Posts tagged: detention

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.

Stealing Suspects? The Interesting Case of of Chen Yongzhou

By , November 7, 2013
New Express Headline asking for the release of their reporter, Chen Yongzhou

New Express Headline asking for the release of their reporter, Chen Yongzhou

Last month’s drama surrounding the detention of journalist Chen Yongzhou’s (pronounced Chen Young-joe) by Changsha police, and his employer’s  front page plea for Chen to be freed (“Please Release Him“), sent shock waves through the China-watching world.  Was a local, albeit scrappy newspaper really taking on another city’s public security forces?  Was it really publicly shaming them and essentially implying that the Changsha police were on the take?

But for many Americans watching these events unfold, the most puzzling aspects of the situation was not so much the David-and-Goliath narrative of the New Express newspaper confronting the Changsha public security bureau.  Rather, most Americans were probably confused about two things:  (1) police in one province can just go to another province and willy-nilly take someone away? and (2) defamation is a crime in China?  This post will focus on the former.

Cross-Border Journalism Leads to Cross-Border Detention in China?

Chen and his colleagues at New Express are part of a new breed of journalist in China – muckrackers looking to hold powerful interests responsible and seeking to expose the truth that is often kept hidden by the government.  For the past 18 months, Chen’s focus had been on Zoomlion,  a construction equipment maker located in Changsha, Hunan province.  Zoomlion is no ordinary construction equipment company; it is the country’s second largest construction company and in a country where construction is non-stop, that means wealth and power has accrued to the company.

Although Chen and New Express are located in Guangzhou – a city over 400 miles from Changsha and located in an entirely different province –

A Zoomlion product

A Zoomlion product

it is not peculiar that it chose to write and publish articles about Zoomlion.  In China, where the local governments and local businesses are often in a symbiotic relationship and where the local Party is the law, it is commonplace that the local newspaper does not write about the corruption in its midst.  Instead, it is an outsider newspaper – one as far away as Guangzhou – that will pick up the story.

Chen’s articles on Zoomlion fit this pattern.  According to Bloomberg, Zoomlion’s controlling shareholders are Hunan State-Owned Assets (holding 19.97% of all A shares traded on the Shenzen exchange) and the Hunan government (owner of 16.2% of all outstanding shares of the company).

By May 2013, Chen was writing hard-hitting articles uncovering facts about the company that suggested it falsified its sales figures and was committing fraud on the market; a serious allegation for a company that trades on both the Shenzhen and Hong Kong exchanges.  After his May 27, 2013 article, Zoomlion’s shares took a 5.4% hit on the Hong Kong stock market.  While it denied Chen’s allegations, Zoomlion could not have been happy.  But what is a Changsha company to do when the reporter and his newspaper are located in Guangzhou?

As far as the world knew, Zoomlion did nothing.  But then on October 23, 2013, New Express  stunned the world with its front page editorial acknowledging that the Changsha police had come to Guangzhou, detained Chen, and brought him back to Changsha where he remained in detention.  The allegations: that Chen’s articles were false and defamed Zoomlion.

But do the police in one city have the power to swoop into a city in a different province and take away a suspect back to their home city?  To Americans, this seems illegal.  In the United States, because each state is sovereign within its territory, New York City police cannot just go to Boston and arrest the suspect they think did the crime.  Rather, the New York City police must go through the legal proceeding of extradition:  the New York City police must present the indictment to the Governor of Massachusetts who then has little choice but to consent to the arrest and orders Massachusetts or Boston police to arrest the suspect and eventually hand him over to New York City police to bring back to New York City.

handcuffsIn China, things are not that different.  Like in the U.S., there is a recognition that at times, a criminal suspect might be living outside the confines of a local police bureau.  The new Criminal Procedure Law (“CPL”)and its interpreting  and implementing regulations – in particular the Ministry of Public Security’s “Procedural Regulations on the Handling of Criminal Cases by Public Security Organs (revised 2012)” (“MPS Regulations” or “Regulations”) – do contemplates this fact.  Article 24 of the CPL makes it clear that by default jurisdiction of a criminal case is based on where the crime was committed.  The MPS Regulations re-affirms this.  Article 15 of the MPS regulations gives jurisdiction of a case to the public security bureau at the “site of the crime”, a term it defines as including  not just the site of the actual criminal acts, but also any location where the consequences of the crime occurred. For a newspaper or online article, the consequences of the crime might be felt in a great number of locations, and the first public security bureau to file the case will exercise jurisdiction.  The public security bureau at the place of the suspect’s residence can have jurisdiction when more appropriate, even if it isn’t a site of the crime.

As Jeremy Daum, research fellow at the Yale Law School’s China Law Center and founder of China Law Translate, pointed out recently, the Criminal Procedure Law and MPS Regulations clearly address activities by police  outside of their geographic area – what Americans would likely compare to extradition.

An entire Chapter of the Regulations – entitled Cooperation in Case-Handling (Chapter 11, encompassing Articles 335-344) – specifically deals with these situations.  As Daum noted, in terms of detaining a suspect, “Articles 339 and 340 [of the MPS Regulations] describe situations where police either take custody of someone in another jurisdiction or request that local police act on their behalf. Generally, the outside force has an obligation to contact the locals and to have the necessary authorizing paper work with them, and the locals have an obligation to facilitate.”

At this point, this pattern is not that different from what occurs in the United States when one state seeks to extradite a criminal suspect.

Seal for China's Ministry of Public Security

Seal for China’s Ministry of Public Security

Although there a few, technical grounds upon which a U.S. governor of one state can deny another state’s extradition request, in general, extradition is mandated by the  U.S. Constitution if the other state presents the indictment.  The requesting state can go to federal court and compel the governor to extradite the suspect if she refuses on illegitimate grounds.

But where China differs from the U.S. in its proceedings is that the requesting police physically go to the local police’s territory to take the suspect back to their city.  In accordance with Article 340, after the local police apprehend the suspect, the outside police must immediately pick up the suspect and bring him back to its territory.  In fact, Article 122 requires that the outside police do so within 24 hours.

Was Chen Yongzhou Properly Detained?

It does appear that Chen was in fact properly detained in accordance with the MPS Regulations.  Whether the Changsha public security bureau’s underlying claims against Chen are just is less apparent, but in terms of the procedure for cross-provincial transfers of a suspect, the Changsha public security officials likely complied with the Regulations.

Here, the Changsha police likely have a valid argument that the crime occurred in its jurisdiction or its consequences were the most strongly felt in its jurisdiction, giving it the right to assert its jurisdiction.  Zoomlion, the entity that was allegedly injured by Chen’s articles, is located in Changsha.

According to a Freedom House bulletin, on October 18, 2013, after being summoned, Chen went to the Guangzhou police station.  Once there, according to an article from the China Times News Group, Changsha police confronted Chen with a document listing his crimes and then placed him into its custody for transfer to Changsha.

Chen in the custody of Changsha police

Chen in the custody of Changsha police

It appears that the Changsha police complied with the MPS regulations concerning “Cooperation in Case Handling:” (1) Chen was summoned to the local police station by the Guangzhou police, (2) while in the Guaungzhou police station, the Changsha police presented him with a document listing his crime (perhaps the required authorizing paperwork), and (3) Chen was immediately transferred to the Changsha police and brought to a Changsha detention center within 24 hours.

Although the underlying criminal charges reek of corruption and a Changsha police department possibly at the beck and call of Zoomlion, it is still important to recognize that the Changsha police likely followed the law in obtaining custody of Chen.  To ignore this fact does a disservice in criticizing other aspects of this bizarre case.

One such bizarre aspect is Zoomlion turning to the criminal law for a charge of defamation.  Is this legal?  Find out in part 2 of this article posted here.

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.

Rights Lawyer Gao Zhisheng’s Wife on His Abduction

By , March 28, 2011

Gao Zhisheng is perhaps the most well-known of China’s rights-defending lawyers.  In the late 1990s and early 2000s, Gao began successfully representing victims of medical malpractice and farmers denied just compensation for their land.  In fact, in 2001, Gao was named by China’s Ministry of Justice as one of China’s most influential lawyers.  Spurred by his success and what appeared to be a Chinese government welcoming a stronger public interest law bar, Gao expanded his work to included practitioners of Falun Gong, a religious organization which the Chinese government has long feared as a threat to its one-party rule and has declared a cult.  Gao’s representation of Falun Gong practitioners did not just highlight the baseless accusations of “using superstitious sects [cults] to undermine the implementation of the law” (China’s Criminal Law, art. 300), but also the torture of Falun Gong practitioners while in police custody (for a seminal article on Gao’s work, see Eva Pils, Asking the Tiger for His Skin: Rights Activism in China, Fordham International Law Journal 2007. Available at SSRN: http://ssrn.com/abstract=1563706).

Gao’s zealous advocacy of Falun Gong practitioners did not go unnoticed by the Chinese government, and his status as a lawyer to be celebrated for representing society’s most vulnerable, quickly changed.  Gao was now viewed as a piranha of the state. In December 2006, Gao was convicted of subversion and was given five years probation to be served from his home.  However, in February 2009, Gao was abducted from his home by the police.  For over fourteen months, he was not heard from and no one knew where he was.  In April 2010, Gao emerged from seclusion only to be abducted again only two weeks later.  During the time he was free, he was able to report to the Associated Press the torture he underwent while in police custody.

Gao’s whereabouts, like recently abducted rights defending lawyers Tang Jitian, Teng Biao, and Jiang Tianyong, remain unknown.  In a plea for the world to pay attention to these random and lawless detentions, Gao’s wife, Geng He, who was able to flee to the United States with their two children in January 2009, published an op-ed in today’s New York Times.  Below is an excerpt with a link to the full article.  Geng begs that if her husband has been killed, that the Chinese government have the dignity to return his body so that his family can lay him to rest.

The Dissident’s Wife

By Geng He

Gao Zhisheng with his wife, Geng He, and their two children

Gao Zhisheng with his wife, Geng He, and their two children

San Francisco – WITH the world’s attention on the uprisings in the Middle East, repressive regimes elsewhere are taking the opportunity to tighten their grip on power. In China, human rights activists have been disappearing since a call went out last month for a Tunisian-style “Jasmine Revolution.” I know what their families are going through. Almost a year ago, the Chinese government seized my husband and since then, we have had no news of him. I don’t know where he is, or even if he is alive.

Click here for full article

Xu Zhiyong and What his Detention Means for Rule of Law in China

By , August 17, 2009

Originally posted on the Huffington Post

Just before dawn on July 29, 2009, the Beijing police apprehended leading Chinese public interest lawyer, Xu Zhiyong, allegedly to question him about possible tax evasion.  He has not been heard from since.  In an increasingly conservative political environment in China, Mr. Xu’s detention is far from an anomaly.  Many speculate that the Chinese government’s recent crackdown on public interest lawyers is merely a part of the preparations for the 60th

Xu Zhiyong; Photo by Shizhao

Xu Zhiyong; Photo by Shizhao

Anniversary of the founding of the People’s Republic of China this fall.  But in looking beneath the surface of the government’s recent actions, a different narrative emerges.

The apprehension of Mr. Xu, the forced closure of his legal assistance organization, Gongmeng (in English the Open Constitution Initiative), the investigation of Yi Ren Ping, a non-profit law center that assists AIDS and hepatitis patients with anti-discrimination actions, the recent disbarment of over 20 public interest lawyers, the professional “exile” of a leading legal scholar and outspoken critic to a remote region of China, all of these actions paint the picture of a government that has become increasingly more alarmed by a more vocal and organized group of lawyers.  The government, and the Chinese Communist Party (CCP) which ultimately controls all governmental bodies, has begun to view the development of these non-profit lawyers and legal reform as a threat to its authority and to the one-party rule of the CCP.  Recent governmental assaults on the public interest law field are not just a one-off affair.  Rather, they show a CCP not looking to embrace the “rule of law,” but instead seeking to contain it.

Development of Rule of Law in China from the US & Chinese Perspectives

Both China and the U.S. agree that greater rule of law in China is needed and can benefit China.  Virtually every conference between the two nations mentions the need for rule of law development. But what is never articulated is what each means by “rule of law.”  Many Western scholars claim that rule of law is value-neutral; it is merely a system where laws are enforced in a transparent manner by an independent judiciary and that rule of law can exist regardless of the political system of the country.

And while this is likely true, the U.S. government still largely views rule of law within the rubric of democracy; as the rule of law develops so does democracy and greater protection for human rights.  Of the $27 million the government appropriated to rule of law projects in China in 2008, $15 million were administered by the Department of State’s Bureau of Democracy, Human Rights and Labor and another $2 million was designated for non-State Department rule of law projects (see CSR report, p. 2).

China, however, takes a different perspective.  While seeing the benefits of rule of law in terms of economic development, international acceptance and respect, and the ability for the central government to have greater control over the provinces, China has largely limited rule of law to the economic sphere and at times, a few other select areas.  If a case involves a politically sensitive issue, involves an organized group of plaintiffs, or could unmask government malfeasance, the government will either not allow a case to proceed or will determine the ultimate outcome.

Even with this limited development toward legal reform, many U.S. policymakers believe that rule of law will continue to spread and permeate lawyers’, judges’ and society’s consciousness.  This Trojan horse strategy assumes that legal reform in the economic sphere will inevitably spread to all areas of the law and to Chinese civil society.  Government will be held more accountable to the people, laws will be administered transparently and all rights, political, economic and social, will be able to be vindicated.  But proponents of this theory offer little to no evidence as to why.  Why is this inevitable? Why can’t China succeed in limiting legal reform to the economic sphere?  Why can’t rule of law be contained?

In other words, what if China is the black swan in the whole rule of law theory?

Emergence of a More Conservative Legal Ideology in China

Theory of the Three Supremes

The detention of Xu Zhiyong comes amid an increasing conservative political environment in China, at least in terms of legal reform.  In December 2007, President Hu Jintao attempted to reassert the importance of the CCP in legal interpretation and reform by announcing his theory of  “The Three Supremes:” judges and prosecutors should “always regard as supreme the Party’s cause, the people’s interest, and the Constitution and laws.”   Although initially unclear if the Three Supremes were listed in hierarchical order, a recent announcement in July 2009 by a justice minister confirmed the hierarchical nature of the Three Supremes and the preeminence of the CCP when he called upon lawyers to “above all obey the Communist Party and help foster a harmonious society.”

Wang Shengjun, President of the Supreme People's Court

Wang Shengjun, President of the Supreme People's Court

The Three Supremes is not just rhetoric.  In March 2008, the National People’s Congress named Wang Shengjun, a Party insider without any legal training, as head of the Supreme People’s Court (SPC), replacing reform-minded and trained lawyer Xiao Yang.  Upon taking his position Wang has worked ardently to have the courts conform to the Three Supremes.

A More Organized Public Interest Law Movement

While the government expounds the Three Supremes and imposes this conservative ideology on the legal system, public interest lawyers have become increasingly organized and vocal.  In August 2008, a group of 35 public interest lawyers in Beijing issued an internet appeal that requested that the government-controlled Beijing Lawyers’ Association (BLA) to conduct free and direct elections of governing officials of the BLA.  In December 2008, human rights activists, many of whom are lawyers, signed Charter 08, a petition to the Chinese government calling for greater human rights, the end of one-party rule and an independent legal system.  In addition, many of the non-profit lawyers, including Xu Zhiyong, have represented plaintiffs in politically sensitive cases, including cases pertaining to the Sichuan earthquake and the melamine milk scandal.  Last year, Xu’s organization issued a report blaming Chinese policies in Tibet for the 2008 uprising in that region.

China’s Recent Response

Under the doctrine of the Three Supremes, China has not responded kindly to these public interest lawyers.  Although the BLA slightly altered its voting rules by allowing for the direct election of representatives who then in-turn elected the governing officials, in February 2009, the local Judicial Bureau sought its revenge.  After withholding a license from Li Subin, one of the advocates of the new voting procedures at the BLA, the Bureau issued an order for Yitong Law Firm, which employed Li, to shut down for six months for permitting a non-licensed attorney to practice law.

Liu Xiaobo, a leading human rights activist in China and signatory to Charter 08 was detained by police just hours before the publication of Charter 08.  He remains in police custody.  He Weifang, a well-known law scholar at the prestigious Peking University has been sent into professional exile and now teaches law in China’s most western region, Xinjiang.

Xu Zhiyong has faced a similar fate.  In May 2009, tax authorities began to investigate Xu’s non-profit legal center, Gongmeng.  On July 14, the Beijing office of the National Tax Bureau and the Beijing Local Tax Bureau each issued a notice to Gongmeng for non-payment of taxes on funds donated by Yale University and levied the maximum penalty of five-times the amount owed, or $208,000.  On July 17, twenty officials from the Beijing Office of Civil Affairs barged into the Gongmeng offices, confiscating all materials including computers, case files, and furniture, and shut down Gongmeng.  On July 29, Xu was apprehended by police for suspicion of tax evasion; he remains in custody.

In a Kafkaesque turn of events, on August 5, after raising at least some funds to pay its fine, the Beijing Public Security Bureau froze all of Gongmeng’s accounts.  On August 10, in an attempt to discuss this matter with tax officials at the Beijing Local Tax Bureau and the National Tax Bureau, Gongmeng officials were escorted out.   Authorities have informed Gongmeng that their recently filed paperwork is invalid because it does not contain the signature of Gongmeng’s legal representative, Xu Zhiyong. As this back-and-forth continues, Xu Zhiyong remains in police custody and the fine of $208,000 accrues daily compounded interest of 3%.

Also on July 29, officials from Beijing Cultural Market Administrative Enforcement Unit inspected the offices of Yi Ren

Click on image to open a PDF version of the Timeline of Events

Click on image to open a PDF version of the Timeline of Events

Ping, a non-profit organization that files anti-discrimination lawsuits on behalf of people AIDS or hepatitis.  Claiming that their search was being conducted under the Measures to Manage Internal Material Publications, a law that was repealed in 2001, the officials seized 90 copies of Yi Ren Ping’s newsletter.

China’s Containment of Rule of Law

The Chinese Communist Party is unified by one principle – to remain in power.  Any organized effort, even if within the confines of the law, will be viewed as a threat to the CCP’s authority.  In recent months, Chinese public interest lawyers have been effectively organizing themselves, especially through the internet, to challenge the current system.  However, these lawyers are far from what the rest of the world would deem radical.  They are merely using the laws passed by the National People’s Congress to protect people, especially those in disadvantaged groups like rural parents in Sichuan or people with AIDS.  They are not looking to overturn underlying constitutional principles; they just want to enforce the law as written.

Even though these lawyers work within the system to improve Chinese society in a way that the law permits, as soon as they amass sufficient numbers, in the minds of the CCP, they are no longer operating within the legal system, but within the political one.  In these situations, the CCP will abandon the legal system in favor of the political one.

But this is not to say that rule of law has not taken hold in China.  Today, foreign corporations usually receive a fair hearing before arbitration commissions and the majority of cases handled by the courts are ordinary cases that involve little to no Party interference.  There has been a marked increase in the professionalism of many judges and lawyers, and there is a sincere effort by many in the profession to develop greater rule of law.

However, those few cases that involve large groups of people or involve issues sensitive to the CCP, often do not receive the same transparent and independent judgment.  In these situations, the outcome is ultimately determined by the CCP.

Thus far, China has been successful at confining rule of law development to non-political cases.  The actions that have been taken against public interest lawyers in the past two years show China’s commitment to maintaining this separation.  The government’s harassment and detention of public interest lawyers is intended to have a chilling effect on the profession.  The low numbers of lawyers who seek a career in the public interest can be seen as a reflection of this impact.

But can China succeed in containing rule of law to certain areas?  Many look to Taiwan and South Korea as an example of the inevitability of legal reform and democracy in an East Asian society.  Both were under authoritarian regimes but eventually developed vibrant legal systems.  However, China is in a very different place.  Taiwan and South Korea were still dependent on the U.S. for trade and for military protection, and thus heavily influenced by the U.S.  China, on the other hand, has become an economic and military powerhouse, beholden to few other nations.  One of those countries is, of course, the United States, but China has gained significant leverage in this bilateral relationship by stocking up over $700 billion in US treasury bonds. All the while, it has been able to develop its economy while limiting legal development in the political and human rights spheres.  Its continued rise only solidifies the need for this separation in the minds of the CCP leadership.

China’s future remains uncertain and only time will tell if rule of law does in fact permeate other areas of Chinese society.  However, at this juncture, where China has become an important global power, it is important for U.S. policymakers to re-evaluate their assumptions of the rule of law landscape in China; and to ask themselves, what if China is successful in containing rule of law to certain segments?  Can the U.S. live with that reality?  Will it have a choice?

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