Comments (3)

By Elizabeth M. Lynch, January 2, 2012

The tale of Wukan village is not an uncommon one in China. Rural farmland is constantly taken by corrupt village officials for real estate development and the villagers – the owners of the land through the collective – receive little to any compensation. For certain Wukan’s story is a little different from other run-of-the-mill land taking protests: the length of the protests (close to three months), the unity of the group (close to 20,000 villagers), the complete expulsion of the Chinese government from the village, the death of a protest representative in police custody, and the attention from the western media distinguishes Wukan from other taking protests.

But now that it appears that the villagers and the provincial government have reached some sort of agreement, has Wukan ended differently from other protests?

Some China watchers have argued that it has and see Wukan as the general populace’s deepening understanding of its rights under the law and its willingness to fight for those rights (see here and here). But given the discriminatory structure of China’s Real Property Rights Law (“the PRL”) and the Land Administration Law (“the LAL”), one hopes that these villagers are not really fighting for their rights under the law as it stands now. As Prof. Eva Pils points out in “Waste No Land: Property, Dignity and Growth in Urbanizing China”, China’s property laws have been written specifically to render villagers into “second class property rights holders” and permit their land to be legally taken for urban development. The below summarizes much of the article and views the Wukan protest in light of Prof. Pils’ analysis.

How Villagers in China Get Screwed

(1) The Limitations on Rural Land Use Rights

As a nominal communist country, land cannot be privately owned in China. The PRL, passed in 2007, maintained that distinction. Instead, the land is owned publicly; in urban areas, the land is owned directly by the state; in rural and suburban areas, the land is owned by the village collective, usually through the villagers’ collective economic organization or the village committee. This difference in ownership between urban land and rural/suburban land is not just limited to who owns the land, but extends to what individuals can do with the land.

Although not directly owned, individuals are able to own certain usage rights associated with the land that they occupy. These land usage rights differ depending on the underlying ownership of the land – if it is owned by the state or if it is owned by the collective. In urban areas, these usage rights include the ability to live on and to construct non-primary residence buildings on the land (known as “construction rights”); rights to the land can last for 70 years in urban areas. As a result of the ownership of these “usage property rights” and the fact that these rights last for 70 years give urban residents the ability to buy, sell and lease their usage rights, providing somewhat of an appearance of actual individual ownership.

But in rural areas, the usage rights are much more restricted and this is where the problem first begins. First, villagers are pretty much limited to one type of usage right: the right to farm (there are other rights, such as the right to building housing). Under the LAL, which was adopted in 1986 and last amended in 2004, this land use right cannot be transferred or rented for “non-agricultural construction.” (See LAL Art. 63). Urban land use rights have no such restriction. The Property Rights Law (“the RPL”), passed eight years later, continued the limitation on rural usage rights.

Furthermore, rural land use rights are limited to 30 year terms. As a result of these restrictions, there is no free flowing market for the sale of rural land use rights – real estate companies interested in building a housing complex in a suburban area do not go directly to the owners of the rural land use rights; all they would be able to purchase is the right to farm the land (note that Prof. Pils does discuss the illegal minority use rights market between the farmer and the real estate investor).

Instead, where a real estate company is interested in building a housing complex or a factory in a rural area, the land must first undergo a transformation from a rural (where usage rights are limited to agricultural purposes with 30 year terms) to urban land (with “construction usage rights” for 70 years). To undergo such a transformation, the land must go from being collectively owned by the villagers to being state-owned. Under Article 60 of the PRL, it is the “village’s collective economic organization” or the “villagers’ committee” that acts on the villagers’ behalf, negotiating the compensation for the villagers’ land use rights.

As Prof. Pils points in her example of the Nongkou village in “Waste No Land,” the village committee itself often acts in its own interest, not that of the villagers. It appears that in the case of Wukan, the village committee was not representing its constituents; part of the reason that the Wukan villagers deposed of its government was the allegation that the village committee was corrupt and not reflecting the interest of the villagers.

(2) No Just Compensation

The first problem for villagers is the fact that the law leaves them with second class property rights – usage rights that can never be sold for non-agricultural purposes, necessitating the expropriation of the land by the village committee. But the second major issue is that the compensation villagers receive – if they receive anything at all after the village committee is done with the transaction – is nowhere near what is being paid for the transformation of agricultural land into urban land.

Under Article 47 of the LAL, when agricultural land is expropriated, compensation is “made according to the original purposes of the land being expropriated.” As a result, farmers are only entitled to compensation of the value of what they would have farmed over the remaining life of the 30-year lease rights (there are also other compensation other than the value of the land use right, such as resettlement fees but the largest part of the compensation package is for the land use rights).

The villagers themselves do not reap the benefit of the market value of the underlying land or even the full value of what they are relinquishing. In fact, as Prof. Pils notes, for most villagers, the compensation is a mere 5% to 10% of the value of transforming agricultural land to urban land. Article 49 of the LAL requires transparency to the village regarding money received by the collective for the land, but as the Wukan protesters point out, they had little knowledge of anything that was going on.
Furthermore, any complaint regarding the amount of compensation occurs after the compensation plan has been set (see LAL Article 48), making one wonder – what can really be done after the fact. Again, as Prof. Pils notes, because the compensation schedule is considered an administrative decision, it is not subject to judicial review, leaving the villagers with little legal recourse to contest the compensation (although petitioning always remains as an option).

Compensation appears to be a major in the Wukan protest. As part of the brokered settlement between the villagers and Guangdong provincial officials, the low-level of compensation will be reconsidered. (See China Media Project’s translation of a Nanfang Daily article). Hopefully, the villagers will be able to recoup some of the value of the actual transfer of the land to urban use and not just the value of their agricultural land use rights.

(3) The Discriminatory Definition of Public Interest

As Prof. Pils argues in “Waste No Land,” given China’s economic development philosophy over the past 35 years and the fact that land takings account for a significant portion of the local GDP, converting agricultural land into urban land is inherently defined as a taking for the “public interest.”

In fact, the whole drafting of the 2007 Property Rights Law has been predicated on the ability of governments to easily and cheaply take rural lands without providing the villagers with a more realistic compensation. Although both the Chinese Constitution and the PRL reiterate the government’s commitment to equal protection of the laws, the purposeful distinction between urban land use rights and rural land use rights, Urban land use rights are not under the same restrictive

The third and biggest challenge to being a villager in rural China is the expansive definition of “public interest.” Takings of rural land against the villagers’ wishes are legal in China if it is done in the public interest.
In January 2011, the State Council promulgated new regulations (in Chinese here) better defining “expropriation for the public interest.” But those regulations were limited to state-owned land, or in other words, urban lands. In the countryside, what is the public interest remains intentionally vague.

So What Happened in Wukan?

Wukan is not an example of villagers seeking their rights under the law. China’s property laws – the PRL and the LAL – provide little rights to villagers.

But there is certainly something happening here….I’m just not so sure what it is and perhaps it is still too early to determine if Wukan is in fact a harbinger of something more. Protests in China against rural land takings and the lack of just compensation occur on an almost daily basis. But in Wukan, these protests were large, public and extreme. Add to the mix that one of the protest leaders died while in police custody.

On some level Wukan had the potential to end differently, to end violently. But it didn’t. Instead, the provincial government stepped in to admonish the local officials (although interestingly enough such punishment is going to happen outside of the legal system and under shuangguai, the Party adjudication method – see Nanfang translation), praise the villagers, admonish against further protest and agree to provide greater compensation.
But how often can the provincial or central government step in and continuously calm these tensions? Arguably the government must recognize that it is the structure of the law itself that leads to such discontent. But such a discriminatory law is necessary to provide for real estate development, an increasingly important part of China’s GDP. Will the government change this paradigm and provide equal property rights to villagers? Right now it is unclear. Wukan seems to have ended in the same way as all of these protests do. But perhaps this time the central leadership will realize that constantly involving itself in these local protests is unsustainable.

Comments (3)

By Elizabeth M. Lynch, November 24, 2011

Dr. Zbigniew Brzezinski and Rebecca MacKinnon do not seem to have a lot in common: one is a young, blonde woman born in 1960s America and focused on internet freedom; the other is an older, grayed man born in pre-war Poland who might not really know what a blog is let alone a “microblog.”

But at last week’s China Town Hall event – sponsored by the National Committee on U.S.-China Relations (NCUSCR) and hosted by Fordham Law School – the general gist of each speaker’s message boiled down to the same point: don’t expect China to follow historical trends; this is a different time, a different place, a different beast and the U.S. needs to quickly recognize this reality.

Brzezinski on China: China is Not Nazi Germany

Brzezinski started the live webcast portion (watch the webcast here) with a very brief synopsis of his role in helping to normalize relations with China during the Carter administration.  The briefness of this interlude proved to be a pity and not just because the question and answer portion ended up being sort of lacking.

The history of U.S.-China relations after Nixon’s impeachment remains rather unknown to many.  In fact, I would venture to guess that few understand that Nixon’s 1972 visit to China did not normalize relations; normalization was left for another day, and as Brzezinski explained at the China Town Hall, President Ford didn’t believe that he had the mandate to transfer diplomatic recognition from Taipei to Beijing.  As a result of what appeared to be the U.S.’ waffling, relations between the U.S. and China worsened.  However, President Carter’s election in 1976 provided for a new chance at dialogue and with the help of Brzezinski, the U.S. and China eventually normalized relations in 1979 (Prof. Jerome Cohen wrote an interesting essay on the role of Ted Kennedy in normalizing relations – see here).

For the remainder of the webcast – the Q &A portion – Brzezinski proved to be more of a sphinx, giving short,

Deng Xiaoping and Jimmy Carter - 1979

somewhat cryptic answers to most of the questions.  As a result, there was plenty of time for question.  Perhaps it was a result of the fact that on the same day as the Town Hall – November 16 – President Obama was in Australia announcing the establishment of the U.S. base in that country or perhaps it is what is on most people’s mind, but most of the questions of the night focused upon China’s military ambitions and the U.S.’ appropriate military role in Asia.

For Brzezinski, the U.S.’ current posture toward Beijing – one where China is viewed as a threat – is troubling.  According to Brzezinski the U.S. is “pre-judging” the relationship: the U.S. has already determined that China will be an aggressive power and we must develop and deepen our alliances with other countries.  But we don’t know if that is true – we don’t know that China is or will be a Nazi Germany; while our guard should be up, we should be open to maintaining a good relationship with China and not isolate it from the rest of Asia.

Brzezinski made an interesting point and supported his argument that China is not as much of threat as we think it is with evidence – China’s military is light years away from being able to compete with ours and China maintains an ambivalent relationship with both Russia and Iran.

But Brzezinski didn’t address some of the very real pressures on the Chinese government to increase its saber-rattling: the military still maintains an extremely powerful role in running the Chinese government and to a large extent, often runs itself; China has become more bellicose in terms of its ability to control portions of the South China Sea; and the lack of communication between the U.S. and Chinese militaries can allow for a small incident to rapidly escalate into a full-blown international one.

In response to one question about rising nationalism in China, Brzezinski pretty much brushed it off (although he did make the important point that the U.S. is guilty of it too vis-à-vis China).  While he recognized that it could be a legitimate concern, this nationalism has not been accompanied by anti-American sentiment.  This just seemed shocking to me. And, as someone who was in China soon after the U.S.’ accidental bombing of the Chinese embassy in Belgrade in 1999, plain wrong.  Anti-American sentiment at that time was running high, enflamed by the Chinese media and communicated by many of the Chinese students I met on the Peking University campus that summer and early fall.  The anti-American sentiment quickly died down after the U.S. agreed to China’s accession to the W.T.O. in November 1999 but there have been other flare-ups since then.

While Brzezinski is right to state that our approach to China shouldn’t necessarily be guided by outdated models of Nazi Germany or even the Cold War, there are some aspects of China’s rise that precisely because they are different from what we have seen in the past, should cause us to be more on guard.

Rebecca MacKinnon – China’s Internet is Not Egypt’s Internet; It’s A Lot Worse

Sites That Don't Make it Through the Great Firewall

Certainly for Rebecca MacKinnon, the live local speaker at the Fordham Law School event, China’s increased nationalism is something on her mind, especially as it pertains to the internet.

It’s Not All About the Great Fire Wall

MacKinnon started her extremely enlightening talk on internet freedom in China by tearing down some American misconceptions.  For most Americans, there is this belief that the “Great Fire Wall” of China is what is preventing internet freedom in China.  It is this firewall that completely blocks out websites like Facebook, Twitter, and although not mentioned by MacKinnon herself, China Law & Policy, from being accessible in China.  U.S. policy toward internet freedom in China, and the money spent on such efforts, has largely – and mistakenly in MacKinnon’s view – been exclusively directed toward tearing down this firewall; finding ways for activists to circumvent the wall by accessing the internet through a non-China based virtual private network (VPN).

But the Great Fire Wall of China is only one layer in the Chinese government’s web of online censorship.  What are more damaging to internet freedom are the vast layers of censorship that occur on the Chinese side of the Great Fire Wall.

Internet Companies Do the Government’s Censoring

Because of the Great Fire Wall, social networking, blogging and microblogging is dominated exclusively by Chinese companies.  Like in America, Chinese citizens can post their thoughts to the internet and communicate with other citizens.  But unlike in America, anything that gets too political will be taken down by the hosting company.  Through various cyber laws and regulations it is these internet companies – like Baidu and Alibaba – that carry out the government’s censorship of the internet.

If these companies don’t follow the weekly guidance on what content must be taken down, their licenses to run an

Not Just the Police Watching You....

internet company could be revoked, putting them out of business.  Thus, under Chinese law, the government outsources its censorship: it issues directives but the internet companies are the ones that are liable if specific content makes it through.

Those companies who do their job well don’t just stay in business, but are rewarded for their vigilant censorship.  Every year, the Chinese government awards those internet companies who did the best job censoring a “Self Discipline Award.”  And the government is not being ironic.

Because censorship does take time and because the guidance on what content must be removed is an ever moving target, some things do make it past the censors.  MacKinnon provided a recent example: the July 2011 Wenzhou train collision.  Immediately after the crash, the government issued a statement saying that a train in Wenzhou was struck by lightning.  However, with smart phones, many bystanders quickly posted pictures of a train on its side, people obviously injured by something other than lightening, quickly debunking the government’s initial response.  That use of the internet but the general public resulted in the government being held accountable and having to report the truth.

But for MacKinnon, these types of opportunities are largely reserved for natural disasters or sudden accidents – things that happen so suddenly that the government hasn’t issued an order to the internet companies about whether such content should be removed.

What’s Not Censored?  Nationalism and the 50 Cent Party

MacKinnon also made an interesting point about the inequities of censorship in China.  It would be one thing if all political speech was censored in China, but it is not.  Instead, only that speech that could potentially harm the Chinese Communist Party (CCP) is censored; speech glorifying the CCP is provided free reign.

In fact, pro-Chinese government and pro-CCP speech is often ghost-written by the 50 Cent Party, government-hired internet commentators who get paid to post positive content about the Chinese government and the CCP.  So while the government is able to stamp out anti-CCP thoughts, it is also able to bolster its own image on the internet.

Make No Mistake, China is Not Egypt

For those who think that the Arab Spring is coming to a city in China sometime soon, MacKinnon’s message was clear: oh hell no.  With such tight controls over the internet, there is no way that a dinner party, let alone a revolution, could be organized through social media like it partially was in Tunisia and Egypt.  In the Middle East, there is enough space on the internet to meet like minded people and organize events.  In China, that space does not exist as the government maintains a tight grip on speech.

MacKinnon offered one example of the danger in organizing events through the internet or related to free speech on the internet.  In 2005, a group of Chinese bloggers organized a national conference in China about blogging – sort of like a NetRoots Nation here in the United States.  It gives a chance for bloggers who have communicated virtually to meet each other and provides an opportunity to learn to become a better blogger.

The conference was held again in 2006 and started to become an annual event.  Many bloggers began to wonder, is the internet a “special political zone” in the way that Shenzhen was a “special economic zone” in the 1980s?  The answer turned out to be no.  The last conference was held in 2009; in 2010, authorities went to the leaders of the conference and instructed them not to hold another conference.

Will The Chinese Internet Ever Be Free?

For MacKinnon change rests almost exclusively in the hands of the CEOs of China’s internet companies.  Right now, they have a good deal.  They have an exclusive monopoly on the internet.  Weibo, the Chinese microblogging site, doesn’t have to worry about competition from Twitter, and Renren, the major social networking site, doesn’t have to ever think about losing costumers to Facebook.  In exchange for such exclusivity, what’s a little censorship between friends?

But MacKinnon wonders if there will come a point where censorship becomes economically too costly for these companies.  If it does, then there could be a change.  What would cause that change?  That seems unclear.  In 2009, because of rioting in the predominately Muslim autonomous region of Xinjiang, the Chinese government took the drastic step of completely shutting down the internet in Xinjiang.  That shutdown didn’t last for a few days or a week.  That shutdown lasted for almost a year.  This wasn’t just an inconvenience; it harmed the local and regional economy.  But even this type of drastic action still hasn’t changed any of the internet companies’ approaches to censorship.  But perhaps if more of these outages happen or happen in a more populous location, Chinese internet companies might start wondering if aligning themselves with the Chinese government is really worth it.

As of right now, MacKinnon believes that the Chinese government has found a way to maintain its “Networked Authoritarianism.”   Chinese leaders at all levels use the internet to get their message out and there are efforts to have broadband reach all areas of China; this is not a government necessarily afraid of the internet; on some level, it has established the structure in place that allows it to use it to its advantages without any of the danger of dissent.  On some level, the Chinese government makes a mockery of the generally accepted idea that the internet is perhaps one of the most democratizing tools every created.

Instead, the Chinese government provides a model for other countries on how authoritarianism can in fact survive the internet.  The stories of Tunisia and Egypt do not hold true for China.

But as MacKinnon closed out her talk, just when you think you know what will happen in China, something surprises you.

Those interested in learning more about internet freedom should check out MacKinnon’s amazing blog RConversation or pick up her forthcoming book – Consent of the Networked: The Worldwide Struggle For Internet Freedom – when it hits stores at the end of January 2012.

Comments (0)

By Elizabeth M. Lynch, November 13, 2011

Since 2007, the National Committee for US-China Relations (NCUCR) has hosted a “China Town Hall,” a national day of awareness of the U.S.’ relationship with China.  As part of this Town Hall, the NCUCR organizes events throughout the country, hosts a webchat with a prominent China person (last year was US Ambassador to China Jon Huntsman), and encourages the local events to invite their own local guest speaker for a live conversation.

For the 2011 China Town Hall, NCUCR will be hosting a webchat with President Carter’s National Security Advisor Zbigniew Brzezinski.  Although it was President Nixon who was the first U.S. president to visit the People’s Republic of China (PRC), it was under President Carter that relations with the PRC were normalized and recognition of the Republic of China (Taiwan) was cut.  Dr. Brzezinski was in the middle of all these decisions.  More recently, Dr. Brzezinski has commented on the US-China relationship in a January 2011 N.Y. Times op-ed (see criticism of his opinion here).

Where to watch the China Town Hall? In the New York City area, this year’s China Town Hall will be hosted by

Prof. Rebecca MacKinnon

Fordham Law School, with the local guest none other than internet freedom guru Rebecca MacKinnon.  Now, I have never seen Prof. MacKinnon speak before, but in following her blog and her twitter feed, I have a feeling her talk is not to be missed.

BUT for the Fordham event, you NEED to RSVP – the event is free but RSVP is required.  Please RSVP here: http://cthnyc.eventbrite.com

China Town Hall
Fordham Law School
McNally Auditorium – 140 West 62^nd Street, New York, NY
Wednesday, Nov. 16, 2011
6:45 – 9 pm

6:45 p.m.  Doors Open
7:00 p.m.  Webchat with Dr. Zbigniew Brzezinski
7:45 p.m.  Live Talk with Prof. Rebecca MacKinnon
8:30 p.m.  Q&A with Prof. MacKinnon

Remember to RSVP here: http://cthnyc.eventbrite.com

For a listing of China Town Hall Events in your neighborhood, click here: http://www.ncuscr.org/cth

Comments (3)

By Elizabeth M. Lynch, October 24, 2011

On Monday, the Standing Committee of the National People’s Congress began its review of China’s new, draft Mental Health Law.  The draft – originally issued on June 10, 2011 and opened for public comment – has received much criticism both at home and abroad, in particular, Article 27 of the draft which permits involuntary commitment where an individual exhibits behavior that “disturbs public order” (扰乱公共秩序).

Prof. Michael Perlin

The Chinese government appears intent on ratifying the new Mental Health Law by year’s end, but the question remains, how will the new law change the current landscape?

Below, Prof. Michael Perlin, professor at New York Law School, Director of the Mental Disability Law Project, and author of the recently published “International Human Rights and Mental Disability Law: When the Silenced are Heard,” analyzes China’s new draft Mental Health Law, paying particular attention to its interplay with the Convention on the Rights of Persons with Disabilities (CRPD), a treaty China has ratified.

Click here to listen to the interview with Prof. Michael Perlin or read below for the entire transcript.
Length: 31 minutes (audio will open in another browser)

**********************************************************************
[01:31] EL: Thank you Prof. Perlin for joining us.

[01:33] MP: Happy to be here.

[01:34] EL:  Let’s begin by talking about your new book, specifically Chapter Four which discusses the use of mental disability law to suppress political dissent.  How long has China been using involuntary commitment to suppress dissent?

[01:47] MP:  We knew that it has been going on back at least 40 years, it may be before that, we don’t know.  This was written about first and most extensively by Robin Munro who brought most of this to the public attention and he gave some very, very serious examples of the misuse of state-sanctioned psychiatry in support of commitment of people who by any sort of standard, normative reason would not have needed commitment.

The use of involuntary commitment to squash dissent is not new in China and can be traced back to Cultural Revolution days.

[02:17] Sometimes it was done for political reasons, sometimes it was done for financial reasons.  There is this whole other set of cases where people wanted to get rid of a relative because they wanted to take over a business or something.  That was not unfamiliar to those who knew about this in the United States about the same time.  But clearly it was being used to suppress political dissent.

[02:40] When I wrote Chapter  Four of this new book, a lot of it flows from an article I’d done about four or five years before in the Israeli Law Review.  When I did that research, it was kind of interesting to me.  Most people know, or people who are interested in this whole general area, know that the former the Soviet Union, this was very common.  And there were exposes, the World Psychiatric Association sends a delegation in the late 80s, early 90s, there were quite a few books written about it and articles.  But China at that point nobody seemed to pay that much attention to, and it was pretty clear that the same kind of things were going on in China as were going on in the Soviet Union.  Fast forward, the Iron Curtain fell, some of the abuses – not all – in the former Soviet Union had been remediated to some extent. But again what was happening in China was pretty much under the radar.

[03:40] It became known, interestingly, with regard to what is seen as the persecution of the Falun Gong.  Is it a political group? Is it a kind of exercise? Is it meta-physical? I can’t answer that but it seemed very, very clear to me and to most neutral observers that practitioners and adherents were being singled out, and they were being marginalized as mentally ill.  One of the things, we’ll talk about it latter, is why do governments do this and I will discuss that in a few minutes but it seemed to me that China in many ways was paralleling[the experiences in the Soviet Union]

[04:25] What is interesting to me is that in this new draft act [China’s draft Mental Health Law], of which I am enormously ambivalent I should tell you, I think…and I have sent some comments to other people about it….I think there are some other things that are better than China has had before but an awful lot of it strikes me as very problematical.  [Much of it] would not only not meet constitutional standards in a Western country but also I think pretty clearly does not comport with the UN Convention on the Rights of Persons with Disabilities which China has ratified.

[04:58] It seems to me that  [in] this new law, Article 27  — about the disturbance of public order  — should be a red flag.  What does that mean?  We are sitting here on the corner of West Broadway and Leonard Street and how far are we from Wall Street where there is an occupation going on that seems to be spreading.  Is this disturbing the public order?   One could read the pages on Facebook and an awful lot of American citizens think it is.  Is something like this was being done in Beijing or Shanghai would, could everybody be dragged away to a psychiatric hospital?  Under the strict language of the Act, yeah, it probably could.

[05:36] EL:  Well, in terms of  that, and you sort of mentioned it in your answer.  The Chinese government itself has the power under even the criminal law, arguably; I mean maybe it is not directly stated in the criminal law but they use the power to detain people indefinitely.  Why do they choose to, for example Falun Gong and other dissidents, why do they choose to use a mental health analysis instead of using the criminal law when they are basically an authoritarian state.  Why did the Soviet Union do that, why does China continue to do that?

[06:13] MP:  It seems to me that there are at least three main reasons for that Elizabeth, and that truly is a great question.  First of all, there are always some, albeit minimal, procedural safeguards in the criminal process.  They

The criminal process in China has its limits

are not always adhered to.  … I spent some time working in China with criminal defense lawyers and I was teaching them how to, pedagogically, how to do certain things but I also spent much more time learning and I realized that it is not a lot those of us who have practiced criminal defense work in New York or New Jersey would go “oh my God”  [to much of what goes on in the criminal trial process in China] but at least there is a something there.  There is nothing there on the psychiatric commitment side.  So that’s number one.

[06:56] Number two, when there is a hearing, when there is an adjudication, there is usually a limit to the sentence.  It may be a draconian sentence, it may be for many more years than we would think make sense.  But at least there is a number there.  Psychiatric commitment is, in these jurisdictions indefinite.  And I should say, after the CRPD [the Convention on Rights of Persons with Disabilities], the Convention is ratified, I don’t think indefinite commitment without clear judicial review passes muster under the international human rights law.

[07:31] But the third I think is the most important.  Because I think  [psychiatric commitment] stigmatizes.  We know that if we call somebody a mental patient, he will be discredited.  And if he has political motives, that will mean, well, we can ignore them.  I use this example, I think, in that book, about someone in Romania (when Romania was a completely authoritarian state) who was picked up, and his psychiatric charge was [that] he was carrying a sign saying that the prime minister of the country must go; the [rationale was], “Well if he thought he was serious that someone would listen to him, he must be crazy.”  It’s a self-fulfilling prophecy.  It’s a loop.  But I think those three reasons together are really it.

[08:14] EL:  Right now, before…..I know they [China] have the draft [mental health] law published right now and it was opened for comments back in the summer, but before that.  Right now how does involuntary commitment work [in China]?  Are there laws in place?  Who makes the decision if an individual should be involuntarily committed?  How does it work?

[08:33] MP:  The decisions is made basically by the State.  Someone gets picked up; very, very often family will call and ask: take my relative and send him to the hospital.  And there is no independent assessment.  In 1985….I should say to your listeners, I have been a professor since the mid-1980s but I was a real lawyer before that.  I practiced 13 years both as a criminal defense lawyer and as an advocate for persons with mental disabilities.  I filed an amicus brief in the U.S. Supreme Court in 1985 in a case called  Ake v. Oklahoma in which the Supreme Court ruled that a person who is indigent had a right to a psychiatric evaluation at state expense if he was putting forth the insanity defense.  The idea being that this is something that can’t simply be done, can’t be decided on the say-so of the state doctor.

[09:32] In China it is always done on the say-so of the State doctor.  There is virtually no sense of independence.  There is also no lawyer appointed.  One of the issues that I think is really important; we know this, we know that both among the United States and in other nations, serious mental health reform only happens when there are lawyers assigned to represent patients.  I know that sounds very lawyer-centric.  Pardon me, I plead guilty to that.  But if you were to go to the United States and go state-by-state and see where has there been reform, where has there not, it’s an easy question.  Where have there been lawyers like in New York, the Mental Hygiene Legal Service, like in New Jersey, the Division of Mental Health Advocacy law office, like in DC, the Public Defenders Service/ Mental Health Division, that’s where it happens.  In other nations, where you have it: Israel is a nation that has a robust public defenders office doing these things and they are enormously successful.  Where there are no lawyers, reform doesn’t happen.

[10:29] There are no lawyers doing these cases on the ground in China.  I believe that after ratification of the CRPD, this needs to happen.  Commitment must be subject to the judicial process at every step.  That is demanded by the CRPD and it’s not in the draft [Mental Health Law] much less in the older law.

[10:49] EL:  So to clarify, the draft mental health law that has been proposed has no provisions for a lawyer to be appointed.

[10:57] MP: Correct.

[10:58] EL: And there is no independent review of a state’s decision.

[11:00] MP:  One can ask for a review but it is absolutely, utterly optional.  There is no sense that it is obligatory, it is not mandatory.

[11:09] EL:  Now, in terms of involuntary commitment, you say that the decision is made by the state.  Would that be – what division of the state?  Is that the Ministry of Public Security or is it not clear?

[11:21] MP:  It’s not clear.  You have sort of two different ways it could happen.  The Ministry of Public Security and

An Ankang Hospital in China

this whole Ankang hospitals that are really shrouded….I mean, I heard about them….oh my goodness…I’d been doing mental disability work my whole career.  I’ve been doing international human rights mental disability work for 11 years.  I’ve been going to Asia for nine years.  But it wasn’t until about four or five years ago that I even heard about these hospitals.  And they operate…there is virtually no way to find out what’s going on in them and that ministry is Public Security.  The others go through the Ministry of Health, I believe.

[12:00] EL:  So the Ankang hospitals are within the Ministry of….?

[12:05] MP: Of Public Security.  And those involve people who are seen as being criminally dangerous.  It’s a very, very murky line between criminality and other kind of dangerous behavior.  Very often, it’s what you choose to call it.  But there is very little, there is no review, and there is very little outsider involvement.  It’s like a world in and of itself.

[12:33] EL:  And in terms of that line between criminality and involuntary commitment….One of the things that is being heavily criticized both by foreign scholars and even Chinese legal scholars is this continued use of “disturbing public order.” And that’s included in the new draft mental health law.  My question is….just to get to the people who write this law.  Is there any sincerity in the use of this term?  Does the Chinese government believe that….I mean is there sincerity in the belief that perhaps the expression of a different opinion is evidence of mental illness?  And how do they get doctors on board with that?

[13:13] MP:  It’s very hard for me to tell what was in their minds.  There is no record of this.  And you can come

Occupy Wall Street - Political Protest or Endangering Public Saftey?

with multiple explanations Elizabeth. On one hand you can look at it just plain meaning.  Endanger public safety means somebody is standing in the middle of a main street screaming at cars, right?  That could cause an accident.  And that you and I would agree might endanger public safety.  And that’s one possibility.

[13:42]  [This is another:] … In this study that was done by the Equity and Justice Initiative of Psychiatry and Society Watch that was published recently which analyzes this commitment system in China, it is replete with example of people who were picked up and psychiatrically hospitalized because basically they were seen as dissident.  It’s an over-used word.  I am very concerned in any jurisdiction but especially, especially, in a jurisdiction that has this kind of track record of locking people up for disagreeing politically.  I am very concerned that this kind of language, like in Article 27, is far too overbroad and I see that as a really troubling issue.

[14:29] Why do state psychiatrists go along with it? This is something I have been trying to deal with for 20 years in terms of thinking about it and you don’t know.  I remember reading one study in which the researchers said – well you know if we went along for the ride we would get more vacation days or get a nice home at the beach – something like that.  Which sounds so depressingly banal, right, but it also in fact may be so.

[14:57] Some may also feel as if they[examining psychiatrists] are an arm of the state.  I have heard, I have been in meetings, just so your listeners know, I have been mainland China five or six times and have done quite a bit of work there and I have been at meetings with psychiatrists and I’ve tried to listen to what people say.  Very often….most recently I was in Beijing in June this summer, and I heard a psychiatrist say – “oh well, you know, I can kind of look at this guy in the eyes and I will know if he needs to be institutionalized.”  That kind of behavior was repudiated when I started practicing law, I heard doctors say that.  That’s been repudiated in the States for the last twenty or thirty years.

[15:42] Very, very much of what I heard on this last trip to Beijing – Yogi Bera said it is déjà vu all over again – very much of what I heard was very close to what I heard in the early 1970s when I started practicing law in New Jersey.

[15:55] EL:  Well in that regards, and this is a little maybe off topic because it’s not as much related to law, but has there been efforts….I know that there are a lot of rule of law projects from the US in China to help strengthen the legal profession.  Have there been efforts to maybe create….strengthen the professional mindedness of the psychiatry profession in China?  Has there been any attempts to do that and hopefully through that way, develop a grassroots feeling of independence?  Or is that something that might just be too difficult?

[16:26] MP: If this was a TV show rather than podcast, your listeners would be seeing my face at this moment.  Yeah, kind of, maybe, a little bit, not much.  I know the World Medical Association has taken seriously some of these issues.  There’s a psychiatrist in Mamaroneck, New York, Dr. Abraham Halpern, one of my heroes.  Abe has been working on some of these issues for the last 30, 40 years.  Mostly he is focusing on things like organ transplants now.  But he has been a gadfly to the World Medical Association encouraging it, as has  Dr. David Matos of Canada.  But generally not so much.  I don’t see this…..

[17:05] There is an interesting subtext issue here.  One of the things I write about, and I discuss it extensively in this book, is what I call “sanism.”  Sanism is the kind of irrational prejudice like racism, like sexism, like homophobia, in which we stereotype people with mental disabilities, we trivialize them, we typify them, we don’t take them very seriously.  We treat them as less than people.  Because of that, we generally – we meaning society – pay much less attention towards what psychiatrists do with purportedly “crazy people” than we do when there are other violations.  When people mistreat women, when people mistreat children, when people mistreat gays, there is a predictable and appropriate outrage on page one on all the blogs.  It doesn’t happen here.

[17:55] Internationally there is only one organization, a group called the Mental Disability Advocacy Center located mostly in Budapest, a couple of other sites in Europe, that is doing this work on a global level.  I am working with my friend and colleague Yoshi Ikehara who is head of the Tokyo Advocacy Law Office (as I said before we went on the air) to create a Disability Rights Tribunal for Asia and the Pacific.  But there is very little else that is being done.

[18:19] This is a population that people, even people who see themselves as traditional liberals –  traditionally progressive, traditionally focusing on social justice – which just as well go away.  They think it is yucky.

[18:34] EL:  In terms of….focusing on the international efforts, you had mentioned the CRPD, what international law is out there that would push China forward in this regards?  Since China has ratified some of the treaties, what can be done on an international level besides just issuing reports that they are in violation of the treaty?

[19:01] MP:  That’s the hardest question Elizabeth; it’s the most important question.  This treaty which has been on the books for three years….

[19:10] EL: And this is the CRPD?

[19:12] MP: Yes.

[19:12] EL: Which stands for?

China has signed & ratified the CRPD but does it follow it?

[19:13] MP: Which stands for the Convention on the Rights of Persons with Disabilities, is without any question the broadest document ever written on behalf of this population.  Importantly it repudiates the medical model and substitutes a social model of disability.  In other words, this is not simply “we have sick people”; this is, “society deals with this population a certain way, [and we need to] figure out what to do.”

[19:35] Irony, off to the side, what is so interesting to me is how the role of psychologists is so limited in this draft act [China’s draft Mental Health Law].  The CRPD moves away from the medical model, [and,] as such, psychologists – non-physicians – the use of them, the reliance on them should increase, not decrease.  One of the things that I am seeing between the lines with my magic decoder ring on is that there are struggles between the psychiatric trade associations and the psychological trade associations in China; the psychiatrists have much more political clout, much more legislative clout, so this is basically guild stuff.  That’s there.

[20:14] So, going back to what you said before.  It’s clear to me and I write about that extensively in the book, there are many articles that talk about due process basically, that talk about freedom from torture, freedom from cruel and unusual punishment, ant-discrimination, access to justice, on and on – and again I would be happy to send you some more recent things that I have written about it since I’ve written the book – and it seems to me that China is failing at all those.

[20:45] But then comes the question, and so what?  What are you going to do?  What can you do?  One of the reasons why Yoshi and I are devoting so much time to the creation of what we call DRTAP, the Disability Rights Tribunal for Asia and the Pacific, is because in Africa there is a commission on human rights; in Europe there is a court on human rights; in Latin America there is a court on human rights, in each case, a court or a commission.  There is nothing in Asia.  There have been seminars, there have been meetings, there is this group called the ASEAN , to which seven nations belong; some [groupings of nations] belong to other [pan-Asian groups that deal with other issues], but there is no Asian-wide tribunal.  Why? Good question.  People talk about “Asian values,’ [but] I reject that [as the reason why there is no human rights body in Asia] and I could talk about that later if you want me to.

[21:31] But without that, a person can, ostensibly, theoretically, appeal any kind of a decision directly to the Human Rights Council of the United Nations.  That’s pretty difficult for anybody to do.  It’s difficult for a person in a nation with a developed economy, what we call the first world, it is certainly, virtually impossible for someone in China to do without a lawyer, especially somebody is not in Beijing or Shanghai or one of the major cities.

[22:03] I went to Xi’an a couple of times to do some work and I talked to a lawyer who said: “Prof. Perlin, I’m not sure if you understand. In our province, we get to court by horseback”. This was in about 2007, 2008; this is not 20 years ago.  There basically, they have at this point in time, almost no legal recourse.  What you can do is [appeal to] the court of public opinion.  We’re trying to do that.  But again I am very saddened and disappointed that this issue has not sort of spread beyond the small circle of people who take this seriously, who care about it, who write about it, who foment about it.  I think some of the reason for that Elizabeth is sanism, that these people are just simply seen as not human, not as important.

[22:45] EL:  So are you saying that this issue hasn’t spread beyond the small group that focuses on it, so a lot of maybe the US’ projects in China, do they….are there US rule of law project that are pushing this?  Is it also I guess in some way our fault?

[23:01] MP:  Yeah it is.  Oh clearly it is our fault.   … I am on the Chinalaw LISTSERV, as you are, and if you spend a month there you will see there are certain topics that get written about a lot.  Some very serious topics.  Certainly there are serious human rights issue dissidents, things of that sort, but most of it goes to business law.  And that that does not go to business law, a lot go to things that are extremely important like environmental law.  Anyone like you or I who have spent time in China know how serious these problems are.  But there is virtually no attention paid [to the issues we are discussing here].  You and I could sit down after this is over and count on one hand the people who have done substantive posts in the last three years about this issue on that LISTSERV, and we would  have a couple of digits left over.  So yeah, I think that I can fault those generally interested in the “rule of law”  or “just society” for not taking this seriously enough.  Well you know everyone has their priorities, we can’t do everything and that’s true.  But this is an area that virtually no one is taking seriously.

[24:05] EL:  Back to China, in terms of the new draft mental health law, you said that you are extremely ambivalent about it.  Could you talk more about your feelings about what is good, what’s not good.

[24:18] MP:  The fact that there is a law; the fact that it sort of talks about the fact that there has to be some kind of structure to this; and the fact that at least there will be something to assess, something to test.

[24:30] But let me laundry list some things that I think are problematic.  First of all, I don’t think whomever drafted it ever looked at the CRPD.  It does not appear to me that that was ever done, and that should have been.  Elizabeth, when I talk to people — I am very fortunate, I have gone and done human rights law on every continent (except for Antarctica,  the penguins still haven’t asked for me)  — I’ll say to people now, when you re-write your law – I was in Argentina two or three weeks ago and I spoke to the World Psychiatric Association and I spoke to people from several nations and I said exactly the same thing – if you are rewriting your law, on the left side of your desk, you need the CRPD and for every section you write, go and look at the cognate section [of your local law] and ask, “Are we in line with this or not?”.

[25:16] EL: Well let me just interrupt for a second about that, I know there has been a lot of talk about the criminal procedure law, who has assisted in drafting that, do you have any idea which agencies of the government have assisted in drafting the Mental Health Law, if there has been any famous academics…is there any transparency about that?

[25:36] MP: I don’t know.  It may have happened, but I simply don’t know or it is something that I am just not a part of those conversations.

[25:45] As I said before, again call me lawyer-centric, I think there needs to be appointment of counsel…period.  Article 29 through 32 talk about maybe commissioning a forensic mental disability evaluation agency for second opinions in some cases.  But without a counsel, I don’t think it’s really going to make very much difference.  I think any part, every aspect of commitment has to be subject to the judicial process every step of the way.

[26:16] There are lots of other things that I sort of saw going through it.  On Monday, in my class on survey of mental disability law, we talked about the topic of sexual autonomy, the rights of persons to have some kind of sexual freedom, and I have written about this in an article I wrote in the Washington Law Review a few years ago about sexuality issues in Asia and in China, you might find that of some interest.  Nothing about it there.

[26:43] Their criteria for commitment are not really clear.  There has to be a causal relationship between mental illness and risk and dangerousness.  That is never spelled out.

[26:52] There is nothing about the institutionalized patient’s right to refuse medication, a huge, huge issue.

[27:03] There is a whole thing in Article 24 about when relatives can send a “suspected mentally disabled person” to the hospital.  Without criteria that is really, really problematic and I think that is an issue that needs to be dealt with.  Very, very often, somebody will come to a psychiatrist and say “doctor, my brother, sister, whatever is crazy” and that becomes sort of the fact in evidence, even though there’s no  [actual] evidence before [the psychiatrist.”].  That’s where we start out and I think that’s really a serious, serious issue.

[27:34] As I said before the “endanger public safety language” in Articles 26 and 27 is  especially problematic, especially, Elizabeth, given China’s history.  Article 28 talks about “diagnosis” but “diagnosis” is not “risk assessment”.  A person can have what we would call in the States an Axis 1 diagnosis – schizophrenia, bi-polar depression, major depression – and that does not mean they are committable because [to be committable], you have to have with that, as a result of that, the likelihood of serious danger to self or others.  That is not spelled out at all.

[28:14] The possibility, everybody has ballyhooed in Article 29 about this sort of duplicative examination…I am not convinced at all that it is going to be really independent.

[28:27] Starting in Article 30 it talks about forensics but I am really puzzled because there is nothing else in here about the criminal process.  It is just not clear to me what that is.

[28:38] I think rights need to be enumerated.  If you go to Article 34 we also have to articulate the fact, and again this is constant both with the CRPD and all developments of the last forty-plus years that the right to treatment has to be in the least restrictive alternative.  We have to talk about community treatment.  We have to talk about de-institutionalization.  We have to talk about congregate care, halfway house, on and on.   That’s not here anywhere.

[29:03] Psycho-surgery is discussed in Article 39.  Absolutely not.  That should never be an acceptable treatment.

[29:09] I was puzzled again as I said to you by the lack of….how psychologists appear to me to be squeezed out.  Again, I see this as kind of guild-mentality; it troubles me a lot.

[29:25] What can be done about this, I’m not that smart.  I have sent my comments in to other people who hopefully have the ear of those who do listen.  Hopefully something will happen.  But I looked in file before you got here but I have not heard back, gotten anything substantive on this in the last two months.

[29:41] EL: Well that’s what I want to ask you in a close out question basically.  There has been actually some verbal criticism by Chinese scholars about the draft mental health law and highlighting a lot of the things you have mentioned including the endangering public safety, disturbing public order issue.  Do you think the Chinese government will listen to any of this criticism?  Do you anticipate that the draft will change before it is adopted?  Or are these things that the Chinese government hasn’t been able to get past yet?

[30:15] MP: I wish I knew, Elizabeth.  I say jokingly I’m smart, I’m not that smart.  There will be some changes.  I think if they made no changes at all that would be a public relations disaster because that would mean we are ignoring everybody, we are doing just what we want, and take a hike.  There will be some changes.  I’ll say some of it will be better.  How much of it?  Ten percent?  A quarter?  I don’t know.  I wish I could be more optimistic and say – oh they are going to listen to everything we say – no, get real, they’re not.  But I am hopefully that it will be incrementally better and the way that it is written will give us more and people who are on the ground more to work with.

[30:59] I’m very sensitive to the fact, I go to China once a year, at the very most twice a year, I live in New Jersey, I work in New York, I am a foreigner, I am an outsider and all I can do is listen and learn and share some ideas.  It has to be done by the people on the ground.  I certainly spend a good deal of time talking to them and I hope that as a result of that something happens.  I remain….I’ve been doing this work for a long, long time…I remain an unflaggingly optimistic guy so I hope it is going to happen.

[31:30] EL: Okay, well, I guess we will find out.  It is suppose to be passed by year end.  Thank you very much Prof. Perlin for your time and your knowledge.

[31:40] MP: Thank you, Elizabeth, it was a pleasure.

Comments (3)

By Elizabeth M. Lynch, October 12, 2011

For a split second last week, I was transported from the doldrums of the current economic malaise back when the good times rolled and people didn’t worry that next week their paychecks might bounce – in other words, I attend a panel discussion on China’s current luxury goods market.  If you thought everyone was suffering the same in this economy, think again – according to the panelists, China’s luxury goods market is red hot and is continuing to grow.

I don’t have a specific panache for luxury goods (hell, I don’t even own a designer handbag), but decided to attend the Fashion Institute of Technology’s panel discussion entitled “Fashion, Beauty and Status: One Year on the Front Lines in China’s Luxury & Apparel Markets” at the recommendation of the China Law Blog’s post about one of the speakers.  What did I wear?  Business casual which was way out of touch with most of what the much more fashionable audience was wearing, an audience that topped over 150 people, reflecting the very real importance of the Chinese market to high-end fashion.

The talk itself, moderated by FIT  professor Lawrence Delson, featured three experts in the field: Byron Lee of the Hong Kong Trade Development Council, Michael A. Zakkour of Technomic Asia, Prof. Mark Greiz of FIT and MG Consulting.  (copy of Zakkour’s presentation can be found here)

All three speakers harked on the expansiveness of the Chinese luxury good market, a market increasingly driven by the young and by the female.  According to Zukkor who conducted a study on China’s luxury goods market, China’s growing middle and upper middle class, with 300 million consumers, is driving the growth in the luxury goods market and the need for more “affordable luxury.”  With a “spending mentality,” speaker Bryon Lee stated that by 2015, China will be the world’s largest luxury good market.  According to Zukkor, women in China spend $2,000 a year on handbags and their average yearly salary is $18,500; in the US, where the average woman’s salary is $150,000, women spend only a bit more: $3,000 a year on handbags.  (note: the average salary for women in the US seems to be a bit high and might just represent the average income of upper middle class women).

With those numbers, it is obvious that any successful luxury goods business must include China.  But those venturing to sell their goods in China must note the difference in sales and marketing vis-à-vis the West; to think that China is just an oriental version of the United States, London or even Prague would be a mistake.  According to Zukkor, the channels by which to get your goods into China are very different; there is no wholesale-retail model.  Instead, there are three ways for a foreign designer to reach the Chinese market: (1) through a distributor who will place the product in department stores and shopping malls; (2) by setting up your own brick and mortar store; and (3) through e-commerce.

Zukkor noted that Chinese customers’ e-commerce activity is very different from consumers in the West.  Unlike in the West, Chinese consumers don’t just “browse” the internet; rather they research and shop through the internet and their access to the internet is increasingly on mobile devices.  Many women will research their handbag purchase for two to three months before purchasing the product.

But no matter which method you use to access the China market, Mark Greiz stressed the importance of marketing to the Chinese market.  Unfortunately for the audience, Greiz’s presentation, which proved to be the most practical, was cut short because of time limitations (FIT would be well advised to so a second presentation just on marketing).

By providing various examples of successful marketing in China (L’oreal) and some unsuccessful examples (Quicksilver, American Apparel), Greiz highlighted the need to “localize” the brand: hiring local staff (L’Oreal’s China staff is 90% Chinese), using the Chinese language in marketing (this was a huge failure for Quicksilver who didn’t translate their US ads), and creating story for your brand that speaks to the hearts and mind of the Chinese consumer (American Apparel failed to explain to Chinese consumers why he should pay $40 for a t-shirt).  Greiz also stressed the need to have a very strong online presence to your brand.

Lee, Zakkour and Greiz painted a very rosy picture of doing business in China, contrary to many of the warning stories that you read in the Western press.  But many of those stories focus on China’s lack of rule of law in enforcing contracts.  So I asked the panelists – given the negative stories you hear about doing business in China, specifically with China’s legal enforcement issues, what should people be worried about.  And this is where I realized the difference between lawyers and business people – all of the panelists focused on the practicalities of the China business environment.  In terms of IP issues, Zakkour did acknowledge that China did have issues with the law on the books versus the law in reality but stated that it was more of a problem for “sensitive” industries, not luxury goods.  Zakkour did note that China is a “first to file” country for trademarks making filing a very important step in any Western company’s foray into China.  The moderator of the talk, Prof. Delson, was perhaps the most practical of all, noting the importance of maintaining good relations with government officials, especially if you are doing business in a second-tier or third-tier city (i.e. not Beijing or Shanghai).

But what the panel didn’t deal with is whether the future they project for China’s luxury goods market is in fact sustainable, or perhaps more aptly, obtainable.  In one slide, Byron Lee showed the increasing disparity between wages for urban/middle class consumers and rural/lower class consumers, which was projected to grow further.

Furthermore, David Barboza, in this Monday’s New York Times, reported a bleak outlook for China’s middle class.  Instead of showing any growth contrary to the FIT panel, Barboza noted that China’s consumer spending, as percentage of its GDP, has dropped in the past 10 years, from 45% of GDP to one of the world’s lowest: 35% of GDP.  The fact that Chinese citizens have to bear their health care costs themselves, that real estate prices have increased to the point beyond most average person’s reach and that inflation is rapidly rising, Chinese people have remarkably high savings rates.  Furthermore, to sustain cheap loans to Chinese businesses, Chinese banks provide such low rates of interest on savings accounts, rates that do not even keep up with inflation, that average Chinese citizens are losing money.  But they are left with almost no other investment options and most still keep their money in savings accounts.

In his presentation, Zakkour acknowledge the high savings rate of older Chinese people, saving up to 50% of their incomes.  But on a “happier” note, Zakkour stated that younger people – in the 28 age range – only save 4% of their income, providing for excessive income for luxury good purchases.  But 4% seems ridiculously and irresponsibly low.  Perhaps with the one child policy, the youth are relying on their parents’ savings.  But the one child policy would also require these kids to save for their parents; no longer are the expenses of elderly parents shared among multiple siblings; instead there is only one child who must make enough to provide for their parents in their retirement in addition to saving for herself.

“Fashion, Beauty and Status” provided important lessons to selling luxury goods in China and offered a road map for those ready to enter the market.  But as with all things China, it’s unclear what the future will be, even as the luxury goods market seems to be doing well today.  Those who want to do business in the luxury goods market should be sure to know that there is still some risk.

Comments (0)

By Elizabeth M. Lynch, October 10, 2011

Over at the US-Asia Law Institute’s blog, research fellow, Jeremy Daum has just published a thought provoking article on the Zhang Guoxi case, the first case to publicly – and perhaps most effectively – use China’s exclusionary rule to exclude evidence that was obtained through torture.

In June 2010, China surprised the world by issuing detailed rules on the use of evidence obtained through torture, essentially excluding it as the basis of conviction when the prosecutor could not show that the evidence was obtained legally and without torture.  China Law & Policy blogged about these new rules here and here.

On paper, the new rules provided hope that the police would reign in their ardent use of torture as a means to obtain a conviction.  But in practice, it appeared that the courts, the enforcers of the new exclusionary rules, had little institutional power to control the more powerful police and prosecutor’s offices.  This fear appeared to be realized when the Supreme People’s Court, a few weeks after the Rules’ adoption, chose not to apply them to overturn a death sentence that appeared to be based on a confession obtained through torture.

But as Daum describes below, a trial court in Ningbo has done what scholars thought was impossible – use the exclusionary rules to deny the use of a suspect’s confession where the prosecutor was unable to, or more aptly was too arrogant to provide evidence that the confession was obtained legally.

The Ningbo trial court did not just stop there.  Instead, the trial court issued a clear and transparent opinion on its decision, reflecting its reliance on the letter of the law concerning the new exclusionary rules. As Daum notes below, in China such an opinion from a trial court is rare making Daum wonder, what impact will the appellate court’s decision (the decision has now been appealed to the intermediary court), and the public’s response, have on the Chinese government’s impending adoption of an amended Criminal Procedure Law (“CPL”).

Below is an excerpt of Daum’s interesting article with a link to the full version.

 

Zhang Guoxi Case: a simple case of bribery?

Excluded : The Zhang Guoxi Case

By Jeremy Daum
Research Fellow, US-Asia Law Institute, NYU Law School

Normally, ‘dog bites man’ is not news, but in the generally bleak climate for reform that pervades China’s criminal justice system, a story of “judge upholds law” has gained some traction in the Chinese media. As Chinese and foreign experts scrambled to absorb new draft revisions to China’s Criminal Procedure Law (CPL) in time to offer their opinions during the single month allotted for public comment, another less publicized story was also making waves in the legal community. A trial court in Ningbo has been hailed as the first to give full force to rules on the exclusion of illegally gathered evidence jointly introduced slightly over a year ago by China’s Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Justice and top law enforcement agencies (“the Rules”), by excluding a confession and allowing a defendant to go unpunished…

…The case itself is remarkable only in its mundanity.  It is an ordinary bribery case in which Zhang Guoxi (章国锡), an official from a local construction administration project, was accused of abusing his office to accept seventy-six thousand yuan (about $12,000 U.S.) in graft over four years. The mistreatment that Zhang allegedly received at the hands of interrogators is also not the sort of blood-curdling horror story that “shocks the conscience” or that one might expect would provoke a judge to take a stance against his investigative and prosecutorial colleagues, risking his career and reputation….

….What is exceptional about the case is instead the trial court’s insistence that prosecutors and investigators follow both the spirit and the letter of the law.

Read the full article here.

Comments (0)

By Elizabeth M. Lynch, October 2, 2011

London's Chilli Cool

Is it possible to go to a foreign country, live there for a number of years and remain completely unchanged?  In the case of British cuisine, the answer is a resounding yes.  Although England ruled countries with the world’s most flavorful food, the Brits never thought to incorporate any of the newly found spices into their own cuisine.  But while British food has remained unchanged, major cities in the U.K. are filled with foreign restaurants, which have a good number of British customers.  By choosing not to create a fusion cuisine, the Brits have guaranteed that cities like London have some of the most authentic ethnic restaurants;  arguably the best Indian food outside of India can be found in London (major props to Masala Zone – yes it’s a chain, but it was phenomenal).

But what about Chinese food in London?  For over 100 years, England ruled the island of Hong Kong and made significant inroads into the Mainland prior to the Communist takeover, with major concession areas in Shanghai and Canton.  But unfortunately, the number of good Chinese restaurants in London is scant.  In speaking with a London friend  who spent many years in China, she noted that there were only around three good Chinese restaurants in London, a disappointment indeed.

And that is how I found myself at Chilli Cool (the misspelling of “chili” is intentional), one of the recommended three, in the Kings Cross area of London.  From the moment you open the door to the restaurant, Chilli Cool is unmistakably Sichuan, with the smells of the region engulfing you- a very promising sign.  Additionally, Chilli Cool compromises two restaurants, one that serves Sichuan hotpot and one that serves appetizers dishes.  My friend and I opted for the main restaurant to try the dishes.

Savory Hot Spicy Chicken

The first dish we ordered, Sichuan Savory Hot Spicy Chicken (No. 6), a traditional Sichuan appetizer where the Chinese literally translates to “mouth-watering chicken”, was not just dead-on authentic but delish.  The chicken, served in a bowl drenched by a Sichuan hot sauce and sesame seeds, was tender and although the dish is filled with a canopy of spices, the flavor of the chicken (which is served cold) is not lost.  Instead, the spices only enhance the flavor. The chili is the main flavor of the dish, but the subtle smokiness of the black pepper serves as a wonderful compliment.  Any trip to Chilli Cool is incomplete without ordering the Sichuan Savory Hot Spicy Chicken – Chilli Cool offers the best version of the dish that I have had outside of China.

To shake things up, we then ordered the Hot & Spicy Spare Ribs (No. 29) and the Dry Fried Chicken with Cumin & Chili (No. 37).  Unfortunately that is where our culinary adventure began to go off course.  Aside from the meat selection – one with chicken, one with pork – the dishes were exactly the same.  Neither the English description nor the Chinese

Two of the Same - Dry Fried Chicken (near) with Hot & Spicy Spare Ribs

name of the dish signaled that two dishes would be virtually identical and our waiter did not let us know that perhaps choosing two of the same dishes was not a good idea.

Fortunately, the chicken version came out first and was amazingly good and flavorful;  if one had to choose between the two dishes (which one should otherwise it is repetitive), the chicken version is by far superior.  The chicken was lightly fried and breaded, giving the dish a lightness that is often not found in fried Chinese food.  For those with a more delicate palate, the dish was not overwhelmingly spicy and was bursting with flavor.  The scallions, onions and peppers were fresh and perfectly complemented the mild chili flavor.  However, the dish likely could have used a touch more cumin as that flavor went largely unnoticed.

As for the pork version, the spare ribs were a bit dry.  Additionally, the flavoring of the dish tastes better with chicken.  Arguably other pork dishes on the menu would be a better choice.

As our fourth and final dish, we ordered one of my favorites, Shredded Potato with Spicy Dried Chili (No. 18).  When I lived in China, this dish was a staple for me and when made right, is a good carbohydrate alternative to

Shredded Potato with Spicy Dried Chili

rice.  Unfortunately, Chili Cool could not have made it more wrong.  The dish, which is usually very lightly fried, came out drenched in grease.  If made right, the potato slices should be firm; in the Chilli Cool version they were soft and soggy.  For some reason, Chili Cool added cloves to the dish which was weird and messed too much with the flavor.  Our Shredded Potato dish remained untouched during our meal.

Although one of the dishes was largely inedible and we were not properly warned that two of our dishes were twins of each other, I would still recommend a visit to Chili Cool when in London.  Two of the dishes were pretty amazing and could easily compete with the Sichuan chefs of Chengdu or Chongqing.  However, it might be best to stick with the traditional Sichuan “appetizers” (like dan dan noodles and Sichuan dumplings).

However, do note that Chilli Cool is no where near “Chinatown cheap.”  With four dishes and one beer, Chili Cool set us back 40 pounds (approximately $63), a lot of money considering two of the dishes were not that great.  Chilli Cool holds promise to be an amazing experience but a more careful selection from the menu is necessary.

Rating:

Chilli Cool
15 Leigh Street
London, UK WC1H 9EW
020 7383 3135
Nearest Tube Station: Kings Cross
http://www.chillicool.com/home-eng.html

Comments (0)

By Elizabeth M. Lynch, September 27, 2011

Last week, Seton Hall University School of Law featured an interesting and timely panel discussion on the role of China in UN peace operations.  As China rises, what role does it envision in such operations?  With its new global capacity has China moved away from a policy of non-intervention?  China’s reaction to the humanitarian intervention in Libya is indeed instructive.  Below, Zachary Kelman and Desiree Sedehi, two third-year law students at Seton Hall, report on last week’s fascinating discussion.

Steven Hill on a New Beijing Consensus in UN Peace Operations

By Zachary Kelman and Desiree Sedehi*

Steven Hill on China's role in UN peace operations

Steven Hill, Visiting Professor from 2010-2011 at the Hopkins-Nanjing Center in Nanjing, China, visited Seton Hall Law School on September 22, 2011, and spoke in a personal capacity about the research he conducted there on the subject of Chinese participation in UN peace operations. At an event hosted by Professor Margaret K. Lewis, a Public Intellectuals Program Fellow with the National Committee on US-China Relations, and Professor Kristen E. Boon, Director of Seton Hall Law’s International Programs, he posed the following questions: How has China’s approach to international relations changed since assuming its role on the UN Security Council in the 1970s? And is China’s approach to the humanitarian intervention in Libya the harbinger of a new “Beijing Consensus”?

In his presentation, Mr. Hill discussed the evolution of China’s approach to foreign relations, from the “Molotov cocktail-throwing revolutionaries” of the early 70s to the top contributor to peacekeeping missions among the five permanent members of the Security Council. According to Mr. Hill, this movement signals a shift from “non-intervention” to “tolerance, maybe even some enthusiasm and engagement.”

Mr. Hill recounted for his audience how, from when the People’s Republic of China regained China’s seat in the UN in 1971 until the 1990s, China had been largely detached from UN peacemaking activities.

Mr. Hill noted that China’s “traditional approach” to UN peacekeeping privileges stressed the importance of non-intervention. While China’s position has evolved considerably as it applies to UN peace operations, shades of it can be seen, for example, in Ambassador Li Baodong’s 2011 statement that the international community should “respect the sovereignty, independence, unity and territorial integrity” of Libya.

Hill further noted, importantly, that in spite of this rhetorical deference to sovereignty, China abstained from voting on UNSCR 1973—an abstention which was instrumental in authorizing the largely European-led intervention in Libya. China’s rhetoric led many commentators to believe that it would vote against the resolution. However, China’s ultimate abstention has been seen by many to symbolize its larger shift from a non-aligned power to a global power that has a substantial stake in the international community.

According to Mr. Hill, that China felt it necessary to evacuate 36,000 workers from Libya due to this humanitarian crisis featured prominently in its decision on how to vote on the Libya resolutions. Moreover, China’s growing stake in the international community means increased interest in avoiding catastrophic scenarios, and hence likely a more active China on the global scene.

That being said, Mr. Hill cautioned against unbridled optimism with respect to China’s “new role.”  He noted that China made every effort to defer to traditional notions of national—and then regional—self-determination. This position was evidenced by China’s acknowledgment of Arab League and African Union positions.  In addition, China reserved abstention as a “special circumstance” and was careful not to set precedent. This cautiousness, said Mr. Hill, exemplifies China’s broader attitude toward UN peacekeeping—the possible emerging “Beijing Consensus”—to promote a limited “blue helmet” approach within the general understanding of military procedure, but to avoid “nation building” and other more interventionist forms of intervention. Whether this approach will change to a more progressive humanitarian attitude, as held by some of China’s Western counterparts on the Security Council, remains to be seen.

After Mr. Hill’s presentation, both Professors Lewis and Boon offered commentary to the audience. Professor Lewis,

Steven Hill & Margaret Lewis discuss the Beijing Consensus at Seton Hall Law School

who recently appeared before the Congressional-Executive Commission on China in a roundtable discussion on the “Current Conditions for Human Rights Defenders and Lawyers in China, and Implications for U.S. Policy,” raised China’s need for global stability for the safety of its investments as an impetus for its increased role in UN peace operations. Professor Lewis further emphasized that China’s increased participation in UN peacekeeping efforts may be improving its reputation in the eyes of the international community. Such positive reputational benefits could encourage China’s future involvement.

Professor Boon, who has written extensively on the UN and the Security Council, suggested it might be wise for the US to rethink its skepticism towards international institutions, given the growing influence of China.  The United Kingdom took the approach in the 20^th century of placing greater emphasis on international institutions. As its national power waned relative to the rising US, it has maintained a far more powerful seat in global affairs than it would have if it had not actively engaged in international institutions. The US has an opportunity to solidify its interests in the current international legal and political order, which could serve it well in the future. Professor Boon also highlighted the importance of the new Draft Articles on the Responsibility of International Organizations, and suggested that these could affect the willingness of permanent Security Council members to engage in new endeavors as much as a new “Beijing Consensus.”

Following their commentary, both Professors Lewis and Boon invited the audience to ask questions and provide comments. Professor Michael Ambrosio of Seton Hall Law School asked Mr. Hill to comment on the success and efficiency of China’s participation in UN peacekeeping, and to rate China’s involvement. Mr. Hill responded that he would rate China’s increased participation quite high, and noted that China has provided crucial assistance in terms of medical and engineering troops, police units, and military observers to UN missions around the world. Mr. Hill emphasized the dire need for police units and explained that China’s assistance in this capacity was especially successful because it was so necessary.

* The authors are both third-year Juris Doctor students at Seton Hall University School of Law. Mr. Kelman is also a Deborah T. Poritz Fellow and Ms. Sedehi is the former president of Seton Hall’s International Law Society.

Comments (0)

By Elizabeth M. Lynch, September 15, 2011

China's UN Peacekeepers - Expect to See More

As China emerges as a global power, the question arises: what role will it play in the UN, especially in peacekeeping operations?  Since first re-emerging on the world stage in 1978, China has maintained a philosophy of noninterference in other countries’ domestic affairs, making China’s involvement in peacekeeping operations limited.

But more recently, China has begun to step up to the plate in UN peacekeeping operations, sending non-combat PLA soldiers to assist with such effort.  In March 2011, Beijing issued a white paper on the matter, commending its troops for serving in UN peacekeeping operations and stating that such a role is important for a “responsible party.”

So why the change?  And how will China move forward?  Noted China law professor Margaret K. Lewis will examine these developments and discuss China’s future role with Steven Hill, Counselor for Legal Affairs at the United States Mission to the United Nations, at an event next Thursday at Seton Hall Law School.   All are welcomed to attend; RSVPs (to get a sense of numbers) are very much appreciated; for lawyers in the house, the event will provide 2.0 hr NJ/NY CLE.

***RSVP HERE: http://law.shu.edu/About/News_Events/new-beijing-rsvp.cfm ***

A New Beijing Consensus in UN Peacekeeping Operations
Featuring Steven Hill, Counselor for Legal Affairs at the United States Mission to the United Nations
with Comments by Prof. Margaret K. Lewis, Seton Hall Law School

Thursday, September 22, 2011
4 pm – 6pm
Seton Hall Law School, 5^th Floor Faculty Library
1 Newark Center
Newark, NJ 07102
(2 minute walk from Newark Penn Station which has the Path & NJ Transit)

INVITATION TO BLOG – China Law & Policy’s staff will be out of town next week; anyone interested in blogging about the event please contact me at elynch@chinalawandpolicy.com This is an interesting event and should provide for a stimulating blog post.  Thank you in advance.

Comments (4)

By Elizabeth M. Lynch, September 11, 2011

Last Monday, ChinaGeek’s had an interesting post on the draft revisions to the Chinese Criminal Procedure Law (“CPL”).  But what really caught my eye in the post was this quick statement: “proposed revisions to China’s criminal law code are currently making the rounds for public comment, as is customary prior to the revisions being ultimately approved (or not).”  Is public comment on proposed revisions to any law in China, let alone a law as sensitive as the CPL, really the custom?

Public comments on draft laws and regulations are the norm in the U.S.  For state and federal laws, the public communicates their thoughts through the usual democratic channels – calling and writing letters to their senator/congressperson; for those with better, more organized means, they can of course lobby.  Even for regulations issued by government agencies, a public comment period is required by the Administrative Procedure Act (APA); usually comments are open for at least 30 days.

But China is not a democracy like the United States and the Chinese people have little means of direct communication with their government.  So a public comment period for the current draft revisions to the CPL is no ordinary affair.  In fact, when the CPL was last revised in 1996, the public was pretty much kept out of the loop; even criminal defense lawyers had little ability to comment (lawyers’ comments were filtered through the Ministry of Justice).  Instead, the 1996 CPL was initially drafted by Chinese criminal law professors, with significant comments from some National People’s Congress (NPC) representatives, the Ministry of Public Security (MPS), the Supreme People’s Procuratorate (SPP) and the Supreme People’s Court (SPC).  (See Sida Liu & Terence C. Halliday, Recursivity in Legal Change: Lawyers and Reforms of China’s Criminal Procedure Law, 34 Law & Soc. Inquiry 911, 927-28 (2009)).

A Meeting of the National People's Congress

But this time around, the Chinese government has been very open about the 2011 draft revisions to the CPL.  On August 30, 2011, the NPC officially released the draft CPL and invited the public to comment.  Comments can either be sent via snail mail or can be posted through the internet.  While it is true that one has to “register” in order to post a comment via the internet, thus risking anonymity, presumably a comment can be mailed in without a return address.  Similar to comment periods in the U.S., the NPC will be accepting comments for 30 days.  According to a Chinese law professor colleague of mine, every major newspaper in the country published an article about the draft revision to the CPL with information on how to submit comments.

Similarly, in June 2011, the NPC also welcomed public comments on a draft (and new) Mental Health Law.  My Chinese law professor colleague believed these were the first major laws where public comment was officially allowed.

So what does this all mean?  Is China becoming a bastion of democracy, giving greater voice to its people?  On some level, yes.  The people have a means by which to communicate their feelings on legislation that will ultimately govern their lives.

But the bigger question is, will it make a difference?  First, for such an exciting experiment, namely commenting on the draft legislation through the internet, the number of comments posted 11 days into the comment period is fairly low.  As of Monday, September 12, 2011, only a little over 50,500 comments have been submitted online.  In a country of 1.3 billion people, that is a drop in the bucket.

But secondly, and this is more a problem with comment periods in general, can any one individual comment, no matter how erudite, make a difference?  Even in the U.S., where lawmakers are more responsive to their individual constituents, a lawmaker usually only listens to comments when many of its constituents call at the same time, voicing the same opinion.  I have received many emails from my more politically active friends to call my senator and express a certain complaint.  Presumably, China would be no different.  Unless a concerned Chinese citizen organizes his or her friends, classmates or colleagues to comment on the same issue, the NPC is not going to pay as much attention to a lone, individual comment.  And that is where the effectiveness of the comment period in China and the U.S. diverge: in the U.S., there is no risk in attempting to organize a group to comment to lawmakers; in China, that is a different prospect (although again, the influence of professional lobbies makes one wonder if even people power in the U.S. really makes a difference).

Ultimately, this public comment period is an interesting development that should not be ignored or taken for granted.  While the ability for individuals to influence lawmakers through a comment period is questionable, it still provides the Chinese people with an institutional voice.  It also provides the Chinese people with a means that perhaps in the future may grow more effective and may be used to better establish the people’s control over its government.  At this stage, it is the potential of the comment period in the future, and the people’s taste of more of a role in their own governing, that is most exciting.