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By Elizabeth M. Lynch, August 11, 2014

China Law & Policy is upgrading!

For those who are regular readers of China Law & Policy, you likely have noticed that we haven’t posted a piece in two weeks.  That is due to the fact that China Law & Policy is doing some upgrades behind the scenes that is requiring a lot more of our time and will also require us to stop blogging for another week or so.  But soon things will be faster, better and brighter here at China Law & Policy providing for a better experience for our readers.

In the meantime, while the summer rolls on, more rights attorneys are being prosecuted in China, Zhou Yongkang is now officially in trouble, and there has been a serious step-up in foreign prosecutions in China on criminal and anit-trust issues.  A few weeks ago, George Washington law professor Don Clarke did any fun podcast on these as well as on rule of law in China generally with the boys over at Sinica.  So in the meantime, you can listen to it by clicking here to get to the Don Clarke Sinica webcast.

Hopefully we will be back to blogging on a regular basis by the end of next week!

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By Elizabeth M. Lynch, July 29, 2014

GHINA!

Every year, over 10,000 Chinese immigrants arrive in the oil- and gold-rich West African nation of Ghana, all with the aspiration to hit it rich. But what does such a huge wave of immigration followed up by the Chinese government’s low-cost loans and aid mean for Ghana? In Ghina (pronounced Gee-na), director Christine Choy attempts to answer that question by looking at the inter-personal relationships between a few Ghanaians and their Chinese bosses. But by focusing only on these select impressions and not examining the bigger macro issues at play, Choy fails to achieve her goal and instead, the movie is a disjointed, hodge-podge of interviews and scenes that merely perpetuates stereotypes of the Ghanaians rather than enlighten the viewer to any cohesive point.

Ghina opens with the Chinese construction of a hospital in the capital. As we learn from the English-speaking Chinese boss, this hospital is a donation to the Ghanaian people.   While the undercurrent is clear – that China is likely getting something in exchange for this “donation” – the movie fails to ever explain what that exchange is. There is vague reference to “Chinese illegal mining” but the movie never explains just how illegal and damaging to the environment that mining is to a country that still largely relies on agriculture and thus is sensitive to environmental pollution.

And that is the major problem with Ghina. It barely scratches the surface and as a result, fails to explain, either on the micro or the macro level the complexities of China’s investment in Ghana. It is not all bad. As Ghina points out, roads are being paved, hospitals are being built and ambitious Ghanaians are learning new skills and technology. But at what cost? And ultimately, at what benefit? Is China just another colonial-like power in Ghana, intent to strip it of its resources and go, leaving Ghana worse off than before? Or is it committed to the development of Ghana, where the country and its people can share in the prosperity?

Ghina also fails to adequately address the fact that many of these new Chinese construction projects aren’t job-creators for Ghana.  Instead,

Chinese boss leading a work group in Ghana

the Chinese company often imports the Chinese labor with the construction materials, giving only a few jobs to the locals.

Only in one scene – where what appears to be an NYU professor traveling with the film crew interacts with one of the Ghanaian professors (who judging from his wardrobe is doing quite well) – do we see the kernel of the greatness that Ghina could have become. In that exchange, the Ghanaian professor defends the Chinese actions, acknowledging that the Chinese are only taking advantage of loopholes that the Ghana government allows. And on some level that is true. However, in the case of Chinese mining in Ghana, these aren’t loopholes. These are largely illegal actions that since the summer of 2013, the Ghanaian government has begun to crackdown on, deporting thousands of Chinese immigrants.  The movie fails to point that these referenced loopholes are actual illegalities.

Unfortunately, with an issue like Chinese investment in Africa, it is difficult to tell a coherent story just by looking at a few vignettes of individual people’s lives. While Ghina attempts to do that, it largely demonstrates that this type of storytelling ends up telling little to no story at all. Instead, check out the Guardian’s 15 minute video on illegal mining in Ghana for a more nuanced understanding of the Chinese in Ghana.

Rating:

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By Elizabeth M. Lynch, July 18, 2014

For over 60 years, the Chinese Communist Party (CCP) has promoted itself as a champion of women’s rights. It was Mao Zedong who famously proclaimed “women hold up half the sky.” In making such proclamations, the CCP has crafted the story that in Asia, an otherwise bastion of patriarchal societies, China is an oasis of women equality.

But Leta Hong Fincher, in her new book Leftover Women: The Resurgence of Gender Inequality in China, unmasks that myth and exposes a disturbing, shocking and ultimately depressing development: China likely has one of the fastest-growing gender wealth gaps in the world. And the culprit of that increasing inequality? The Chinese government itself.

As Fincher convincingly demonstrates, it all starts with the concept of a “leftover woman,” a recently-developed ideology splashed not just all over the government-run newspapers but promoted

CCP Propaganda: Women Hold Up Half the Sky

by government agencies like the All-China Women’s Federation, an organization ostensibly designed to encourage female empowerment. Basically, if a woman is not married by 27, she is labeled a “leftover woman.” The older one gets, the worse the mind games become, mind games that are played out in the press and on TV on an almost daily basis. As a result, women, especially educated women who are mocked even more vigorously, feel societal pressure to marry at a young age; if you are leftover, no one will want you. But, as Fincher shows, this fear is utterly illogical. Due to the preference for boys in what has been one-child country for the past 30 years, China has a shortage of marriageable women. Not to mention, if you can only have one child, what is the rush in getting married? But in perhaps one of the most shocking parts of the book, doctors – licensed medical professionals – lie to their female patients, instilling fear in them that babies will be born with birth defects if conceived after the age of 30.

In Leftover Women, Fincher shows that this fear of being leftover has resulted in women being left out; left out of one of the largest gains in individual wealth in Chinese history: property accumulation. To understand better the connection between the two, Fincher set up a Weibo (Chinese version of Twitter) account to survey hundreds of young Chinese women. Through revealing snippets of interviews with these 20-somethings, it becomes clear that this fear of being leftover by the age of 27 has taken hold in the women themselves. This fear causes women not just to rush into a marriage but act against their own economic self-interest. Many of these well-educated, well-employed women will provide cash toward the down payment on a marital home without putting their name on the deed. Instead, as Fincher documents, in the vast majority of apartments occupied by married couples, only the man’s name is on the deed due to the resurgence of traditional gender roles. Shockingly many of the women interviewed accept these roles, acknowledging that they are effectively being swindled, but hint that it is all worth it so that they are not “leftover.”

Leftover Woman?

Changes to the Marriage Law in 2011 only further perpetuated these non-progressive gender norms. In 2011, the Supreme People’s Court issued an interpretation of the Marriage Law finding that in the case of the divorce, the property goes only to those whose names are on the deed unless the other party can clearly show their monetary contribution. But because down payments are in cash, receipts are often not kept. Further, China does not allow joint bank accounts and it is usually the husband who writes the monthly mortgage check, even if the wife is providing cash contribution or providing for other household needs such as food and childcare. But under the new interpretation, these contributions are not considered. So, yes the interpretation is neutral on its face, but its disparate impact it clear. This is an interpretation that is going to screw women.

Rushing into marriage and losing their economic independence leaves these women vulnerable to another increasing and alarming practice in China: domestic violence. Through the interviews that Fisher conducted, a general trend emerges: these women will often stay in an abusive marriage because otherwise they will lose everything. Not to mention that the Chinese government, even after years of lobbying, has yet to adopt a Domestic Violence law. As a result, the police’s treatment of domestic violence is anything less than sensitive and is usually just seen a family matter for the wife and her abuser to handle on their own.

The Most Powerful “Leftover Woman”: Empress Dowager Cixi

Leftover Women is a chilling portrayal – often told through the voices of the women themselves – of the rapid deterioration of women’s equality in China. If you think you know China, you don’t until you have read this book. It exposes an ugly development where, through pressure to marry young, the resurgence of traditional gender norms and laws that promote male property ownership, the Chinese government is keeping women out of the property market and thus out of an important segment of societal wealth.

Unfortunately, China is not alone in keeping a group of people out of property ownership and thus wealth accumulation. In an essay that was published in June in the Atlantic, Ta-Nahesi Coates illustrates the racist policies of home ownership in the United States that has largely kept communities of color out of one of America’s most important sources of family wealth. The initial culprit? The U.S. government itself. Reading these two pieces together will make you doubly angry, but also more reflective on how wealth is accumulated in any society and the desires to keep certain groups of people out.

Rating:

Leftover Women: The Resurgence of Gender Inequality in China, by Leta Hong Fincher (Zed Books 2014), 192 pages.

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By Elizabeth M. Lynch, July 14, 2014

Happy 5th Birthday China Law & Policy!

Five years ago today, China Law & Policy was born. I had just finished my fellowship at NYU Law School’s U.S.-Asia Law Institute and wasn’t 100% clear on what I was going to do next. Why not a blog. I didn’t know much about blogging but what I did know was that China was – and still is – too important a country not to be understood by the general public. But all too often people’s opinions on China are informed more by stereotypes and sound bites.

China Law & Policy was created to overcome that simplistic view and to explain in easy to understand terms, why non-China people should care about some of the underlying issues about China’s rule of law development.  We strive to ensure that our analysis is always well-documented and informed. Our secondary goal has also been to provide a platform for more diverse voices to opine about China and to this day, 50% of our podcast interviews have been conducted with women, a fact that we are very proud of.

So five years in, it’s time to take stock. Every year, China Law & Policy continues to grow. We know have over 3,500 followers to our website via various outlets (twitter, facebook, email, RSS feed) and every year we publish an article that gets a lot of attention. This past year, our series on foreign journalist visas and media censorship in China has become the most popular of posts. But in a close second is a piece that took me a long time to come to terms with and write: Chen Guangcheng and the Commandeering of Our China Human Rights Policy.

But as China Law & Policy continues to grow, the same cannot necessarily be said about China. Our inaugural post, on July 15, 2009, concerned the riots that had engulfed Xinjiang Province, the Uigher area in China’s northwest. A month later, we were writing about the detention of public interest lawyer, Xu Zhiyong (pronouced Sue Zhi-young). Fast forward five years and Xinjiang is again seeing a sharp increase in violence followed by a strong government crackdown; Xu Zhiyong is once again in prison, serving a four year term.

I hope that China Law & Policy continues to be a useful blog for both China-watchers and ordinary people. I have a lot of fun with the blog

It’s my birthday, get me some cake!

and will continue with it in between my day job. But as always, I welcome feedback and ideas. Have an idea for a blog post? Want to write that post yourself? Just email me – elynch@chinalawandpolicy.com.

In celebrating our 5th anniversary, I again want to thank everyone who reads this blog and who has given me much needed comments, edits and information. But in particular, I want to thank a few individuals who were there at the founding of this blog and who provided support, encouragement, and ideas: Tom Cantwell, Andrea Worden, Robert Burnett, Michael Standaert, Jeremy Daum, Susan Tice, Eva Pils, Nicky Moody, Don Clarke, Madhuri Kommareddi, Susan Fishman Orlins and Jerome Lynch.

Finally, China Law & Policy could not exist if WordPress – the software that powers the blog – was not offered free to the public. Thank you Matt Mullenweg, the founder of WordPress, for creating an easy-to-use, open-source software that has been an important democratizing tool.

Here is to another 5 years!

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By Elizabeth M. Lynch, July 8, 2014

Lou Ye’s Blind Massage

Blind Massage, Chinese director Lou Ye‘s (pronounced Low Yeah) new film, should never be introduced as “heartwarming” as it mistakenly was at last week’s New York Asian Film Festival.   “Absolutely fearless” is much more apt. This is a movie that attempts to capture the experience of blindness in the least blind-friendly of mediums – film – and it largely succeeds. For that reason alone, this brave, beautiful movie is a must see. But it’s also a movie that, by following the employees of a blind massage parlor in Nanjing, China,that diverges from the usual narrative and refuses to allow the audience to simply view these characters as saints merely because of their disabilities. Instead, the audience is challenged to view the blind and near-blind masseuses as who they really are: ordinary people just trying to make their way in the rough and tumble world that is China.

The opening scene itself – where the audience is left unable to focus on the key object that resulted in one of the main character’s loss of sight – lets you know that this is no ordinary movie. For many of the scenes throughout Blind Massage, the geography keeps changing and the audience cannot just orient itself by viewing the scene alone. Slowly you come to realize that what you see is no longer reliable. Instead, the audience is required to rely on other senses, in particular the sense of sound – the pouring of the rain, the ringing of bells – to comprehend what is happening; much like the blind must do on a daily basis. Lou perfectly captures this visceral feeling in a scene toward the end of the movie, where one of the blind masseuses – in a delicately, intimate scene – confesses her love to another. But at the end of the scene, you are shocked by the sound of a third person in the room. The audience is just as disoriented, surprised and deprived as the two characters who thought they were having a moment alone.

Lou also dispenses with any sentimentality toward the blind. The blind masseuses – played by both sighted professional actors as well as

Chinese film director Lou Ye

non-sighted amateurs (who do a great job) – are not the usual wise blind sages often portrayed in Hollywood flicks. Instead, Lou develops the complexity of each character, portraying their foibles as well as their strengths; some you like and some you don’t. Most notably, Lou shows the sexual side of the blind, with awkward and honest sex scenes between some of the characters. But through the stories of each character, the emotional impact of discrimination and the invisibility each must feel in the world of the sighted is evident. It is particularly acute in a bloody, hara-kari-like scene where one character’s self-inflicted wounds symbolize the anguish of his injured pride.

Although there has been much criticism recently regarding the traditional and wholesale compartmentalization of the blind as masseuses in China, Lou Ye does not delve into that discussion. Nor does he have to. Lou’s goal is not to make a political point, but rather a human one: to show what it is like to be blind and to force the sighted to see. And he does so deftly. Even in America, where visual aids are prevalent, the blind and the sighted still do not exist as one; their worlds are largely divided. And while yes, China probably has a worse track record in mainstreaming the blind (only recently has it allowed the blind to take the same college entrance exam as the sighted), it should be remember that it is a Chinese film director that had the courage and sensitivity to attempt to honestly portray the lives of the blind on film.

There are aspects of the script that veer toward the melodramatic, but ultimately Blind Massage is a powerful movie that makes you feel the world of the blind instead of just trying to see it.

Rating:

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As of the date of this post, Blind Massage has only shown at the Berlin Film Festival (where it won the Silver Bear for Outstanding Artistic Contribution) and the New York Asian Film Festival.  It is unclear if Blind Massage will be shown more widely in the United States or Europe. 

A scene from Lou Ye’s Blind Massage

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By Elizabeth M. Lynch, July 6, 2014

Artist & Activist Ai Weiwei

For sure the best part of the Brooklyn Museum’s current exhibition of Ai Weiwei‘s (pronounced Eye Way-Way) retrospective – “According to What?” – is that it was able to obtain the six dioramas Ai made of his 81-day detention by Chinese authorities. The dioramas visually demonstrates the utter absurdity of the Chinese police state. This alone mandates that this exhibit not be missed.

But the second best part? That the Brooklyn Museum did not place Ai’s works in a vacuum. Instead, Ai’s exhibit is one of four fascinating exhibits concerning art and social activism. Any visit to Ai’s exhibit should be accompanied by a viewing of at least one of these other shows. If you get there before July 13, definitely check out “Witness: Art and Civil Rights in the Sixties” as a contrasting exhibit to Ai’s and as a powerful reminder of America’s own checkered past and unclear future concerning civil and human rights.

“According to What?” is not just a retrospective of Ai’s art but also an explanation of

Ai Photo of Police & Protestors at Washington Square Park, 1988

his activism. One of the most revealing parts of the exhibition is Ai’s photographs from 1980s New York City, covering the decade when Ai lived in the city. Through Ai’s photographs, we see what he saw: constant protests in various city parks, face-to-face confrontation with the police, the beginnings of the AIDs crisis and its activism, the grit of 1980s New York City. When later on in the exhibit you watch a video of Ai challenging the Chinese police and demanding accountability, you can’t help but think back to the photos of bloody protesters in Tompkins Square Park and wonder if this is what influences Ai to be the agitator that he has become.

But Ai wasn’t always such an agitator. Unfortunately the exhibition gives only short shrift to his prior – and government-accepted – work. In overlooking this aspect of Ai’s career, the exhibit also fails to fully explain the spark that radicalized his art – the Sichuan earthquake. After an 8.0 magnitude earthquake rocked Sichuan province, Ai traveled to the region and saw the hundreds of shoddily-built schoolhouses that completely fell, killing the children in them. All the while surrounding government buildings remained standing. Seeing the thousands of children’s backpacks lying in the rubble and the fact that the government-controlled press was not acknowledging the “tofu-dreg construction,” Ai took matters into his own hands, undertaking a “Citizen’s Investigation” and uncovering the names of the 5,196 children killed.

The gallery with Ai’s Sichuan earthqake remembrance art, including “Straight”

In “Sichuan Name List,” Ai lists the name, age, school and address of every single child killed.   It is the layout of this work – the 5,196 names line an entire wall of the gallery, from top of the ten foot wall to bottom – that forms the art work. Only in seeing this can one even begin to attempt to understand the enormity of the loss. The work is accompanied by “Remembrance” a three-and-a-half audio recording of strangers from around the world speaking the name of every single child that perished. Lying in the center of the gallery are the steel rebar from the shoddy construction – all of which have been straightened back to their original form.

Ai’s homage to the victims of the Sichuan earthquake is powerful. It is also the reason why Ai is so dangerous to the Chinese Communist Party (“CCP”).   To maintain its power, the CCP needs to retain its monopoly on Chinese history. Since the founding of the People’s Republic, it is the CCP that writes the country’s history; not its people. Tiananmen? Never happened. Mao Zedong? Only 10% wrong. The Cultural Revolution? Not a descent into madness, just a little blip on the radar screen. Here, Ai – who is an influential figure since his father, Ai Qing, was a well-known and respected poet – is attempting to write the people’s history. It’s that attempt that the CCP sees as an assault on its rule.

Never Lonely! Friendly little guards are there and everywhere!

But if you think that is overreacting, then check out the six half-life size dioramas that Ai made of his 81 day detention. In 2011, Ai was detained by the public security bureau allegedly on tax fraud charges although the general consensus is that it was the government’s failed attempt to silence his activism. Ai designed each five-foot tall diorama with a window where the viewer can look in and see Ai in his room. In the first room, things don’t look so bad. It looks more like a hotel room than a jail cell. But as you progress and look into each scene, you begin to realize the absurdity of what is going on here. Two guards are with Ai at every moment, watching him. As he eats, as he sleeps, even when he showers. The guards are there, standing over him, watching his every move. Is this jolly, chubby man really that dangerous?

With so much of Ai’s art involving his interaction with the authorities, “According to What?” raises the question – has social activism become Ai’s art? And is this good for either: should activism merely be theater; should art be so much protest? By situating “According to What?” with other activist art, the Brooklyn Museum has largely answered those questions – art does not exist in a vacuum nor should we want it to.

Philip Guston’s City Limits (1969), part of BK Museum’s Witness Exhibit

For Americans, viewing “Witness: Art and Civil Rights in the Sixties” will demonstrate that art and activism go hand-and-hand and that we can and should respect the artist for both. It will also serve as an emotional reminder of our own dirty little past. But in the end, it will make you wonder – while these tactics worked in 1960s America, a largely democratic society, will they also work in Ai’s authoritarian China? One hopes that Ai’s art is not in vain, but, as China’s new regime even more violently cracks down on any purported challenge to its rule, only the future can tell.

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“Witness: Art and Civil Rights in the Sixties” is only on view at the Brooklyn Museum until July 13, 2014. “According to What?” is on view until August 10, 2014. This will be the exhibit’s final stop on its international tour. While entrance to the Brooklyn Museum is a suggested donation of $12, “According to What?” is a required $15 ticket (which includes price of general admission). Note that the dioramas of Ai’s detention are on the first floor before purchasing tickets and thus can be viewed for free.

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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。

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By Elizabeth M. Lynch, June 23, 2014

Actor Huang Haibo

Unfortunately, it took the detention of a famous male actor for the Chinese media to criticize an unlawful detention system that has long been used against low-income female sex workers. Last month, actor Huang Haibo (pronounced Hwang Hi-bwo), affectionately known as China’s clean-cut “son-in-law,” was detained after he was found with a prostitute in his upscale Beijing hotel room.

Prostitution is illegal under China’s criminal law (Crim. L. Arts. 358-59), but neither Huang nor the sex worker was formally arrested. Neither was charged with a crime. Neither ever saw the inside of a courtroom. But both received a six-month sentence under China’s “Custody and Education” (“C&E”), another punishment in China’s myriad administrative detention system where the police serve as prosecutor, judge and jury. Under C&E, the police can unilaterally detain sex workers and their clients for anywhere from six months to two years.

C&E continues even though last November, the Chinese government herald its abolishment of another administrative detention punishment: the notorious “Re-education Through Labor” (“RTL”). Now, with the detention of one of China’s most famous actors, the spotlight is on C&E. China’s media, including the state-run media, is calling for its abolishment. But will C&E go to the same way as RTL?

C&E’s Dubious Legal Status

It’s not surprising that C&E, formally in existence since 1991, has not garnered much press prior to the detention of Huang Haibo. It is a punishment that is reserved exclusively for sex workers and their clients and according to Asia Catalyst‘s seminal report on the topic, the punishment has largely fallen upon lower-income women who often have no other career options, not your usual feel-good story that mainstream media prefers.

But the Beijing police diverged from the usual pattern when, on May 15, 2014, it went after Huang Haibo and presumably a high-end

Potential Victim of China’s Custody & Education System (Photo Sim Chi Yin for The New York Times)

prostitute. Immediately following the May 15 detention, the Beijing police – through their Weibo account (China’s version of Twitter) – alerted the world to Huang’s detention. At first, the police gave Huang and his cohort a lighter sentence of 15 days administrative detention under the more generic Public Security Administrative Punishment Law. But on May 30, 2014, the Beijing police unilaterally decided to continue Huang’s detention, sentencing him and his cohort to six months in C&E which falls under the regulation entitled Measures for the Management of C&E Centers (“C&E Management Measures”).

It was that six-month sentence – a much more serious deprivation of liberty than the prior 15 days – that caused popular uproar with various editorials questioning C&E’s legal status. But even prior to the Huang Haibo incident, back in early May, many China human rights lawyers, including Pu Zhiqiang (pronounced Poo Zhir-chee-ang), recently arrested for “creating disturbances and illegally obtaining personal information,” signed a petition calling for C&E’s abolishment stating that under Chinese law, C&E is illegal.

Recent editorials, including an interview with the director of the Criminal Legal Affairs Committee of the All-China Lawyers’ Association, Tian Wenchang (pronounced Tee-an When-chang), have echoed the arguments found in that May petition which received scant attention at the time. Almost every editorial notes the non-transparent nature of C&E. There is no impartial judge that the individual can appeal to; there is no lawyer. Instead, under the C&E Management Measures, the police have complete power to determine if C&E is appropriate and the length of the sentence. While there is an appeal mechanism, the first step is to ask the police to reconsider the sentence (Art. 20). Only after that reconsideration can the individual seek to bring a lawsuit against the state. But without a lawyer, that rarely happens.

An RTL camp in Shijiazhuang, Hebei province. (File photo/CFP)

Similar factors – the unilateral decisions of the police and absolutely no judicial oversight – pushed the public to call for RTL’s abolition.  But those due process violations alone were not enough to overturn RTL. Also instrumental was the fact that RTL was not based in law. According to the China’s Legislation Law, the law that sets the basic ground rules on how all other laws and regulations are to be written, “[o]nly national law may be enacted in respect of matters relating to. . . (v) . . . compulsory measures and penalties involving restrictions of personal freedom. . . .” (Art. 8). Thus, only the National People’s Congress (“NPC”) or the NPC’s Standing Committee is entitled to make “national law.” And any attempted to deprive an individual of his or her liberty must be based on laws passed by the NPC or its Standing Committee.

In the case of RTL, the three sets of rules that governed the system – the 1957 Decision, the 1979 Supplemental Decision and the 1982 Trial Rules – were instituted by the State Council and the Ministry of Public Security, not by the NPC or its Standing Committee. As a result, RTL was in violation of legal procedure. Making its abolishment legally necessary.

Similar arguments are being made in regards with to C&E.   C&E was first established by the 1991 Measure on the C&E of Prostitutes & Their Clients which was in fact passed by the NPC’s Standing Committee. In that document, the Standing Committee delegated to the State Council the right to draft the C&E Management Measures, the measures which deal with the deprivation of individuals’ liberty. But again, the China’s Legislation Law, this time Article 9, clearly does not permit the NPC or its Standing Committee to delegate the right to draft regulations pertaining to the deprivation of liberty. As a result, the State Council’s 1993 C&E Management Measures are without legal effect, making the whole C&E system in violation of the law.

Will C&E Go the Way of RTL?

There are certainly strong if not convincing legal claims for C&E’s abolition. But one thing to factor in is the amount of money which the

Cha-ching! Women in a Custody & Education Center (Photo from Weibo)

public security bureaus (“PSB”) make off of C&E as highlighted in the Asia Catalyst report. Under C&E, detainees are required to work and although the Management Measures imply that the detainees be paid (Art. 13), they very rarely are. Instead, the income goes to the local PSB’s coffers.

Another source of income: the detainees themselves. Ironically, the Management Measures require that the detainees completely cover the costs of their own detention (Art. 14); RTL did not contain such a provision. As the Asia Catalyst report documents, these costs are substantial and likely inflated – six months in a C&E costs an individual between 5,000 to 10,000 yuan (US $820 to $1,639). Also inflated are the costs of goods. According to the Asia Catalyst interviewees, goods are several times more expensive than on the outside.

With the free labor and the ability to charge detainees for their custody, C&E centers are an important profit center to local PSBs. It’s the local PSB’s profit-motive that will make abolishing C&E more of a challenge. As the Asia Catalyst report points out, local PSBs did not fare so well when China became a market economy and have had to find ways to support themselves. One way is through C&E centers.

Allegedly the woman found with Huang Haibo – a Chinese “any one”?

And on some level, the Chinese government and local PSBs have to recognize that sex workers and their clients do not garner the same level of societal sympathy as those who were getting caught up in RTL. Tang Hui (pronounced Tang Hway), a mother of an 11 year old girl who was raped and sold into prostitution, became the poster-child for the dangers of RTL. After her daughter’s rapists, kidnappers and pimps were given a slight slap on the wrist, Tang protested. But that protest is what landed her in an RTL camp. When she got out, she sued, receiving a tremendous amount of public support and highlighting the dangers of RTL. Similarly, in 2003, when China abolished Custody & Repatriation, another form of administrative detention, the public was aghast that an innocent college student, Sun Zhigang (pronounced Son Zher-gang) could get caught up in such a system and end up dead in police custody.

Tang and Sun were China “any ones” – anyone could be a grieved mother; anyone could be a young

Will public attention to C&E pass once Huang Haibo is freed?

college student. Anyone could have been entrapped by such an unjust system. But here, with C&E, the individuals involved are sex workers, and lower-income, less-educated sex workers. Although C&E has the same abuses as RTL, most Chinese do not fear that they will find themselves entangled in the C&E system. There is a high likelihood that the public spotlight that is currently on C&E will fade once Huang Haibo is freed.

But at the very least the Huang incident has caused the international media to focus on the C&E

system. Supposedly the Chinese Communist Party was intent on repealing RTL because it is an obvious roadblock to its ability to ratify the UN’s Convention on Civil and Political Rights, a treaty which forbids the deprivation of liberty without due process of law and court oversight. But C&E – now that it has been exposed more publicly as a result of the Huang Haibo incident – needs to be abolished before China can ratify that treaty.

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By Elizabeth M. Lynch, June 4, 2014

Those of you who receive China Law & Policy updates via email or RSS feed will have noticed that our June 3 posting – an article about the 25th anniversary of the Tiananmen crackdown – was prefaced with viagra ad jibberish.  First, we apologize for that experience.  Unfortunately, CL&P was hacked and our site was open to some nasty malware.

We have changed our security system.  Our new system assures us that the site has been cleaned and the backdoor eliminated.  Here is hoping that the next attack is a long ways off.

And no, I don’t think it had anything to do with the Tiananmen post.  I could be wrong but the CCP leadership doesn’t strike me as the types that see the humor in hacking with viagra ads.

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By Elizabeth M. Lynch, June 2, 2014

The Goddess of Democracy – the symbol of the Tiananmen Square Protests

Twenty-five years ago, on the night of June 3 and into the early morning hours of June 4, 1989, tanks rolled in to the streets of Beijing and the Chinese government did the unthinkable: it opened fire on its own people, killing hundreds if not thousands of unarmed civilians in the streets surrounding Tiananmen Square.  That violent crackdown marked the end of seven weeks of student-led, peaceful protests in the Square itself, protests that were supported by much of the rest of Beijing, protests that would amass hundreds of thousands of people a day, protests that people wistfully thought would change China.

Twenty-five years later the students who participated in the protests are no longer fresh-faced, wide-eyed college kids, the workers who supported them are retired, and many of the bicycle rickshaw drivers who ferried dying students to hospitals on that bloody Sunday morning are long gone.  Along Chang’An Avenue, glitzy buildings have replaced the blood and bullet holes.  Starbucks stand near where students once went on hunger strikes. Tiananmen is different; China is different.  But yet there are some things that remain the same.

The government that ordered the crackdown 25 years ago – the Chinese Communist Party (“CCP”) – is still in power and many of the gripes that initiated the student protests – corruption and nepotism among political elites, lack of personal freedoms, and government censorship – have only gotten worse and continue to be the impetuous for activists.  And, like the students in 1989, these activists are still willing to risk their lives to promote the values enshrined in the Chinese Constitution and guide China to become a better place for its people.

But make no mistake, while these factors might be the same, there are important aspects of China that have changed.  In

Hundreds of thousands of Beijing residents – students, workers, ordinary people – supported the protests.

particular, China’s rise as a global power.  Criticizing China for human rights violations and its failure to live up to its own laws is not as easy as it was in 1989 when President George H.W. Bush cut off government ties, military relations, and the sale of U.S. government goods the day after the Chinese government’s crackdown.  Imagine denying U.S. businesses the opportunity to sell products to the world’s second largest economy?  That would never happen today.  And to severe relations with China – would the American public want to so easily give up its cheap Walmart goods or be denied the ability to obtain the newest iPhone?  Probably not.  The Chinese government understands the soothing and influential comforts of our material desires.

But perhaps the most troublesome change is how the CCP now deals with dissent.  If the last few months are any guide, excessive violence continues to be the modus operandi of the CCP.  Cao Shunli (pronounced Ts-ow Shoon-lee), an activist who organized small, peaceful protests that called for citizen participation in China’s United Nations human rights review, was detained for “picking quarrels and causing trouble,” was denied medical treatment for months, and died in police custody.  Tang Jitian (pronounced Tang Jee tee-an), a disbarred-lawyer-now-activist that sought to assist Falun Gong practitioners, has recounted the physical torture he suffered while in police custody in March.  Since coming out of detention with 16 broken ribs, Tang has all but effectively been denied appropriate medical care for his tuberculosis which has gotten significantly worse.

Deaths of many protesters lined the streets surrounding the Square

But the CCP has learned from its mistakes.  No longer is its violence against dissent as public as it was the morning of June 4, 1989.  And no longer does the CCP come off as a lawless regime.  Instead, its cloaks its crackdowns with a veneer of legality.  Since April 2014, in preparation for the 25th anniversary of the Tiananmen massacre, the Chinese government has detained – either criminally or through unofficial house arrest – over 84 individuals.  But these individuals are not detained under the guise of being counter revolutionaries like the students of the 1989 movement.  That would be too obvious.  Instead, the Chinese government has slapped the vague and overly broad crime of  “picking quarrels and provoking troubles.”  After 20 years of Western rule of law programs, the CCP has come to realize that the easiest way to deflect global criticism is to follow legal procedure, no matter how abusive, vague or entrapping that legal procedure might be.

If the 25th anniversary of Tiananmen means anything, China’s new strategy – the use of law to suppress dissent – must be

Everyday rickshaw drivers tried to save many of the students

examined and criticized.  China’s activists are being violently detained and imprisoned in record numbers “in accordance with the law.”  But that suppression of dissent is no different than what happened in 1989.  It is another method of killing the chicken to scare the monkeys – ensuring that the violence against a few “troublemakers” teaches the rest of society not to rock the boat.  This time though the rest of the world is increasingly complacent.

As the world marks the 25th anniversary of the Tiananmen Square massacre on Wednesday, China will be the lone nation that will not.  Since 1989, its people have been forbidden to commemorate the event; they are not permitted to remember; they are not allowed to note those fateful days that changed their lives more than anything in China’s recent past.  And that is why the events that other nations hold in honor of the many brave Chinese people who lost their lives on that night are so important.  Because while the Chinese government has found new strategies to more effectively deal with international criticism of its treatment of its people, the one thing that the outside world still has is the truth.  But that truth must not be limited to just what happened 25 years ago; it must also be used to call on China today stop its suppression of dissent today.  To do otherwise is a disservice the victims of that night.

One of the most iconic photos of the 2oth Century – one man stands up to a line of tanks