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By Elizabeth M. Lynch, May 16, 2019

The Chinese government makes it really hard to believe that its detention – and now arrest – of Canadians Michael Kovrig and Michael Spavor is anything but politically motivated. It adamantly protests the charge that Kovrig and Spavor’s detention is somehow related to the troubles Huawei Technologies is facing in North America; it denies that this is tit-for-tat diplomacy.

But it’s actions reflect otherwise.  The initial detention of Kovrig and Spavor on December 10, 2018, came only days after Meng Wanzhou, Huawei’s Chief Financial Officer and the founder’s daughter, was arrested by Canadian authorities in preparation for extradition to the United States. And now, the formal arrest of the two Canadians – after 5 months in detention without access to a lawyer – came only hours after U.S. President Donald Trump signed an executive order prohibiting U.S. telecom companies from purchasing foreign equipment from companies deemed a national security threat and the United States Commerce Department officially listing Huawei as such a threat.  Not only does this lock Huawei out of the U.S. market, by being listed as a security threat, Huawei will also no longer be able to purchase key component parts from U.S. tech companies such as Intel, Qualcom, Broadcom and Google; parts that are integral to the future success of its business.

On Thursday morning, less than 12 hours after the U.S. government issued its announcements, the Chinese government announced that Kovrig and Spavor had been formally arrested on charges of stealing state secrets, Article 111 under China’s Criminal Law (translation courtesy of China Law Translate). Kovrig is suspected of “gathering state secrets for transmission outside of China” and Spavor is suspect of “stealing and providing state secrets for transmission outside China.”  Although the prosecutors are required to issue an arrest warrant upon arrest, it is unclear if this was done or to whom it was given (see Article 93 of China’s Criminal Procedure Law (CPL), Art. 93 –  translation courtesy of China Law Translate).  Professor Maggie Lewis does a great analysis of what the world can expect at this stage of the case.

But here is the rub that makes it increasingly hard to believe that the Chinese government’s actions against Kovrig and Spavor are not retaliation for what is happening to Huawei. The Chinese government decided to arrest Kovrig and Spavor one month earlier than they had to.  Because Kovrig and Spavor were being detained under Residential Surveillance at a Designated Location (RSDL), under Chinese Criminal Procedure Law, the public security authorities had up to six months – or until around June 10, 2019 – before they had to request the official arrest of the two (CPL Art. 79). Once the prosecutors formally arrest the suspect, the time frame to investigate becomes much tighter.  As a result, it is a rare occurrence for China’s public security bureaus not to take full advantage of these six months. But it appears that announcing the arrest of these two only hours after the U.S. declared Huawei a threat to national security was more important.

This isn’t to say that the U.S. is innocent of gaming the Huawei situation as a way to gain leverage against China in the current trade battle. But what is different here is that Chinese government is dealing with two lives; two people who could end up in a prison for a very long time basically as pawns in this game.  Trade disputes can be settled.  But the criminal justice system is a body on to itself. And once it is engaged, especially in China, it’s hard to turn back. 

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By Elizabeth M. Lynch, March 4, 2019

On Friday, Meng Wanzhou, the chief financial officer of Chinese telecommunications giant Huawei, filed a lawsuit alleging that the Canada Border Services Agency (“CBSA”), the Royal Canadian Mounted Police and the attorney-general of Canada violated her constitutional rights prior to her arrest for extradition to the United States. In her claim, Meng alleges that on December 1, 2018, while transferring flights in Vancouver, CBSA detained her under the guise of a routine immigration inspection.  It was only after three hours of questioning and the seizure and search of all her electronic devices did CBSA finally inform her that she was under arrest, had the right to remain silent and had the right to an attorney.

Meanwhile, in China, two Canadians face a similar predicament.  Like Meng, they have been held in detention; they have been denied access to a lawyer; and they are being bombarded with questions, all in the attempt to have them incriminate themselves. But unlike Meng, their detention is now approaching three months, not a mere three hours; and there is no hope that they will ever be able to bring the claims she has raised – the abuse that is inherent when detained and questioned about a possible crime without a lawyer – against the Chinese government. 

On December 10, 2018, in what many believe was retaliation for Canada’s arrest of Meng, Chinese public security bureaus (“PSB”) picked up Michael Kovrig and Michael Spavor, two Canadians working on conflict resolution between North Korea and pretty much the rest of the world.  Kovrig, a former diplomat at the Canadian embassy in Beijing, was working for the non-profit International Crisis Group. Spavor was a consultant living in China and working on North Korean issues, include travel tours of North Korea.  Both were picked up by public security, Korvig by Beijing PSB and Spavor by Dandong PSB, for questioning related to possibly “endangering national security,” a crime that could encompass a variety of activities. (See China’s Criminal Law (“CL”) – English translation courtesy of China Law Translate – Arts. 102-112).

But unlike Meng, who is out on bail in Vancouver, free to meet with her lawyers and assist them in bringing new cases that challenge her current situation, Kovrig and Spavor sit in an unknown location in China, at the beck and call of the PSB and with little contact with the outside world.  Unfortunately the rights that Meng can avail herself – right to bail and the ability to challenge the constitutionality of her arrest – are not available to those suspected of crimes in China. Instead, for anyone suspected of crimes endangering national security, Chinese police are able to institute residential surveillance at a designated location (“RSDL”) for up to six months. (See China’s Criminal Procedure Law (“CPL”) – English translation courtesy of China Law Translate – Arts. 75 & 79).  And this six-month RSDL occurs before the police arrest the suspect, giving them unlimited access to interrogate the individual in order to build their case, or more aptly to pressure the suspect into confessing.

While the designated location cannot be a detention facility (CPL Art. 75), it can be any other place where the police maintain constant surveillance. And while most criminal detainees have the right to meet with their lawyer, those suspected of endangering national security do not.  Instead, the investigating body – either the PSB or the prosecutor’s office – must approve the meeting. (CPL Art. 39). And largely they do not approve such meetings. Why should they?  From the six-month RSDL to the denial of lawyer access, the system itself incentivizes the PSB and prosecutors’ offices to ratchet up the possible charges, detaining individuals with crimes of endangering national security and then use the next six months to figure it out. 

Add to that the fact that the detention of Korvig and Spavor comes in the midst of the Chinese government’s row with Canada over the arrest and possible extradition of Meng to the United States.  A day after Meng’s lawyers announced that she filed a lawsuit against the Canadian government, the Central Political and Legal Affairs Committee of the Chinese Communist Party posted an article on its website about Kovrig’s detention and possible crime.  Relying on an unnamed source within a “relevant department,” the article stated that Kovrig is being investigated for the specific crime of stealing and spying on China’s state secrets and intelligence (CL, Art. 111).  According to this unnamed source, since 2017, Kovrig would enter China on his work visa and obtain state secrets from Spavor. The article failed to state what those state secrets were and how two Canadians meeting and discussing a topic they both work on could somehow rise to the level of stealing state secrets. Oddly, Spavor’s legal liability in all of this was not mentioned.

But the article raised the very real possibility that the Chinese government is willing to send Kovrig to jail for a very long time. Stealing state secrets carries a prison sentence of five to 10 years but for those situations where the circumstances are considered “serious,” the sentence can be anywhere from 10 years to life. (CL, Art. 111). If for some reason “grave harm” to China resulted, then the death penalty is a possibility. (Id.)

So while Meng rightfully accesses the protections afforded to all suspects in Canada’s criminal justice system, including the right to zealously challenge the state’s case, Kovrig and Spavor have another three months to go in RSDL before they even find out what charges will be filed against them.

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By Elizabeth M. Lynch, March 4, 2018

Since 2004, it has been illegal to build golf courses in China.  Not only do they suck up a tremendous amount of water, but all too often local officials unlawfully appropriate farmers’ land for these golf courses.  In 2015, President Xi Jinping focused his anti-corruption campaign on the sport, forbidding Chinese Communist Party (CCP) officials from playing the game.  But even with these prohibitions, golf still reins.  Since 2004, over 400 new golf courses have been illegally built.

Thus, one would think that the Chinese government would welcome a local tip that an official was appropriating village land to sell to a developer to build a golf course.  But that is not how the Chinese government responded when, in August 2015, Guangdong attorney Liu Yao reported precisely that.  Instead, Liu Yao now sits in a jail cell, serving a 20 year sentence on what most believe are trumped-up charges in retaliation for his whistle-blowing.

Like many Chinese human rights lawyers, Liu Yao is not a stranger to the inside of a Chinese prison.  In 2008, Liu was given a four year sentence for leading a demonstration of farmers who had not been properly compensated when government officials took their land. His sentence was decreased to 18 months after the Shenzhen Lawyers Association began a campaign to expose the sham that was his conviction.

But as in every society, land has value and the powerful will seek to unlawfully strip the poor of their land rights, enriching themselves in the process. For China, that struggle is happening in the rural villages. And that is what makes Liu, an effective advocate for these rural poor, a danger to the powerful.

Liu Yao awaiting his verdict

But Liu is more than just an advocate.  He is one also of them, deepening his clients’ faith and trust in him.  As Tom Mitchell reported back in 2009, Liu himself is the son of farmers, teaching himself the law after witnessing injustices against his family and feeling powerless to do anything about it.  He knows the value of land to farmers and since passing the bar exam in 2003, has successfully helped farmers in his home province of Guangdong to fight to keep their land or, at the very least, for the market value of what they are forced to give up.

So when He Zhongyou, the Party Secretary of Heyuan City in rural Guangdong, appropriated thousands of farming fields to sell to a company to build an “ecotourist site”, Liu, whose 2008 conviction resulted in his disbarment, did what he could: he filed a complaint about He Zhongyou to the CCP’s Commission for Discipline Inspection in Guangdong.  Make no mistake, He Zhongyou’s ecotourism development was not a secret to the central government; the local state-run media had already celebrated He Zhongyou’s development.  But what Liu highlighted was the fact that the ecotourist site was to also include an illegal golf course, something not reported by the press.  And Liu did not just submit the complaint.  A few days later, on August 22, 2015, he also published it on his blog for all to read.

On December 26, 2015, while meeting with a colleague, Liu Yao was grabbed by a number of men, thrown into an unmarked minivan and taken away according to an article that appeared in the Southern Metropolis Daily.

For over six months, Liu was held incommunicado, under the now infamous and well-abused legal procedure of “residential surveillance at a designated location” (RSDL).  Under Article 73 of the Criminal Procedure Law (CPL), RSDL is permitted when the individual is being investigated for national security crimes; national security also permits the police to deny access to lawyers and family members (CPL, Art. 37; see also RSDL Monitor for more on the abuse of RSDL on human rights defenders).  The “evidence” the police used to claim that it was investigating Liu Yao for national security crimes, was a picture of Liu with two well-known Western China law experts, Professors Jerome Cohen and Eva Pils.  Because of that picture, the police claimed that they were investigating Liu for “providing state secrets to foreigners.”

Liu Yao and his wife, Lai Wei’E

Ultimately, the police’s national security investigation went nowhere except for the very useful fact that it provided a fig leaf of legality to deny Liu access to his own lawyer.  On June 23, 2016, Liu was officially charged with extortion (Art. 274 of the Criminal Law (CL)), fraud (CL, Art.192,) , and trafficking in children (CL, Art. 240).  The extortion and fraud claims related to Liu’s work in achieving beneficial settlements from some of the local industries for their illegal appropriation of his clients’ land.  The trafficking charge was a result of his and his wife’s adoption of a baby from an unwed mother who already had three other children.  But in addition to Liu, four local farmers were also charged as well as Liu’s own son.  Liu’s wife, Lai Wei’E was also held for a year, allegedly while the police were investigating the legality of the adoption.

With a closed door trial, lack of access to a lawyer, and the fact that Liu was exposing the local government’s most important revenue-generating strategy – illegal land grabs – a judgment of guilty on all charges was all but certain.  And on April 24, 2017, the Heyuan City Intermediate People’s Court found Liu Yao guilty, sentencing him to 20 years and a fine of 1.4 million RMB ($221,000).  Liu’s son was given four years and three months for helping his father post materials online with the three farmers receiving sentences ranging from four years to nine and half years.

He Zhongyou

Even with the Chinese government crackdown on human rights lawyers that began in earnest in July 2015, Liu’s 20 year sentence is harsh.  It is almost triple that which was given to the “ringleaders” of China’s human rights lawyers.  Such a harsh sentence likely shows the continued importance to the Chinese government of being able to take farmers’ land without proper compensation.  Even representing Falun Gong participants, petitioners, other rights activists is not as threatening to the government as representing those who challenge an important revenue source to local officials.

And what happened to He Zhongyou after Liu Yao exposed his land grab to build a golf course?  He has had a series of promotions.  In January 2016, as Liu languished in detention, He Zhongyou became the vice-governor of Guangdong Province, an influential position in one of China’s wealthiest provinces.  In May 2017, after Liu Yao received his 20 year sentence, He Zhongyou was again promoted to the powerful position of Secretary of the CPP’s Political and Legal Affairs Commission for Guangdong.

From the website for the resort that shows the golf course

And the illegal golf course? It’s been built along with a resort of luxury RVs, personal saunas and a Disney-like castle to serve as the golf club.  For this playground of the wealthy, Liu Yao got 20 years, pretty much a life sentence for this 56-year-old.

Since taking over the leadership in 2012, Xi Jinping has attempted to reassure foreign powers that China’s rise is peaceful.  But all evidence points otherwise.  In the summer, it was the unnecessary death of Nobel Peace Prize winner Liu Xiaobo while he was serving an 11 year prison sentence; last week it was the mysterious death of human rights lawyer Li Baiguang after being admitted to a state-run hospital for stomach pains; a few days ago it was Xi’s moves to eliminate term limits; and then there is Liu Yao’s 20 year sentence for exposing the corruption and injustice that Xi’s government has publicly stated it wants to eradicate.  Increasingly, China’s rise – or more apt, Xi’s consolidation of power – has not been peaceful.  It is time foreign government recognize that what is happening to China’s human rights defenders is not an outlier but is instead a reflection of the governing philosophy of Xi’s regime, both domestically and internationally.  And it’s time they start to care and raise these issues publicly.

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By Elizabeth M. Lynch, December 25, 2017

UPDATE – Dec. 26 @ 10:00 AM, EST – As expected, Wu Gan was found guilty of subverting state power.  He was given one of the harshest sentences yet – 8 years (with about 2 and a half already served).  His release date is May 18, 2023.  Xie Yang escaped any prison time, with his court noting that he plead guilty to the charge of inciting subversion and his actions did not cause severe damage to national security.  Xie also again publicly withdrew his claims of torture while in custody.

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China Human Rights Lawyer Concern Group announcement about the upcoming court appearances in Wu Gan’s (R) case and Xie Yang’s (L) case

As the sun sets on Christmas 2017, China will awake on Tuesday to two more civil rights activists being convicted for seeking to end injustice in their country.  According to lawyer Liang Xiaojun, the courts will finally issue verdicts – and possibly sentences – in the cases against advocate Wu Gan and lawyer Xie Yang, two civil rights activists arrested and charged in the wake of the Chinese government’s July 9, 2015 nationwide crackdown on over 250 civil rights lawyers and activists (“the 709 Crackdown”).  Although both had their trials months ago – Wu Gan on August 17, 2017 at a closed-door trial at the Tianjin Intermediate Court and Xie Yang on May 8, 2017 at the Changsha Intermediate Court – verdicts, and in the case of Xie Yang, a possible re-trial, will be announced tomorrow morning at each of the respective courts.  Wu’s verdict will be handed down at 8:30 AM local time and Xie’s court will deal with his case an hour later.

While both have undergone severe treatment in custody, with allegations of torture, expect a much harsher sentence for Wu Gan.  First, Wu Gan has been charged with the more severe crime of “subversion of state power,” a charge that, if he is determined to be a ringleader, carries a sentence of no less than 10 years under Article 105 of China’s Criminal Law.  If he is considered a mere participant, the law still requires a sentence of no less than five years.  Xie Yang has been charged with “inciting subversion of state power.”  It’s the verb of inciting that will inevitably lead to a lesser sentence under Article 105 of five years or less (unless of course he is considered a “ringleader; then five years minimum).  Further, since his trial, Xie Yang has been out on bail.  Although constantly surveilled  by police, it provides a touch more freedom than being trapped in a Chinese detention facility.

A female character who stabs to death a government official after he assumes she is a prostitute and tries to rape her in Jia Zhangke’s A Touch of Sin.

Second, Wu Gan – who often uses the online pen name of Super Vulgar Butcher – is the activist that defies the Chinese government’s current narrative – a narrative that believes that middle class, intellectual lawyers have become entrapped by “foreign forces,” forces like George Soros and the U.S. government that funds Chinese civil rights non-profits.  But that is not Wu Gan.  Instead, for the first 35 years of his life, Wu Gan was just an average Chinese citizen.  A former soldier, Wu Gan was a security guard at the Xiamen Gaoji International Airport until he resigned in 2008 to work full-time on his online activism, wanting to expose the everyday injustices that frustrated him.  In 2009, Wu Gan brought societal attention to the case of Deng Yujiao, a waitress who stabbed to death a government official who attempted to rape her.  While her story would eventually appear in Jia Zhangke’s internationally-acclaimed film, A Touch of Sin, it was Wu Gan who brought the injustice of her case to light.  His activism around the case sparked an online debate about rampant government corruption, the flagrant abuse of prostitutes by government officials as well as the right of women to defend themselves.  It was also successful, resulting in Deng Yujiao being convicted of the much lesser crime of “causing injury with intent” as opposed to the original murder charge.

Photo of Wu Gan at his May 2015 protest outside the courthouse. Photo courtesy of Change China

Further, Wu Gan’s strategies just get under the skin more.  Wu’s advocacy includes using online humor, satire, crowdfunding and street performances to draw attention to the Chinese government’s abuse of people’s rights.  In 2011, Wu published a series of online “How To” pamphlets: Guide to Butchering Pigs (strategies on how to conduct a campaign to protect human rights); Guide to Drinking Tea (how to deal with the police during interrogations); and Guide to Petitioners Fighting Against Forced Demolitions (instruction manual on how individuals can fight to protect their home from force demolition).  Each are widely popular in China and not just for their fun titles but because they are effective teaching tools.

But the straw that broke the camel’s back was Wu Gan’s May 2015 street protest to overturn the death sentence of four criminal defendants who had been convicted of capital murder even though each was tortured while in custody.  Wu stood outside the courthouse with two handmade signs – one with a picture of the chief judge with a Hitler moustache and one with the tombstone of the chief judge with an engraving highlighting his lack of integrity and ignorance of justice.  Situated between the signs was Wu, with his middle fingers up on each hand.  While that kind of protest elicits chuckles in the West, in China it is not tolerated.  Wu Gan was detained and has been in custody since.  Regardless of the fact that the four criminal defendants were exonerated in 2016, Wu Gan will still likely see a prison sentence as a result of his advocacy for justice.

Xie Yang in happier times with his daughter. Xie’s wife and two daughters were able to flee China earlier this year and now are in the United States.

But make no mistake, lawyer Xie Yang’s detention has been no walk in the park.  While being held incommunicado, Xie was physically tortured according to his lawyers who eventually got access to him.  And like Wu Gan, Xie’s crime has been his advocacy on behalf of others.  Xie Yang has long represented China’s most vulnerable: Christians; members of China’s Democratic Party; petitioners whose land was unlawfully seized by the government; and other activists.  In May 2015, Xie had been retained by the family of Xu Chunhe after the police officer who killed him was found not guilty of any crime.  Although Xu Chunhe, unarmed, was with his three young children and his 81 year-old mother in a crowded train station, the officer still shot and killed Xu Chunhe.  According to the officer, his act was one of self-defense; but for for most Chinese people, Xu Chunhe’s case was yet another example of police acting with impunity.  Thus, Xie Yang’s advocacy in bringing a wrongful death case on behalf of the family would go to the heart of the Chinese government’s police state.  And for that, he is now facing the charge of inciting subversion of state power.

But while Wu Gan and Xie Yang’s cases will finally be dealt with tomorrow, there is still one activist that has disappeared completely, lawyer Wang Quanzhang.  Another victim of the 709 Crackdown, Wang has not been heard from since August 4, 2015, when he was detained for “inciting subversion of state power.”  Neither his wife, family, nor the lawyers hired by his family have been able to meet with him and no trial has been set for Wang even though it has been more than two years since he was first taken into custody.  While Wu Gan and Xie Yang’s fates will be known tomorrow, it is the unknown of what is happening to Wang Quanzhang – and why – that is most alarming.  Denied access to lawyers, unable to meet with family, no speedy trial, how is this a country with a rule of law?

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By Elizabeth M. Lynch, January 20, 2017

Jiang Tianyong

For the Chinese state, human rights lawyer Jiang Tianyong (pronounced Gee-ang Tee-an Young) never seems to learn his lesson.  In 2009, after taking on a slew of politically sensitive cases such as representing Falun Gong practitioners and ethnic Tibetans prosecuted following the 2008 Tibet riots, the Beijing Bureau of Justice declined to renew Jiang’s lawyers license.

But lack of a law license did not stop Jiang from continuing to advocate for some of China’s most vulnerable. Instead, Jiang played an active role in ensuring that blind activist Chen Guangcheng‘s cruel house arrest remained in the public eye. Again the Chinese state came for Jiang.  In February 2011, after meeting with fellow advocates to discuss Chen Guangcheng’s case, Jiang was abducted by local police, beaten, psychologically tortured and held incommunicado for two months.  (For Jiang’s own description of his two month ordeal, click here). Jiang was released, but only after he promised to give up his advocacy work, stop associating with his current friends, cut off ties with foreigners and refrain from making comments on social media disparaging the Chinese Communist Party (CCP).

Jiang, on the left, with other human rights attorneys and advocates, protesting in Heilongjiang

But even in light of these guarantees, Jiang’s advocacy did not cease. Nor did the Chinese state’s reprisals, which became increasingly violent. In May 2012, Jiang attempted to visit Chen Guangcheng in a Beijing hospital.  After Jiang was denied entry, state security officers took him away, beat him and then placed him under surveillance. In 2013, when Jiang exposed Sichuan province’s largest “black jail,” a secret and unlawful detention center, he was again beaten by local police.  When, in 2014, Jiang went to Heilongjiang province to protest the detention of Falun Gong practitioners in a “legal education base,” Jiang was administratively detained for 15 days and subject to various beatings while in police custody.

Not surprisingly, Jiang, who has yet to give up his advocacy, is back on the Chinese government’s radar, this time with much more serious charges that could land this civil rights attorney in prison for life.  But there is one thing that should make this time different from Jiang’s prior detentions: the implementation of China’s new Criminal Procedure Law (“CPL”), amended in 2012.  When these amendments passed, they were herald as more protective of criminal suspects’ rights, much needed in a system with a 99.9% conviction rate. In October 2016, the Supreme People’s Court (“SPC”), Supreme People’s Procuratorate (“SPP”), and the Ministry of Public Security (“MPS”) doubled down on the 2012 amendments, issuing a joint opinion, reaffirming each agency’s commitment to a more fair criminal justice system.

But as Jiang’s case highlights, these are just  paper promises.  For Jiang, some of the provisions of the CPL are outright ignored.  But more dangerously, the Chinese police have placed Jiang under “residential surveillance at a designated location,” a form of detention that was added to the CPL with the 2012 amendment.  In the case of Jiang, this amendment is being used to keep him away from his lawyers and, with his precise whereabouts unknown to the outside world, in a situation where torture while in custody is highly likely.  So much for better protecting criminal suspects’ rights.

Why Is Jiang Under Residential Surveillance at a Designated Place?

On November 21, 2016, Jiang went missing.  According to the Legal Daily, Jiang was picked up by the Changsha police after using someone else’s identity card to purchase a train ticket home to Beijing. After being taken into custody, Jiang is now suspected of harboring state secrets, a crime that carries a three to seven year prison sentence depending how serious (Crim. Law Art. 282) and of providing those state secrets abroad, a crime that results in a sentence anywhere between five years to life depending on the severity (Crim. Law Art. 111).

However, according to an advocate close to the investigation, the police notice eventually issued to Jiang’s family also lists suspicion of inciting subversion of state power, a national security crime that the Chinese government has increasingly used to silence its civil rights lawyers.  That charge can carry a sentence of anywhere between three years to life (Crim. Law Art. 105), and where inciting subversion involves foreign entities, the punishment shall be heavier (Crim. Law Art. 106).

Jiang Tianyong’s wife, Jin Bianling, calling on the Chinese government to inform her of her husband’s whereabouts. Photo courtesy of Hong Kong Free Press

For close to a month, Jiang’s whereabouts were unknown; unknown to his lawyers and to his family.  And while this might seem illegal, China’s amended Criminal Procedure Law (“CPL”) forgoes many of the protections intended to make the system more fair when the crime of endangering national security is potentially involved. When a suspect is taken into custody, Article 83 of the CPL requires that the police inform the suspect’s family within 24 hours except for those crimes that endanger national security or involve terrorism.  Here, Jiang is suspected of subverting state power and passing state secrets abroad, two crimes that certainly endanger national security.  And as a result, the police did not inform Jiang’s family that he had been taken into custody.

In what is increasingly necessary when a civil rights lawyer lands in the exclusive control of the police and his whereabouts are unknown, Jiang’s family and friends resorted to the one tool they had left: pressuring the foreign press to repot that Jiang had gone missing.  With the story of Jiang’s abduction splashed across the international press, on December 16, 2016, the Chinese government, through the government-controlled Legal Daily newspaper informed the world that Jiang not only had been taken into custody but that he was placed in “residential surveillance in a designated place.”

Residential Surveillance in a Designated Place – likely not here.

One of the major amendments to the CPL included what China terms  a “compulsory measure” but in reality is a new form of detention: “residential surveillance” (Articles 72 through 77 of the amended CPL).  Residential surveillance might sound like a more mellow form of detention but when applied, it provides carte blanche for police to interrogate – and usually torture – a suspect without any interference from the outside world.

For any residential surveillance that occurs outside of the suspect’s hometown, or if the suspect is being investigated for crimes of “endangering state security,” “terrorism” or “serious crimes of bribery,” residential surveillance does not occur at one’s home. (CPL, Art. 73) Instead, it occurs at an undisclosed location and while the family is required to be informed that their relative is under residential surveillance at a designated place (CPL, Art. 73), the family is not necessarily informed as to the precise location of the place.

And this is why Jiang shouldn’t be expecting any care packages in the near future from his family; they have no idea where he is.  In fact, according to a source close to the investigation, Jiang’s family first learned about his residential surveillance through the Legal Daily article on December 16, 15 days after he was placed in that form of detention.  True that the amended CPL  does a great job at severely circumscribing suspects rights once they are under residential surveillance, but the one thing that the Chinese government still gives these suspects is reuiring the  police to provide a written notice to the suspect’s family within 24 hours of placing the suspect under residential surveillance, regardless of the type of crime involved, national security or not. (CPL, Art. 73; see also Ministry of Public Security Implementing Regulations of the CPL Art. 109)  But here, according to an advocate close to Jiang’s case, Jiang’s family was not provided official notification until December 23, 2016, 22 days later.

Under the residential surveillance provisions of the amended CPL, the police are given so much power over the suspect, power that is largely illegal in other forms of detention and for other crimes. But even with this power, the police still feel the need to violate the clear language of CPL Article 73 and withhold notice to Jiang’s family.

Jiang Can Be Held for Up To Six Months and Without Access to a Lawyer

Empty chairs at empty tables – No lawyer for Jiang anytime soon

Jiang should also not be expecting any visits from a lawyer for the six months that residential surveillance at a designated place is permitted. (CPL, Art. 77)  And that’s another way that, by slapping a national security charge on a suspect, the Chinese government is able to circumscribe rights otherwise enshrined in the amended Criminal Procedure Law.

Because “residential surveillance in a designated place” usually presupposes a possible state security, terrorist, or serious bribery charge, the requirement that a meeting with the lawyer take place within 48 hours (CPL, Art. 37) is suspended for those possible charges.  (CPL, Art. 37).  Instead, any meeting must be approved by the police. (CPL, Art. 37).   Which fits with the rules that the suspect must follow when in residential surveillance: only with permission of the public security agency can the suspect meet or correspond with someone else. (CPL, Art.75(2)).  That permission must be granted unless the investigation would be obstructed or national secrets may be leaked (Ministry of Public Security Implementing Regulations of the CPL Art. 49)

Changsha police notice informing Jiang Tianyong’s lawyer that he cannot meet with Jiang due to crimes endangering national security (click for bigger image)

Although the regulations strongly favor meeting with a lawyer, in practice, civil rights attorneys held on charges that involve endangering national security are rarely given approval to meet their attorney.  Jiang is no exception.  According to an advocate with close ties to Jiang’s case, on December 27, 2016, Jiang’s lawyer requested permission to meet with his client.  On December 29, 2016, Changsha police denied this request, stating  that  “Jiang Tianyong was accused of crimes of endangering state security, and a meeting with lawyers would obstruct the investigation or possibly divulge state secrets.”

Codifying Illegality?

Jiang’s case makes clear that the 2012 CPL amendments have done little to curb the power of the police and that the Chinese government’s recent pronouncements that it needs to do better to protect suspects’ rights, is nothing more than window dressing. As long as the police unilaterally, and without due process, decide to investigate the suspect for crimes involving national security, all rights are essentially lost: the suspect can be held incommunicado for up to six months without access to a lawyer.  That kind of situation – with no one watching – all but guarantees torture and abuse.  Ironically, it is potential charges of endangering national security where these protections are needed most.

But, starting with the 2015 crackdown on lawyers and now continuing with Jiang Tianyong, the Chinese government has demonstrated that it will use the label of “endangering national security” to forgo the rights that it says it is committed to providing criminal suspects.  In late 2015 and early 2016, the Supreme People’s Procuratorate issued two sets of rules ostensibly to curb the police’s abuse of residential surveillance in a designated location.  But, as others have noted, the new rules seem to be designed more to ensure that everything looks good on paper than to guarantee criminal suspect’s rights and access to due process.  The case of Jiang Tianyong appears to prove that even those new regulations have had no effect.

As the rest of the world marks the seventh annual Day of the Endangered Lawyer next Tuesday, Jiang Tianyong, one of China’s great civil rights attorneys, languishes in an unknown place, likely subject to constant interrogation and torture, and without any access to a lawyer.  His rights deprived all because the Chinese police are able to claim that it is investigating him for endangering national security.  But the only thing that is being endangered by making a mockery of the protections of the amended Criminal Procedure Law is the actual rule of law.

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Thank you to China Law Translate for providing free of charge most of the translations of China’s laws used in this article. 

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By Elizabeth M. Lynch, April 29, 2015

Last week, Young China Watchers asked a question that many who study China’s legal development have been grappling with: how to gel the Chinese government’s call for greater judicial authority, announced at October’s Fourth Plenum, with its current crackdown on anti-corruption and civil society.  China Law & Policy was fortunate to be invited to comment on this important question along with Jeremy Daum, senior research fellow at the Yale China Law Center, founder of China Law Translate, and recent participant in a China Law & Policy interview.

While we both reached the conclusion that these two phenomena – a call for judicial reform and the current crackdown  on civil society – are not mutually exclusive, we came at it from very different directions.

Jeremy Daum: “Far from constraining the Party’s power, these legal reforms are designed to reinforce the legitimacy of Party rule by creating more complete and effective mechanisms for the implementation of Party policy through all levels of government……The leadership’s ongoing concern with stability, which includes not just preventing social unrest, but also maintaining continuity of Party rule, resists the development of such perceived alternative sources of influence in civil society. 

Elizabeth M. Lynch: “[W]hat we are seeing are not necessarily two mutually exclusive ideas.  Instead, it is the reflection of the increased dominance of the public security forces. The Party’s calls for judicial independence – eliminating local government control of the judiciary and seeking to appoint legal professionals to the judiciary – can still occur even as this crackdown is happening since the proposed rule of law reforms do nothing to reign in the public security forces….”

The discussion, which can be read in its entirety here, proved an interesting one and even I don’t know who is right.  Feel free to read for yourself and offer any comments!

Read the Full Text of the Young China Watcher’s Conversation by clicking here.

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By Elizabeth M. Lynch, April 14, 2015

Normally it is an embarrassment when you get something wrong, but in this case, I could not be more relieved to be completely mistaken.  Yesterday, I blogged that Wang Man, Wei Tingting, Zheng Churan, Li Tingting and Wu Rongrong would likely be officially arrested.  However, last night, each was released “on guarantee pending further investigation” (取保候审), a concept akin to bail in the United States. 

Human Rights in China goes into detail on the legal requirements of “release on guarantee pending further investigation” and as a result, we won’t go into further detail other than to say, this is not complete freedom.  Basically, for the the next 12 months (CPL Art. 77 limits bail to 12 months), the women are at the whim of the local public security bureaus, allowed to be called in for questioning as the police further investigate the charges.  Under the Criminal Procedure Law (“CPL”), the women’s freedom will be limited.  They must remain in their home city and depending on what the police determine should be the conditions of their bail, they may be prevented from organizing any further demonstrations, activities or working together (see CPL Art. 69(2): may not meet or communicate with designated persons; CPL Art. 69(3): must not engage in designated activities).  Their passports may also be taken away.

But again, although there is a written document that lists the conditions of their “release on guarantee pending further investigation,” no where in the Ministry of Public Security Regulations (“MPS Regulations” or “MPS Regs”) does it state that this document must be physically given to the suspects.  In fact, the MPS Regulations only require that the conditions of bail be read aloud to the suspect (MPS Regs. Art. 79).

However, the fact that there is a release on “bail” is a positive development and many have praised the international outcry for precipitating the women’s release.   Certainly the international and media attention to the detention of these activists on the eve of International Women’s Day likely played a role in influencing some in the government to realize that backlash would only increase if these women were formally arrested. 

But one can’t help but wonder whether this international influence is a double-edged sword in the current NGO environment in China.  Presently, Chinese grassroots NGOs, who operate in a legal netherworld, have been under increasing scrutiny by the Chinese government with a draft Charity Law in the works that could make life more difficult for these organizations.  The government’s goal: to determine how much funding the the domestic NGOs receive from abroad.  It’s this international funding and influence that the Chinese government has begun to increasingly fear and view as a Western attempt to undermine the Chinese Communist Party (see Julia Famularo’s brilliant essay on this in The Diplomat).  And it is not just domestic NGOs that the Chinese government is seeking to restrain.  Allegedly a confidential, draft regulation or law, colloquially called the “Anti-Foreign Agent Law,” is in the works to regulate foreign NGOs working in China. 

International demonstration to Free the Five

Thus, the international uproar, likely also a result of Chinese NGO Yirenping’s effective advocacy campaign for the freedom of their staff and former staff (three of the women are currently or have been affiliated in the past with Yirenping), while being applauded in the West, might be the type of example that will give supporters of a harsh Charity Law and severe Anti-Foreign Agent Act the evidence they need to make sure it passes as is. 

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By Elizabeth M. Lynch, April 13, 2015

Women Hold Up Half the Sky? And Half the Detention Centers?

On Thursday, the New York Times reported that the Beijing police requested that the local prosecutor formally arrest the five Chinese women detained for planning an anti-sexual harassment demonstration on Intentional Women’s Day (March 8).  According to the detained women’s lawyers, the recommended charges are “organizing a crowd to disturb public order” (Article 291 of  China’s Criminal Law), a charge different than the initial basis for detention: “picking quarrels and provoking trouble” (Article 293(4) of China’s Criminal Law). 

Since the inception of these detentions on March 6, 2015, little has been transparent, even to the lawyers for the women.  In fact, according to the New York Times, the women’s lawyers were not even informed that a request for arrest had been made to the prosecutors on April 6, 2015.  According to a phone interview with Liang Xiaojun, one of the detained women’s attorneys, the police’s April 6 request for arrest means that the prosecutors must decide by today if there is enough evidence for such an arrest.  (see also Criminal Procedure Law (“CPL”) Art. 89 requiring that the prosecutor’s office determine within 7 days whether to formally arrest the suspect).  But like everything else that has been happening in this case, likely the detained’s lawyers will continue to be kept in the dark of today’s decision.   

Two years ago the Chinese government heralded the passing of its amended

Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

Criminal Procedure Law, which was intended to bring China more inline with the international community.  Scholars and government officials praised the law for its greater protection of criminal suspects’ rights and improved access to defense lawyers early in the process.  But the detention of these five women, exemplifies the continued weaknesses of the Criminal Procedure Law and its failure to protect suspects’ rights.  Where it does offer some protections, what’s happened to these five women, demonstrate that Chinese police and prosecutors continue to skirt the law with impunity.  This post will review some of the major issues with the detention of China’s five women activists.

The Police Have Not Issued Any Document with the Charges. Is That Legal?

China’s Amended Criminal Procedure Law

No.  In a phone interview with Liang Xiaobin, Wu Rongrong’s attorney, Mr. Liang informed China Law & Policy that the police have yet to issue any formal document regarding the detention or potential charges against his client.  But Art. 123 of the Ministry of Public Security’s “Procedural Regulations on the Handling of Criminal Cases by Public Security Organs (revised 2012)” (“MPS Regulations” or “Regs”) which implements the CPL, a detention notice must be issued to the family of the detained within 24 hours of detention.  That detention notice would list the charges being investigated. Presumably if such a notice was provided to Wu’s family, it would be transmitted to Liang.  But Liang has yet to obtain any verification of any charges other than those verbally communicated to him.

The Police Did Not Inform the Five Women’s Lawyers that it Had Recommended Arrest.  Is This Legal?

Yes, and this is where one of the major weaknesses in the new Criminal

Will the five women be formally arrested?

Procedure Law and its implementing regulations is obvious.  During the pre-arrest phase, even when a suspect has retained a lawyer, that lawyer has very little ability to access any of the police or prosecution documents.  In fact, neither the CPL nor the MPS Regulations require that the police or prosecutor inform the lawyer of what is happening in the case.  There is some information that has to be told to the detained’s family (that the suspect has been detained (CPL Art. 83 & MPS Reg Art. 123); that the suspect has been formally arrested (MPS Reg. 141)), but the police do not have to affirmatively inform the family that the police have recommended arrest to the prosecutor, even though there is a paper trail for all of this (see CPL Art. 85 & MPS Reg. Art. 133 both requiring a written formal request be made by the police to the prosecutor)  Without this information, it becomes difficult to hold the prosecutor to the 7-day limit to decide whether to arrest (CPL Art. 89).

Chinese defense lawyers kept in the dark

But no where in the CPL or the MPS Regulations does anyone have to inform the retained lawyers of anything.  It is not until the prosecutor begins to investigate for indictment (审查起诉) do rights attach to the defense lawyer.  When that occurs – and again, the law is unclear if anyone has to be affirmatively informed that such a review is occurring – can defense counsel access information from the state.  At that point, the prosecutor’s office is required to share the case file (CPL Art. 38).  But up until that point, keeping the defense attorney in the dark is completely legal.   

Allegedly, the Women Were Denied Easy Access to their Lawyers & When Able to Meet, Conversations Were Recorded.  Is this legal?

No.  The amended CPL was specifically modified to rid the Chinese criminal justice system of these patently unfair practices.  But according emails issued by Yirenping, a Chinese-NGO that many of the women are affiliated with, many of the lawyers’ requests to meet with their clients have been ignored.  The few times the lawyers have been able to meet with their clients, according to Yirenping, the conversations have been recorded. 

Article 37 of the CPL clearly requires that detention centers promptly schedule meetings between lawyers and their clients when the suspected charges do not include national security; such meetings must be scheduled no later than 48 hours after the request.  The MPS Regulations reiterate that right (MPS Regs. Art. 48).  Further, Article 37 of the CPL plainly states that conversations between the lawyer and his or her client are not to be monitored (see also MPS Reg. Art. 52).

Is the Limit for Detention 30 days?

Detention in China

This is unclear.  Although the lawyers for the five women have stated that detention can only be for 30 days before moving to the next stage of the case (here, the police formally requesting that the prosecutors arrest the women) and the police have conveniently stated that it did in fact move the case forward on April 6 (approximately 30 days after the initial detentions), it is unclear whether there is in fact a 30 day limit to detention.  Article 89 of the CPL states that detention, without a request for arrest, is generally limited to three days.  But the police can unilaterally extended that limit for an additional four days (making for a total of seven days). 

But for suspects being investigated for “multiple crimes” (like the women here) or “crimes across multiple regions” (again, like the women here), the police may add an extra 30 days to the detention (CPL Art. 89).  In both the English and Chinese, it is unclear if that 30 days is added on top of the seven that was permissible or if 30 days is the outer limit of detention before request for arrest.  Although both the attorneys in this case and the police seem to maintain that 30 days is the limit, the law is not clear.  But at the most, 37 days is limit for detention. 

Was it legal to bring Wu Rongrong and Zheng Churan to Beijing for detention?

One of the five detained, Wu Rongrong

Yes.  Of the five women detained, two – Wu Rongrong, director of the Hangzhou-based Weizhiming Women’s Center and Zheng Churan, staff member at Yirenping Guanzhou, live outside of Beijing.  Both  were planning their International Women’s Day demonstrations in their respective cities and both were initially detained by the public security officials in each city.  But both were eventually transferred to Beijing’s Haidian Detention Center where the other three women, Wang Man, Wei Tingting and Li Tingting, all residents of Beijing, were being held. 

Both the CPL and the MPS Regulations permit the easy movement of suspects between cities, counties and provinces when appropriate.  Although the default presumption is that jurisdiction of a criminal case is where the crime was committed (see CPL Art. 24; MPS Regs Art. 15), both the Criminal Procedure Law and the MPS Regulations contemplate instances where that might not be the case, especially when there are multiple crimes and/or multiple defendants.    

In fact, an entire Chapter of the MPS Regulations – entitled Cooperation in Case-

One of the detained, Zheng Churan

Handling (Chapter 11, encompassing Articles 335-344) – specifically deals with these situations.  Unlike in the United States, where extradition from one state to another is a formal affair, here the transfer of a criminal suspect is more informal (see MPS Regs Art. 335 requiring local public security bureaus to cooperate with a request to detain a suspect & Art. 336 requiring only a “letter of cooperation” to obtain the locality’s cooperation). Presumably the Beijing PSB provided such a letter to the Hangzhou and Guangzhou PSBs in order to detain and eventually transfer Wu Rongrong and Zheng Churan to Beijing. 

Will the Women Be Arrested?

Their Fate is in the Prosecutor’s hands

Increasingly likely.  The fact that the police have changed the charges and have added more incidents to the charge, such as the women’s street performance demonstration against domestic violence where they dressed up in wedding dresses with fake blood and their “occupy men’s toilets” day to demonstration the insufficiency of women’s toilets in public places, provides for more evidence for arrest.  Further, adding extra incidents and making this multi-crime case, arrest and continued detention is all but certain.  According to Article 139(1) of the People’s Procuratorate’s Criminal Procedural Regulation (revised 2012), the prosecutor’s implementing regulations of the CPL, arrest is necessary when the criminal suspect may commit a new crime.  What provides evidence that the suspect might commit another crime if not detained?  The fact that “the suspect has committed multiple crimes, changed locations in committing multiple crimes, committed related crimes…” 

Within 24 hours of the police’s decision to arrest, the police must inform the family (MPS Reg. Art. 141).  Under Chinese law, the world should know by Tuesday if an arrest was made.  But that’s assuming that anyone actually follows the law.

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By Elizabeth M. Lynch, March 15, 2015

While the rest of the world celebrated International Women’s Day (March 8) with gender equality marches, women empowerment conferences, and female-oriented concerts, the Chinese government opted for a decidedly different approach: detaining a number of Chinese women activists.

On March 6 and 7, 2015, in various cities across China, public security officials rounded up at least 10 women, each of whom sought to mark International Women’s Day with a nation-wide campaign highlighting the increase in sexual harassment on public transportation.  Their goal?  To pass out leaflets and stickers calling for the end of such sexual harassment and for the police to take some action against sexual harassment on public transportation.

One of the five detained, Wu Rongrong, founder and executive director of the Weizhiming Women’s Center in Hangzhou

While five of these 10 women have been released, five were officially criminally detained on Friday allegedly under the Chinese government’s increasing catch-all for ideas and speech it does not like: “picking quarrels and provoking trouble.” (Article 293(4) of China’s Criminal Law).

“It is extremely alarming that these five young women have been criminally detained for ‘picking quarrels and provoking trouble’” Dr. Leta Hong Fincher, author of Leftover Women: The Resurgence of Gender Inequality in China, wrote in an email to China Law & Policy.  “The women were merely planning to commemorate International Women’s Day by raising awareness about sexual harassment on public transportation – hardly an issue that would threaten the central government’s power or social stability in any way.”

In fact, the Chinese government itself has noted the growing problem of sexual harassment – including groping, rubbing and pictures taken under one’s skirt – on public transportation.  Unfortunately, instead of stepping up law enforcement of this quality-of-life crime, the Chinese government has largely left it to women to combat this harassment, urging female riders to forgo wearing mini-skirts or “hot pants” and looking to have women-only subway cars during rush hour.

Another of the detained, Wei Tingting (right), 27 and director of Ji’ande, an LGBT rights organization based in Beijing

“The detention of these women reveals the hollowness of [the] Chinese government claims of commitment to gender equality, particularly as China prepares to co-host the 2015 Global Women’s Summit at the United Nations, and the world marks the 20^th anniversary of the Fourth World Conference on Women in Beijing” Dr. Hong Fincher wrote to China Law & Policy.

But if you think detaining people for leafleting an issue we can all get behind is scary, here is the real frightening part: these five women – Wu Rongrong, Zheng Churan, Wei Tingting, Wang Man and Li Tingting – never actually committed a crime, even under Chinese law.  By detaining these women prior to March 8 – when they were going to distribute their stickers and pamphlets – the women never caused a public disturbance as required by Article 293 of China’s Criminal Law.  Pu Zhiqiang, Cao Shunli, Xu Zhiyong, all detained, arrested or jailed for “picking quarrels and provoking troubles,” were at least able to partake in their “public disturbance” before the authorities took them away.  These women did not.  At most, in their attempt to make this a nation-wide campaign, they amassed an online following, all eager to partake in the March 8 events.

One of the detained, Zheng Churan, 25, and staff member of Yirenping based in Guangzhou

But, as Jeremy Daum at China Law Translate has noted, the Supreme People’s Court (SPC) and Supreme People’s Procuratorate’s (SPP) Joint Interpretation of Article 293 (July 2013) makes it clear that causing a disturbance by picking quarrels must happen in some kind of public venue – a bus station, a market, a train station, a park, or “other public venue.” In prosectuting an Article 293(4) case, the courts are required to analyze the totality of the circumstances, including the type of public venue, the number of people attending the event, etc.  (See Article 5 of the Joint Interpretation of Article 293).

Further, as Daum has highlighted, even the SPC’s and SPP’s controversial Joint Interpretation on Internet Speech Crimes (Sept. 2013), which does interpret Article 293(4) of the Criminal Law, would only apply in situations where the individual has spread rumors on the internet or other online network.  The only public prosecution under Article 293(4) involving the internet – the case of blogger Qin Houhou – is precisely this situation.  In addition to being charged with violating Artcile 293(4) – the picking quarrels provision – Qin was also charged and convicted of criminal slander.

Another detained activist, Li Tingting, 25 and Beijing-based manager of the LGBT program at the Beijing Yirenping Center

By criminally detaining these women, the Chinese police have stepped up this game, making a formal arrest and prosecution more likely.  While prosecution under Article 293(4) usually has a maximum prison sentence of five years, that sentence can be extended to 10 years where the defendant organizes others to commit the disturbance multiple times.  Given that these women likely were the organizers of the event, a 10 year prison term is a possibility.  Even though the current charge is groundless under Chinese law.

On Friday, the U.S.’s Ambassador to the United Nations, Samantha Power, tweeted her disgust with the Chinese government’s detention of Wu Rongrong, Zheng Churan, Wei Tingting, Wang Man and Li Tingting.  But the United States, and the rest of the world, must maintain this rhetoric.

Fifth detained activist, Wang Man, Beijing-based coordinator for the Global Call to Action Against Poverty (GCAP).

Twenty years ago, in Beijing China, Hillary Clinton ignored Chinese pressure to soften her remarks at United Nation’s Fourth World Conference on Women.  Instead, she rocked the world by forcefully stating that ” human rights are women’s rights, and women’s rights are human rights, once and for all.”  It’s time that Secretary Clinton, a potential presidential candidate, renew that sentiment and call for the release of these women – innocent even under Chinese law.

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By Elizabeth M. Lynch, June 25, 2014

Criminal Defense Lawyer Tian Wenchang

With the hoopla surrounding actor Huang Haibo’s six month sentence under China’s Custody & Education (“C&E”) system – an administrative punishment outside of the court system – on June 9, 2014, Beijing News ran an article examining that system. Included with the article was a telling diagram that highlighted the lack of a legal basis for C&E. The article effectively called for the repeal of C&E.

For an explanation of C&E and the current debate, see China Law & Policy’s previous post here.

That article is no longer available on the Beijing News website. However, it can still be found here. Additionally, below, China Law & Policy translates the portion of the article that was an interview with Tian Wenchang (pronounced Tea-en When-chang), one of China’s most famous attorneys and the current director of the Criminal Law Committee of the All-China Lawyers’ Association. In the short interview, Tian persuasively argues for C&E’s abolishment.

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Beijing News [BJN]: As one of the people pushing [for reform], why do you want think to do this?

Tian Wenchang [TWC] (Director of the Criminal Law Committee of the All-China Lawyers’ Association): The fact is that after Reeducation through Labor (“RTL”) was abolished, people forgot about Custody & Education (C&E). But because a case relating to C&E recently emerged, society is once again examining C&E, questioning whether it is legitimate and whether it should still exist.

BJN: What do you consider to be the biggest problem with C&E?

TWC: The biggest problem is with C&E is the same as with RTL: administrative agencies can deprive individuals their liberty without due process, so lots of problems appear in implementing it.

BJN: What kinds of problems?

TWC: For example, for sex workers and their clients, after undergoing an administrative punishment [under the Public Security Administrative Punishment law], public security bureaus are able to decide on their own whether the individual should also receive a C&E sentence. There are no specific standards to guide this decision. For example, six months to two years of custody, how is this term determined; it’s very possible that there are variations in the implementation. Without due process and public transparency, it’s easy for there to be a hidden agenda.

BJN: Six months to two years, is that too heavy a punishment for prostitution and solicitation?

TWC: Under the Public Security Administrative Punishment Law, [the police] are able to keep someone in custody for 15 days for a prostitution-related offense. But under C&E, the maximum sentence may be up to two years. This is often more severe than the punishment under the criminal law. Whether this [disparity] is fair or not is pending discussion.

Repealing C&E Will Likely Take A Long Time

BJN: Based on your observation, do local public security bureaus often use C&E as a form of punishment?

TWC: My understanding is that in the overwhelming majority of provinces in the country, C&E is not used very often. But this does not mean that the public security bureaus do not have the right [to use C&E]. So long as they have this right, there will be problems.

BJN: What is the relationship between C&E and RTL?

TWC: Because both are systems that restrict personal liberty, in essence they are the same. It is only the people targeted and the length of the punishment that are different. Furthermore, both are systems that don’t go through the judicial process and instead the administrative agencies unilaterally make the decision. In looking at the legal principles governing C&E, the public security bureaus don’t have a problem; rather the C&E-related legal provision are not in line with the current law. As a result, they must be repealed.

BJN: How likely do you think are the proposals to abolish C&E?

TWC: It will be like RTL which took a long time to repeal; I think repealing C&E will be like that.

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Interview Portion of the Beijing News Article on C&E – Full Article Can Be Found Here

新京报：作为推动人之一，为什么想到做这个事情？

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

新京报：你认为收容教育制度最大的问题是什么？

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

新京报：会有哪些问题？

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

新京报：6个月到2年的收教期限，对于卖淫嫖娼处罚重吗？

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

　　废止收容教育或需很长时间

新京报：据你观察，各地公安机关用收容教育制度惩戒的情况多不多？

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

新京报：收容教育和劳教制度有什么关联？

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

新京报：你认为这次建议废止收容教育制度的可能性有多大？

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