist emblematic of the overlap between Party and state, Bo Xilai himself is also subject to the 2005 Law on Public Servants (公务员法), paradoxically through his Party status.

In 2006, the CCP Central Committee and State Council, as the top organs of Party and state administration, jointly issued an Implementation Plan for the PRC Law on Public Servants(中华人民共和国公务员法实施方案) (“the Plan”). The Plan makes clear that, pursuant to subsidiary Rules on the Scope of Public Servants (公务员范围规定) (“the Rules”), functionaries in CCP organs (工作人员), with the exception of service workers (工勤人员), qualify as public servants and thus are subject to the Law on Public Servants; Hence Party officials who hold no state office are now counter-intuitively subject to state law regulating public servants.

Article 4, Paragraph 1 of the Rules is still more explicit, listing among the categories of CCP personnel included within the scope of public servants “leading personnel of Party Committees and Discipline Inspection Commissions at the central and various local levels.” Under this rubric, Bo Xilai, as Chongqing Party Secretary and a member of the Politburo qualified doubly, and hence the announcement of his referral for prosecution properly lists the state Law on Public Servants among the legal bases for the Party’s decisions to remove him from his Party posts.

The optimistic reading of this convoluted logic would go something like this: the Party, having conceded that it is subject to the law, faithfully submits its leading members to the same regulatory standard as state public servants, a refreshing acknowledgment perhaps of their actual powers and functions amid the blurred boundaries of the dualist Party-state.

But before we break out the champagne to celebrate this milestone in the tortuous journey of the rule of law in China, it bears keeping in mind that while such maneuvers reference state law, they reach it only after an initial, internal determination by the Party; it is the Party that permits a case to attain this point.

Moreover, a further cautionary note underscores how provisional the change is in the relationship between Party and the state. Though the Party has gone to considerable lengths to present its handling of the Bo, Wang and Gu cases as procedurally unimpeachable models of socialist rule of law, certain details belie its tidy narrative, and Wang Lijun helps to show how.

Recall that of the three defendants discussed here, only Wang is known to have held state office at the time the Affair erupted. On March 26, 2009, the Chongqing Municipal People’s Congress, acting under its constitutional authority, appointed him Chongqing Police Chief, and on May 27, 2011, it elevated him to serve concurrently as Deputy Mayor. The power to reassign or dismiss Wang from these posts similarly fell under its jurisdiction.

Nevertheless, Wang’s February 2, 2012 reassignment from police duties, the event that precipitated his flight to the United States Consulate several days later, was not in fact ordered by the People’s Congress or by another legally authorized state body, but by the city’s Party Committee, controlled by Bo Xilai. This unlawful conflation of Party and state – where the Party performs duties reserved to the state – was then compounded on March 15, 2012, when the CCP Central Committee, via its Organization Department, removed Wang from his position as Deputy Mayor.  It was not until March 23, 2012, that the Chongqing Municipal People’s Congress formalized Wang’s dismissals from these posts, making them legally valid.  For as long as fifty revealing days, the gaps between Party and state, power and law, brazenly lay bare.

Party authorities, at both the municipal and national levels, in their haste could not be troubled to maintain appearances by first arranging Wang’s dismissals through regular state channels. Instead, the Party violated the Constitution and other laws, thereby poking holes in the self-congratulatory, socialist rule of law banner it attempted to wrap around these cases. In short, Wang’s case reminds us that even after considerable effort to systematize Party and state administration and bring the Party under the ambit of state law, old Leninist habits and sensibilities remain alive and well, and are never far from the surface.

This is the second article in a two-part series. For Part 1, click here.

Glenn Tiffert On China’s Recent Jurisdictional Issues

By , September 9, 2012

Jurisdiction is central in any legal system; it is jurisdiction that gives a court its power to administer justice.  Without proper jurisdiction, a court’s opinion is defective.  Thus, given its importance, all legal systems design specific rules governing when a court has jurisdiction over a case.

But recently in China, how courts have gained jurisdiction in criminal trials has been called into question.  The trial of Gu Kailai, for a murder that took place in Chongqing, was heard in Hefei.  Wang Lijun was police chief of Chongqing, but his crimes are being heard in a Chengdu court.  Has the Chinese legal system ignored all rules concerning what gives a court jurisdiction?  Or are there other rules that apply?

Glenn D. Tiffert, a Ph.D. candidate in History at the University of California, Berkeley with a focus on the legal history of the PRC, explains below that what might look like a random selection of courts actually has a basis in law.  Tiffert also reminds us that there is more than just the Criminal Procedure Law to look at in understanding the Chinese criminal legal system. 

Mixed-Up Confusion?  The Different Ways Chinese Courts Obtain Jurisdiction

By Glenn D. Tiffert

Part 1 of a two part series exploring the jurisdictional issues in recent criminal cases

As the Chinese legal system works its way through the various cases connected to the “Bo Xilai Affair,” it is a good time to review the usually unglamorous procedural rules governing jurisdiction.  The Bo Xilai Affair has brought these jurisdictional rules to the forefront and is generating more than the usual amount of interest among China watchers; even those focused on Chinese law are finding twists worth exploring.

To keep things simple, I will explore jurisdictional issues in the Gu Kailai and Wang Lijun cases alone, although my points could apply more generally to the other defendants connected to Gu, namely her accomplice Zhang Xiaojun, and the four police officers charged with covering up her crime.  This post will look at territorial jurisdiction, in other words, where the trials were held.  A later post will examine why both cases were assigned to intermediate level People’s Courts.

Gu Kailai being led into Hefei Intermediate People's Court

To recap: Gu Kailai was convicted of the intentional homicide of Neil Heywood, a British citizen resident in China, and the crime was alleged to have taken place in Chongqing, Sichuan province, the city her powerful husband, Bo Xilai, presided over as Party Secretary.  However, Gu’s trial took place 800 miles away from the city of Chongqing, in the city of Hefei, Anhui province, a place that had no known connection to the homicide, or to the alleged crimes of the other defendants associated with her.  Observers have suggested various practical or political reasons for why the trial was not held in Chongqing, and why it may have been assigned to Hefei, but those need not concern us here.  We are interested in discovering the legal authority for the assignment of the case to Hefei.

Article 24 of the Criminal Procedure Law of the PRC establishes the general rule that: “A criminal case shall be under the jurisdiction of the People’s Court in the place where the crime was committed.  If it is more appropriate for the case to be tried by the People’s Court in the place where the defendant resides, then that court may have jurisdiction over the case.”   Additionally, the Criminal Procedure Law provides rules for cases in which more than one court could claim jurisdiction, or in which jurisdiction is unclear.  For example, Article 25 states: “When several People’s Courts at the same level have jurisdiction over a case, it shall be tried by the People’s Court that first accepted it. When necessary the case may be transferred for trial to the People’s Court in the principal place where the crime was committed.”  However, in the case of Gu Kailai, none of these basic rules provide a basis for trying her in Hefei.  As a result, we must look elsewhere.

The Chinese legal system provides several routes for transferring jurisdiction over a case from one court to another.  For example, pursuant to the Criminal Procedure Law and the Law on the Organization of the People’s Courts, a lower level court with jurisdiction over a major or complex case can request a higher level court to take over the case.  But because Gu Kailai was charged with a capital crime, we can rule this path out.  Article 20 of the Criminal Procedure Law stipulates that intermediate level courts have jurisdiction of first instance over crimes punishable by life imprisonment or the death penalty and, because this case was actually tried by an intermediate level court, a lower court could not have had jurisdiction over it first.

One jurisdictional route rises above the rest.  Article 26 of the Criminal Procedure Law provides that: “A People’s Court at a higher level may assign a People’s Court at a lower level to try a case over which jurisdiction is unclear and may also instruct a People’s Court at a lower level to transfer the case to another People’s Court for trial.”

Article 26 can be parsed in different ways, with different results attaching.  To resolve the ambiguity, we must do what we do in any legal system, move beyond the four corners of the statute to consult supporting texts and practice, both of which indicate that the Supreme People’s Court (SPC) essentially regards Article 26 as comprising two independent clauses, the second of which matters here.  Hence we get: “A People’s Court at a higher level may… instruct a People’s Court at a lower level to transfer the case to another People’s Court for trial.”

The authoritative SPC Interpretation on Certain Questions Pertaining to the Implementation of the Criminal Procedure Law of the PRC (“the SPC Interpretation”) stipulates two ways that can happen.  First, under Article 18 of the SPC Interpretation, when the President of a lower level court must recuse himself[1] and it would be “unsuitable” for that court to assert its jurisdiction over a case, that court may ask a higher level court to take over jurisdiction.  The higher level court may take jurisdiction or assign it to another court at the same (lower) level as the first court.  Article 19 of the SPC Interpretation requires the higher court to send its decision on jurisdiction – 管辖决定书 (guanxia juedingshu) – to the lower court newly awarded jurisdiction and to other relevant courts.  Second, Article 22 of the SPC Interpretation allows a higher level court on its own initiative to assign jurisdiction over a case from one lower level court to another lower level court “when necessary,” without first requiring a request from below or that the second court be of the same level as the first.

Admittedly, we know few hard facts about the procedural history of the Gu Kailai case, but one nugget stands out.  The Xinhua reporting on the trial indicates that the SPC issued a decision on jurisdiction to the Hefei Intermediate People’s Court, and the Hefei court accepted the case for trial on that basis.  We do not know precisely whether this decision was based on Article 18 or 22 of the SPC Interpretation, as either might reasonably have applied, but the SPC evidently used its inherent power under Article 26 of the Criminal Procedure Law, as expounded in the SPC Interpretation, to transfer Gu’s case to Hefei.  One may furthermore assume that the Supreme People’s Procuratorate issued complementary instructions so that procurators would actually argue the case there, too.

The Supreme People's Court

Assuming that the SPC complied with its own Interpretation of the Criminal Procedure Law, we may infer from its decision on jurisdiction that another court originally accepted the case.  We do not know which court that may have been, but an obvious candidate would have been the Chongqing Intermediate People’s Court.  Under this scenario, three possibilities present: first, the unnamed court claimed jurisdiction over the case without the approval of senior Party and judicial authorities in Beijing, which seems implausible; second, Beijing granted its approval and then changed its mind; and third, acceptance by the unnamed court served, in the interests of formal compliance with procedural requirements, purely as a trigger for transfer to Hefei.  Regardless, as the highest court in the land, once the SPC transferred jurisdiction, the decision was effectively immune from challenge or appeal.

In comparison, the Wang Lijun case is more straightforward.  At least one of Wang’s alleged crimes took place in Chengdu: his purported “defection” in the United States consulate.  Notwithstanding substantive problems matching the facts as we know them to the elements of this crime, Chengdu judicial authorities may properly claim jurisdiction over the case under Article 25 of the Criminal Procedure Law (discussed above), and barring an unlikely protest from their counterparts in Chongqing or any other locale in which Wang is alleged to have committed crimes, the trial will take place in the Chengdu Intermediate People’s Court.  Indeed, given the stakes in trying Wang, one may assume that the SPC, and the political leadership behind it, assents to Chengdu jurisdiction, either tacitly or by assignment.  When the verdict is announced, we may know which.

Historically, reassignments of lower court jurisdiction by higher level courts are not uncommon in the Chinese judicial system, where concerns about local protectionism, judicial independence and varying levels of judicial competence adversely affecting trial outcomes run high.  The 2008 criminal trial of former Shanghai Party Secretary Chen Liangyu in Tianjin is another prominent, recent example.  Cases like those of Chen Liangyu and Gu Kailai shine a spotlight on one of the Chinese judicial system’s underappreciated features.


[1] Article 28 of the Criminal Procedure Law defines the grounds for recusal, including “relations with a party to the case that could affect the impartial handling of the case.”

Analysis of China’s Draft Mental Health Law – An Interview

By , October 24, 2011

On Monday, the Standing Committee of the National People’s Congress began its review of China’s new, draft Mental Health Law.  The draft – originally issued on June 10, 2011 and opened for public comment – has received much criticism both at home and abroad, in particular, Article 27 of the draft which permits involuntary commitment where an individual exhibits behavior that “disturbs public order” (扰乱公共秩序).

Prof. Michael Perlin

Prof. Michael Perlin

The Chinese government appears intent on ratifying the new Mental Health Law by year’s end, but the question remains, how will the new law change the current landscape?

Below, Prof. Michael Perlin, professor at New York Law School, Director of the Mental Disability Law Project, and author of the recently published “International Human Rights and Mental Disability Law: When the Silenced are Heard,” analyzes China’s new draft Mental Health Law, paying particular attention to its interplay with the Convention on the Rights of Persons with Disabilities (CRPD), a treaty China has ratified.

Click here to listen to the interview with Prof. Michael Perlin or read below for the entire transcript.
Length: 31 minutes (audio will open in another browser)

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[01:31] EL: Thank you Prof. Perlin for joining us.

[01:33] MP: Happy to be here.

[01:34] EL:  Let’s begin by talking about your new book, specifically Chapter Four which discusses the use of mental disability law to suppress political dissent.  How long has China been using involuntary commitment to suppress dissent?

[01:47] MP:  We knew that it has been going on back at least 40 years, it may be before that, we don’t know.  This was written about first and most extensively by Robin Munro who brought most of this to the public attention and he gave some very, very serious examples of the misuse of state-sanctioned psychiatry in support of commitment of people who by any sort of standard, normative reason would not have needed commitment.

The use of involuntary commitment to squash dissent is not new in China and can be traced back to Cultural Revolution days.

[02:17] Sometimes it was done for political reasons, sometimes it was done for financial reasons.  There is this whole other set of cases where people wanted to get rid of a relative because they wanted to take over a business or something.  That was not unfamiliar to those who knew about this in the United States about the same time.  But clearly it was being used to suppress political dissent.

[02:40] When I wrote Chapter  Four of this new book, a lot of it flows from an article I’d done about four or five years before in the Israeli Law Review.  When I did that research, it was kind of interesting to me.  Most people know, or people who are interested in this whole general area, know that the former the Soviet Union, this was very common.  And there were exposes, the World Psychiatric Association sends a delegation in the late 80s, early 90s, there were quite a few books written about it and articles.  But China at that point nobody seemed to pay that much attention to, and it was pretty clear that the same kind of things were going on in China as were going on in the Soviet Union.  Fast forward, the Iron Curtain fell, some of the abuses – not all – in the former Soviet Union had been remediated to some extent. But again what was happening in China was pretty much under the radar.

[03:40] It became known, interestingly, with regard to what is seen as the persecution of the Falun Gong.  Is it a political group? Is it a kind of exercise? Is it meta-physical? I can’t answer that but it seemed very, very clear to me and to most neutral observers that practitioners and adherents were being singled out, and they were being marginalized as mentally ill.  One of the things, we’ll talk about it latter, is why do governments do this and I will discuss that in a few minutes but it seemed to me that China in many ways was paralleling[the experiences in the Soviet Union]

[04:25] What is interesting to me is that in this new draft act [China’s draft Mental Health Law], of which I am enormously ambivalent I should tell you, I think…and I have sent some comments to other people about it….I think there are some other things that are better than China has had before but an awful lot of it strikes me as very problematical.  [Much of it] would not only not meet constitutional standards in a Western country but also I think pretty clearly does not comport with the UN Convention on the Rights of Persons with Disabilities which China has ratified.

[04:58] It seems to me that  [in] this new law, Article 27  — about the disturbance of public order  — should be a red flag.  What does that mean?  We are sitting here on the corner of West Broadway and Leonard Street and how far are we from Wall Street where there is an occupation going on that seems to be spreading.  Is this disturbing the public order?   One could read the pages on Facebook and an awful lot of American citizens think it is.  Is something like this was being done in Beijing or Shanghai would, could everybody be dragged away to a psychiatric hospital?  Under the strict language of the Act, yeah, it probably could.

[05:36] EL:  Well, in terms of  that, and you sort of mentioned it in your answer.  The Chinese government itself has the power under even the criminal law, arguably; I mean maybe it is not directly stated in the criminal law but they use the power to detain people indefinitely.  Why do they choose to, for example Falun Gong and other dissidents, why do they choose to use a mental health analysis instead of using the criminal law when they are basically an authoritarian state.  Why did the Soviet Union do that, why does China continue to do that?

[06:13] MP:  It seems to me that there are at least three main reasons for that Elizabeth, and that truly is a great question.  First of all, there are always some, albeit minimal, procedural safeguards in the criminal process.  They

The criminal process in China has its limits

are not always adhered to.  … I spent some time working in China with criminal defense lawyers and I was teaching them how to, pedagogically, how to do certain things but I also spent much more time learning and I realized that it is not a lot those of us who have practiced criminal defense work in New York or New Jersey would go “oh my God”  [to much of what goes on in the criminal trial process in China] but at least there is a something there.  There is nothing there on the psychiatric commitment side.  So that’s number one.

[06:56] Number two, when there is a hearing, when there is an adjudication, there is usually a limit to the sentence.  It may be a draconian sentence, it may be for many more years than we would think make sense.  But at least there is a number there.  Psychiatric commitment is, in these jurisdictions indefinite.  And I should say, after the CRPD [the Convention on Rights of Persons with Disabilities], the Convention is ratified, I don’t think indefinite commitment without clear judicial review passes muster under the international human rights law.

[07:31] But the third I think is the most important.  Because I think  [psychiatric commitment] stigmatizes.  We know that if we call somebody a mental patient, he will be discredited.  And if he has political motives, that will mean, well, we can ignore them.  I use this example, I think, in that book, about someone in Romania (when Romania was a completely authoritarian state) who was picked up, and his psychiatric charge was [that] he was carrying a sign saying that the prime minister of the country must go; the [rationale was], “Well if he thought he was serious that someone would listen to him, he must be crazy.”  It’s a self-fulfilling prophecy.  It’s a loop.  But I think those three reasons together are really it.

[08:14] EL:  Right now, before…..I know they [China] have the draft [mental health] law published right now and it was opened for comments back in the summer, but before that.  Right now how does involuntary commitment work [in China]?  Are there laws in place?  Who makes the decision if an individual should be involuntarily committed?  How does it work?

[08:33] MP:  The decisions is made basically by the State.  Someone gets picked up; very, very often family will call and ask: take my relative and send him to the hospital.  And there is no independent assessment.  In 1985….I should say to your listeners, I have been a professor since the mid-1980s but I was a real lawyer before that.  I practiced 13 years both as a criminal defense lawyer and as an advocate for persons with mental disabilities.  I filed an amicus brief in the U.S. Supreme Court in 1985 in a case called  Ake v. Oklahoma in which the Supreme Court ruled that a person who is indigent had a right to a psychiatric evaluation at state expense if he was putting forth the insanity defense.  The idea being that this is something that can’t simply be done, can’t be decided on the say-so of the state doctor.

[09:32] In China it is always done on the say-so of the State doctor.  There is virtually no sense of independence.  There is also no lawyer appointed.  One of the issues that I think is really important; we know this, we know that both among the United States and in other nations, serious mental health reform only happens when there are lawyers assigned to represent patients.  I know that sounds very lawyer-centric.  Pardon me, I plead guilty to that.  But if you were to go to the United States and go state-by-state and see where has there been reform, where has there not, it’s an easy question.  Where have there been lawyers like in New York, the Mental Hygiene Legal Service, like in New Jersey, the Division of Mental Health Advocacy law office, like in DC, the Public Defenders Service/ Mental Health Division, that’s where it happens.  In other nations, where you have it: Israel is a nation that has a robust public defenders office doing these things and they are enormously successful.  Where there are no lawyers, reform doesn’t happen.

[10:29] There are no lawyers doing these cases on the ground in China.  I believe that after ratification of the CRPD, this needs to happen.  Commitment must be subject to the judicial process at every step.  That is demanded by the CRPD and it’s not in the draft [Mental Health Law] much less in the older law.

[10:49] EL:  So to clarify, the draft mental health law that has been proposed has no provisions for a lawyer to be appointed.

[10:57] MP: Correct.

[10:58] EL: And there is no independent review of a state’s decision.

[11:00] MP:  One can ask for a review but it is absolutely, utterly optional.  There is no sense that it is obligatory, it is not mandatory.

[11:09] EL:  Now, in terms of involuntary commitment, you say that the decision is made by the state.  Would that be – what division of the state?  Is that the Ministry of Public Security or is it not clear?

[11:21] MP:  It’s not clear.  You have sort of two different ways it could happen.  The Ministry of Public Security and

An Ankang Hospital in China

this whole Ankang hospitals that are really shrouded….I mean, I heard about them….oh my goodness…I’d been doing mental disability work my whole career.  I’ve been doing international human rights mental disability work for 11 years.  I’ve been going to Asia for nine years.  But it wasn’t until about four or five years ago that I even heard about these hospitals.  And they operate…there is virtually no way to find out what’s going on in them and that ministry is Public Security.  The others go through the Ministry of Health, I believe.

[12:00] EL:  So the Ankang hospitals are within the Ministry of….?

[12:05] MP: Of Public Security.  And those involve people who are seen as being criminally dangerous.  It’s a very, very murky line between criminality and other kind of dangerous behavior.  Very often, it’s what you choose to call it.  But there is very little, there is no review, and there is very little outsider involvement.  It’s like a world in and of itself.

[12:33] EL:  And in terms of that line between criminality and involuntary commitment….One of the things that is being heavily criticized both by foreign scholars and even Chinese legal scholars is this continued use of “disturbing public order.” And that’s included in the new draft mental health law.  My question is….just to get to the people who write this law.  Is there any sincerity in the use of this term?  Does the Chinese government believe that….I mean is there sincerity in the belief that perhaps the expression of a different opinion is evidence of mental illness?  And how do they get doctors on board with that?

[13:13] MP:  It’s very hard for me to tell what was in their minds.  There is no record of this.  And you can come

Occupy Wall Street - Political Protest or Endangering Public Saftey?

with multiple explanations Elizabeth. On one hand you can look at it just plain meaning.  Endanger public safety means somebody is standing in the middle of a main street screaming at cars, right?  That could cause an accident.  And that you and I would agree might endanger public safety.  And that’s one possibility.

[13:42]  [This is another:] … In this study that was done by the Equity and Justice Initiative of Psychiatry and Society Watch that was published recently which analyzes this commitment system in China, it is replete with example of people who were picked up and psychiatrically hospitalized because basically they were seen as dissident.  It’s an over-used word.  I am very concerned in any jurisdiction but especially, especially, in a jurisdiction that has this kind of track record of locking people up for disagreeing politically.  I am very concerned that this kind of language, like in Article 27, is far too overbroad and I see that as a really troubling issue.

[14:29] Why do state psychiatrists go along with it? This is something I have been trying to deal with for 20 years in terms of thinking about it and you don’t know.  I remember reading one study in which the researchers said – well you know if we went along for the ride we would get more vacation days or get a nice home at the beach – something like that.  Which sounds so depressingly banal, right, but it also in fact may be so.

[14:57] Some may also feel as if they[examining psychiatrists] are an arm of the state.  I have heard, I have been in meetings, just so your listeners know, I have been mainland China five or six times and have done quite a bit of work there and I have been at meetings with psychiatrists and I’ve tried to listen to what people say.  Very often….most recently I was in Beijing in June this summer, and I heard a psychiatrist say – “oh well, you know, I can kind of look at this guy in the eyes and I will know if he needs to be institutionalized.”  That kind of behavior was repudiated when I started practicing law, I heard doctors say that.  That’s been repudiated in the States for the last twenty or thirty years.

[15:42] Very, very much of what I heard on this last trip to Beijing – Yogi Bera said it is déjà vu all over again – very much of what I heard was very close to what I heard in the early 1970s when I started practicing law in New Jersey.

[15:55] EL:  Well in that regards, and this is a little maybe off topic because it’s not as much related to law, but has there been efforts….I know that there are a lot of rule of law projects from the US in China to help strengthen the legal profession.  Have there been efforts to maybe create….strengthen the professional mindedness of the psychiatry profession in China?  Has there been any attempts to do that and hopefully through that way, develop a grassroots feeling of independence?  Or is that something that might just be too difficult?

[16:26] MP: If this was a TV show rather than podcast, your listeners would be seeing my face at this moment.  Yeah, kind of, maybe, a little bit, not much.  I know the World Medical Association has taken seriously some of these issues.  There’s a psychiatrist in Mamaroneck, New York, Dr. Abraham Halpern, one of my heroes.  Abe has been working on some of these issues for the last 30, 40 years.  Mostly he is focusing on things like organ transplants now.  But he has been a gadfly to the World Medical Association encouraging it, as has  Dr. David Matos of Canada.  But generally not so much.  I don’t see this…..

[17:05] There is an interesting subtext issue here.  One of the things I write about, and I discuss it extensively in this book, is what I call “sanism.”  Sanism is the kind of irrational prejudice like racism, like sexism, like homophobia, in which we stereotype people with mental disabilities, we trivialize them, we typify them, we don’t take them very seriously.  We treat them as less than people.  Because of that, we generally – we meaning society – pay much less attention towards what psychiatrists do with purportedly “crazy people” than we do when there are other violations.  When people mistreat women, when people mistreat children, when people mistreat gays, there is a predictable and appropriate outrage on page one on all the blogs.  It doesn’t happen here.

[17:55] Internationally there is only one organization, a group called the Mental Disability Advocacy Center located mostly in Budapest, a couple of other sites in Europe, that is doing this work on a global level.  I am working with my friend and colleague Yoshi Ikehara who is head of the Tokyo Advocacy Law Office (as I said before we went on the air) to create a Disability Rights Tribunal for Asia and the Pacific.  But there is very little else that is being done.

[18:19] This is a population that people, even people who see themselves as traditional liberals –  traditionally progressive, traditionally focusing on social justice – which just as well go away.  They think it is yucky.

[18:34] EL:  In terms of….focusing on the international efforts, you had mentioned the CRPD, what international law is out there that would push China forward in this regards?  Since China has ratified some of the treaties, what can be done on an international level besides just issuing reports that they are in violation of the treaty?

[19:01] MP:  That’s the hardest question Elizabeth; it’s the most important question.  This treaty which has been on the books for three years….

[19:10] EL: And this is the CRPD?

[19:12] MP: Yes.

[19:12] EL: Which stands for?

China has signed & ratified the CRPD but does it follow it?

[19:13] MP: Which stands for the Convention on the Rights of Persons with Disabilities, is without any question the broadest document ever written on behalf of this population.  Importantly it repudiates the medical model and substitutes a social model of disability.  In other words, this is not simply “we have sick people”; this is, “society deals with this population a certain way, [and we need to] figure out what to do.”

[19:35] Irony, off to the side, what is so interesting to me is how the role of psychologists is so limited in this draft act [China’s draft Mental Health Law].  The CRPD moves away from the medical model, [and,] as such, psychologists – non-physicians – the use of them, the reliance on them should increase, not decrease.  One of the things that I am seeing between the lines with my magic decoder ring on is that there are struggles between the psychiatric trade associations and the psychological trade associations in China; the psychiatrists have much more political clout, much more legislative clout, so this is basically guild stuff.  That’s there.

[20:14] So, going back to what you said before.  It’s clear to me and I write about that extensively in the book, there are many articles that talk about due process basically, that talk about freedom from torture, freedom from cruel and unusual punishment, ant-discrimination, access to justice, on and on – and again I would be happy to send you some more recent things that I have written about it since I’ve written the book – and it seems to me that China is failing at all those.

[20:45] But then comes the question, and so what?  What are you going to do?  What can you do?  One of the reasons why Yoshi and I are devoting so much time to the creation of what we call DRTAP, the Disability Rights Tribunal for Asia and the Pacific, is because in Africa there is a commission on human rights; in Europe there is a court on human rights; in Latin America there is a court on human rights, in each case, a court or a commission.  There is nothing in Asia.  There have been seminars, there have been meetings, there is this group called the ASEAN , to which seven nations belong; some [groupings of nations] belong to other [pan-Asian groups that deal with other issues], but there is no Asian-wide tribunal.  Why? Good question.  People talk about “Asian values,’ [but] I reject that [as the reason why there is no human rights body in Asia] and I could talk about that later if you want me to.

[21:31] But without that, a person can, ostensibly, theoretically, appeal any kind of a decision directly to the Human Rights Council of the United Nations.  That’s pretty difficult for anybody to do.  It’s difficult for a person in a nation with a developed economy, what we call the first world, it is certainly, virtually impossible for someone in China to do without a lawyer, especially somebody is not in Beijing or Shanghai or one of the major cities.

[22:03] I went to Xi’an a couple of times to do some work and I talked to a lawyer who said: “Prof. Perlin, I’m not sure if you understand. In our province, we get to court by horseback”. This was in about 2007, 2008; this is not 20 years ago.  There basically, they have at this point in time, almost no legal recourse.  What you can do is [appeal to] the court of public opinion.  We’re trying to do that.  But again I am very saddened and disappointed that this issue has not sort of spread beyond the small circle of people who take this seriously, who care about it, who write about it, who foment about it.  I think some of the reason for that Elizabeth is sanism, that these people are just simply seen as not human, not as important.

[22:45] ELSo are you saying that this issue hasn’t spread beyond the small group that focuses on it, so a lot of maybe the US’ projects in China, do they….are there US rule of law project that are pushing this?  Is it also I guess in some way our fault?

[23:01] MP:  Yeah it is.  Oh clearly it is our fault.   … I am on the Chinalaw LISTSERV, as you are, and if you spend a month there you will see there are certain topics that get written about a lot.  Some very serious topics.  Certainly there are serious human rights issue dissidents, things of that sort, but most of it goes to business law.  And that that does not go to business law, a lot go to things that are extremely important like environmental law.  Anyone like you or I who have spent time in China know how serious these problems are.  But there is virtually no attention paid [to the issues we are discussing here].  You and I could sit down after this is over and count on one hand the people who have done substantive posts in the last three years about this issue on that LISTSERV, and we would  have a couple of digits left over.  So yeah, I think that I can fault those generally interested in the “rule of law”  or “just society” for not taking this seriously enough.  Well you know everyone has their priorities, we can’t do everything and that’s true.  But this is an area that virtually no one is taking seriously.

[24:05] EL:  Back to China, in terms of the new draft mental health law, you said that you are extremely ambivalent about it.  Could you talk more about your feelings about what is good, what’s not good.

[24:18] MP:  The fact that there is a law; the fact that it sort of talks about the fact that there has to be some kind of structure to this; and the fact that at least there will be something to assess, something to test.

[24:30] But let me laundry list some things that I think are problematic.  First of all, I don’t think whomever drafted it ever looked at the CRPD.  It does not appear to me that that was ever done, and that should have been.  Elizabeth, when I talk to people — I am very fortunate, I have gone and done human rights law on every continent (except for Antarctica,  the penguins still haven’t asked for me)  — I’ll say to people now, when you re-write your law – I was in Argentina two or three weeks ago and I spoke to the World Psychiatric Association and I spoke to people from several nations and I said exactly the same thing – if you are rewriting your law, on the left side of your desk, you need the CRPD and for every section you write, go and look at the cognate section [of your local law] and ask, “Are we in line with this or not?”.

[25:16] EL: Well let me just interrupt for a second about that, I know there has been a lot of talk about the criminal procedure law, who has assisted in drafting that, do you have any idea which agencies of the government have assisted in drafting the Mental Health Law, if there has been any famous academics…is there any transparency about that?

[25:36] MP: I don’t know.  It may have happened, but I simply don’t know or it is something that I am just not a part of those conversations.

[25:45] As I said before, again call me lawyer-centric, I think there needs to be appointment of counsel…period.  Article 29 through 32 talk about maybe commissioning a forensic mental disability evaluation agency for second opinions in some cases.  But without a counsel, I don’t think it’s really going to make very much difference.  I think any part, every aspect of commitment has to be subject to the judicial process every step of the way.

[26:16] There are lots of other things that I sort of saw going through it.  On Monday, in my class on survey of mental disability law, we talked about the topic of sexual autonomy, the rights of persons to have some kind of sexual freedom, and I have written about this in an article I wrote in the Washington Law Review a few years ago about sexuality issues in Asia and in China, you might find that of some interest.  Nothing about it there.

[26:43] Their criteria for commitment are not really clear.  There has to be a causal relationship between mental illness and risk and dangerousness.  That is never spelled out.

[26:52] There is nothing about the institutionalized patient’s right to refuse medication, a huge, huge issue.

[27:03] There is a whole thing in Article 24 about when relatives can send a “suspected mentally disabled person” to the hospital.  Without criteria that is really, really problematic and I think that is an issue that needs to be dealt with.  Very, very often, somebody will come to a psychiatrist and say “doctor, my brother, sister, whatever is crazy” and that becomes sort of the fact in evidence, even though there’s no  [actual] evidence before [the psychiatrist.”].  That’s where we start out and I think that’s really a serious, serious issue.

[27:34] As I said before the “endanger public safety language” in Articles 26 and 27 is  especially problematic, especially, Elizabeth, given China’s history.  Article 28 talks about “diagnosis” but “diagnosis” is not “risk assessment”.  A person can have what we would call in the States an Axis 1 diagnosis – schizophrenia, bi-polar depression, major depression – and that does not mean they are committable because [to be committable], you have to have with that, as a result of that, the likelihood of serious danger to self or others.  That is not spelled out at all.

[28:14] The possibility, everybody has ballyhooed in Article 29 about this sort of duplicative examination…I am not convinced at all that it is going to be really independent.

[28:27] Starting in Article 30 it talks about forensics but I am really puzzled because there is nothing else in here about the criminal process.  It is just not clear to me what that is.

[28:38] I think rights need to be enumerated.  If you go to Article 34 we also have to articulate the fact, and again this is constant both with the CRPD and all developments of the last forty-plus years that the right to treatment has to be in the least restrictive alternative.  We have to talk about community treatment.  We have to talk about de-institutionalization.  We have to talk about congregate care, halfway house, on and on.   That’s not here anywhere.

[29:03] Psycho-surgery is discussed in Article 39.  Absolutely not.  That should never be an acceptable treatment.

[29:09] I was puzzled again as I said to you by the lack of….how psychologists appear to me to be squeezed out.  Again, I see this as kind of guild-mentality; it troubles me a lot.

[29:25] What can be done about this, I’m not that smart.  I have sent my comments in to other people who hopefully have the ear of those who do listen.  Hopefully something will happen.  But I looked in file before you got here but I have not heard back, gotten anything substantive on this in the last two months.

[29:41] EL: Well that’s what I want to ask you in a close out question basically.  There has been actually some verbal criticism by Chinese scholars about the draft mental health law and highlighting a lot of the things you have mentioned including the endangering public safety, disturbing public order issue.  Do you think the Chinese government will listen to any of this criticism?  Do you anticipate that the draft will change before it is adopted?  Or are these things that the Chinese government hasn’t been able to get past yet?

[30:15] MP: I wish I knew, Elizabeth.  I say jokingly I’m smart, I’m not that smart.  There will be some changes.  I think if they made no changes at all that would be a public relations disaster because that would mean we are ignoring everybody, we are doing just what we want, and take a hike.  There will be some changes.  I’ll say some of it will be better.  How much of it?  Ten percent?  A quarter?  I don’t know.  I wish I could be more optimistic and say – oh they are going to listen to everything we say – no, get real, they’re not.  But I am hopefully that it will be incrementally better and the way that it is written will give us more and people who are on the ground more to work with.

[30:59] I’m very sensitive to the fact, I go to China once a year, at the very most twice a year, I live in New Jersey, I work in New York, I am a foreigner, I am an outsider and all I can do is listen and learn and share some ideas.  It has to be done by the people on the ground.  I certainly spend a good deal of time talking to them and I hope that as a result of that something happens.  I remain….I’ve been doing this work for a long, long time…I remain an unflaggingly optimistic guy so I hope it is going to happen.

[31:30] EL: Okay, well, I guess we will find out.  It is suppose to be passed by year end.  Thank you very much Prof. Perlin for your time and your knowledge.

[31:40] MP: Thank you, Elizabeth, it was a pleasure.

Ai Weiwei – Artist, Dissident and….Tax Evader?

By , June 30, 2011

Getting caught for tax evasion

Originally posted on the Huffington Post

Taxes are a tricky business in any country, let alone China.  Tax codes are usually overly complicated and let’s face it, if you are making money, you can afford to hire accountants who think “creatively.”  American country singer Willie Nelson owed close to $32 million dollars in back taxes when the IRS declared one of the tax shelters his accountant was using to be in violation of the U.S. tax code (he later settled for $16 million, raising the majority of that money through the sale of his album entitled “The IRS Tapes: Who Will Buy My Memories?”); Leona Helmsey, the billionaire New York City hotel operator, served four years in prison for tax fraud (Helmsey allegedly enlightened her staff on a regular basis that “We don’t pay taxes.  Only the little people pay taxes.”); and Al Capone, mafia hitman, bootlegger and perhaps the most famous tax evader of all time, served his longest sentence, seven years, for tax evasion.

When Chinese artist and dissident Ai Weiwei was freed from police custody last Wednesday, the question was raised, most notably by Brian Lehrer in his interesting interview with Human Rights Watch’s Phelim Kine: “are you sure his detention was for being a critic of the government and not for evading taxes?”

Since his release, the Chinese government has vaguely issued more information about the investigation that landed Ai in criminal detention for the past two and a half months.  Although neither formally charged, arrested nor indicted, Chinese officials stated that Ai was held for “failure to pay a ‘huge amount’ of taxes and for willfully destroying financial documents.”  In particular, officials alleged that Ai’s company, Beijing Fake Cultural Development Ltd. failed to pay 5 million RMB (USD 770,000) and owed an additional 7.3 million RMB (USD 1.1 million) in penalties.

But the question remains, what is Ai’s individual liability for a corporation’s tax evasion?  Is he financially liable?  Can

In 2008, Ai was a Chinese government darling, designing the acclaimed Birdsnest Stadium

he be criminally prosecuted?

The answer is….you betcha,  if it is determined that Ai had some form of “direct responsibility” over Beijing Fake Cultural Development Ltd.

Article 201 of China’s Criminal Law criminalizes tax evasion (Amendment VII to the Criminal Law Amends Article 201).  Like many laws in China, the actual law is not the end all and be all.  Because China is a civil law country, often the generalities of the national law are fleshed out in various agencies’ “interpretations.”  Here, Article 201, is further defined through the “Interpretation of the Supreme People’s Court on Some Issues concerning the Specific Application of Laws in the Trial of Criminal Cases for Tax Evasion and Refusal to Pay Tax” (“SPC Interpretation”).

The SPC Interpretation further defines tax evasion as: (a) forging, altering, concealing or destroying without authorization accounting books or supporting vouchers for the accounts; (b) overstating expenses or not stating or understating income in accounting books; (c) being notified by the tax authority to file tax returns but refusing to do so; (d) filing false tax returns; and(e) after paying the tax, fraudulently regaining the tax paid through the adoption of deceptive means such as fraudulently declaring the commodities it produces or operates as export goods.

But while Article 201 and the corresponding SPC Interpretation only uses the term “taxpayer,” Article 211 of the Criminal Law clarifies liability when the taxpayer is a corporation or business unit: “Units committing offenses under Articles 201, 203, 204, 207, 208, and 209 of this section shall be punished with fines, with personnel directly in charge and other directly responsible personnel being punished according to these articles, respectively.”

Thus if Ai Weiwei is determined to be a “personnel directly in charge” (直接负责的主管人员) of the Beijing Fake Cultural Development Ltd. he could potentially be criminally and economically liable.  Ai’s family has maintained that Ai cannot be on the hook because he is not the company’s “chief executive or legal representative.”  However, the Chinese for “personnel directly in charge” is not limited to just the chief executive or legal representative; rather it is anyone in the company with management responsibility (主管人员 is better translated as executive officer).

Ai Weiwei - a directly responsible person?

Furthermore, the second category “other directly responsible personnel”(其他直接责任人员) contemplates a much broader group of people that could potentially be anyone affiliated with the company that has some type of vaguely-defined “direct responsibility” over the company.

Potentially, there could be some validity to the alleged charges against Ai for Beijing Fake Cultural Development Ltd. if the company did in fact evade taxes.  The Chinese government has yet to offer any evidence of the company’s tax evasion.  The company’s attorneys have appealed the charges of tax evasion and have requested a hearing before the Beijing Tax Bureau.

But if there is tax evasion, Ai’s liability will ultimately be determined by defining what his precise role is within the company.  According to friends and family members, Beijing Fake Cultural Development Ltd. merely dabbled in small design projects; the company was not involved in selling Ai’s work.  In fact, according to Ai’s family, it is his wife who is registered as the company’s legal representative not Ai; Ai was a mere consultant.

And while the Chinese government could potentially have a legitimate claim against Ai for the company’s tax evasion, it’s illegal detention of Ai, the fact that there is still no official indictment, the fact that the government continues to hold incommunicado the company’s accountant, the one person who could explain the company’s actual tax filings, and that the government went after Ai instead of his wife, the legal representative of the Beijing Fake Cultural Development Ltd., makes one suspect that the potential charges against Ai are a legal long-shot.  Instead, political considerations – the need to silence one of Beijing’s most vocal and well-known critics – are the real reasons behind the prosecution of Ai.  Again, the rule of law in China takes a back seat to politics and Party supremacy.

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