Category: Rule of Law

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.

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….”

Rights Lawyer Gao Zhisheng’s Wife on His Abduction

By , March 28, 2011

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

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

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

The Dissident’s Wife

By Geng He

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

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

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

Click here for full article

Reality or Myth: China’s Rule of Law & Its Recent Assault on Lawyers

By , February 21, 2011

Originally posted on The Huffington Post

Rights-Defending Lawyer, Tang Jitian

The Chinese government has tried to break Tang Jitian’s spirit.  Failing, it now seeks to break his body.  Tang, a Chinese human rights lawyer, was forcibly abducted from his home on Wednesday, February 16 by the Beijing police.  Five days later, in contravention of Chinese law, Tang’s whereabouts remain unknown to his family, friends, and other human rights lawyers who desperately await some news of him.  Tang’s wife, after waiting at the police station for over four hours, was not permitted to see her husband and not informed of his whereabouts.  Tang’s “crime” in all of this: seeking to uphold individual’s legally-guaranteed rights and hold the State to its promise of a rule of law.

When Tang Jitian (pronounced Tang Gee Tea-ann) emerges from this unlawful and forced seclusion, he may be badly beaten, tortured and abused.  Soon after his abduction on Wednesday, Tang was transferred to the Beijing Public Security Bureau (PSB), an outfit that has been assigned the task of suppressing China’s nascent human rights movement.  Violence is a necessary part of the PSB’s mandate: it provides a very physical signal to other human rights lawyers what awaits them if they become too vocal, organized, or, ironically, too successful in bringing cases to protect citizen’s rights.  But this State-sanctioned violence is outside the limits of the law, and makes one wonder that if, by attacking these rights-defending lawyers (in Chinese, weiquan lawyers), the Chinese government is really committed to a “rule of law” society or if the use of such language by Chinese officials is a mere mirage.

The Breaking of a Body: Tang Jitian’s Potential Fate While in PSB Custody

Human rights lawyer Gao Zhisheng (pronounced Gao Zhi-sheng) likely serves as the most potent reminder of the

Human Rights Attorney, Gao Zhisheng

lawlessness of the PSB.  In 2001, Gao was listed by China’s Ministry of Justice as one of the country’s top-ten lawyers for his work representing victims of medical malpractice and farmers who were denied just compensation for their land.  But as Gao took on more controversial cases – particularly defending Falun Gong practitioners, a quasi-religious organization that the Chinese government perceives as a real threat to its power – government respect for his work quickly faded.   In December 2006, Gao was convicted of subversion and was given five years probation to be served from his home.  However, in February 2009, Gao was abducted from his home by the police.  This was the second time he was abducted, the first in 2007 where he was tortured for over 50 days.  But this time, Gao’s abduction would be for much longer.  For over fourteen months, he was not heard from and no one knew where he was.  In April 2010, Gao emerged from seclusion only to be abducted again only two weeks later.  During the time he was free, he was able to report to the Associated Press the torture he underwent while in police custody.

What awaits Tang may be similar – 48 hours of continuous beatings, various forms of physiological torture, wet towels over one’s face to give the feeling of suffocation – or even worse.  Unlike Gao Zhisheng, who is well known in the international community, or Teng Biao, a famous Chinese law professor and human rights activist who, because of his status, experienced a less violent beating when he was taken into custody for a few hours by police last December, Tang does not have such connections to protect him.  Without such an international cache like Teng Biao, Tang is an easy target for the Chinese security apparatus and will likely be used to violently symbolize the PSB’s power over the human rights lawyers.

Trying to Break a Spirit: Tang Jitian’s Disbarment

Wednesday’s abduction was not the first time that Tang has been on the Chinese government’s radar.  In May 2010, because of his defense of a Falun Gong practitioner in Sichuan province, the Beijing Bureau of Justice – the government body that manages the legal profession in Beijing – disbarred Tang from the practice of law.  Ostensibly arguing that Tang violated courtroom rules, the Beijing Bureau of Justice’s decision was largely seen as political.  Similar to the United States, disbarment in China is reserved for those lawyers who commit a crime.  Tang was the first lawyer to be disbarred for what merely appeared to be zealous advocacy.

Since his disbarment, Tang has had no way to economically support himself, relying solely on the kindness of other human rights lawyers.  Such a blow has had its impact and more recently, Tang had become depressed about his situation, although still very active in the human rights movement.  One would have thought that this would have been sufficient for the Chinese government – that by taking away Tang’s livelihood, it would not seek to detain him.  One would also think that such action would be unnecessary: Tang’s disbarment was a clear signal to other human rights lawyers that the State could use vague provisions of the law to disbar them and deny them their raison d’etre.  But it appears that disbarment was not punishment enough for the PSB.

Why Abduct Tang Jitian Now? China’s Rule of Law Regression

The immediate cause of Tang’s abduction relates to the recent house arrest and abuse of another human rights lawyer,

Human rights lawyer, Jiang Tianyong

Chen Guangcheng (pronounced Chen Gwang-chung).  Chen, a blind, self-taught lawyer who represented women forced into abortions by their village government, has been under house arrest since he was freed from prison in September 2010.  Last week, Chen and his wife were reportedly beaten after they leaked an hour-long video of their daily surveillance to the U.S.-based human rights and religious group, China Aid (for the video, click here).  On Wednesday afternoon, Tang Jitian had lunch with a group of Beijing human rights lawyers to discuss what the group could do to support Chen.  Soon after this brain-storming session, Tang was abducted.  Additionally, another participant of the Wednesday lunch group has also been abducted.  On Saturday, February 20, 2011, human rights lawyer Jiang Tianyong (pronounced Gee-ong Tea-ann young) was taken away in an unmarked van, only days after he was roughed up while in police custody.

But Tang and Jiang’s belief that the law should be followed and individuals’ rights should not be trampled on by the State is the real reason for his abduction and likely abuse at the hands of the PSB.  Over the past few years, China’s human rights attorneys have become more organized, using modern technology to quickly communicate with each other, and increasingly vocal, demanding that  the government abide by its own laws when it comes to the people’s civil rights and civil liberties.  Instead of responding positively to these developments – developments that largely symbolize a growing rule of law society and an emerging civil society  – the Chinese government and the Chinese Communist Party (CCP) has further entrenched its authoritarian rule and has used increasingly sever measures to break these human rights lawyers. While Chinese human rights lawyers’ cases would be everyday affairs for public interest lawyers elsewhere in the world, the CCP views these lawyers as a threat to their one-party rule and the PSB views them as a threat to its all-inclusive, and many times illegal, policing methods.  Based upon the recent abduction of Tang Jitian and Jiang Tianyong, the PSB and the CCP will do whatever it takes to suppress these human rights lawyers.

On Saturday, while rumors were circulating on the internet that China itself was to have a “Jasmine Revolution” following the events in the Middle East, a Chinese rights activist tweeted that the Chinese government detained twenty-one other human rights attorneys: Zhu Yufu, Liao Shuangyuan, Huang Yanming, Teng Biao, Ran Yunfei, Li Tiantian, Liu Guohui, Ding Mao, Lu Yongxiang, Xiao Yong, Zhang Jianping, Shi Yulin, She Wanbao, Li Yu, Lou Baosheng, Wei Shuishan, Zhang Shanguang, Li Xiongbing, Xu Zhiyong, Huang Yaling, and Li Bo.  Many may suffer physical abuse at the hands of the PSB.  Some already have.

Why Should Anyone Care?

I met Tang Jitian when I was last in China and was impressed, not just with his bravery, but also with understanding of his role in pushing the Chinese government to truly commit to a rule of law.  If human rights lawyers are suppressed now he told me, there will be no one to take over the movement.  Tang is right and breaking the movement appears to be one of the goals of the Chinese government.  By openly subjecting human rights attorneys to constant surveillance, disbarment, psychological threats, and physical abuse, the Chinese government hopes that once this generation of human right lawyers pass, no younger lawyers will dare to take up the mantle; the repercussions are too severe.

Secretary of State Hillary Clinton to take a hard line on human rights

But the question remains, will the rest of the world allow this?  Last month, the Obama Administration impressed many by repeatedly raising the issue of human rights with Chinese President Hu Jintao.  Just days before Hu’s arrival in Washington, D.C., Secretary of State Hillary Clinton bluntly discussed the plight of China’s human rights lawyers, stating that the United States will expect China to fulfill its own promise of rule of law: “America will continue to speak out and to press China…when lawyers and legal advocates are sent to prison simply for representing clients who challenge the government’s positions….”  The time has come for the United States to back-up that statement.

The Obama Administration has already expressed its concern with the treatment of Chen Guangcheng.  But it cannot forget the less known advocates like Tang Jitian and Jiang Tianyong – without some form of international recognition of his situation the PSB will believe it has the cover to do with Tang and Jiang what it wants.  Furthermore, the Obama Administration needs to see the Chinese government’s recent reaction as an affront to a “rule of law” and also needs to comment on the importance of not just a “rule of law” in China but on the existence of a vibrant public interest law bar.  Human rights lawyers directly challenge the State in order to protect individual’s legally-guaranteed rights; only when these lawyers are able to more freely function in society will China have any meaningful rule of law.

A meaningful rule of law in China is not just an abstract principle for Americans.  As more Americans do business in China and as the U.S. government seeks to increase the number of students studying in China to over 100,000, rule of law in China will become an everyday concern.  Last year’s arrest and prosecution of Australian citizen and Rio Tinto executive Stern Hu and the recent conviction of U.S. citizen and geologist Xue Feng embody the importance of China’s rule of law development for Americans.  The Obama Administration needs to publicly condemn the Chinese government’s recent suppression of human rights lawyers, call for the release of Tang Jitian, and frankly question the Chinese government’s commitment to a rule of law.  Tang and Jiang’s safety depends on it.

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.

Changing Media, Changing China…Changing Me!

By , January 7, 2011

After following China for most of my adult life and intently analyzing its development these past three years, I find many China events to be rather staid affairs; it’s usually obvious where the conversation will go and most speakers hedge their bets on China’s future, committing to neither its success nor its failure.  But not Susan Shirk.  Last night, at an Asia Society event to promote her new book, Changing Media, Changing China, Susan Shirk was able to educate, entertain, and at times stun the audience on one of the least understood aspects of Chinese society: the media’s role in changing domestic politics in China.  But one would expect nothing less of a woman who dared to wear a fabulous red suit to the affair.

Shirk, who edits Changing Media, Changing China was joined by one of the contributors to the book, Prof. Benjamin Liebman of Columbia Law School, as well as sociologist Yang Guobin of Barnard College whose recent scholarship focuses on online activism in China.  Shirk began the night’s discussion by putting the role of the media into a historical context.  Comparing access to information in today’s China to the China of the 1980s, Shirk highlighted the fact that Chinese people today have much more access to information; during the 1980s the Chinese leadership had the monopoly on such access, but today, with a commercialized press and and the internet, there is a narrowing of this gap in access to information, putting the people’s access on par with their leaders’.  Shirk noted that it is this new style of media – with newspapers competing with each other for a story that sells papers and blogs spreading stories like wild-fire across China – that improves the Chinese government’s responsiveness to its people.  Although the central government is still ambivalent about the role of the media, it recognizes the media’s “watchdog” potential – through local newspapers, blogs and internet chat rooms, the central government is able to monitor and police the bad behavior of local officials.

Liebman on the other hand, offered a more cautionary view of the media, at least with respect to its role in the legal system.  When a case is picked up by the media – be it by blogs or newspapers – judges are under pressure, usually directly from Party officials, to decide the case in ways that will cool public passion, even if it means deciding the case irrespective of legal precepts.  Liebman went on to note that media coverage of a case only serves to reinforce the Party-State’s oversight of the courts; to guarantee a harmonious society, officials will demand that judges look to social stability as their primary goal, not the actual law.  But Liebman went on to note, it is not a one-sided game.  As the media has become more active in legal cases, the courts have fought back by liberally applying defamation laws.  Liebman noted that not only are plaintiffs overwhelmingly the victors in defamation cases in China (making media the losers), but in the past few years, Liebman has also noticed a surge in the number of criminal defamation cases.  Likely initiated by local officials after bad press coverage from the local media, the courts are caught in between this power struggle, making the establishment of a rule of law a more difficult task.

Yang had a more positive view.  Focusing on the internet and microblogging in China (microblogging is  a longer form of texting, allowing for conversations to develop), Yang has been amazed and impressed by the persistence of online activism in China.  While the Chinese government still maintains strategic control of the internet, Yang noted that there is only so much it can control.  People in China are communicating constantly over the internet, making it difficult for the government to monitor all conversations.  While many conversations are social, some eventually veer to the political, and the government is unaware to stop them.  Yang also noted that the number of online protests in the past year or so has increased substantially.  But Yang noted that the internet is still controlled; the government will erase postings and flood certain message boards with government-sanctioned comments.  Corporations have begun to steal a page from the government’s playbook.  Corporations also hire people to write positive reviews of their products, or negative ones of their competitors’.  Known as “water armies,” these hired guns make it more difficult to trust online information.  Similarly, the government’s control of chatrooms makes it difficult to use the internet in China as a barometer of public opinion.

Unfortunately each speaker was only given six to seven minutes to speak on such a huge topic.  The last hour of the program was dedicated to audience questions.  While the panel discussion offered a fascinating and thought-provoking analysis of arguably the most influential factor in China today, the audience’s questions veered off topic, with one woman – a self-proclaimed netizen – asking what the U.S. government can learn from the Chinese government’s promotion of the internet.  Fortunately Shirk felt no need to entertain the question, cutting it short with a resolute “nothing.”  Few of the questions were as nuanced as the initial discussion; Google’s “moral stance in China” was repeatedly referred to (making me realize that the Asia Society-set is not reading China Law & Policy’s Google analysis) and the ability of the internet to bring down the Chinese Communist Party (CCP).

In regards to the question of CCP downfall, Shirk offered a refreshingly frank answer: even without censorship or the propaganda department, Shirk believes the CCP would still be able to maintain its power.  For Shirk, the fact that the CCP can: (1) point to huge improvements in the people’s living standards, (2) perpetuate the belief amongst most Chinese that without the CCP, China would descend into chaos, and (3) highlight the fact that China is now an important international power, would likely mean that many CCP candidates could easily win elections if China ever had any.  Even if China was to have an economic setback, Shirk still believes that it could maintain the sincere support of the Chinese people.  Shirk suspects that censorship is allowed to continue not because the Chinese government as a whole wants to suppress freedom of information; likely many government officials realize that by having a way to gauge public anger and a means to respond to it, their legitimacy could ultimately be bolstered.  Instead, Shirk speculated that it could be the powerful Propaganda Department that doesn’t want to budge from its culture of censorship, perhaps causing a split in the upper echelons of the Chinese leadership.

Asia Society’s “China’s New Media Landscape” only scratched the surface of the role of the media in China.  The discussion left one wondering – who wags the dog here.  While I’m usually the quintessential free-rider at these events, for this one, I was so intrigued by the discussion that I did buy the book. 

Changing Media, Changing China, edited by Susan Shirk (Oxford University Press, December 14, 2010), 288 pages.
 

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.

A Response to Rio Tinto – A Different Opinion from Australia

By , April 20, 2010

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

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

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


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

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

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

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

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

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

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

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

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

–Vivienne Bath, Associate Professor, University of Sydney

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

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

By , April 19, 2010

Originally Posted on Foreign Policy Digest

china steelDevelopments

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

Background

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

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

Stern Hu

Stern Hu

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

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

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

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

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

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

Analysis

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

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

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

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

Sam Walsh, Rio Tinto's Iron Ore Chief

Sam Walsh, Rio Tinto's Iron Ore Chief

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

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

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

__________________________________________________________________________________________

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

VIDEO: Panel Discussions in Honor of Prof. Jerome A. Cohen

By , March 9, 2010
Prof. Jerome A. Cohen - Photo by George Washington Law School

Prof. Jerome A. Cohen - Photo by George Washington Law School

On February 19, 2010, George Washington School of Law and Georgetown University Law Center hosted an academic conference in honor of noted Chinese legal scholar Prof. Jerome A. Cohen.  Consisting of four separate panel discussions on current legal issues in China, the afternoon conference, and it’s participants (all of whom were students of Prof. Cohen’s) was a testament to the continued importance of Prof. Cohen’s work in the field.

Panel 1 – Google & Freedom of Online Information
(7:20 start) Rebecca MacKinnon, Visiting Fellow, Center for Information Tech. Policy, Princeton
(19:35 start) Lawrence Liu, Senior Counsel, Congressional-Executive Commission on China
(28:49 start) Sharon Hom, Executive Director, Human Rights in China
Click here for video of this panel.

Panel 2 – Business Law
(1:43 start)Donald Clarke, Professor of Law, George Washington University Law School
(10:25 start) Nicholas C. Howson, Assistant Professor of Law, University of Michigan Law School
(19:22start) James Feinerman, Co-Director/Prof. of Law, Law-Asia Leadership, Georgetown Law
Click here for video of this panel.

Panel 3 – Human Rights, Civil Society & Criminal Law
(1:07 start) Xiaorong Li, Research Scholar, School of Public Policy, University of Maryland
(9:18 start)Karla Simon, Professor of Law, Columbus School of Law, Catholic University of America
(21:25 start)Eva Pils, Associate Professor, Faculty of Law, The Chinese University of Hong Kong
(33:38 start) Scot Tanner, China Security Analyst, The CNA Corporation
Click here for video of this panel.

Panel 4 – International Law
(1:32 start) Julia Qin, Associate Professor of Law, Wayne State University Law School
(10:35 start) Michael Schlesinger, Of Counsel, Greenberg Traurig, LLP
(20:00 start) Timothy Stratford, Former Assistant U.S. Trade Rep. for China Affairs, USTR
(28:15 start) Alex Wang, Senior Attorney & Director, China Environmental Law Project, NRDC
Click here for video of this panel.

CLOSING REMARKS BY PROF. JEROME COHEN – Click Here

Thank you to Prof. Don Clarke of George Washington School of Law for making the videos of the conference available.


Panorama Theme by Themocracy

%d bloggers like this: