Posts tagged: rule of law in China

Human Rights Lawyer Teng Biao Recounts Police Abuse

By , December 27, 2010

With President Hu Jintao set to make an official State visit to the U.S. next month, expect an increase in op-eds concerning violations of human rights in China and the demand that President Obama raise human rights issues with President Hu.  These op-eds usually name particular human rights activists, those who have been at it the longest and whose regular imprisonment and abuse make the international news.  Teng Biao is one such human rights lawyer who receives international attention whenever the Chinese police take him into custody, which, unfortunately, is a fairly regular occurrence.

In a recent essay translated in the Wall Street Journal, Prof. Teng recounts the wrongful detention and police brutality he suffered on December 23, 2010, when attempting to visit a colleague’s mother.  But what makes Prof. Teng’s essay particularly poignant is that he admits that because of his special status as an internationally-known human rights lawyer, the beatings he suffers at the hands of the police are much less severe than someone with less international name recognition.

The op-eds that will inevitably appear prior to President Hu’s visit to the U.S. should not just call for the freedom of a single human rights activist; rather it is important that these op-eds also look at the systemic problems with the culture of lawlessness that permeates the Chinese police and the lack of a rule of law.  Prof. Teng portrays a police force drunk on its own power and willing to cast aside the law to do as it pleases, including abusing its citizens.

‘A Hole to Bury You’
A first-hand account of how China’s police treats the citizens it’s supposed to serve and protect.

Human Rights lawyer, Teng Biao

By Teng Biao*

Beijing – On Dec. 23, the United Nations International Convention for the Protection of All Persons From Forced Disappearance came into force. China has declined to accede to this convention. My experience that same day is just one of many examples of how the authorities continue to falsely imprison Chinese citizens.

That evening, I was in the Xizhimen area of Beijing chatting with my colleagues Piao Xiang, Xu Zhiyong and Zhang Yongpan. Ms. Piao had been disappeared after she and I went to Dandong on Oct. 7 to argue the court case of Leng Guoquan, a man framed by the police for drug trafficking; she had only been released on Dec. 20. Her abductors had been officers from the state security squad of the Public Security Bureau. I asked her to narrate the entire process of her disappearance in detail.

Later, I suggested to Mr. Zhang, “Let’s go and see Fan Yafeng’s mom.” The day before, we had contacted fellow human rights lawyer Fan Yafeng and found out that he was under strict house arrest. But he had said that his mother was going to be alone at home in the evening and so I thought we should go see her.

Because I used to go there frequently I remembered clearly where she lived. As Mr. Zhang and I entered the block of flats and started walking up the staircase, I had a feeling that someone was following us. Observing that we went to the third floor, a young security guard asked us whom we were visiting. We said, “We’re seeing a friend.” Immediately, he called out for someone else to come up.

We knocked on the door and were greeted by Mr. Fan’s mother. But as we entered the flat, the security guard came with us, and a person in plainclothes stormed in just behind him. The man in plainclothes demanded to check our IDs in a very coarse manner. I asked him in a loud voice, “What sort of people are you? How can you enter a private residence without permission?”

The plainclothes man said, “I am a police officer. We want to check your ID cards.” “You’re a police officer? I want to see your police ID.” “If I am telling you I’m a police officer, then that’s what I am. What are you doing here?” “Is that your business? How can you prove you’re a police officer if you don’t show your police ID card?”

***Click here to Read More***

*Prof. Teng Biao is a lecturer of law at the Law School of the China University of Political Science and Law (CUPL), one of China’s most prestigious law school.  After working with human rights lawyer Xu Zhiyong to successfully abolish the Custody and Repatriation system, Teng and Xu opened the public interest law firm, Open Constitution Initiative, which was shut down in summer 2009.  Teng has been repeatedly warned by administrators at CUPL that if he continues with his rights defense work, he could lose his job and even his personal freedom.

NYU To Celebrate Prof. Jerome A. Cohen, Founder of the China Law Field – Sept 7 – NYC

By , August 18, 2010

Prof. Jerome A. Cohen

To celebrate Jerry Cohen’s 80th birthday,  NYU’s U.S.-Asia Law Institute will be dedicating its annual Gelatt Dialogue on Tuesday, Sept. 7 to Jerry and the impact that his 50 years of study has had on the study of Chinese law.

A cross-generational event, the evening will feature those who were with Jerry when the field was first born in the early 1960s (Prof. Randle Edwards), those who helped Jerry open law firms in China in the late 1970s, early 1980s (Stephen Orlins, Owen Nee), and those who work with Jerry on his current rule of law projects in China (Daniel Yu, Hyeon-Ju Rho, Alex Wang, Margaret Lewis, Cynthia Estlund).

“Let a Hundred Flowers Bloom: A Roundtable Discussion on China’s Legal System” will analyze China’s progress these past 50 years and look at what the future may potentially hold.  The event is free and open to the public although RSVP is requested.  Details are below or can be found at the US-Asia Law Institute website (http://www.usasialaw.org/?p=3969).  Given the wide experience of the panelists, the event should be interesting and, given that all of the panelists were students of Jerry’s, should be a wonderful homage to his work

Gelatt Dialogue on “Let a Hundred Flowers Bloom: A Roundtable Discussion on China’s Legal System”

Celebrating Prof. Jerome Cohen’s 80th Birthday
Tuesday, Sept. 7
4 pm – 6:30 pm
Reception to Follow
Greenberg Lounge, Vanderbilt Hall
NYU Law School, 40 Washington Square South
RSVP req’d to Jeremy.Daum@nyu.edu (Subject Line: “Gelatt”)

A Response to Rio Tinto – A Different Opinion from Australia

By , April 20, 2010

Australia-flagOn Monday, I posted my take on the Rio Tinto trial which elicited significant response from China law scholars.  I was lucky to have a very thoughtful response from Prof. Vivienne Bath of the University of Sydney and Director of the Centre for Asian and Pacific Law at the University of Sydney.

Prof. Bath has a different perspective on the Rio Tinto trial and you can find her comments below.  She also points out two mistakes that I made in the original article.  In the original article, I state that foreign press was permitted into the bribery portion of the trial.  This is incorrect.  They were only permitted access to the verdict and sentencing portion.  A second mistake is that I state that there was live witness testimony; there was not.  There was only the presentation of written testimony; not actually live witness testimony.  I have made these corrections to the original article and my apologies to the readers.

I thank Prof. Bath for her response to my article and for giving me permission to post it to China Law & Policy to offer a different perspective.


I was interested in Elizabeth Lynch’s comments on the Stern Hu trial now that it is all over (bar the appeals).  Her post presents an interesting and different view of the trial to that often presented in the press.  Certainly some of the comments by politicians (on both sides) have been fairly unconstructive and some of the press coverage could have been better informed.

In particular, Elizabeth makes some very apposite comments on the process. It appears to be the case that Chinese authorities followed the letter of the Criminal Procedure Law, although their interpretation of the Australia-China Consular Agreement was, in my opinion, completely unjustified.  Regular visits by the consul were allowed as was access to lawyers.  Time limits were strictly observed.  Apparently a 71 page judgment was produced (which is quite unusual!) justifying the court’s conclusions, which is very welcome (or will be, if and when the judgment is made publicly available).

I do not think, however, that the fact that the Chinese authorities complied with Chinese laws should be a matter for particular congratulation.  The content of those laws is bound to be the subject of comment.  The press (and the Australian public), for example, probably took access to a lawyer for granted – they were more interested in the fact that Hu’s wife was apparently not allowed to visit her husband at all during his period of detention.

In addition,  there are still some issues relating both to the trial and to the Chinese legal system itself which are continuing matters for concern regardless of the guilt or innocence of the parties.  First, it appears that the foreign media was not admitted to any part of the trial, although several representatives of the state media may have been present.  See http://www.abc.net.au/news/stories/2010/03/22/2852611.htm;  http://www.theaustralian.com.au/business/media/the-world-watches-stern-hu-case-as-media-coverage-is-gagged/story-e6frg996-1225846613332 .  The Australian press was, as you would expect, very indignant on this point.  News reports were provided by brief comments from the Department of Foreign Affairs and Trade representative, who was quite succinct in his comments.

Secondly, I did not see any references to witnesses testifying in person at the trial and I would be interested to see the links to reports on this.  Indeed, Du Shuanghua’s devastating evidence on the payment of RMB70 million was given in writing, with, according to reports, Wang Yong indignantly asking that Du appear in person so that he could be cross-examined (http://mulrickillion.spaces.live.com/blog/cns!41BA4803555B0DA4!5445.entry ).   The entire trial, involving 4 defendants and a variety of complex charges, took less than 3 days, which is not consistent with the presentation of detailed personal testimony and cross-examination.  The point has been made that written testimony is often presented in trials conducted under the inquisitorial system.   Article 47 of the Criminal Procedure Law, however, does provide for the testimony of witnesses to be questioned and cross-examined in the courtroom.  Although Chinese trials often take less time than this, and, it does not take away from the main point, which is that such a short time period is completely inadequate to allow defendants to conduct cross-examination of witnesses (if they are there) or to present their own cases in detail.

Thirdly, in relation to the length of the sentences, it should be noted that a sentence of 3-7 years for infringing on commercial secrets can only be handed out “if the consequences are especially serious”.  The court justified the sentences as follows: ” ‘The four have seriously damaged the interests of the Chinese steel enterprises and put those enterprises in an unfavourable place (during) the iron-ore negotiations, which led to the suspension of the negotiations in 2009,’ Judge Liu told a packed court room.  He said this behaviour caused overpayment of 1.108 billion yuan by industry players, including Shougang Steel and Liagang Steel. The interest alone on this was more than 11 million yuan.” (http://www.theaustralian.com.au/business/mining-energy/bribes-forced-china-to-overpay-for-iron-ore/story-e6frg9df-1225847190730 ). This is really quite an extraordinary conclusion for any judge to make, particularly in the confused and political atmosphere surrounding the iron ore negotiations.

Fourthly, Australia does have an obligation under its Criminal Code, which codifies its obligations under the OECD Convention, to prosecute bribery of foreign officials.  Although Australia is nowhere near as active as US authorities, Australia has just revised its law to increase the penalties significantly.  The Australian government can hardly prosecute Stern Hu, however, because he has already been convicted in China.  In relation to Rio Tinto, if the Chinese authorities thought Rio was implicated, Article 220 of the Criminal Law provides the basis for prosecution of a “unit”.  The action of the Chinese authorities in closing the trial and failing to produce any evidence publicly on the commercial secrets charge is not helpful for an Australian investigation.  In any event, it  appears that agencies in the US, the UK and Australia are looking at Rio’s behaviour – see http://www.watoday.com.au/business/just-what-is-a-chinese-commercial-secret-remains-a-secret-20100416-skmv.html .  We do not know if the Australian Federal Police have commenced or will subsequently commence an investigation under the Criminal Code.  Rio Tinto’s comments suggest doubt about whether the “commercial secrets” were in fact secret, but it has in any event issued new guidelines to its employees operating in China (http://www.riotinto.com/documents/Media-Speeches/2010AGM_transcript.pdf ).

The final question is the standard of the press coverage.  Without commenting on the press outside Australia, I do not think that the mainstream Australian press can be accused of using “bad facts” making “bad journalism”.  There was front-page coverage of the trial and considerable commentary, as one would expect, since an Australian citizen and one of Australia’s most important companies were involved, but the main Australian newspapers, The Age, The Australian and The Sydney Morning Herald appeared to go to considerable trouble to ensure that their coverage was accurate.  They published reports on the judgment and details on the court findings on bribery with as much enthusiasm as they published reports on the criminal system and the process of the trial itself.  As for the Australian government, given the unease that the timing of the arrests and the lack of transparency regarding the trial caused in Australia, I think that the Australian government’s behaviour and comments were fairly restrained (unlike the Chinese foreign affairs spokesperson, whose comments were quite provocative).  Opposition politicians in Australia were less restrained in criticising the Chinese legal system and the Australian government for alleged inaction and failing to stand up for Australia’s interests, but that is the nature of opposition politicians in a democratic system.

It should be appreciated that this trial touched on a number of very sensitive points in Australia – the influx of massive amounts of proposed Chinese investment in the natural resources area, particularly by state-owned enterprises, has caused considerable public unease; there was considerable publicity about the proposed Chinalco investment in Rio Tinto, with the shareholders and BHP actively campaigning against it,  and front-page coverage of the China Iron and Steel Association’s effort to take over conduct of the annual iron ore pricing negotiations.  All of these issues were widely discussed in the Australian press, not just the business press, due to the importance of natural resources in supporting the Australian economy in the midst of the global financial crisis.  The timing of the arrests – directly after the withdrawal of the Chinalco bid and the collapse of the iron ore negotiations –  combined with the involvement of the Ministry of State Security and the original focus on “state secrets” was guaranteed to attract widespread publicity and encourage the belief that the entire criminal investigation was politically motivated.  Unfortunately, the conduct of the trial – and the fact that the prosecution started with the employees of Rio rather than the employees of the Chinese steels mills – has done very little to dispel that belief.  I do not think that this can be blamed on the press – it is, after all, their duty to report, and the case, and the circumstances surrounding it, certainly gave the press enormous amounts of material.

–Vivienne Bath, Associate Professor, University of Sydney

All expressions of opinion in this comment, and any associated errors, are entirely my own.

The Rio Tinto Trial in China – A Miscalculation about Rule of Law?

By , April 19, 2010

Originally Posted on Foreign Policy Digest

china steelDevelopments

Last summer, the billion dollar steel industry watched in rapt attention as China cracked down on one of its own.  On July 5, 2009, Chinese authorities in Shanghai detained four employees of the Australian mining company Rio Tinto, then later sentenced them to prison terms ranging from seven to fourteen years.  Many China watchers and industry insiders considered the sentencing and charges of bribery and commercial espionage to be retaliation for the recent tough iron ore pricing negotiations, and Western media were quick to portray the Rio Tinto incident as a reflection of China’s irreverence toward rule of law and its politicization of the legal system for corporate advantage.   However, in examining the Rio Tinto case, the Chinese prosecutors followed legal procedure more precisely than they do in most ordinary criminal trials in China.  While there may have been some misuse of criminal process for corporate gain, it appears that the Australian government and Rio Tinto itself may have acted as passive accomplices in its politicization.

Background

Rio Tinto is keenly aware of China’s importance in its operations.  In 2009, China’s imports accounted for $10.56 billion, or close to a quarter of Rio Tinto’s overall profits.  With China as one of the few countries still growing during the global finical crisis, it is no wonder that Rio Tinto’s 2009 Annual Report listed “strengthen [its] relationship with China” as a key strategic goal for 2010.

In China, it is neither unusual nor unlawful for suspects to be detained without being officially arrested or charged with a crime.  Article 69 of the Chinese Criminal Procedure Law (CPL) permits authorities to detain a suspect

Stern Hu

Stern Hu

without arrest for up to 30 days in certain instances—one of which is in cases with multiple suspects.  When the four employees were detained by Chinese State Security officials on July 5, 2009, Stern Hu—an Australian citizen—Wang Yong, Ge Mingqiang, and Liu Caikui appeared likely to be charged with stealing state secrets, a grave offense under the Articles 111 and 113 of the Chinese Criminal Law (“CL”) that can carry a life or, even death, sentence if convicted.  State secret trials are particularly nontransparent; the trial is completely closed, with even the defendant’s lawyer excluded.  However, upon their official arrest on August 12, the four Rio Tinto employees were not charged with stealing state secrets; instead all four were charged with the lesser crimes of stealing corporate secrets and commercial bribery, which carry prison terms of three to seven years and five years, respectively.  There is a thin line between stealing state secrets and stealing corporate secrets when the entity involved is a state-owned company, as are most Chinese steel companies.  But, given Stern Hu’s Australian nationality, it was crucial to Sino-Australian relations that China make such a distinction in this case.  On February 10, 2010, a three-judge panel in the Shanghai Number One Intermediate Court agreed to accept the case, and the four employees were officially indicted.

While in custody, the four employees received support from both Rio Tinto and the Australian government.  Sam Walsh, chief executive of Rio Tinto’s iron ore operations, remained confident in his employees’ innocence and repeatedly expressed his concern over the charges.  Australian officials who paid consular visits to Hu, as mandated by the China-Australia Agreement on Consular Relations (the “Consular Agreement”), continued to discuss the case with the press, and the Western media remained actively interested in the case, wondering how the Chinese government was going to execute what was perceived as trumped up charges against Rio Tinto employees.

Australian Consul-General Tom Connor (centre) makes a statement to the media outside the Shanghai No. 1 Intermediate People's Court in Shanghai, on March 22, following the first day in the trial of four Rio Tinto employees.

Australian Consul-General Tom Connor (centre) makes a statement to the media outside the Shanghai No. 1 Intermediate People's Court in Shanghai, on March 22, following the first day in the trial of four Rio Tinto employees.

In a surprising turn of events, on March 22, 2010—the opening day of the long-awaited trial–all four Rio Tinto employees pled guilty to accepting bribes totaling $13 million.  In accordance with the Consular Agreement, an Australian consular official was allowed to attend the bribery portion of the trial.   Domestic press was given access to the trial, but with only guilty pleas, there was little to report.  Foreign press was excluded.* After the guilty plea, Rio Tinto and the Australian government, the only two Western entities that have seen the actual evidence that caused the four to plead guilty, stated that there was enough evidence to support the bribery charge.  But this allegedly “clear evidence” has not been made public, making it impossible to evaluate its credibility.

On the second day of the trial, the Court tried all four defendants in a closed-door trial on the charge of stealing commercial secrets.  Even Australian consular officials, who are permitted to attend all trials under the Consular Agreement, were denied entry.  After concluding the trial on March 24, the Court reached its verdict on the following Monday, March 29, 2010.  With Stern Hu’s wife in the courtroom–the first time she had seen her husband since the day he was taken away by authorities–the Court found all four defendants guilty of stealing commercial secrets.  In accordance with Chinese practice, sentences were immediately handed out: Stern Hu received a total of 10 years in prison, and Wang Yong, Ge Mingqiang and Liu Caikou received fourteen, eight and seven years, respectively.  All of the sentences were within the timeframe allowed by the Criminal Law.

Analysis

The Rio Tinto case makes clear that the Chinese criminal justice system could use improvement, particularly in regards to the public’s access to evaluate the evidence in non-closed trials.  But it is not the grave travesty the Western media portrays it to be.  In many ways, the Rio Tinto employees were given more protection of the criminal law than must ordinary Chinese defendants.  The Rio Tinto employees were all given access to defense counsel; Stern Hu met with his attorneys on ten different occasions before trial. In China, most defendants are unrepresented and the few who retain an attorney usually have no access to that attorney prior to trial.  Additionally, the Rio Tinto commercial secrets trial lasted two days, one day longer than most trials in China, with examination of evidence, including statements from witnesses.  In China, most criminal cases rely solely on a defendant’s confession with little to no other evidence.*

But the Western media has been particularly focused on the closed commercial secrets portion, with some arguing that the closed trial violates Chinese domestic law (see here and here).  Indeed, Article 152 of the CPL states that criminal trials, except for those involving state secrets or personal private matters, are open to the public.  However, the CPL is not the only instructive document.  The Supreme People’s Court (SPC), China’s highest court, issues binding interpretations to clarify the law.  Article 121 of the SPC’s “Interpretation of the CPL” maintains that in cases involving “business secrets,” the court may close the trial if a party requests it.  The Interpretation does not say that “party” is limited to either prosecutor or one of the defendants in the case; presumably any party with an interest in the secret may request the closure.  In this case, Rio Tinto, the Chinese steel companies involved, or the Chinese government, all of whom likely have reasons to keep the public out of the seedy affairs of iron ore pricing, likely requested a closed trial.

However, it is problematic that an Australian consular officer was excluded from the corporate secrets portion of the trial, and equally disturbing that the Australian Foreign Minister would neglect to discuss or criticize the Consular Agreement violations after the verdict.  The Consular Agreement is clear that an Australian consular official is permitted to attend all trials involving Australian citizens in China.  China’s claim that “judicial sovereignty” necessitated the closing of the commercial secrets portion of the trial is specious at best and leaves China open to the Western media’s assertion that the Rio Tinto case was purely political.

Yet, there is also reason to question the roles of Rio Tinto and the Australian government in the politicization of this case.  From the beginning, when the charges were changed from state secrets to commercial secrets, both the Australian government and Rio Tinto likely exerted pressure on the Chinese government, taking advantage of the political nature of the Chinese legal system which the Western media has criticized China for.

Sam Walsh, Rio Tinto's Iron Ore Chief

Sam Walsh, Rio Tinto's Iron Ore Chief

After the four employees were found guilty, Rio Tinto was quick to report that while “clear evidence” showed beyond a doubt that the four employees had accepted bribes, all bribe-taking was conducted outside of Rio Tinto.  It seems difficult to believe that a $13 million bribery scheme, presumably resulting in cheaper prices for iron ore for Chinese steel makers or more iron ore sold to a preferred Chinese steel maker, would leave not a single trace of evidence on Rio Tinto’s systems – not a single email or a price discrepancy or any evidence that more iron ore was being sold to one steel company, nothing. Also, as others have pointed out, with regard to the charge of stealing commercial secrets, one must wonder, who was the ultimate beneficiary of the theft?   Although evidence in the commercial secrets theft is not public, during sentencing the Court stated that the Rio Tinto employees obtained secret information about the China Iron and Steel Association’s “next price for upcoming iron ore negotiations.”  In other words, the limit one can charge the Chinese steel industry for iron ore.  This is information that Rio Tinto the company would want but would be less valuable to individual employees such as Stern Hu.

There are other legal tools to use to find out this information, but it appears that the Australian government has chosen not to use them.  Under Australian law, bribery of foreign officials by an Australian company and its employees is illegal and can be prosecuted in an Australian court, even if the bribery happened abroad.  Here, the Rio Tinto employees were convicted of stealing commercial secrets.  While one could steal commercial secrets by burglarizing someone’s office or hacking into their computer, it is most likely that the Rio Tinto employees obtained the secrets from someone on the inside of China’s state-owned steel industry.  It is most likely the Rio Tinto employees paid for this type of information, which is not easily attainable or free.  Such an act would be in violation of Australia’s criminal law prohibiting bribery of foreign officials and could subject Rio Tinto to large monetary penalties.  But the Australian government has made no overtures of either investigation or prosecution of other Rio Tinto employees or Rio Tinto itself.

China’s legal system is far from perfect; greater transparency could result in a more reliable legal system, less vulnerable to censure.  In this case, allowing the public to see the evidence relating to the bribery charges and giving some sort of an explanation for closing the commercial secrets portion of the trial could have been useful.  But, ultimately, the Rio Tinto case is not the poster child for China’s retreat from rule of law or for the danger of foreign companies doing business in China.  Instead, this case makes clear that the oft quoted adage by lawyers that “bad facts make bad law” is equally as apt to the press: “bad facts make bad journalism.”

__________________________________________________________________________________________

* Corrections were made to the original article to better reflect the facts (see here).  The author still stands behind the views expressed in this article.

Academic Misconduct in China – “What’s Law Got to do, Got to do with it?”

By , March 4, 2010

cheatingLies, cheats and suicides.  It sounds like the plot of a daytime soap opera.  But unfortunately, it is the reality that is academia in China.  Chinese lawyer CAO Xinglong discusses the underbelly of faculty promotion in China and the abdication of the courts in enforcing the law in this area.  Without some sort of legal recourse, it is not just individual professors that are being hurt; as Mr. Cao argues, it is the integrity, reliability and prestige of the Chinese university system that will ultimately suffer the most.

Because of the sensitivity of the issues, names of universities and professors have been removed from this article.  However, China Law & Policy has confirmed the factual details of these incidents.  If you would like more information about the cases mentioned in the article below, please email Mr. Cao directly: xinglongcao@yahoo.com

China’s Lax Law Harbors Academic Misconduct

by Mr. CAO Xinglong

At the end of 2008 and during the first half of 2009, allegations of scientific misconduct by a research group at a Fraud-squad-who-cooked-the-books-296.297university in southern China and led by an “academician” of the Chinese Academy of Engineering, triggered broad discussion in China, a discussion that can still be traced on the Internet today, over a year later.  The University condemned one member of the research group, a male associate professor, accusing him of fabricating experimental data and forging the co-authors’ signatures.  A University official maintained that the associate professor’s actions should not be attributed to the University since the transgression was done while the man was postdoctoral researcher, before he was on the staff of the University as an associate professor.  Contrary to the University’s interpretation, public opinion maintained that the University was using this unlucky man as its scapegoat in order to conceal the pervasive academic misbehavior on its campus; the public seemed to think that the associate professor was compelled to produce enough Science Citation Index and Engineering Index articles (“SCI/EI articles”) to beat out other article-forging rivals for a faculty position and an academic title.

Then, in the second half of 2009, another academic event stirred up even more turbulence among the public.  A Ph.D. graduate from a renowned U.S. university joined the faculty of a Chinese university in June 2009 as a lecturer; on September 17, 2009 he committed suicide.  In his suicide note, he regretted his decision to join the University, viewing the decision as imprudent and overly-optimistic.  The man also criticized China’s academia as cruel, ruthless and cheating.  The University negated the charge that it had lured him to its campus by offering the academic title of associate professor and then broke their promise.  However, many of the man’s friends said that he told them he chose the job offer from the present university over a more prestigious one because the University promised to make him an associate professor; the other only promised an assistant professorship.  The University argued that no written evidence was offered to determine if this promise existed.  Instead the University stated that the man’s academic title was to be determined by the upcoming 2009 Academic Title Competition Procedure (held from September through December).  Instead of giving any credence to his criticism, the University claimed that the suicide had nothing to do with the academic setting and instead should be ascribed to something else.  However, public opinion was again against the University; numerous netizens regarded the suicide as evidence that there was an oral offer of an associate professor title and, given the time frame of the suicide, speculated that the man was probably told at the beginning of the competition (September) that he would not obtain the title of associate professor.  According to the netizens, it was his broken academic dream that led to his suicide.

Although disputes between scholars and their institutions are common in China, it is rare that that these disputes are handled by the legal system.  And when they are, the scholar usually receives no relief.  At an unnamed university in China, an assistant professor applied for an associate professor position through the University’s 2008 Academic Title Competition Procedure.[i] Through a series of letters, the assistant professor modestly advised the University that a certain statute allowed his overseas Ph.D. experiences to be substituted for other qualifications.  After he received no response to his letters and failed to be promoted to associate professor, he telephoned University administrators.  He was told that such complaints could not be considered.

plagicartoonIn 2009, he tried again, but again the University’s Academic Title Competition Procedures appeared to be hostile to his efforts.  He failed to be promoted a second time.  However, this time he decided to contest the procedural defects and filed an appeal with one of China’s administrative governmental departments (the “ Department”) in accordance with the Teachers Law of China.  In the appeal, he alleged the following six procedural defects: (1) not weighing his overseas study achievements; (2) all of the referees were academic bureaucrats outside of his research topic; (3) some of the referees’ had close personal relationships with some of the other candidates and had animosity toward other candidates; (4) fabrication of some of the competition files; (5) twisting competition rules to favor or disfavor certain candidates; and (6) a lack of transparency due to closed-door and back-door hearings.  Under the Teachers Law, faculty at a State-affiliated, public university, such as the University in this situation, is permitted to appeal a decision to a government Department.  The Department is required to issue a ruling within 30 days (see Teachers Law, Art. 39).

The assistant professor made his appeal in December 2009.  Now, three months later and way past the 30-day time frame, neither the government Department nor the University has issued an official response; unofficially though, the Department and the University have pressured the professor to drop it.  As a result, he abandoned his appeal and the opportunity to bring the case into court.

But even if he did bring his case to court, prior precedent shows that he would have failed there as well.  In 2003, two professors at a different university in southern China, another State-affiliated university, sued the Department for its refusal to arbitrate their complaints of unfair treatment in their University’s Academic Title Competition.  The Court dismissed their action on the grounds that the Department should not interfere in a university’s internal affairs and tamper with its academic autonomy.  In other cases that question university promotion procedures, courts continuously refuse to extend jurisdiction for similar reasons. The courts’ reasoning of “internal affairs” and “academic autonomy,” undermines the purpose of the Teachers’ Law and leaves aggrieved faculty members with nowhere to go.

Although academic institutions might seem self-governed and that power dynamics among the academic elite remains an internal affair, the government does have authority to rein in these institutions.  For example, on October 29, 2009, one of the State’s administrative departments announced that it had established a special panel to punish its affiliate universities’ academic misconduct.  Soon after unfortunately, the department decided that it was not in fact obliged to take such action.

As a result, China has established a system by which academia largely polices itself, and the law plays little to no role.  And often an academic’s personal benefit dwarfs that which is right and honest. New Threads (http://www.xys.org/), a pivotal website exposing academic misconduct in China, amasses a great number of postings charging the misuse of academic power; power used for illegitimate benefit, such as money, honor, or even sex.

empty_classroomIn my view, the perception of academic autonomy and freedom has been disproportionately distorted and unduly expanded in these situations. Academia should be under some rules, even if it impacts its autonomy.  The process and procedure of academic activities, including faculty promotion, should be governed by law, a law that requires honesty and fairness. Without some legal oversight, academics can easily “cook procedures” and produce whatever experimental results they want.  In addition, today, China’s quantity of SCI/EI articles is disproportionately large, causing many to raise a skeptical eyebrow and elicit the critique that China’s research is perhaps transitioning from quality to simple quantity.  For better quality in research and more reliable results, the priority for academia should be a rule of law.


[i] The facts of this case have never been published. Anyone who has questions my contact the author directly at: xinglongcao@yahoo.com
The author owes his gratitude to Attorney Elizabeth M. Lynch for her comprehensive and wonderful editing of the article.

The Lancet just recently published an article about academic fraud in China and the need to take action. You can link to the article here (free login required).

Also, for those who read Chinese, “Academic Criticism” contains many examples of academic misconduct.  Please click here to get to the site.

Thank you David Cowhig for bringing these links to our attention.

Upcoming Event in DC: China, Law & Jerry Cohen!

By , February 16, 2010

February 19, 2010 from 1:30 pm – 6 pm; George Washington School of Law

Prof. Jerome A. Cohen

Prof. Jerome A. Cohen

Free & Open to the Public
Click here for the event’s flier

The name Jerome A. Cohen is synonymous with the study of Chinese law in the U.S.  Why?  Because the man basically created the field.  Prof. Cohen started studying Chinese law in 1960, while mainland China was in the throes of the Cultural Revolution and no foreigners were allowed in.  Instead of giving up, Prof. Cohen went to Hong Kong and interviewed refugees as they fled the Mainland.  Through his interviews, he was able to gather information on the criminal law under the Communists.  To this day, “The Criminal Process of the People’s Republic of China: 1949-1963” is the only holistic examination of the Chinese criminal law in early Chinese communist history.

In returning to the U.S. and joining the faculty of Harvard Law School, Prof. Cohen founded the first East Asian legal studies program, inviting many Chinese students who would later become important legal reformers including the current President of Taiwan, the former Vice President of Taiwan, the Chief Justice of Taiwan’s highest court, and former dean of Tsinghua University Law School.  After China opened in 1979, Prof. Cohen joined Coudert Brothers and opened the first foreign law office in Beijing.

But Prof. Cohen’s career is more than just writing books and opening offices.  As a pioneer in the field, Prof. Cohen has taught the second, third, and now fourth generation of Chinese legal scholars and has made the field what it is today.  And this year, Prof. Cohen turns…..well, he turns an age where it is respectable to host a conference in his honor so the world can celebrate his achievements.

This Friday, George Washington School of Law and Georgetown Law present a conference in Prof. Cohen’s honor.  Discussing four fields of law that are undergoing significant change in China, the conference will feature powerhouses in the field, many of which are former students and colleagues of Prof. Cohen’s.  Below is the schedule of events.  This event is free and open to the public.  RSVPs are not required but would be appreciated.  Please email jacfestrsvp@gmail.com

****Prof. Cohen will be in attendance*****

Schedule:

Panel 1 – Google & Freedom of Online Information – 1:45 pm
Sharon Hom, Executive Director, Human Rights in China
Lawrence Liu, Senior Counsel, Congressional Executive Commission on China
Amy Porges, International Attorney, Law Offices of Amelia Porges PLLC
Susan Weld, Adjunct Prof. of Law, Georgetown Law

Panel 2 – Business Law – 2:45 pm
Donald Clarke, Prof. of Law, George Washington School of Law
James Feinerman, Prof. of Law, Georgetown Law
Nicholas C. Howson, Assistant Prof. of Law, University of Michigan Law School

Panel 3 – Human Rights, Civil Society & Criminal Law – 4:00 pm
Xiaorong Li, Research Scholar, School of Public Policy, University of Maryland
Eva Pils, Associate Prof., Faculty of Law, The Chinese University of Hong Kong
Karla Simon, Prof. of Law, Columbus School of Law, Catholic University of America
Scot Tanner, China Security Analyst, The CNA Corporation

Panel 4 – International Law – 5:00 pm
Julia Qin, Associate Prof. of Law, Wayne State University Law School
Michael Schlesinger, Attorney, International Intellectual Property Alliance
Timothy Stratford, Assistant U.S. Trade Representative for China Affairs, USTR
Alex Wang, Senior Attorney & Dir., China Environmental Law Project, NRDC

The Future of China – An Interview with Peter Hessler

By , February 10, 2010

Excerpts of this Interview Originally Posted on the Huffington Post.

I read lots of books about China, it’s what I do.   But there are few that I anxiously await for as much as Peter Hessler’s new

Photo Credit: Robert Burnett of www.rburnettjr.com

Photo Credit: Robert Burnett of www.rburnettjr.com

book Country Driving: A Chinese Road Trip. His last book – Oracle Bones: A Journey Through Time in China – was brilliant and is usually the book I recommend people read when they want to learn more about China.  But now there is Country Driving which equals, if not surpasses the elegance of Oracle Bones.  In focusing on everyday life in the villages and factory towns for the past ten years, Hessler watches a China transform before his eyes, and in the areas most impacted by its modernization.  While Oracle Bones showed a China dealing with the ghosts of its past, Country Driving shows a China wrestling with the demons of its own development.  If you want to understand today’s China, and the forces changing it, you need to read Country Driving.

I sat down with Hessler to discuss his new book and his thoughts on China – its problems, its future, its people.  How have things changed?  How have the people responded to these changes?  What is the impact of rule of law in China?  Is China the overwhelming power that the West currently makes it out to be?  Below is an excerpt of my interview with Hessler.

To listen to the interview, click here.

For a PDF version of the transcript, click here.

**********************************************************************************************************

Hi, this is Elizabeth Lynch of China Law & Policy.com and welcome to our podcast.  Today we are here with author Peter Hessler to discuss the release of his new book, Country Driving: A Journey Through China from Farm to Factory.  This is the third book Peter has written about China.  The first, River Town, tells the story of his two years teaching English in a small city in Sichuan, China.  His second book, Oracle Bones: A Journey through Time in China was a 2006 National Book Award finalist and a New York Times Notable Book of the Year.

Thank you for joining us today.

EL: My first question is just about your stay in China.  You first arrived in China in 1996 to teach English in the Peace Corp and you ended up staying there for 10 years.  What is it about China that kept you there?

PH: I guess it’s a surprise to me because it wasn’t a place I was interested in growing up and when I was in high school and college I certainly never studied Chinese or anything about Chinese history.  And actually when I was in college, it wasn’t that common for people to study Chinese in the late 80s, early 90s.  Actually, the first time I went to China was 1994.  I finished graduate school in England and I decided to go home to the east and take a long trip around the world.  I was really interested in seeing Eastern Europe and Russia and I was with a friend and we figured we would go through China and to Southeast Asia. Really I didn’t have much interest in China; I hoped to get through China quickly in that trip; people that were coming in the other direction said bad things about it – it wasn’t very easy to travel in – so it really wasn’t a place I was looking forward to.

We took the train from Moscow to Beijing and I arrived in Beijing and I was really sort of blown away by the place.  There was just a very tangible energy on the street; you could just tell that things were happening, people seemed motivated.  It was quite a contrast to what I’d seen in Russia which at that time – this was in 1994 – I found a little bit depressing.  So it really surprised me and so I ended up extending that trip.  I think my friend and I spent maybe close to two months total in China.  We didn’t speak any Chinese; we were just bumbling through as backpackers basically.  But it really did grab me.

I had always intended to apply to the Peace Corp but this changed my plans in that I applied to the Peace Corp but I really wanted to go to China.  I think that in the end, that energy that I sensed from the first week I was there was what ended up keeping me in China so long.  When I did join the Peace Corp in ‘96, I had a sense that it might be longer than two years.  Because I had been there and because I knew it’s a big deal to try to learn a language like that and to try to understand a place like that, I knew that it would take more than two years basically.  So I wasn’t surprised in some ways that it ended up being longer; I guess I wouldn’t have expected it to be a decade, but there was never a time…I never got tired of the place.  You certainly never feel like you know everything; for one thing, everything is change so even if you did by some miracle you know everything, it’s going to be different next week.

EL: In your new book, Country Driving, a lot of your stories focus upon you driving around China, getting your driver’s license, and the car plays a very significant role in your stories.  How did you decide to focus on the car and driving in China?  Was it a purposeful choice or was that just how the story developed?

 

Elizabeth Lynch interviewing Peter Hessler; Photo Credit: Robert Burnett of www.rburnettjr.com

Elizabeth Lynch interviewing Peter Hessler; Photo Credit: Robert Burnett of www.rburnettjr.com

PH:  Usually when I do projects, I try to keep them very open-ended.  Actually with all of my books I’ve actually written a book and worked out a contract afterwards.  So I don’t like the idea of having to propose something before I do it because basically you don’t know what’s going to be there.  I like to respond to the material.

Basically this started as a magazine story while I was doing a piece for National Geographic on the Great Wall of China and I decided I wanted to drive along the Great Wall.  The trip became more and more ambitious as I was planning because I liked the idea of doing it.  I thought it would be interesting, I had just gotten my license.  And then that journey was just a great experience; it was probably the best trip I have every taken in China.  And after taking that trip I started to think, I would like to write about this in a book but I really feel like there are these other issues I would like to explore.  One of the things I noticed while I was driving across is that you go through all these little villages, where people are leaving and life is obviously really different from what it was 10,15,20 years ago.  I wanted to get a deeper sense of what that meant to people and how people respond to that.

Around the same time I was renting a house outside of Beijing in the countryside mostly just for personal reasons, just because I wanted to escape from the city, but I eventually started writing about that place and how people cope with the changes.

And as time moved on and I had these two parts of the book, I was thinking about, I realized I need also to give people a sense of where all this is going, all these people are leaving the villages, young people are migrating, they are going to these factory towns, I want to write something about a factory town as well and have this in the book.  You know, for me this is the way projects have generally developed.  You sort of feel your way along and you get to a point and you can sort of see the whole thing in the sense of what you need and what you would like to do.  And for me that was at the moment when I said okay, I want to go to a factory town and write about development there.  And once I got into that last project, which was in Lishui, I could see that that would be the book basically.

As far as the automobile, there was a link to all of them because the first one was a driving trip that kind of gave me an introduction to the north and to some of these rural issues; the second journey was to a village where they didn’t have a paved road when I started going out there and renting a house, and eventually they paved the road, there was a car boom in Beijing and this place responded very dramatically, people’s lives changed in enormous ways.  And then for the last section, about the factory town, I chose a town in Zhejiang province that was along the route of a new expressway because I knew that this was a highway that linked them to the coast.  That has a huge impact on your local economy if you have a road that goes to a port.

EL: The first part of Country Driving, you describe your drive along the Great Wall and you go through a lot of these villages that are, that seem like they are just closing down and they are mostly poor, you talk about them being depopulated, barren, no longer farm-able, and you even talk about some of the aid work there that is subject to a lot of corruption, in your mind, what do you think is the future for these villages?  If you go back 10 years from now, will they exist?  What do you see for these villages?

PH: It was very striking because China has been in the midst of this incredible migration.  Most of the figures now are 130 million, 140 million people have left the countryside – mostly young people looking for jobs in the cities.  When I was traveling, it’s amazing how this is the other side of migration; you’ve been to the factory towns or the cities where you see all these people, but where are they coming from?  You go to these villages, and I’d drive through, and you talk to people and they would usually say the population is decreased by half, roughly.  That was generally the number I would get from talking to people.  I never met anybody in a place who said, oh we haven’t lost population.  It was every single town.

RoadOften it’s really striking that you just do not see people in their late teens and twenties in these towns, and thirties.  They’re either older people, elderly, or you see disabled people or you see small children because children are still being raised by their grandparents often in these villages.  So, it was something as I drove….In a way they are quite poor, they’ve always been poor, but they’re also incredibly open and friendly.  I never had a single bad experience in these little towns and people were incredibly generous – they would invite me in, they were totally trusting.  So it did make me sad to think about that, that these places are really changing.  And I don’t know who is going to be there in a generation.  It’s hard to envision who, why would someone stay basically, and people often told me that.  Along the way I was picking up hitchhikers, which is mostly because I had an empty car and I found that it was interesting, and most of those hitchhikers were young people migrating, and you talk to them and they say ‘there’s no way I am going back, there’s nothing there for me.’

So I don’t know what happens.  I think maybe eventually if China reforms some of the land use laws perhaps people would consolidate farms and there would be some farmers who could make a better living because they have bigger holdings.  That’s what should logically happen.  In some ways it’s not a bad thing, because a country….When they started the reforms they had like 900 million farmers or something in ‘78.  You don’t really need 900 million farmers in a country.  It’s inevitable that this is going to happen.  And we’ve been through it, Europe went through it.  If you look at 19thcentury literature, there are all these poems, English poems, about villages that are dying and don’t exist anymore.  So this is an old story in that sense.  I think eventually you will see this consolidation and there will be some who remain as farmers but for this particular moment it is very hard to see the future.

EL: In terms of the law, you brought up some reforms to land use laws.  And in certain parts of Country Driving I know you mention, just in passing, the Chinese law and the legal system.  Your neighbor in Sancha, Wei Ziqi, he holds onto contracts dating back to the Qing dynasty, showing that he should have title to certain lands.  You describe how the law doesn’t protect the countryside and allows cities to buy farmland at cheap prices and then just flip it at a higher price.  And you also discuss the petitioning system.  When you bring up these interactions with the law, it seems like the law itself doesn’t really offer solutions for the people that you write about.  Do you think this is changing at all?  Do you see the law or the legal system developing in a way to protect these people?  In the field I am in, we hope that the legal system is changing to better protect a lot of these people, but on the ground do you feel that is really happening?

PH: You know, like so many things in China, there are so many levels to this issue.  I think there is a huge amount of vitality and energy in the legal field right now in China and if you go to Qinghua University, at the upper end it’s quite vibrant.  There are a lot of people thinking very hard about these issues, working very hard on them, there is a lot of life to it.  So I do think in that sense it’s clear that there are people that are interested in making this a better system, no doubt.  And I think eventually, it will happen.

For this book, really my focus was much more on working class people.  A lot of these people were farmers.  Basically, most of the people I am writing about are people who are from the countryside but are making this transition in one way or another to urban life or to being entrepreneurs; in the last section, people who are becoming factory workers or managers and so on.  So I am sort of seeing their perspective which is going to be very different from a legal scholar.

But it’s interesting, when even in these places, the people have a deep faith in law really and quite an interest.  You mention Wei Ziqi, this is someone who had just about eight years of formal schooling but he’s very bright and when he was older and had been farming for a while, he took a correspondent course in law for example.  And he kept all of these books that he got from that course that taught him how to draw up contracts for example.  So when I rented a house there, he wrote up a very formal contract and had me and the person I was renting with sign it.  And it had all these clauses – one of the clauses was that you can’t store explosives in the house – very detailed stuff.  It really had no legal status; you couldn’t take that contract to court but he believed….To him it was important and it showed sort of an interest in it and a respect for the law.  So you do sort of see that a lot.

I guess my characterization of how….And for him in the village, he was aware of certain laws – like when he wasn’t getting a certain fee he was suppose to be getting, he would find some ways to make sure he did.  And he would say the law’s on my side.  It was important to him.

I think….One of my general conclusions on how people interact with the law in places like this and in the factory towns is that it is certainly not a fair system and it’s not a system that we would see as certainly as being anything close to finished, but it’s pretty functional to be honest.

You mention the land use issues, which are really unfair to people in the countryside, but it allows development to proceed in the way that it has.  In some ways they are at a stage now, it’s a weird stage in that there are huge problems clearly with the legal system.  But it works and the corruption even is sort of manageable – it’s almost like there are rules to it and people know how it works.  So their level of comfort is a lot higher than what you would expect.  As an outsider you think, this is just a bad system, these things are wrong and people shouldn’t tolerate it.  But from their perspective it’s different; it’s probably better, it is better than it was 20 years ago.  They also know basically how it works.  They find ways to make things work in their favor.  What they do is not what we would expect.

For example, in the factory town, where I spent a lot of time, there was really very little sense of the law there, in the sense I never met a lawyer there, I never got any sense of anybody doing any kind of NGO work, there’s no unions that I ever encountered.  The government had an official union and they would show movies on the street to factory workers – that was the only contact I had with them.  But it doesn’t mean that people were powerless.  It just meant that they didn’t find recourse in the law specifically.  If a worker had a problem, he didn’t talk to a union, he didn’t call a lawyer.  But he found other ways to do it.

I write for example about a family that works in a factory.  I’ve watched them over a period of years.  For example, Factorywhen they started working in the factory they sent their youngest daughter with the older daughter’s ID. The youngest one is 15, barely 15, and she isn’t legal to work.  But because she has the fake ID she gets a job and then she brings her sister in.  Soon enough, the whole family is there.  And they end up with quite a bit of power because they have a network of six workers or so who were a huge part of the labor force and they could negotiate as a group.  So it’s a place where people have agency, the type of agency they have is not traditional, it’s not necessarily legally based.  So as an outsider, it’s very hard to understand, but at the same time, you kind of respect it.  When I watch that family, the Tao family, when I watch them negotiate, I didn’t feel sorry for them.  They were really good at what they did.  I would not want to negotiate with them, I wouldn’t want to be the boss.  I almost felt more sorry for the boss sometimes because they were just really tough people.  So you sort of admire them, but again you realize that it is not a finished system.  But it’s functional.

So when you talk about corruption in China, it’s not Nigeria.  It’s not some country where you go and they just, you try to set up a business and they set up a system of bribes that make it just completely impossible to function.  It doesn’t work like that.  The other example I give in the book is when these guys are setting up their factory, and the officials from the tax bureau came – I was sitting there watching this whole interaction – these three officials came from the tax bureau.  They were intimidating, they let the factory owners know that they were in control, and they sort of had this conversation, this very tense conversation.  They asked them questions about the business because they were just starting business and they said ‘do you have an accountant?’ And the boss said ‘no we don’t, we haven’t started selling anything yet so we will get one eventually.’  ‘Well you should get an account.’  ‘Ok, we’ll get one once we start doing business.’  He said ‘no, you should get an accountant now.  I have a friend that runs a business that has an accountant and here’s his card.’  And the boss is like ‘oh maybe we should get an accountant now.’  That’s kind of the way it works.  That interaction is over and the guy makes a phone call and hires the account.  You realize it’s not fair, but it works.  It’s not an onerous cost in a way.  So he wasn’t angry about it, he’s just like ‘this is the way it is.’  It’s going to cost 80, 90 bucks a month, no big deal, he’ll deal with it.

So, I think that is kind of the stage that they’re at.  They do have some huge questions that remain to be answered and it is very hard to tell, especially that land use issue which is that people in the countryside can’t buy and sell their own land.  That has been a huge problem over the years and it continues to be.  There have been lots of signs and lots of discussions over reform but that hasn’t happened yet.

ELWhen you traveling through the countryside and the factory towns, you see a lot of people on the move and you do see these inequities, but amongst the people themselves, what was their biggest gripe?  I think a lot of foreign NGOs that are in China, a lot of the work I do, there is a focus on the inequities in society or the environmental damage, things like that.  But do you feel that people that are in the countryside and in the factory towns, what do you think is their biggest issue?

 

Photo Credit: Robert Burnett of www.rburnettjr.com

Photo Credit: Robert Burnett of www.rburnettjr.com

PH: It’s very localized and if you ask people, it tends to be corruption and what they mean is corruption of local officials.  That doesn’t mean that the top levels aren’t corrupt, they just don’t see it.  So often they continue to have a faith that the top levels of governments are better run and the people are more honest but the locals, because they know the locals, they see what is happening, they are very cynical about that.  It is incredibly localized.  One of the years, the year that I wrote about where I was following a dam project in this book, they reported something like 87,000 public disturbances, protests in China that year.  And you should see these figures.  Every year it’s a figure like that, close to 100,000 and you think my God, the country is about to explode.  But when you do sort of encounter one of these instances and look at it, it tends to be so incredibly localized and it’s not connected to larger issues.

So you meet someone in the countryside and you ask them what’s wrong and they won’t tell you the land or the Constitution just isn’t fair in terms of land use laws.  It’s hard to have that kind of vision, they’re not seeing these sort of huge issues.  What they would tell you is my piece of land, I didn’t get the market value for that piece of land, and that’s really all that they are going to care about, about their own situation.  So you don’t see people making these connections.  You see some of the outsiders and the NGOs, folks like that are in different positions.  But the people that are in the villages, the factory workers, that’s not their issue.

To be honest, it’s such a demanding society, everybody is coping with so much change I often feel like they just don’t have the energy to go after those big issues.  You can’t blame them; they’ve got a lot of stuff to take care of.  Wei Ziqi, he’s trying to shift from being a farmer to being a businessman, he’s trying to join the Party in the local village, he’s trying to get a solid political position in his village.  He has all of these things to worry about, the last thing he’s going to worry about is trying to reform the Constitution.  He has no way to do that and it’s just not going to be his natural response.

I think again this sort of contributes to the stability, the basic stability that I see in China.  There are a lot of complaints, but again, it’s sort of a pretty functional system.  And I never feel….My general sense is not that this place is about to explode.  I guess I don’t have that feeling.  I’m sort of going in more of a survey approach; I don’t look for problems and then focus, like, in the village.  I just went to the village and spent a lot of time there – and so you see what happens.  And the same thing in the factory town.  I went to this factory town and spent a lot of time there.  So I noticed what type of protest came up, but I wasn’t picking the biggest protest in the province – which really makes a big difference if you are a journalist or a social scientist.  China is a big country, you can find anything you want.  In some ways, this is a more representative approach in the sense of trying to just go to a place and see what’s happening there in a normal situation.  I noticed there are a lot of protesters.  One significant big issue in the factory town which was the new dam that they were building.  But the response to that was not very threatening.  People’s anger was very localized, they weren’t coordinated with any other kind of groups, it wasn’t like they were linked up with other anti-dam groups in China, there weren’t environmentalist down there.  So it kind of makes me feel that the system is basically sustainable for right now.

EL: In terms of those issues, in noting that there is some basic stability and even though there are these complaints, they are very localized and they’re not becoming a big issue.  But if every rural area is having similar complaints, even though they are not unified, do you think that perhaps maybe China is not as powerful as the West right now currently views it?  Do you see…Even though it is a stable system, there is a lot of I guess tension on the local level, do you see this as problematic and do you think the Chinese national government is going to deal with it in the future?  I guess what do you see for the future?

PH: It’s always a bad game to predict China’s future basically but I think basically, I suppose it’s en vogue to talk, we hear about how overwhelmingly powerful China is.  I tend to sort of temper that.  I don’t see China as on the verge of collapse, I’ve never felt that at all.  But I also don’t see it as this place that is an unbelievable juggernaut, that they are doing everything better than everybody else is doing.  There are a lot of problems with the system, there are a lot of flaws.  But there are still a lot of safety valves as well.

One of the things I write about in this books is what happens to people who could potentially be dangerous maybe to

Photo Credit: Robert Burnett of www.rburnettjr.com

Photo Credit: Robert Burnett of www.rburnettjr.com

the government, who could cause a lot of trouble.  You go to the villages, and the really bright people, the ones who would probably be the most angry about injustices and also the most capable of fighting something or resisting something, they leave, they become migrants because they’ve got opportunities.  So it’s like a pressure valve.  So you don’t see the really bright young person staying in the village and stirring up trouble.  That person is trying to find his way in a factory world.  So they have a whole other series of challenges to go.  They’re outside of their home community, they don’t have their networks anymore, so politically, they’re not in a position to do a lot.

In the village that I wrote about, the person I knew, Wei Ziqi, he’s one of the very few really bright people who stayed.  And what happens to him?  Well he has some power struggles with local authorities but he ends up becoming a Party member; he sort of becomes to some degree part of the local power structure.  This also happens – people get recruited.  So I think there are a lot of different pressure valves basically that sort of take some of the talented people out of the position where they would potentially cause trouble.

It’s sort of a hard thing because it can be very depressing in a way, like when I was in that dam community and I met a lot of folks there who were angry, petitioning, and bitter about it.  I noticed that they generally tended to be the lesser educated and they had the fewest financial resources, and this is partly because they were the ones who have been treated the worst, but they also were, I have to admit, also some of the least capable of really doing something basically.  And the people I met who were capable had either left or they were finding other ways to make their way.  There was one guy in that dam community that was really sharp.  When he talked to me he wanted to know what my journalist accreditation was, he had all kinds of questions about what kind of writing I do, he was the first one I met who was really sharp like that and really knew a lot of the issues and his vision was much broader in the sense that he’s like ‘they are moving people from these towns, there is nothing for them to do in these towns, they’re just building these towns and there’s no farming, there’s no business, there’s no factories.’  But he was well dressed, he had a cell phone so I asked ‘well what do you do, how do you get your money?’ and he’s like ‘well I sell building materials in the towns that they’re building.’ So he’s profiting in a way, he’s found a way, he’s kind of hedged his bets basically.  I just think there is still a level of opportunity that makes it hard for people to justify really, really devoting themselves to protesting.

I think eventually that changes.  But you have to reach a point in my opinion, where sort of the middle class, the upper class, the educated people, the ones with a lot of drive, when those people feel like they’re getting limited, because they have the tools.  Right now it’s like the people at the bottom I feel like are the ones that really get hammered.  And it’s a very sad situation but it’s very natural in the sense that those are also the people who are the least capable of affecting massive political change.

I think something will change with that but I think it is going to have to be when this other group starts to see it as being in their interest to be a little less self-oriented and a little more aware of ways in which the system can be improved.  Like I say, you have more and more energy going in this direction, but I think it is going to take time.  I never felt that we were going to see a political change in the next five years or something, a major political change.  I never had that feeling in China.

EL: On your road trip, as you were driving, when you were driving, were there any cities that you went through that reminded you of St. Louis or any other cities in the United States?

PH: I’m actually not from St. Louis, I grew up in Colombia, in the middle.  I’m trying to think.  The cities are totally different it feels like in China.  They always feel like they were just built yesterday basically a lot of these places, especially when you are in the factory towns because some of them were basically built yesterday – you can see them going up in front of your eyes.  So it’s a different world I guess.  Especially my driving trip I did, the first one, was in the north and the big city, I think the only really big city I passed through was called Baotou in Inner Mongolia.  Which is this weird place because they had they had a huge amount of money that came in from a government campaign, it just felt like a huge metropolis in the middle of the desert.  So they have a different feel and they feel like training grounds.  Everything is a trial basically in the sense that all of the people that come in from the outside, the buildings have just been built, the streets have just been built.  People need to figure it out on the fly.

ELAnd what about when you were driving, did you have any driving music that you listened to, anything like that?

Author Peter Hessler; Photo Credit: Robert Burnett of www.rburnettjr.com

Author Peter Hessler; Photo Credit: Robert Burnett of www.rburnettjr.com

 

PH: Yeah, yeah, yeah.  I was on the road for days.  I guess I did two trips, this was in two parts.  The first part of this book was a journey in two parts and each of them more than a month, that is a lot of time on the road.  Yeah, I brought good driving music – Bruce Springsteen, the Clash, and a lot of rap music as well when I am trying to stay awake, to keep myself motivated.  It was very fun, I enjoyed it greatly.  Also I had no schedule which helps.  I think driving in China can be really tough if you go for like 8 hours a day or something.  But I stopped when I wanted to, I tried to be careful so I wouldn’t get too tired.  It was a blast.  I really, really enjoyed it.

EL: Definitely, it sounded like you had a lot of fun, especially on the trip with the Great Wall.  But now that you are back in the States and you are now in Colorado and Country Driving is out, what do you see that is next for you?

PH: I’m doing some projects in the States now where I am researching a couple of things around where I live.  I live in southwestern Colorado near New Mexico and Utah.  So I’m pursuing some things there which has been great.  It’s been nice to do a couple of U.S.-based projects, interview people in the States which I haven’t done for a long time.

So I am shifting away from China for a while and I think my wife and I will probably be moving overseas again in about a year or so.  We would like to study another language and live in another part of the world, and write about someplace else.  We are thinking about possibly the Middle East.  We know that we will go back to China eventually because we both really like it there, we’re comfortable there, we still have a house north of Beijing in the village.  But we felt like it’s nice to do something different for a while.

For me personally, this third book for me felt like the last, I felt like I was closing a chapter in the sense.  To me it was a great final project because I had all kinds of new challenges.  I was putting together a lot of the knowledge I had learned over the decade plus that I had spent in China.  It felt like a natural stopping point.  I never wanted to reach a point in China where I felt like I was repeating myself or using the same type of story or the same type of structures or the same type of research projects over and over.  And this to me, each of the three books feels quite different to me and they have different focuses, so it was a good stopping point.  And we will be back at some point and happy to do that.

EL: I know for me and I am sure for a lot of other people if this is the closing chapter on your journey with China, a lot of us might be a little bit disappointed.  You’re one of, I think, the greatest writers about modern China.  But I want to thank you for taking time to talk to us today.  Just for our listeners, Country Driving comes out on February 9 and can be purchased at your local bookstore or on Amazon dot com.  Thank you Peter.

PH: Thank you.  Thank you for talking to me.

Rating: ★★★★☆

Country Driving: A Chinese Road Trip (P.S.), By Peter Hessler (Harper Perennial, February 8, 2011), 448 pages.
 

Akmal Shaikh Executed; Last Minute Pleas Fail

By , December 28, 2009

The Guardian has reportedthat Akmal Shaikh was executed by leathal injection at 10:30 AM local time on Tuesday, December 29 (9:30 pm Monday EST).

ALERT: Death Sentence for British Citizen Upheld; Execution Date Set

By , December 22, 2009

British citizen and Chinese death row inmate, Akmal Shaik

British citizen and Chinese death row inmate, Akmal Shaik

The Guardian has just reported that Akmal Shaikh‘s death sentence has been upheld by the Supreme People’s Court, China’s highest court.  An execution date has been set for December 29.  Execution will be by either lethal injection or firing squad.  All of Mr. Shaikh’s legal options have been exhausted and the only remedy left to save this arguably mentally ill man from execution is clemency fromChinese government.

As reported by the Guardian, the British government will be stepping up pressure on the Chinese government to grant clemency.  But given that  in politically sensitive cases  the Chinese legal system merely does the bidding of the Chinese leadership, clemency from a political official is highly unlikely.

While many Chinese officials have claimed that the courts having been following a “rule of law” in deciding this case, they have been using a fairly selective interpretation, only looking to the fact that the importation of drugs into China is a death-eligible offense.  But the issue in Mr. Shaikh’s case is that the Chinese courts have never allowed for a professional determination of Mr. Shaikh’s mental status.  The Chinese criminal law itself protects the mentally ill.  An insanity defense is permitted under Chinese law.  Furthermore, if a defendant’s mental illness does not rise to the level of an insanity defense, the courts are permitted to take into account the defendant’s mental illness during sentencing and are allowed to depart from the statutory requirements.

Although the Chinese law affords these protections, the Chinese courts have consistently refused to adopt procedures that would allow for a defendant to be professionally evaluated.  If Mr. Shaikh is executed, he will be the third  arguably mentally ill individual in the past three years that the Chinese criminal justice system has put to death (and those are the three that the Western media knows of; there are likely more).  What could have been an opportunity for the Chinese criminal justice system to face the fact that there  are no real procedures in place to protect the mentally ill, it has instead squandered.

Mr. Shaikh’s case has made headlines in the U.K.  But in the rest of the world, very little attention has been paid.  Other

Gordon Brown standing alone?  Where's the rest of the world?

Gordon Brown standing alone? Where's the rest of the world?

nations should wake up.  This case, and the world’s reaction to it, will set a precedent.  Every year, China receives more and more foreign visitors, as tourists, business executives or students.  Last month, in his speech at the Shanghai townhall, President Obama announced his goal of sending 100,000 U.S. students to China.  Given these facts, there is increasing likelihood that more foreigners will interact with the Chinese criminal justice system, a system that based on Mr. Shaikh’s case is a far cry China’s own criminal laws let alone actual justice.

The U.K. should not stand alone on this issue; other nations should also be commenting on China’s inability to follow its own laws.  In the past, the Chinese courts have executed arguably mentally ill Chinese citizens (see the case of Yang Jia and the case of Qiu Xinghua) and now the courts will execute an allegedly mentally ill British citizen.  Who will be next?

The Obama Visit to China – What the U.S. Press Missed

By , November 23, 2009
DSC04715Originally Posted on the Huffington Post.
 

 

 Beijing, China – The U.S. press has not been kind to President Barack Obama and his recent visit to China.  Claiming that the U.S.’ tone has become conciliatory toward China, that the trip “yielded precious little” and even oddly comparing the Obama Administration’s behavior on the visit to a one-party, authoritarian regime, the U.S. press has all but designated the trip a failure.

But the trip was most certainly not a failure and in many ways fulfilled the U.S. press’ predictions – an event filled with a huge agenda covering a multitude of global issues, likely offering few deliverables, and probably playing down, at least publically, human rights.

So if the trip confirmed the press’ earlier predictions, then what’s got their panties all in a bunch?  Perhaps the one thing that upsets the press more than anything is a lack of access, and on this trip, the press certainly played second fiddle.  Questions were not taken from the press during last Tuesday’s press conference and very little other access was offered to the President.  But with only a day and a half in Beijing, this trip was not really about the press.

But in measuring President Obama’s trip based solely on their access, or lack of, the U.S. press has failed to report on some pretty substantial results of President Obama’s trip to China.  In what you likely will not find in other media outlets that are still licking their wounds from an alleged snub, below are some of the surprising deliverables from the visit.    

1.  Increased Military-to-Military Contact and High Level Military Exchanges

If the lack of communication between the U.S. and Chinese militaries does not keep you up at night, well it should.  The U.S. has a better relationship with Russia’s military than it does with China’s, but has more potential to cross paths with China’s because of the U.S.’ military presence in Asia.  Without proper channels of communication between the two militaries, a small skirmish can easily become a major crisis, as President Obama knows from his first months in office when Chinese navy ships circled and threatened a U.S. navy vessel in the South China Sea. 

Adding to the lack of communication is China’s broad interpretation of its “exclusive economic zone” (EEZ). A chinese-fleet-review-a-ch-008country’s EEZ extends 200 miles from the coast and gives the country sovereign rights over economic activities in those waters (usually the country uses its economic zone to search for natural resources).  By China’s broad definition, its sovereign rights in the EEZ expand outside of the economic realm, permitting it to interfere with other countries’ ships that enter its EEZ.  The U.S., as well as most other countries, perceives the EEZ as providing solely economic sovereignty for the coastal state, allowing other countries’ ships free access.  For the U.S., this also includes ships that are conducting military surveillance on the coastal state (for an excellent assessment of these different interpretations, see Margaret K. Lewis’ “An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident”).  Needless to say, these different interpretations only add to the tensions between the two militaries. 

In the U.S.-China Joint Statement issued last week, much needed progress was made on the military front, especially in terms of communication.  High level exchanges between the U.S. and Chinese militaries will continue, with the Chief of the General Staff of the China’s People’s Liberation Army, General Chen Bingde, visiting the U.S. and both Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff Admiral Michael Mullen making a trip to China.

In regards to differing definitions of the EEZ, the Joint Statement alludes to this issue, showing that the two sides likely discussed and acknowledged the problem (From the Joint Statement: “The United States and China agreed to handle through existing channels…maritime issues in keeping with norms of international law and on the basis of respecting each other’s jurisdictions and interests”).  Granted they failed to reach a compromise, but this is not an issue that will be easily solved.  Just discussing this sensitive topic is progress. 

2.  Both Public and Private Discussion of Human Rights

Interestingly, a press that largely ignored this issue prior to President Obama’s trip is making a big deal of his “silence” on human rights violations in China.  Last I checked though, freedom of speech is usually regarded as one such right and President Obama discussed this issue rather bluntly and passionately at the Shanghai town hall.  While it is debatable as to whether focusing on freedom of expression on the internet is sufficient to assist China with a development of a civil society and a rule of law, it is difficult to argue that President Obama did not publically bring up the subject of human rights. 

Furthermore, in his letter written to China’s Southern Weekend newspaper, President Obama stressed the importance of a free press.  True, this letter was not permitted to be circulated to a wider audience, but it portrays the President’s continued emphasis, both publically and privately on human rights.

The Joint Statement also discusses human rights in general and calls for the next official human rights dialogue between the U.S. and China to be held by the end of February 2010 in Washington, D.C.  The Joint Statement also stressed the importance of rule of law in China and agreed to reconvene the U.S.-China Legal Experts Dialogue (see the Dui Hua Foundation website for further background).  With the increasing push back by the Chinese government in the area of rule of law, especially as it pertains to civil rights and civil liberties, deepening cooperation is an important deliverable.

It is true that the Obama Administration has opted more for a strategy of quiet engagement on this issue.  Whether the approach is effective remains to be seen.  This past summer, the Administration was able to secure the release of public interest attorney Xu Zhiyong through behind the scenes pressure on the Chinese government.  However, almost immediately after President Obama left China, the Beijing police apprehended and beat public interest lawyer Jiang Tianyong (pronounce Geeang Tian-young) as he was walking his 7 year old daughter to school.  While Mr. Jiang has since been released, he is under very tight surveillance.  Perhaps if President Obama had mentioned the plight and importance of public interest attorneys in China, the arrest of Mr. Jiang might not have happened.  Or maybe it would have.

Either way, the U.S. press’ conclusion that President Obama “soft-peddled” human rights on his trip does not appear to ring true.  Human rights was certainly discussed, both publically and privately, it just appears that perhaps China was not listening. 

3.  Clean Energy and Climate Change

As expected, the U.S. and China entered into a series of cooperative agreements pertaining to clean energy and climate change technology.  While neither side agreed to emission targets, the level of detail provided for in the issued agreements was more than anticipated.  Most interestingly, the U.S.’ Environmental Protection Agency and China’s National Development Reform Commission signed a memorandum of cooperation to help China develop its capacity to measure its greenhouse gas inventories.  This is no small feat.  China’s does not currently have the capacity to accurately measure its greenhouse gas emissions and thus, if it was to agree to emission targets, would be unable to provide verifiable data.  China’s lack of capacity on this front has rightly been a sticking point for many in the U.S. Congress, preventing the passage of domestic climate change legislation that would be used to bind the U.S. internationally.

This memorandum of cooperation is the first step to enable China to agree to emission targets and for the rest of the world to believe them. 

President Obama’s visit to China was certainly not overly exciting but it was far from the failure that the U.S. press has made it out to be.  It also does not signify the U.S.’ decline as some alarmist media outlets have claimed.  Instead, the visit was a series of tough negotiations between two global powers.  Both had winning issues and losing ones.  And in the end, President Obama likely walked out with a little more than expected.  For me, that’s an accomplishment.

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