Owen Bennett Jones, on his new and insightful BBC radio show, NewsHour Extra, discussed the recent assault on China’s rights-defending lawyers. Featuring Dr. Li Ling of NYU’s U.S.-Asia Law Institute, Prof. James Feinerman of Georgetown Law School, Prof. Eva Pils of Kings College London, barrister Philip Riches, and yours truly, the discussion proved lively if slightly pessimistic regarding the current crackdown on China’s rights-defending activists and their future under the current Chinese Communist regime.
Rights-defending lawyers Yu Wensheng and Teng Biao both give their assessments of the recent crackdown.
On Sunday, in a verdict that surprised no one, the Beijing No. 1 Intermediate Court found human rights lawyer Xu Zhiyong guilty of gathering crowds to disrupt public order (Criminal Law Article 296). The Court sentenced Xu to four years, only one year shy of the maximum.
The Court’s verdict which runs close to twenty pages when converted to a word document, details the prosecutor’s evidence that formed the basis of the Court’s decision. The length of the document itself belies a Court confident in its decision on a case that they know the world was watching.
There is certainly much to be parsed out in the decision but one thing that is interesting are the jurisdictional issues that China Law & Policyraised last week prior to Xu’s trial. Namely, why Xu – who is being accused of the same crimes as many of the other defendants – was being tried in an higher level court, Beijing’s No. 1 Intermediate Court, while his compatriots are being tried in the lower level Haidian People’s Court.
The verdict attempts directly answers this question and in doing so present a frightening future for defendants:
The Court acknowledges defense counsel’s two jurisdictional-based objections: (1) that the Intermediate Court should not hear the case and (2)
Xu Zhiyong, awaiting trial in the detention center
Xu’s case should be tried with the other defendants. According to the Court, its jurisdiction is based upon Article 26 of China’s Criminal Procedure Law (“CPL”), a provision that permits a higher level court to re-assign cases to other courts when jurisdiction is unclear. According to the Court, because the Haidian District, the Chaoyang District and the Xidan District People’s courts all had jurisdiction over the case (presumably because some of the public demonstrations accorded in each of those districts), the prosecutor filed his case with the Intermediate Court and the Beijing Municipal Higher People’s Court determined that the Beijing No. 1 Intermediate Court could hear the case, thus giving it jurisdiction.
The verdict pays no mind to defense counsel’s objections; it does not explain what these objections were let alone why the Court rejected them. By flat out ignoring these objections, the Court seems to imply that as long as the law was followed by the prosecutor and the courts, then the decision will be permitted regardless of defense counsel’s arguments. Unfortunately, this does seem to be what Article 26 says although neither the Interpretation of the Supreme People’s Court on the Implementation of the CPL (“SPC Interpretation”) nor the Interpretation of the Supreme People’s Procuratorate on the Implementation of the CPL (“SPP Interpretation”) explicitly permit the prosecutor to file a criminal case with a higher level court. Although at the same time, it does not forbid it.
It doesn’t matter how loud defense counsel gets, his objection is never heard
While there might be a basis in law to permit the Intermediate Court to have jurisdiction, what there appears no basis for is the Court’s cursory denial of defense counsel’s request to try the other defendants with Xu. In a two sentence analysis, the Court states that under the law it is within the discretion of either the Court, the prosecutor or the public security organs to decide whether joint defendants should be tried separately. The Court fails to cite any provision of any law or regulation that states that premise.
As for defense counsel’s objection – which convincingly cited to Article 13 of the SPP Interpretation requiring all cases to be joined before a higher court if one is to be heard there – the Court conclusory stated that defense counsel’s objection was “untenable” (不能成立) and therefore the Court was right to reject it. The verdict provides no reason or explanation as to why the objection was untenable. Given that defense counsel was able to sight to regulation for its argument and the Court here cites to no law, defense counsel’s objection seems worlds more tenable than anything the Court provided.
But that would be for a trial that was based on rule of law, something that is missing here where the Court rules by executive fiat regardless of laws of regulations. For all the Chinese Communist Party’s recent rhetoric about the need to have a “strict adherence to legal procedure,” the CCP again chose to ignore that procedure in the one case where it felt like its power was being threatened.
Xu Zhiyong in better days – on the cover of Chinese Esquire in 2009
On Wednesday, the Beijing Municipal No. 1 Intermediate People’s Court will hear the trial of rights-defending lawyer Xu Zhiyong (pronounced Sue Zhi-young). His alleged crime? Disturbing public order, a charge that the Chinese government has used with abandon since China’s new president Xi Jinping rose to power at the end of 2012
Xu was not always the Chinese government’s Enemy No. 1. Early in his career, Xu was celebrated for his ground-breaking work. In 2003, Xu, along with rights-defending attorneys Teng Biao and Yu Jiang, successfully pushed for the abolishment of China’s custody and repatriation system, a form of extrajudicial detention that resulted in abuse and on one occasion the death of a college student. In 2008, Xu, through his legal assistance organization the Open Constitution Initiative (“OCI” or in Chinese “Gongmeng”) represented parents whose children were poisoned by contaminated powdered milk, keeping the issue in the press and obtaining some form of justice for the parents. These cases, in addition to investigations into the use China’s “black jails” – extrajudicial, ad hoc and secretive holding cells used to house government-defined trouble makers – brought both domestic and international fame. In 2008, Xu was featured in China’s Economic Observer and by 2009, he would grace the cover of China’s Esquire magazine.
But Xu’s success also brought the attention of the Chinese government at a time when it was beginning to look less and less favorably upon the rights-defending movement. In July 2009, Xu was detained on charges of tax evasion. After being held for almost a month, Xu was freed on bail and his organization was fined a stunning 1.46 million RMB. Such was the end of OCI.
Fortunately for the Chinese people it was not the end of Xu Zhiyong or his rights-defending work. Instead, Xu looked to take his ideas and create
Emblem of the New Citizens Movement – calligraphy of Sun Yatsen
a more organized grassroots movement. Working with other rights-defending lawyers, journalists, activists and average citizens, the movement called on the Chinese people to uphold the rule of law and seek to protect their civil rights. By May 2012, Xu named this movement “New Citizens Movement” (in Chinese, Xin Gongmin Yundong) and called upon the new citizens to unite and help to establish a rule of law, protect constitutionally-guaranteed rights, end corruption in government and change the role of the Chinese people from subjects to full-functioning citizens. Xu’s essay describing the movement was quickly removed from the internet.
Although many describe Xu’s approach as moderate, it is still too radical for the Chinese government, especially a Chinese government with a new president eager to solidify his power. Over the past year, the Chinese government has detained over 100 activists, many of whom are New Citizens.
In July 2013, Xu’s time had come; the police detained him and various other activists and in August 2013, formally arrested him for disturbing public order. In its December 2013 indictment, the Beijing police charged Xu with organizing and being the ringleader of protests held in Beijing calling on the government to require that senior government officials disclose their financial holdings and assets (see video below of one of the protests).
The fact that the Chinese Communist Party has recently initiated such a pilot program of asset disclosure is irrelevant. Last Friday, Xu appeared before the Beijing Municipal No. 1 Intermediate Court where he learned that his trial is set for Wednesday, that he will not be permitted to call witnesses, and will not be permitted to cross-examine the prosecution’s witnesses. As protest, Xu will remain silent during Wednesday’s trial.
There are many things to question about Xu’s impending trial, but one aspect that jumps out as out of the ordinary is the fact that Xu’s trial will not be held in a basic trial court. Instead, the intermediate court has jurisdiction; many of the other defendants arrested and charged for the same crimes will have their case heard in the Haidian Basic People’s Court. Why is Xu different? Why is his case being heard by a higher court?
Beijing’s No. 1 Intermediate Court
According to the China’s amended Criminal Procedure Law (“CPL”), an intermediate court automatically has jurisdiction if the case involves charges of endangering state security or involves terrorist activities, or if the case has a penalty of life imprisonment or death (seeCPL, Article 20). Here, the charges do not involve state security or terrorism and the penalty is a maximum of five years imprisonment.
However, according to the Supreme People’s Court’s Interpretation on the Implementation of the Amended CPL (“SPC Interpretations”), even when a case does not involve state security, terrorism, a life sentence or the death penalty, the lower court can ask the intermediate court to hear the trial if (1) the case is large or complex, (2) is a novel and difficult case, or (3) is a case that is significant and thus would provide general guidance to other case (seeSPC Interpretations, Article 15).
If Article 15 of the SPC Interpretations is the basis of the Intermediate Court’s jurisdiction, then the Intermediate Court must issue a written decision accepting the transfer and submit that decision to the lower court and the prosecutor. Article 15 does not require that the written decision be provided to defendant or his attorney (see also SPC Interpretations, Article 14: Higher people’s courts deciding to try a first-instance case within the jurisdiction of a lower people’s court, should send down a written decision to change jurisdiction to the court below, and notify the procuratorate at the same level in writing”).
Unfortunately, none of the articles about Xu trial – either in Chinese or English – explain why his case is being heard by the Intermediate Court and not, like the other defendants accused of the same crimes, by the Haidian Basic Court.
But regardless of the reason why the Intermediate Court is hearing Xu’s case, the SPC Interpretations are fairly clear that where a case involves
Xu Zhiyong, awaiting trial in the detention center
multiple defendants and the case is elevated to a higher court for one defendant, then all defendants should be tried by the higher court (see SPC Interpretations, Article 13: “For multiple crimes by a single person, joint crimes or other cases that need to be joined for trial, if one person or crime belongs to the jurisdiction of the higher level court, the higher level court has jurisdiction of the entire case”).
New Citizens activist and rights-defending lawyer Xiao Guozhen speculates that the police and prosecutors sought to separate the trials so that the statements of the other participants can be used against Xu in his trial. According to Xiao, in a trial with multiple defendants, one co-defendant cannot serve as a witness. But when the trials are separated, the other defendant’s statements and confessions can be used in the trial against Xu. But this all supposes that the other accused will speak out against Xu.
Hopefully Wednesday we will know although as Prof. Jerome Cohen points out, the authorities has done all that it can, such as using one of the smallest courtrooms in the courthouse for Xu’s trial to guarantee that the trial is all but closed to the public. Another violation of the amended CPL.
Chen Guangcheng, entering a Beijing Hospital with US Ambassaor Gary Locke and State Dep't Legal Advisor Harold Koh
More often than not, I am my friends’ go-to China person; something in the news pops up with China, I get the questions. So I wasn’t surprised on Saturday when over some carrot cake at the Chelsea Market a friend of mine had questions about Chen Guangcheng: if he cared so much about human rights in China, why would he leave? What is up with the Chinese government, keeping a blind man trapped in his own home? How did things get so messy between the U.S. government and Chen?
It’s been almost a month since Chen fled the home that illegally became his prison. So what exactly is up with Chen’s escape and to answer some questions – what does it all mean?
Chen’s Escape Has Propelled Human Rights to the Top of the US-China Agenda
My friend’s question on Saturday caught me off guard – does Chen really care about human rights in China if he fled to the protection of the U.S. Embassy, ostensibly to seek asylum and leave China.
To ask a man with a wife and two children to be a martyr for his cause is asking too much. As this blog has recounted previously, since Chen’s release from prison (oddly convicted of a traffic disturbance) did not result in freedom. Instead, for the past year and a half, Chen and his family have been subjected to illegal house arrest and at times, physical torture by his captures.
It is true that by departing China, Chen’s ability to change China’s current system will be much reduced if not extinguished. But his heroic flight has perhaps done more to highlight the Chinese government’s recent illegal oppression of dissent than anything else. Over the past year and a half, this blog has increasingly written about the Chinese government’s crackdown on China’s nascent rights defending (weiquan) lawyers. Aside from people already interested in the issues, these posts – and the acts of repression which they have focused on – have received little attention.
Chen’s escape and his subsequent stay at the U.S. Embassy altered this focus. With Hillary Clinton arriving for the Strategic and Economic
Inspiring Architecture? The US Embassy in Beijing
Dialogue (S&ED), the focus of U.S.-China relations shifted to human rights. For one week, as the world watched, the U.S. and China’s relationship was thrown back to a 1980s-Cold War paradigm, when ideology played a more governing role. For one week, the Western media’s attention finally focused on the repression of rights defending lawyers, and the lip service the Chinese government gives “rule of law” when it comes to civil rights and civil liberties.
It is amazing that a single man’s act, that one blind man’s heroic act, can still change the dialogue in U.S.-China relations. It is a hopeful reminder that in this globalized world, individuals still matter; that one man’s quest for freedom is still “news.” And don’t think Chen’s act was not a heroic one. Not only was a blind man able to find his way to Beijing, but imagine if he wasn’t; imagine if he was caught. Likely his fate would match that of Gao Zhisheng, a rights defending lawyer who, while in government custody, remains missing.
The U.S. Government’s Actions Supported Human Rights
Some have criticized the U.S. government – or more aptly, the Obama Administration – for its dealings with the Chinese government over Chen. Initially, the U.S. Embassy worked out a deal with the Chinese government whereby Chen would stay in China, study law at a university in a coastal city away from the thugs of his hometown, and be left alone with his family. This was what Chen initially wanted.
But once he left the safety of the embassy for a Beijing hospital, Chen began to reconsider his options. As Prof. Jerome A. Cohen recounted to CNN, the promised U.S. Embassy official was unable to stay with Chen at the hospital and once he began speaking other rights defending lawyers – friends he hadn’t been able to speak to for a year – he began to more clearly understand the increased oppression of rights defending lawyers in China. Chen was scared; Chen realized that without full information, he misjudged the situation. That’s when he vocally requested that he be able to leave China for the United States.
Were some in the U.S. Embassy a touch too naive to rely on the Chinese government’s promises? Most likely. But being naive is not the same as turning one’s back to human rights. It was Secretary of State Hillary Clinton’s decision to allow Chen into the U.S. Embassy in the first place. Chinese citizens cannot just willy-nilly enter the U.S. Embassy; even American citizens are allowed limited access to their embassy (which resembles a high-security prison). As the N.Y. Times has recounted, embassy officials were notified of Chen’s flight to Beijing and on April 25, Secretary Clinton gave the authorization to sneak Chen into the embassy compound. Secretary Clinton knew full well that by providing that approval, a throw-down with the Chinese government on the issue of human rights was certain and the ultimate outcome unclear. It is unfortunate – although not all together shocking given the current acrimonious status of politics – that Washington D.C. cannot view this moment as a proud one for America and its ideals; that the web of support that both parties have built for a human rights network in China over the years enabled Chen to come to our door. Instead, it appears that what could otherwise be a proud moment for Americans, is becoming a political tug-of-war.
Who is Driving the Bus? The Chinese Central Government’s Lack of Control
Beep Beep! Who drives this bus??
What is perhaps the most shocking of all from this whole situation is the Chinese central government’s lack of control of local governments. Chen’s persecution has largely been conducted by the local government in his hometown, with local government officials still seething after his attempt to bring a lawsuit against them for forced abortions. But even when Chen fled to Beijing, his safety could not be guaranteed, hence his changed desire to leave for the United States. Many of his relatives left in their villages are being persecuted by local officials. It makes one wonder – who really drives the bus in China?
Imagine a United States where Governor George Wallace could ignore federal law, have his way and continue segregation in his home state of Alabama. Likely you can’t. It’s unfathomable to think that a national government is unable to enforce its own laws, and in the case of China, that a supposed authoritarian dictatorship cannot control lower level party members.
Chen’s case reflects a center weaker than anyone previously thought. And that is what is most frightening and should give people pause. Does China really have the power to become a rising superpower or will it revert to its warlord past, where each city is governed by its own power broker and the central government remains impotent?
While China’s weakness appears to manifest itself often in human rights issues, it should not be just a concern for human rights advocates. Anyone working in or with China – business people, government officials – should be troubled. A weak center, especially as China undergoes an important leadership transition this year, does not bode well for China.
Prof. Jerome Cohen – The Fixer
On a final note, I want to focus on Prof. Jerome Cohen and his role in all of this. As a research fellow for two years, I had the privilege of working
Prof. Jerome A. Cohen
with Prof. Cohen at NYU’s U.S.-Asia Law Institute. In that time, I got to know a kind, brilliant man who never ceased to amaze me. It was Prof. Cohen who first identified the ingenuity and necessity of Chen’s unschooled, “barefoot lawyer” approach in 2003 and deservedly catapulted him to the world stage.
While my two years with Prof. Cohen were filled with inspiring moments, I have never been more proud of him than I was with his handling of the Chen Guangcheng situation. While this is all purely based on hearsay, it appears that it was Prof. Cohen who got the U.S. and China out of what was becoming a crisis situation. Prof. Cohen’s lifetime of experience with China, including high-level delegations soon after Nixon’s visit to China in 1972, allowed him to realize that all that was needed was a practical solution where everyone could save face: a scholarship for Chen to study law at NYU’s U.S.-Asia Law Institute and invitation for his wife and children to join him.
Now we wait and see. The United States has approved Chen’s visa application and just yesterday he applied for his Chinese passport. Although the Chinese government could renege on the deal, that looks increasingly less likely and ultimately not in their best interest. It’s never a satisfying moment when one of your citizens essentially seeks protection from a foreign government for human rights abuses, but on some level, the Chinese government is likely happy that Chen, who has long been a rabble rouser and a cause célèbre for other Chinese rights defenders and foreign friends, is leaving the country. Unfortunately for Chen and his family, he will likely never be able to return to his home country.
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
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.