Posts tagged: Rule of Law

Tom Friedman on China: End of Corruption in China or Just a Woman Scorned?

By , August 1, 2013

Tom Friedman

Tom Friedman

Every so often you read a news article so revealing…[and] say ‘…That story was the warning sign.”” So begins Tom Friedman’s unfortunate return to writing about China.

In Wednesday’s “Revenge of the Mistress,”  Friedman feebly attempts to argue that China has reached a turning point on official corruption and that turning point has been the online blitz of one “jilted mistress” of the deputy director at the State Administration of Archives.  For Friedman, this 26 year old woman, Ji Yingnan, and her online posts and photos of their lavish life together – a life she thought was forever until she found out that the man was married with a kid – are important in exposing the corruption that is prevalent in China.  For Friedman, she is the whistleblower that could change the course of China and potentially of the world. 

But Friedman’s article completely misses the mark and paints a picture of China that doesn’t really exist. 

First, a jilted mistress as a whistleblower?  Really?  Do you really think that the popularity of her blog posts is a result of an never-before-exposed seeping anger against official corruption?  Or is it more perhaps the lurid details of an affair that went wrong?  Are the excesses she exposes really that unknown to the Chinese public?

No.  The lavishness of government officials has been reported on by the domestic Chinese media for at least the past year.  What Ji “exposes” are facts that are already well known.  The Chinese public knows that graft and corruption is very much a part of their leadership’s lives.  China’s new President Xi Jinping has openly called for the end of corruption among government officials, implicitly admitting to the fact that corruption is wide-spread. 

While certain aspects of the leadership’s wealth – such as the wealth amassed by former Premier Wen Jiabao’s family and reported by David woman scornedBarboza in the N.Y. Times – have been kept a secret, the lavish spending and mistresses of some government officials has been reported.  And Ji’s post  in no way rises to the damning level of Barboza’s well-documented accumulation of wealth through government ties.  Unlike Barboza’s series of articles which were censored in China, Ji’s posts are still on the internet and she is even receiving media attention.  The reason: because she is not a threat to the ruling elite or necessarily their ways.  She is not a whistleblower; she is not a game-changer; she is a woman scorned. 

But the bigger fault of Friedman’s analysis is his complete ignorance of the fact that since May, the Chinese government has waged a crackdown on anti-corruption activists, petitioners and lawyers, detaining more than 30 individuals for their anti-corruption campaigns.  Most of these activists have been freed.  But most recently, the Chinese government has detained  well-known rights lawyer Xu Zhiyong who has called for greater government transparency and accountability of officials and their families’ assets. 

To ignore the work of these activists and the largely illegal crackdown on their activism (Xu was denied access to his lawyers in contravention of the Lawyers Law and the new Criminal Procedure Law) does a disservice to explaining what is really going on in China.  To claim that a “jilted mistress” is a civil society actor misinterprets what civil society is.   Likely Ji doesn’t have a “cause” other than herself.  The detained activists, their cause is to better Chinese society and have the government follow a rule of law.

Friedman naively calls on civil society actors to find allies within the ruling Chinese Communist Party (CCP)  and convince them that cracking down on corruption is in their best interest.  As if these activists – sitting in their detention cells – hadn’t already thought of that.  While the CCP is not a monolith and there are some reformers within the government, it’s still not an open group of people.  It’s not like some reformer in the CCP is going to invite Xu Zhiyong out for a beer summit and get his take on things.  And what’s Xu suppose to do, write a letter about ending corruption?  In China, that’s what gets you detained.

Courtesy of China Human Rights Defenders, chrdnet.com

Courtesy of China Human Rights Defenders, chrdnet.com

Finally, Friedman’s article ends by focusing on how corruption in the Chinese government doesn’t just destabilize China, but given our intertwined relationship, the United States as well.  But this is too simplistic of an analysis.  Certainly what happens in China impacts the U.S.  But would ending corruption solve everything?  Would that change the fact that the Chinese government ties its currency to the U.S. dollar?  Would that result in better air quality standards in China?  Largely no. 

What would have a bigger impact would be a rule of law.  Corruption goes unchecked because there isn’t an independent prosecutor to check local government officials.   Air quality in China is horrible because environmental regulations are not enforced and the people have no independent courts in which to bring their case.  Corruption is merely a symptom of the underlying disregard for a rule of law. 

Why Was There a Trial When Gu Kailai Confessed – China’s “Plea Bargaining”

By , August 29, 2012

As China Law & Policy reported last week, the guilty verdict issued against Gu Kailai for the murder of Neil Heywood came as no surprise, even with the slim evidence – much of it hearsay – presented at the August 9th trial.

One central piece of evidence at the eight hour trial was Gu’s own confession.  According to the Chinese state-run media, Gu openly confessed to intentionally killing Heywood.  But for some, this raises the question – do you need to have a trial at all if the defendant confesses?  Can’t she just plea to the murder and avoid the trial?

But does China even have plea bargaining?

China’s Summary Procedure – Not Exactly Plea Bargaining

Even in the United States, plea bargaining was not a welcomed occurrence.  Plea bargaining emerged as a grass-roots response by the actors in the criminal justice system – the judges, prosecutors, and defense attorneys – to the rapidly growing criminal docket.  Although first documented as widespread as early as the 1920s, it wasn’t until 1970, when the Supreme Court declared plea bargaining constitutional, that it became embraced, even if awkwardly.  Today, over 95% of all felony convictions in the United States result from plea bargaining.

In the adversarial system – where the prosecution and the defense battle it out to ultimately determine the truth and the judge plays a more passive role – plea bargaining has its place.  But in an the inquisitorial system – where the judge plays an active role in determining the facts – plea bargaining is not as openly accepted.  But criminal justice systems in civil law countries suffer from the same demands – too many case, too few lawyers and too little time.  As a result, even countries like Germany have developed a type of plea bargaining.  In Germany today, a remarkably high average of 20% to 30% of all convictions are the result of a confession.

In China, the story of plea bargaining has taken a similar path.  Innovation has come from the bottom up and its increasing use is a response to

Bargaining in the market - same as bargaining justice?

the exploding criminal caseload in most courts.   Beginning in 1996, with the first amended Criminal Procedure Law, China first introduced Summary Procedure – a form of plea bargaining where the trial is reduced in cases where the defendant confesses and agrees to summary procedure.  Under the 1996 CPL Summary Procedure could only be used in “minor” criminal cases, where the sentence was limited to three years or less.

But as China instituted another “strike hard campaign” and criminal dockets further ballooned, local courts began experimenting with Summary Procedure in major criminal cases (sentence of more than three years).  Eventually, most courts began issuing extending the use of Summary Procedure to major criminal cases, and most criminal cases, regardless of the sentence, were subject to Summary Procedure (these regulations referred to the use of plea bargaining-like procedures in major criminal cases as “Simplified Procedure“).  For further analysis of the development of Summary and Simplified Procedure, see Maybe a Plea But is It a Bargain: An Initial Study of the Use of Simplified Procedure in China.”

In amending the CPL in 2012, the Chinese government officially sponsored the use of Summary Procedure by extending the use of Summary Procedure to almost all criminal cases.  See Articles 208 to 214.

Summary Procedure is Not Allowed in Death Penalty Cases

Gu Kailai could not avail herself of Summary Procedure because the CPL does not permit the use of such procedures in capital cases.  The 2012 CPL Amendments don’t specifically spell this out.  Instead, Article 208 limits the use of summary procedure to those cases within the jurisdiction of the basic-level people’s court (基层人民法院).  However, under Article 20 of the CPL, the intermediate people’s court (中级人民法院) has jurisdiction in the first instance of all cases punishable by life in prison or death.

As a result of these two provisions, Gu Kailai, even if she wanted to use Summary Procedure, could not as her case was heard in an intermediate level court, and not a basic level court.

Summary Procedure Does Not Eliminate the Trial

But even if a crime is eligible for Summary Procedure, there is still a lot more judicial oversight than what you would see in the U.S.  This is a remnant of China’s civil law system where, due to the central role of the judge, the defendant cannot avoid a trial just by admitting guilt.

Under Summary Procedure, the “trial” is not eliminated, just shortened.  The judge will still review the prosecution’s file, call the parties to court, allow the parties to argue certain points and provide the defendant with the last word prior to judgment.  Under the current amendments, someone from the prosecutor’s office should attend the Summary Procedure trial.  This is an important change from the prior CPL which permitted the absence of the prosecutor, demonstrating that Summary Procedure is not just some rubber stamp of the defendant’s confession.  Cf. 1996 CPL Article 175 with 2012 CPL Article 210.

Thus, even if Gu’s trial was not a capital trial and she was able to avail herself of Summary Procedure, much of what was seen in court – the presentation of some evidence, her confession as the last word – would still have occurred.

Summary Procedure – Interesting Developments in the 2012 CPL Amendments

In addition to death penalty cases, the 2012 CPL Amendments list other situations where Summary Procedure is not prohibit.  Not surprisingly, in cases with a vulnerable defendant (blind, mute, deaf, or mentally ill) or in cases where there are multiple defendants and not all defendants have confessed.  See CPL Article 209(1) & (3).

But the 2012 CPL Amendments limits the use of Summary Procedure in one additional instance: where the case has a strong societal impact.  See Article 209(2).  This exception did not exist in the 1996 CPL articles governing Summary Procedure.  In adding this exception, it appears that the Chinese government acknowledges the potential political use of certain criminal trials.  Not surprisingly, that appears to be what happened in the case of Gu Kailai.

China Law & Policy Turns 2!

By , July 24, 2011

Birthday Wishes from Chuck Norris!

Last week marked the second anniversary of China Law & Policy’s founding – happy birthday China Law & Policy!

So how has year two been going?  One of the greatest challenges of this past year has been balancing working a full-time, non-China job with blogging.  It has not been easy and our goal of publishing at least one article a week sometimes was not met; in year two, we published 36 original blog posts.  But we continue to keep the scholarship level high, allowing for our readers to rely on the accuracy of the information in our posts.

In terms of readership, year two saw a marked growth.  China Law & Policy can now boast over 350 subscribers, over 200 Twitter followers and over 3,000 hits per month.

In year two we also experimented with Twitter, creating an automatic weekly blog post of our tweets.  We used this to recommend other articles our readership might find interesting.  In general, this Weekly Digest has not proved popular (although if your opinion differs, please let me know).  Instead, we have now have our tweets appearing in real-time on the left sidebar under “Recommended Articles.”

Our three most popular articles are more recent pieces.  By far, the overwhelming favorite article was “In Defense of Dylan in China: Come Writers and Critics Who Prophesize with Your Pen,” a critique of Maureen Dowd’s Bob Dylan in China op-ed piece.  Of more substance perhaps was our second most popular piece, “Don Clarke & Li Tiantian: Two Takes on the Jasmine Revolution in China,” comparing two pieces on the Jasmine Revolution in China.  Rounding out the top three was “Reality or Myth: China’s Rule of Law & Its Recent Assault on Lawyers,” an article alerting the world of China’s random abduction, abductions that still continue, of rights-defending lawyers.

One of my personal favorite posts was the book review of Nien Cheng’s Cultural Revolution memoir “Life & Death in Shanghai.”  Just discovering Cheng’s book was a pleasure, reading her story of survival was inspiring, but soon after the post, one of Cheng’s good friends in the U.S. emailed me to tell me that he was moved by my review.  He believed that if Cheng was still alive, she would have been happy to know that her book was still moving people.

When I created China Law & Policy, the goal was to provide a different voice to the China debate and to explain in easy to understand terms, why non-China people should care about some of the underlying issues about China’s rule of law development.  For the past few months, with the arrest, detention and abduction of rights-defending lawyers, human rights and rule of law has largely been a focus of this blog.  I will likely continue to focus on these issues as on some level, rule of law cannot be said to exist if rights-defending lawyers, those lawyers who keep the government in check, are continuously harassed.  However, in year three we will seek to cover other areas of legal development in China.

Also, to provide our readership with a more diversity of voices, in year three China Law & Policy will resume its podcast series and interview others on their thoughts of China’s legal development.

Most of all on our second anniversary, China Law & Policy would like to thank all those friends and colleagues who have continued to support our efforts.  To those who provide article ideas, edits, and challenges to some of our arguments, your advice, criticism and encouragement are always appreciated and we hope that you continue to engage us.

As always, China Law & Policy encourages readers to participate in the creation of this blog, either through writing blog posts or giving us ideas on what areas or issues to cover.  Have an idea?  An article?  Feel free to email: elynch@chinalawandpolicy.com

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

By , June 30, 2011

Getting caught for tax evasion

Originally posted on the Huffington Post

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

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

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

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

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

he be criminally prosecuted?

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

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

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

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

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

Ai Weiwei - a directly responsible person?

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

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

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

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

Why So Secretive? US-China Legal Experts Dialogue

Who received the invitation to the Legal Experts Dialogue?

One would think that after a six-year hiatus, the resumption of the U.S.-China Legal Experts Dialogue would receive a little more fanfare than a cursory four-sentence press release from the Department of State (“DOS”), issued on June 6, a mere two days before the big event.

For the past two years, almost every high-level discussion between the U.S. and China has raised the issue of the Legal Experts Dialogue (“LED”), with the goal of resuming the talks (last held in 2005).  When President Obama visited China in November 2009, the two countries’ Joint Statement directly stated that “[t]he United States and China decided to convene the U.S.-China Legal Experts Dialogue at an early date.”  Ditto for the Joint Statement after President Hu’s visit to Washington, D.C. in January 2011.

It wasn’t until April 28, 2011, at the Human Rights Dialogue, that anyone provided somewhat more of a hard date.  At a press conference, Assistant Secretary of State Michael Posner announced that the U.S. and China finally agreed to convene the LED in “June 2011.”  This vague date was reiterated a few weeks later in the statement issued at the conclusion of the Strategic & Economic Dialogue.

So why the lame press release about the LED?  It’s been a priority item in the U.S.’s negotiations with China.  One would think that finally being able to achieve the goal of actually having the LED and especially of hosting it in the midst of the Chinese government’s crackdown on rights-defending lawyers, would be a feather in DOS’s cap; something that they would want the world to know about.

Why remain mum on who these “experts” are and what they will be discussing?  Instead, DOS only states that there will be “government and non-government experts” who will “explore key legal issues of mutual interest.”  Could DOS be more vague?

There are occasions when the U.S. might achieve more by pressuring China behind the scenes.  In the case of Xu Zhiyong in 2009, it looks like that approached worked.  But the LED is a completely different beast – the existence of the Dialogue has long been made public and given that there will be non-government experts, it does not appear that there will be high-level discussions here on par with Hu-Obama talks.  It sounds like it is one group of lawyers talking to another.  Given some of the issues that have sprung up in the past few months, including the assault on public interest lawyers, China’s indigenous innovation policy, various WTO cases, and the criminal trials of U.S. citizens, it would be interesting to know what is on the agenda.

But in general, I do not hold out hope that the LED will produce any earth-shattering results, if it produces results at all.  While DOS has stated that there will be “in-depth discussions and practical cooperation on the rule of law” (yeah, I don’t know what that means either), it’s basically two days of meetings among strangers with translators in between.  How much can really be achieved?

And maybe that’s why the U.S. hasn’t given the LED the credit one would think it is due.  Maybe even DOS realizes that bringing over a delegation of Chinese lawyers and legal experts for a mere two days is likely a waste of taxpayer’s money.

I do think that more open dialogue between the U.S. and China is a good thing.  But there are better ways to increase the lines of communication between the legal communities in the two nations and assist China with improving upon its commitment to a rule of law.  Identifying and inviting reform-minded Chinese lawyers to the United States for a longer period of time – anywhere between three months to a year – is a better use of money.  Through that experience, a Chinese lawyer can see how our legal system functions, see the good and the bad, interact with U.S. lawyers, and determine which aspects if any should be replicated in China.

These types of sustained contact are what can best assist China with implementing a rule of law.  A two-day conference likely cannot.  But unfortunately, we won’t really know because nothing about the LED is publicly available.

Don Clarke & Li Tiantian: Two Takes on the Jasmine Revolution in China

China's Jasmine Revolution?

In February 2011, the Chinese government began a quick and widespread crackdown on Chinese rights-defending (“weiquan”) lawyers and activists, abducting many for days to months on end, some subject to torture while in government custody.  The general narrative that has emerged to explain this recent crackdown is the Chinese government’s fear that an Egypt-like democratic revolution could occur in China, overturning the Chinese Communist Party’s one-party rule.

Make no mistake these extrajudicial abductions are not permissible under Chinese criminal law and like other countries, there are laws in China that restrict the government.  Under Chinese Criminal Procedure Law (“CPL”), a detention warrant issued by a public security organ must be presented when an individual is taken into custody (CPL Art. 64); either the family members or the employer of the detained individual must be informed of the reasons for the detention within 24 hours (CPL Art. 64); the first interrogation of the detained person must be conducted within the first 24 hours (CPL Art. 65); after the first interrogation, the detained person has the right to retain a lawyer and the lawyer has a right to meet with his or her client (CPL Art. 96 – note that this provision makes it legal for the first interrogation to be conducted without a lawyer present); and after 37 days in custody, the detained individual must either be arrested or released (CPL Art. 69).  Additionally, Article 238 of the Chinese Criminal Law criminalizes any unlawful detention or deprivation of personal liberty, imposing a harsher criminal sanction on state functionaries.

So the question remains, if the Chinese government just flouts these laws, why does it bother?

Rule of Law in China?

And what does this say about its progression toward a rule of law, a progression the Chinese government maintains is its goal?

Prof. Donald Clarke of George Washington University Law School came out with a rather thought-provoking essay last Thursday, seeking to answer some of these questions, and put China’s ‘rule of law’ development in some sort of perspective.  In “China’s Jasmine Crackdown and the Legal System,” Prof. Clarke dispenses with the conventional idea that China was ever on the path toward a rule of law.  Defining a rule of law as a system “where there are meaningful restraints on the powers of government” and that “those in power cannot do simply as they please,” Prof. Clarke maintains that the Chinese government never had the intention to be held accountable; its quest toward a “rule of law” for the past 30-odd years has just been about creating government efficiencies.  In 1978, to become a successful market economy, the Chinese leadership had to create some legal system since Mao had all but dispensed with law by the end of the Cultural Revolution (1966-1976).  But while these developments in the economic-legal sphere might have the looks of a rule of law, scholars are wrong to think that it was ever the government’s intention to be held accountable under a true rule of law system.  Many of the Chinese government’s recent actions, including the crackdown on rights-defending lawyers, exemplify the leadership’s anti-commitment to a rule of law.

Rights-defending Lawyer Li Tiantian

There is something to be said for Prof. Clarke’s assessment and in many ways it is accurate: the leadership appears unwilling to allow anything it deems “political” to be handled by the legal system and this appears to explain its harsh assault the past few years on rights-defending lawyers.  It’s commitment to a “rule of law,” a commitment it repeatedly states in various US-China dialogues, seems specious if it does not allow a space for rights-defending lawyers.  But Prof. Clarke’s analysis is very top-down and doesn’t take into effect the rights-defending lawyers themselves.  And this is where the other fascinating essay from last Thursday comes into play, Li Tiantian’s blog post “I was Discharged from the Hospital” (translation courtesy of Siweiliozi’s Blog).  Li Tiantian is a Shanghai-based rights-defending lawyer, taken into custody on February 19, 2011 and held incommunicado for three months, finally released on May 24, 2011.  In a highly allegorical essay, Li Tiantian recounts her captivity:

It’s been a while since I’ve been in touch. First, let me tell you a story.

One day, a hornet worried unreasonably that a little bird would stir up its nest. (As it happened, some distant hornet nests had recently been stirred up.) The hornet grabbed the little bird and began stinging it frenziedly. Unable to bear the hornet’s stings and thinking there was no point to suffering this ordeal, the bird realized that no one would gain anything and that there was no way to change the hornet’s ways. So, the bird kneeled down to the hornet and kowtowed in order to extricate itself. The hornet, knowing that the force of justice was on the increase in the animal world, didn’t dare do anything rash to the bird and came up with a plan that would satisfy everyone. It agreed to release the little bird, but only if the bird promised: (1) not to speak of the past few months; (2) not to damage the hornet’s reputation; and (3) not to urge other animals to stir up the hornet’s nest. Finally the bird was free. (…read more here…)

Li Tiantian’s publication of this blog post soon after her release belies her commitment to any kind of silence concerning her unlawful detention.  The fact that her blog post was pulled – likely by the Chinese government – a few days later is not surprising.  But her brazenness is.  After three months in custody, unable to communicate to the outside world, and subject to heaven’s knows what, Li still feels the need to speak; still feels the need to give push back to the government.

Prof. Clarke presents a government that doesn’t want to give people like Li Tiantian any space; but Li Tiantian has no plans to give up that easily.  True that since many of the lawyers’ release, most have kept out of the spotlight, but will they continue to do so?  And how can the Chinese government expect them to?

Prof. Clarke is right to contend that the Chinese Communist Party is not interested in a “rule of law” if it means that it will contain the Party.  But after 30 years of constantly reiterating – both domestically and abroad – the idea of a rule of law, sending lawyers, judges, and academics abroad to study Western countries’ legal systems, and inviting various foreign legal NGOs to establish offices in China and work with Chinese layers, some belief in a rule of law must have permeated  society, especially for academics and rights-defending lawyers, the beneficiaries of much of China’s rule of law programs.

Prof. Clarke compares the Chinese government to a well organized army: sure there are lots of bureaucratic rules that must be followed, but those rules are not intended to be followed by the commander.  For Prof. Clarke, an army, with all the rules that help it function, is in no way a rule of law society.

But running a society is different from running an army; unquestionable allegiance to hierarchy is not naturally found in society like it is among foot soldiers in an army.  Ultimately, Prof. Clarke’s essay raises another question: while the Chinese government has little interest in rule of law, will these rights-defending lawyers succumb and just disappear?  Li Tiantian’s essay upon her release heavily implies that the answer is no and that among some in China, there is a true commitment to a greater rule of law, even if not found within the ruling party.

Book Review: Nien Cheng – Life & Death in Shanghai

When Nien Cheng passed away on November 2, 2009, I did not know who she was.  Chinese studies listserves were abuzz about her passing, but as someone who started in the Chinese studies field in the late 1990s, I was unfamiliar with her work.  A quick Wikepedia search revealed that in 1987, she wrote a book about her time in Shanghai during the Cultural Revolution (1966-1976) – Life & Death in Shanghai – but her book didn’t seem any different than the many other memoirs I had read about the Cultural Revolution.

Fast forward a year and a half and I found myself in a soon-to-be-closed Borders Bookstore in lower Manhattan staring at a pile of Nien Cheng’s Life and Death in Shanghai on the “Ultra Bargain Books” table and stamped with a $1.99 price tag.  Even at two bucks, I hesitated in purchasing the book, but Ms. Cheng’s picture on the cover – a grandmotherly woman, with big pearl earrings and make-up perfectly in place – refined, older and  beautiful Chinese woman wistfully gazing out – caught my attention.  And thankfully it did because Ms. Cheng’s memoir is decidedly different from the others I had read.  It is a must read for anyone who wants to truly understand both on an intellectual and emotional level, the personal and physical costs of China’s Great Proletarian Cultural Revolution.

Ms. Cheng’s story starts on the eve of the Cultural Revolution, a hot, steamy morning in her lavish Shanghai home.  Although the Chinese Communists had been in power for more than 15 years, three servants continue to wait on Ms. Cheng and her daughter.  But as the Cultural Revolution begins to heat up, her lifestyle, her life abroad, and her former employer in Shanghai – Shell Oil Company which only shut down its office in China in 1965 – make her the perfect target for Mao Zedong’s new campaign against the remaining vestiges of “capitalist privilege” in China.  On that fateful morning, Ms. Cheng is dragged away by low-level Chinese officials, all the while lamenting about their ill treatment and their improper manners.

Ms. Cheng’s complaints – of missed meals, the oppressive heat, the disrespect, ignorance and bad manners of the

Picture of a typical struggle session during the Cultural Revolution

Communist officials – continue for months during the summer of 1966 as the struggle sessions against her former Shell colleagues, and eventually her, increase in intensity.  At first, it’s hard to have much pity for Ms. Cheng – her grievances seem trivial, and – for lack of a better word – bourgeois.  Seventeen years into the Communist Party’s reign, how could Ms. Cheng expect to maintain such a lifestyle and it comes to a shock that she did.  But that is what makes Ms. Cheng’s memoir interesting and an essential read.  Most memoirs of the Cultural Revolution (at least in English) are written by former Red Guards – individuals who would have been in high school or college during the time.  Ms. Cheng was much older, much more experienced in life, and much more politically aware when the Cultural Revolution began.

Because of her age and experiences, Ms. Chung’s memoir does one of the best jobs in placing the Cultural Revolution in its historical context, questioning many people’s simple perception that the Chinese Party’s rule from 1949 until 1976 was a simple lineal progression to communism.  In fact, Ms. Cheng’s story shows that there were differing voices in the CCP leadership that at times held sway – Shell was allowed, even encouraged, to maintain a presence in China because by the early 1960s, certain market reformers had significant power in the Chinese leadership; at one point Ms. Cheng’s life was saved because she defended Liu Shaoqi – a senior leader who fell out of Mao Zedong’s favor but was still supported by certain Red Guard factions.

But more than the historical context is the strength that Ms. Cheng shows in her six years of solitary confinement, suffering the abuse, torture, and near death experience at the hands of the Red Guards.  Many a Cultural Revolution memoir is more of a mea culpa for the author’s betrayals – turning on a father or a close friend in order to preserve his or her own life.  But Ms. Cheng has no reason to offer such an apology for she never succumbs to what must have been intense pressures on the intellectual class.  Before being taken away to prison, Ms. Cheng is visited by a close friend of her dead husband who gives her one piece of advice – do not make a false confession, no matter how heavy the pressure.  These are words she ends up living by and which not only eventually save her, but save many others who the Red Guards attempted to implicate during Ms. Cheng’s various “interrogations.”  As Ms. Cheng points out in her book – although rule of law was largely non-existent during the Cultural Revolution, the procedures of a legal system were still in place – there was a deep need for her interrogators to obtain “evidence” in order to “convict” her and others of political missteps.

Nien Cheng (right) with her daughter Meiping

Ms. Cheng is finally freed in 1973 but it is questionable if her life improves.  [ATTENTION PLOT SPOLIER]  Upon her release, Ms. Cheng finds out that her daughter – her only child – has died.  The revelation takes the reader by surprise as one has been so focused on Ms. Cheng’s survival that one has forgotten about her life outside of prison.  Interestingly, Ms. Cheng’s memoir does not dwell on her daughter’s death nor does it describe the deep and visceral pain Ms. Cheng must have suffered in eventually learning that her daughter was killed by an overzealous Red Guard that attempted to pressure her to turn on her mother.  It is the murder of her daughter, and what is eventually the denial of justice for her daughter, that makes Ms. Cheng’s survival all the more tragic.  There will be no Hollywood ending for Ms. Cheng, where she is happily reunited with her daughter; instead, Ms. Cheng must live the remainder of her life with this hole in her heart, and while Ms. Cheng never precisely states it, the reader is left wondering why; why this gentle, strong woman had to lose her beautiful child; why any of this had to happen at all; and how could these experiences not still resonate in most Chinese people’s minds.

In 1983, Ms. Cheng left China for Canada and finally the United States.  But before leaving, Ms. Cheng donated her antique Chinese porcelain to the Shanghai museum.  When the Red Guards first ransacked her home in 1966, Ms. Cheng pleaded with the immature high school students to save her valuable pieces of porcelain, pieces that today fetch millions in auctions throughout the world by Chinese buyers attempting to reclaim their history.  But while Ms. Cheng still respects the beauty of these pieces, she no longer seems to care.

China changed much between Ms. Cheng’s departure and her death in 2009 – economic reforms ushered in a flourishing market economy, there was greater openness in thought and speech, and the political indoctrination of the Cultural Revolution ceased.  But Ms. Cheng never returned to her homeland.  Not surprisingly, her death was not widely reported on the mainland.  And this is perhaps the greatest tragedy of all – that the Chinese people are not afford the opportunity to celebrate this strong, kind, brave, and wonderful woman.  Instead, the Chinese Communist

Nien Cheng in her new homeland, the United States (1988)

Party insists on white-washing its history and denying its people the choice of what to remember and who to celebrate.  The newly renovated National Museum of History in Beijing barely mentions the Cultural Revolution, providing only one picture from that time period and three lines of text, reflecting a government intent on suppressing its own history.

Life and Death in Shanghai is one of the best Cultural Revolution memoirs I have read and is a must read for anyone who wants to understand China.  It is also a must read for the Chinese people as well, for them to know that during one of the darkest periods of their history, there were individuals who never lost sight of their moral convictions and who in their individual ways helped to guide their country through such a tumultuous period; even in the darkest days, there is still a history that the Chinese people can be proud of.  Hopefully one day, the Chinese people will be able to celebrate these people, like the rest of the world already has.

Rating: ★★★★★
Life and Death in Shanghai, by Nien Chang (Penguin Books, 1987), 543 pages.
 

In Defense of Dylan in China: Come Writers and Critics Who Prophesize with Your Pen

By , April 10, 2011

Originally posted on The Huffington Post

Bob Dylan performed in concert in Beijing on April 6 and Shanghai on April 8

Maureen Dowd’s op-ed in Sunday’s New York Times – Blowin’ in the Idiot Wind – lambasts singer-songwriter/protest-singer/civil-rights-activist/voice-of-a-generation/whatever-he-is-to-you Bob Dylan for his recent concert in Beijing, China.  For Dowd, Dylan’s acceptance of the Chinese government’s approval of his set list is anathema to everything he represents.  Dropping his famous protest songs of “Blowin’ in the Wind” and “The Times They Are A’Changin’” from the set list during China’s most severe crackdown on its own citizens since 1989 and ignoring the recent detention of Chinese rights activists shows, for Dowd, that Dylan is nothing more than a sellout, willing to auction his morals to the highest bidder.

But Dowd’s virulent critique of Dylan makes one wonder, where has she been in all of this?  Dowd is an obvious Dylan fan, likely even a disciple, with her skilled use of Dylan quotes and understanding of the man’s extremely tangled and uncomfortable history with fame.  But China’s “harshest crackdown on artists, lawyers, writers and dissidents in a decade” and its “dispatching the secret police to arrest willy-nilly, including Ai Weiwei” as Dowd notes, didn’t just start this weekend and didn’t just start with the detention of Ai Weiwei.

Since the middle of February, the Chinese government has been illegally abducting Chinese rights activists, preventing them from contacting their family let alone a lawyer, and subjecting them to torture and abuse.  This siege on rights activists in China is done as a pre-emptive strike on the nascent civil society that has been developing and is an attempt for the Chinese Communist Party to avoid the fate of Mubarak and Ben Ali and maintain its one-party authoritarian rule, especially as a change of leadership comes in 2012.

Tang Jitian was abducted from his home on February 16, 2011, starting what has proved to be a wide-cast net of illegal abductions and abuse (abuse of both China’s own laws and the individuals that remain in custody).  Since then, Dowd has written 13 columns, not a single one dealing with the issue of the Chinese government’s harsh and violent crackdown on its citizens.  Today’s column barely touches upon the issue and instead focuses on Dylan’s “selling out.”

Let’s face it, Dylan is unable to sell out because he never bought in in the first place.  Dylan never fully engaged the civil rights movement.  While his songs did become a motivating force for many of the great civil rights activists and moments in U.S. history, by 1965, he was done with folk and had plugged in.  And since the 1980s, Dylan has been on a non-stop tour, selling the rights of his iconic protest songs to commercial entities (the rights to Times They Are A Changin’ was first sold to accounting firm Coopers & Lybrand and in 1996 to the Bank of Montreal), appearing in a Victoria’s Secret ad, producing an abysmally bad Christmas album, and almost never including Blowin’ in the Wind and the Times They Are A’Changin’ in any set list anywhere in the world (review his set lists here: http://www.bobdylan.com/tour/calendar/2010).

Dylan’s lack of mentioning China’s recent crackdown on dissent isn’t shocking.  In fact, the old guy likely knows nothing of what is happening in China – why should we rely on him to be our voice and do all the work?  This isn’t his issue; in fact, the man likely has no issues other than himself.

Which brings us back to Maureen Dowd.  Unlike most of the people concerned about human rights abuses in China, Dowd has a powerful platform for her voice – her twice-a-week column in the N.Y. Times.  With a large and influential readership that likely reaches the halls of the White House and Congress, discussion of China’s recent abuse of its own citizens and its subversion of a rule of law in her column could influence important policy makers as well as the world-at-large.

To their credit, some of the world’s major newspapers have been reporting on China’s recent crackdown, but these articles have been cursory at best and do not fully explain why China’s recent assault goes above and beyond what traditionally occurs in an authoritarian regime.  But most individuals knowledgeable on the issue have had extreme difficulty in getting their voice out in the mainstream press (kudos though to The International Herald Tribune and the N.Y. Times for publishing opinion pieces in its print editions and kudos to  The Guardian and the Wall Street Journal for having opinion pieces on the issue in their online papers).

Dowd has the opportunity to expose what is happening in China and call for the freeing of, or at the very least the end of the abuse of, not just Ai Weiwei, but also rights-defending lawyers Tang Jitian, Jiang Tianyong, Teng Biao, Liu Shihui, Tang Jingling, Li Tiantian, and Gao Zhisheng.  The whereabouts of these lawyers, unlawfully abducted by Chinese authorities (even under Chinese law), remain unknown.  Their only offense: asking the Chinese government to uphold its promise of a rule of law and using the legal system to protect society’s most vulnerable.

Dowd’s disappointment in Dylan’s snub of China’s crackdown on dissent leads me to believe that this is an issue Dowd is concerned about.  But instead of asking Dylan to be the spokesperson for the issue, Dowd should practice what she herself appears to preach.  My challenge to Dowd is to use her sharp-witted pen and find a way to raise the plights of China’s rights-defenders in the American consciousness instead of relegating it to two sentences in a column that is otherwise a critique of Dylan.  If Dowd doesn’t, then I am left to think “you could have done better but I don’t mind, you just kinda wasted my precious time….”

Translation: Speech by Mo Shaoping Discussing the Dangers for China’s Lawyers

By , February 16, 2011

Human Rights Lawyer, Mo Shaoping

Last July, Caijing Magazine – an independent, hard-hitting financial news outlet in Beijing – convened its first ever conference on the status of lawyers in Chinese society.  Titled “China’s Lawyers at a Crossroads” (summary of the conference can be found here – in Chinese), the conference featured notable criminal defense and human rights lawyers and professors such as Professors Jiang Ping and Chen Guangzhong of the prestigious China University of Politics and Law.

Through a series of speeches (conference website here – in Chinese), the panelists seemed to agree that the road China’s lawyers have been forced to walk in recent years has been rough and full of pot holes.  Rights-defending lawyer (or in Chinese weiquan lawyer), Mo Shaoping, known more recently for representing Nobel Peace Prize winner Liu Xiaobo, provided a clear analysis of the regression of the legal profession these past few years.  Below is an English translation of his fascinating, if not depressing, speech.  The Chinese original can be found here.

Ultimately, Mo provides some hope for China’s lawyers – a far-off, distant hope, but hope none the less, echoing some of the sentiment found in Bob Dylan’s “Paths of Victory” (trails of trouble/roads of battle/paths of victory/we shall walk).  In all, his speech provides an interesting insight into how one of China’s most prominent lawyers views the development of the profession.

China’s Lawyers Confront Systemic Dangers
By Mo Shaoping
Speech presented at Caijing’s Forum on “China’s Lawyers at a Crossroads”
July 10, 2010

I think I will discuss the legal profession and the rule of law from a macro perspective.

First, what is the present situation concerning lawyers and the legal system?  I agree with both Prof. Jiang Ping’s and Ms. Jin Liping’s views: at present, there has been a regression for the legal profession and the rule of law.  And this is not an ordinary regression; the movement backwards has been very great.

You can see China’s current regression from a rule of law from several angles.

1.  Originally, the path and direction of judicial reform was for judicial independence.  Now, this isn’t mentioned; instead, “[The Doctrine of] the Three Supremes” is promoted.

2.  The original direction of reform was to bring professionalization and specialization to the judges, but now the emphasis is on the decades- old “Ma Xiwu” adjudication method of following the masses.

3.  Originally, there was emphasis on judicial neutrality and passivity: the judiciary should be passive and neutral.  Now, the emphasis is on the active initiative of the judiciary.  I myself consider this a step back; even though there are very intense and different opinions in this debate, I consider a more active judiciary a regression.

4.  Originally, there was the emphasis that lawyers associations would be self-regulating, autonomous organizations.  But now, the leaders of our Ministry of Justice want lawyers to “pay attention to politics, take into consideration the overall situation, and observe proper discipline;”there is no mention of the word “law,” there is no mention that lawyers should follow the Lawyers Law when providing service to clients.

Second, does the legal profession exist in an environment and system of rule of law?  I believe that the legal professional environment and system does not exist under a rule of law.  Even though we have emphasized rule of law for many, many years and have regarded a [creating] a rule of law country as the goal, I believe our current system and environment is not one that relies on rule of law, rather it relies on the law of the Party [the Chinese Communist Party].  From the selection and appointment of [Party] cadres, we are under the Department’s control.  Our armed forces are under the absolute leadership of the Military Commission of the Party and thus absolutely obeys Party leadership; our ideology is under the increasingly strict control of the Propaganda Department, including the judiciary’s ideology.  The Political and Legal Affairs Committee of the Party is in charge of the People’s Courts; of course, it’s not only just the courts, it also includes the People’s Procuracy, the public security bureaus and the judicial administration bodies.  From a theoretical legal perspective, China itself does not follow a principle of judicial independence in organizing its judicial system.  From a reading on the 126 articles of the [Chinese] Constitution, it’s the People’s Courts that exercise judicial power; administrative bodies, societal groups, and individuals are not suppose to interfere with the courts’ judicial power.  But you cannot say that about Party interference and thus we have a Party-run political-legal justice system.  China’s 1954 Constitution is better than this current regulation.  The 1954 Constitution was clear and simple: only the independent courts administered the judicial power, and the courts only answered to the “law.” It was very clear, there was no mention of administrative bodies’ interference, or society groups of individuals.  So did Party organs have the right to interfere [under the 1954 Constitution]?  No.

Third, under this system and environment, is the legal profession one with true freedom of speech?  My answer is similarly “no.”  Right now, criminalizing speech can be found everywhere.  Prof. Jiang Ping has paid particular attention to the case of Liu Xiaobo.  From hundreds of articles with over two million words, I can pick six articles and over 674 words to maintain that you are inciting subversion of state power [the crime Liu Xiaobo was convicted of].  A few days ago, I ran into a Hunan professor.  He requested that the Supreme People’s Court conduct an investigation of the lawyer perjury provision of Article 306 of the Criminal Law;  [the request] was signed jointly by other lawyers.  Allegedly, the local justice ministry and local lawyers association disciplined him.  From the perspective of the Legislation Law, not even a lawyer, but rather any regular person can request that the National People’s Congress conduct an official examination of any law, but when a lawyer, who has a closer relationship with the law, asks the people’s court to conduct an investigation, he is punished.  Thus, our profession is not one with freedom of speech and expression.

Fourth, are our lawyers associations self-regulated and autonomous?  That’s also not the case.  Prof. Zhang just mentioned that we are not able to have confidence in our lawyer associations, these lawyer associations sometimes, I myself think do not protect lawyers’ legal rights.  Instead they work to help judicial administration bureaus punish lawyers.  Of course, from another perspective, a country that uses a branch of its government to control lawyers’, this is rarely viewed as a true democratic, rule of law country; very, very rarely seen as such.

Just raising in passing the problem of lawyer fees, I hold a very negative view of the regulation concerning attorney fees.  The regulation on attorney fees lacks an adequate basis in law and violates the Price Law.  The Price Law includes nothing more than three kinds of prices: government-set prices, government-guided prices, and market-set prices.  There isn’t sufficient basis in the law to say that attorney fees are government-set or government-guided, but at the same time, [China’s] regulations standardizing attorney fees runs counter to the rest of the world.  In many countries, there is a limit on the lowest amount that can be charged – this prevents vicious competition – but there is no limit on the maximum that can be charged.  In practice, this method is difficult to operate.  Moreover, this causes some excellent lawyers [to leave], for example, criminal defense lawyers abandon the criminal defense bar.

Fifth, what should China’s lawyers’ next step be?  To be honest, I also don’t know what the next steps should be.  Of course, I still firmly believe that [China] will inevitably move toward democracy, rule of law and constitutionalism; this is the tide of history.  To borrow a phrase from Dr. Sun Yat-sen: in the majestic tide of history, those who follow the current shall flourish, those who go contrary to it shall perish.  Although the road will be very tortuous and dangerous, China will eventually become a democratic, rule of law, constitutional government and no one can stop it.

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.

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