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By Elizabeth M. Lynch, January 2, 2013

While I like the Godfather movies as much as the next person, it’s always strange when personal vendettas make it onto the world stage.  But that is what appears to have happened on Monday when the Chinese government failed to renew New York Times reporter, Chris Buckley’s journalist visa before it expired on December 31, 2012.

Although the Chinese Ministry of Foreign Affairs remains mum* as to the precise reason why it failed to renew Buckley’s visa – which he had been attempting to renew since October – most in the Western media suspect that it is pay back for the New York Times’ series on the enormous sums of wealth and key investments acquired by Premier Wen Jiabao’s family.

In China Wen is very much known as a man of the people – his mother was a teacher and his father a pig farmer and as a result, the people actually like him.  Unlike the other aloof leaders who rarely if ever smile for the cameras, the Chinese people feel a bond with “Grandpa Wen.”  During public crises – natural disasters, train wrecks –  Wen is the man the government sends to relate, and more importantly, to calm an angry public.  In many ways, Wen’s image is important to the legitimacy of the Chinese Communist Party’s rule.

But on October 25, 2012, the New York Times questioned the veracity of that image.  David Barboza, the Times’ Shanghai bureau chief, reported

How can you not love this guy??? Premier Wen Jiabao

that since emerging on the national stage in 1998, Wen’s humble roots fell by the wayside,  at least in terms of his family’s myriad books of business.  While none of the wealth is directly held by Wen, Barboza detailed the estimated $2.7 billion held by members of Wen’s immediate family.

The Chinese government did not take kindly to the article, blocking the New York Times website (which almost three months later remains blocked) and stating that Barboza’s article “smears China and has ulterior motives.”

A month later – on November 24, 2012 – the Times published Barboza’s second damming article on Wen.  The piece documented and insinuated Wen’s role in preventing the legally-mandated break-up of one of his family’s key holdings – Ping An Insurance.   Evidently, the Times did not heed the Chinese government’s rather public warnings.  Is the failure to renew Buckley’s journalist visa payback?

This would not be the first time the Chinese government has used the visa process to punish foreign journalist.  In the past year, visa renewal troubles have become an increasing problem for foreign reporters in China.  In July, China Law & Policy ran a three-part series on this problem (Part 1 here; Part 2 here; Part 3 here), noting that in 2012 a third of members surveyed by the Foreign Correspondents’ Club of China had difficulty renewing visas.  The majority of those journalists believed – or in some cases were told – that their difficulty was a result of specific reporting.

In May, Al Jazeera’s correspondent, Melissa Chan, who had covered many of China’s sensitive topics, was expelled from China after the government closed the Al Jazeera Beijing Bureau.  In September, Andrew Higgins, the Washington Post’s China chief who had been waiting in Hong Kong for accreditation from Beijing for the past three years, finally left his post and took a job covering Europe for the Times.  And since March 2012, Philip Pan, author of the amazing Out of Mao’s Shadow which details the growing inequalities in China, has been waiting for accreditation from Beijing.   If Higgins’ situation is a guide, Pan should not hold his breath.

Fortunately for the Western public, this attempted censorship has not hurt China coverage.  Hard-hitting stories are still being covered even with the continued visa harassment.

NY Times Reporter, Chris Buckley

But the question remains, will this get worse?  Four reporters in one year alone – Chan, Higgins, Pan and Buckley – have been permanently impacted by the Chinese government’s revengeful visa policies.  Will the Chinese step-up the use of this tool?  Will eventually all New York Times reporters find themselves in Buckley’s boat?

In a country like China, where the domestic media is controlled and censored by the government, the foreign press offers an alternative – and at times more real – perspective of what is happening in China.  This doesn’t just benefit the Western audience but also benefits the Chinese public.  The stories that foreign reporters cover are stories that the Chinese people want to tell and cannot currently tell their own press.

Additionally, given the increasing fluency in English of the Chinese youth, some of them are reading these articles.  On my last visit to China, a Chinese law school student lamented about the recent blocking of the New York Times website and his inability to know what is happening in China.

Finally, some of the exposés that are originally covered by the foreign media are eventually picked up by the Chinese press and produce change.  Melissa Chan filmed her report on China’s black jails in April 2009; in November 2009, a Chinese magazine ran a similar expose.  Last month, a court in Beijing heard a case brought by victims of black jails, signaling perhaps the Chinese government’s willingness to eliminate abusive black jails (in China courts will only hear cases pertaining to certain issues if the government or the Party permits it).

In the United States, the media has often been viewed as the fourth branch of government – the media provides an important level of transparency to our political system.  In a one-party authoritarian country, that transparency can only be provided by the foreign press.  The United States spends millions of dollars of “rule of law” and democracy projects in China.  But supporting the work of foreign correspondents in China, at least verbally, is equally as important a tool to achieve those goals.  As we noted in our July series, it is imperative that the U.S. government publicly address and admonish the Chinese government’s attempt to censor the foreign press through the visa renewal process.

U.S. government officials often lament that with China, there must be closed-door diplomacy; the Chinese take “face” very seriously.  But to the extent that the U.S. government has been conducting this type of diplomacy concerning foreign reporters in China, here’s a news flash – it’s not working.  Things are only getting worse for foreign reporters and as a result, for the Chinese public.  In Melissa Chan’s case, the State Department, through a press person, just said that it was “disappointed” with what happened.  If ever you wanted to give the Chinese government a signal to continue to harass foreign reporters, such a tepid response was likely it.  As a result, it’s vital that a high-up official at the State Department publicly comment on what is happening to Buckley, Pan and countless other foreign reporters in China.  It’s time the U.S. government to publicly articulate one of our key values – that a free press, here a free foreign press, is an important human rights issue.

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* On January 3, 2012, the Ministry of Foreign Affairs broke its silence stating that Chris Buckley’s visa application is still under consideration.  See news report here.  Actually addressing this a good thing for sure, but there will be no step forward until Buckley’s visa is renewed and Philip Pan is finally accredited.  Pressure on the Chinese government should not stop just because of this statement.

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By Elizabeth M. Lynch, December 28, 2012

Red Gate Gallery’s founder, Brian Wallace

If you want to understand Chinese contemporary art, a conversation with Brian Wallace is a must.  Although a humble man, much of China’s contemporary art field is a result of Wallace’s early efforts.  In 1991, barely a decade into Deng Xiaoping’s dismantling of the socialist economic state and only two years after the Tian’anmen crackdown, Wallace opened China’s first contemporary art gallery, Red Gate Gallery.  Housed in the infamous Dongbianmen Watchtower in Beijing, for the past 21 years, Red Gate has been a mainstay in the Chinese contemporary art field, identifying and promoting some of China’s best-known artists.

With its 21st anniversary and it’s current exhibit – 20th+1 where older, established Chinese contemporary artists identify some of China’s up-and-coming young artists – China Law & Policy sat down with Wallace to discuss the beginnings of China’s contemporary art movement, the impact of the hot art market on Chinese art and the future of the field.

Red Gate’s current exhibit – 20th+1 which identifies some of Chinese up-and-coming young artist – is only open for a few more days, until December 31, 2012.  So if you want to see some great pieces, better high-tail it to Beijing’s Watchtower to check out Red Gate’s show.

Click here to listen to the audio of the interview with Red Gate Gallery’s founder, Brian Wallace
Length: 17:35 minutes (audio will open in a separate browser)

Click here to open a PDF of the transcript of the Brian Wallace Interview

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[01:00] EL:  Thank you Brian for inviting us today.  I want to start with the beginning and a simple question.  Why?  What made you think to open a contemporary art gallery in Beijing when no one else had?  And what was it about 1991 that caused you to open it? 

[01:14] BW:  Thanks Liz.  While I was at University here studying Chinese language, my Chinese friends were artists.  So back in the ’80s I started to help them organize exhibitions at different venues around town.  As you know there were no commercial galleries, no private galleries.  So we had to hire different spaces and these turned out to be Ming dynasty buildings; structures like the Ancient Observatory – that is where I was doing shows in ’88 and ’89.  But other groups of artists were organizing shows at the Temple of Longevity, the Temple of Law, the Confucian Testing Center and such places which were empty and in some cases in quite bad states of repair.

[02:02]But anyway we were able to use those places.  So during those few years I got to know many of the artists and enjoyed helping them

One of the remaining vestiges of Beijing’s Ming Dynasty city walls, the Dongbianmen Watchtower. Since 1991 it has housed Red Gate Gallery.

while I was studying Chinese language at the same time.

[02:14] In 1989 everything stopped of course, so I went to the Central Academy of Fine Arts and did a bridging course in contemporary Chinese art history.  Not that there was much of that at that time.  Then in ’91, I’d been here for 5 years and was wondering what I was going to do – go back to Australia or look for a job.  It made me think about what we had been doing and we thought we would try and open a gallery at the Observatory.  So we went back there and they said no, but down the road was this Ming Dynasty Watchtower which had just been restored and was re-opening to the public.  So they [the Observatory] gave us a very good introduction to the management here [at the Watchtower].  That’s how we opened Red Gate in 1991.

[03:00] EL:  When you first opened the gallery, so you were already friends with the artists.  But how did you, for the gallery purposes, did you have to choose between which artists’ works to show and how did you do that?

[03:14] BW:  Well yes, I was friends with many artists but we wanted to work with a particular group so we just got them together.  Our first show I think had about 7 artists.

[03:26] EL: And who were those artists in the first show?

[03:28] BW: There was Wang Luyan, Zhang Yajie, Da Gong, just to name a few.

[03:37] EL:  And in terms of having a Westerner open a gallery here, how did the Chinese art field in general respond to your presence?  Were they happy that have a gallery here interested in their work or were they confused as to what your goals were?

[03:54] BW: No because they knew me.  And they also recognized that this was the first time someone was doing something like this so they were quite enthusiastic about being involved in it.  And we all were supported by the very small foreign community, mainly diplomats, cultural attaches, students, a few business people who were around at that time.  Many were very, very involved with the Chinese economy, the Chinese lifestyle, meeting Chinese, learning Chinese.  So they were very interested in seeing this develop even though we were developing from nothing and learning from the ground up.

[04:40] EL:  So it sounds like back in 1990-91, it was basically a group of artists and then a lot of Western support, supporting their work morally as opposed to financially.  What about mainstream Chinese people?

[04:51] BW: The interest was very limited to the artists and that group of foreigners. Outside of that there was no interest whatsoever in contemporary Chinese art.  People had plenty of other things they had to worry about before then.  And they didn’t have any experience in going to galleries or understanding art.

[05:13] What we have seen over the last 20 years is a huge educational learning curve for everyone, not just Chinese but foreigners and Western supporters.

[05:26] EL:  Let’s focus now on the shift in Chinese art.  Back in 1991 it was pretty much a very small field. What in addition to having more mainstream Chinese people support Chinese contemporary art, what are some of the major changes you have seen in the past 21 years in Chinese contemporary art in addition to just the support and the prices? 

Yue Minjun, an early Chinese contemporary artist. This painting – Execution – sold for $5.9 million at auction in 2007.

[05:52] BW: Well, for the artists that I have been working with, if we want to talk about their message, it’s all been a very strong commentary on what has been going on around them because they have been part of this dramatic change.  They have seen it from very much the inside.  That first group of artists from the ’80s, early ’90s, they were all post-Cultural Revolution graduates and part of the first group that came out of the Universities after they re-opened.  So they have seen a lot.  Those people are in their 40s and 50s now.  That generation of artists is one that I keep going back to.  I’m not looking for that particular age group but it is that maturity in their work, that content.

[06:41] EL:  So what kind of….the changes I guess from 1991, what do they paint now, what kind of work do they do now in terms of reflecting their environment?

[06:50] BW: Well, many of them are still working on the same subject matter and that could be anything from corruption, the environment, the state of living, freedom, things like that.  Many, many topics that they talk about and comment on.  Some of it is quite direct, some of it is very subtle.  That’s their way of negotiating their particular environment here in China.

[07:24] EL: And what about the next generation that is coming up  – the 20 and 30 year olds. 

[07:29] BW: Part of our current show addresses that issue.  The subtitle of the show is “Two Generations of Contemporary Art.”  We ask the older [artists] or the artists who have been with Red Gate for 20 years to nominate someone who they have had their eye on who is very good.

China’s younger contemporary artists – when will they grow up?

[07:44] The problem with looking at that younger generation is that many of them are quite well-skilled but they’re not that creative; they’ve landed in the art scene at the time of the boom in the art market.  Many of them have chosen being an artist as a career over being a doctor or a lawyer.  That’s changing but that’s sort of breed a younger generation of people who were not that experienced, not very creative.  So finding the very, very good ones among them has been a difficult task.  Finding the strong ones, the independent ones, we’ve found a few over the last few years.  But by having this particular show, all the artists we asked picked 10 very, very good [younger] artists.  Some of them are quite young, some are in their 30s and even there are a couple in their 40s, but they are quite unknown in the art scene.

[08:43] So these nominators took their time and took this role very seriously because they knew people were going to see who they chose.  We are very happy with the result.

[08:58] EL:  Just to go back to some of the younger artists who have chosen this more as a career because of the boom in the art field.  What do you think has caused the market for Chinese contemporary art to become so hot in the past 5 years?

[09:13]  BW: The introduction of a lot of money from the domestic market.  Just before that there was the international auction houses picking up a lot of Chinese artists from the secondary market and putting prices very, very high.  That sort of led the way.  And then very quickly followed by a cashed-up group of Chinese collectors but primarily investors who were looking for a quick return.  They landed in that market at the right time and took advantage of it.  Some of them did make a lot of money and lots of them had lots of fun.

[09:55] But now things have been dragging on since 2008.  Things have settled down and a lot of those people have moved on as well.  So there has been a maturing in that market.

[10:08] EL: Do you think that will be better for the younger artists to have less of this hot market? 

[10:14] BW: Definitely.  Some of them will move away completely from this career – if the money is not there, they are not that interested.

[10:28] EL:  In terms of the art, Chinese contemporary art; what is it about it that makes it “Chinese?”  Is it a continuation on a spectrum of

Traditional Chinese art techniques – brush painting.

Chinese art?  I mean, I am very familiar with a lot of the more classical art pieces, the calligraphy.  And then I see Chinese contemporary art and it doesn’t really look that “Chinese” to me.  Should I even view it as something that should be on a historical perspective with traditional Chinese art? 

[10:58] BW: That’s pretty hard.  There are artists who are still using the traditional techniques in contemporary art.  They are more or less proponents of maintaining those traditions but they’re using very contemporary content.  Apart from that, there’s a whole range of media being used now and people are addressing issues which are to them individual.  It is very much about where they are and where they are living – that’s China.  But the issues are global.  So people could come in and say, well some of the artists are talking about the environment and they would think that it could be back home.  So that kind of thing, these issues are very, very global.

[11:52] What people see in this group of artists, these people in their 30s and 40s, they are surprised by it because their reference to Chinese art going back a few years was the more traditional: was the calligraphy, was the scholar rocks.  So they are very surprised that over the last decade, the last 15 years there is this very vibrant contemporary scene.  That’s what’s been a catalyst for their interest.

[12:27] EL:  In terms of the art that is in the current exhibit, can we look at one of the pieces and maybe explain to somebody like me who knows little about modern art what about it that makes it a valuable piece of art.

[12:42] BW: Sure.

Chen Ke’s Red Sacred Mountain No. 6
Red Gate Gallery

[12:43] EL: I’ll let you choose one of the pieces.  So which one are we going to look at here?

[12:50] BW:  This is Chen Ke.

[12:52] EL:  Okay, this is Chen Ke.  What’s the name of the piece?       

[12:54] BW:  The name of the piece is Sacred Mountain No. 6, Red Sacred Mountain.  He was one of the artists nominated by a senior artist in the gallery, by Wang Yuping in fact.  Now apart from a wonderful piece of craftsmanship – very thick oil paint, the coloring all in red and shades of red, which is just quite striking.  He is talking about, after 1949, new China.  The future was bright, the future was red, communist red; everybody was working together.  There was this unity and common purpose of all these people who were part of the new China.

[13:45] So you can see that in his painting that people are just having fun in the field; they probably had a long work day.  They’re in their regular, probably nylon outfits, nylon white shirts that we used to see everywhere.

[14:01] What Chen Ke is talking about, he is looking at this nostalgic view about what things were happening in the ’50s, maybe early ’60s and comparing it with today and this dis-unity out there, this chaos in comparison to that previous time which was not so much a utopia but there was very much a common purpose in doing things.  Here, today in contemporary China right now there’s not that unity.

[14:35] EL: Right, right, you have a growing disparity in wealth and interests. Are there any other pieces you want to talk about? 

[14:44] BW: Well, we were talking about the environment earlier.  There is Zhou Jirongover here who is from southern China but has lived in

Zhou Jirong’s Mirage
Red Gate Gallery

Beijing since he graduated back in the ’80s from the Central Academy of Fine Arts.  His theme has always been about the environment.  You can see this mixed media work is rather hazy.

[15:04] EL:  What’s the title of this one?

[15:07] BW: Mirage.  So on some of the days you look out the front door here…

[15:15] EL: It sort of looks like….

[15:16] BW: ….this is what you see, this is the landscape.  And again, this could be anywhere in the world: a very polluted environment; a very quickly developing environment, uncontrolled.

[15:27] Then you have this other younger artist over here, Li Xiang from northern China with this very bare, barren landscape.  Maybe the environment has been destroyed.

[15:50] EL: Just in terms of what else Red Gate is doing…you talked about how when you originally started Red Gate it was helping to foster the art community.  How are you continuing to do that with the Artists in Residency programs.  Can you talk a little bit more about those?  

Li Xiang’s Night scene No. 3
Red Gate Gallery

[16:04] BW: We’ve been doing that for 11 years now.  We invite artists from all over the world and inside China to come and work in Beijing in studios.  They’re averaging about two months, sometimes three months.  Most of them have never been to China before so they have to come through this cultural barrier landing which we help them with and get them to work as soon as they are ready.

[16:30] They might be working toward a show back home.  Some of them, we are finding more and more, work their way into shows in Beijing – either group shows or have some solo shows or even become represented by galleries here.  So they’re finding opportunities here of meeting other artists, that’s one of the main things, but also meeting curators and dealers and collectors from around the world who are all passing through Beijing.  It’s something that they didn’t envisage and they realize that they may not of had that opportunity back home.  So they find that that is another very rewarding side of the program for them.

[17:08] EL:  And they also interact a lot with the Chinese art community? 

[17:13] BW:  Oh yes, very much.  They are finding that they are not here by themselves, but there’s a large artist, foreign artists community, who are living here on a long-term basis, so they get to know those people.

 [17:26] EL: Brian, this show – 20+1 – is on until December 31?

[17:34] BW: Yes.

[17:34] EL: Great.  Thank you so much for your time and for teaching us about Chinese contemporary art.

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By Elizabeth M. Lynch, December 18, 2012

It’s that time of year again, when people endlessly ask: what is a good holiday present for my friend who is really into China?  China Law & Policy has heard your pleas and as a result, we offer you our first annual China Christmas Wish List.  So below is a list of some gift ideas for those friends in your life who feel the need to randomly drop Chinese words and references into conversation.

(1)   Any book (or all books) by Peter Hessler

Peter Hessler has written the books that most China-watchers wished they could write.   His first book, River Town: Two Years on the Yangtze, tells the story of his time as a Peace Corp volunteer, watching a small river town on the banks of the Yangtze transform before his eyes; a microcosm of greater China.  Hessler perfectly communicates the hopes and dreams of his ambitious student including the memorable William Jefferson Foster.

His second book, Oracle Bones: A Journey Through Time in China, is arguably his best if you like to read about history.  Oracle Bones traces China’s past through three different narratives  – one story returns to the tales of William Jefferson Foster; one examines the plight of a Uigher man trying to succeed in Beijing; and the third story traces the history of the Chinese language from scratches on oracle bones to the almost complete Romanization of the language and the eradication of characters.  But for those who prefer to pontificate about China’s future, there is Country Driving: A Chinese Road Trip which traces the lives of many factory workers and businessmen in southern China who are arguably responsible for the changes that have pushed China forward and it also unshackles it from its past.

See China Law & Policy‘s interview 2010 interview with Peter Hessler here.

(2)   Pleco

If your friend speaks and reads Chinese and doesn’t have this nifty little dictionary on his or her phone, this is a must.  Not only can you look up Chinese words through pinyin, but with finger recognition, you can draw an unfamiliar character and the dictionary will find it.   Software is available for both the iPhone and the Android.  For the Android, the basic software runs $39.95; on the iPhone, the price is similar.

China Law & Policy interviewed Pleco’s founder and CEO Michael Love in what proved to be a fascinating interview about the study of the Chinese language.  You can find that interview here.

(3)   Pop-up Chinese

Here is another great language tool although, at $99 for a yearly subscription, it likely puts it at a price point that excludes it from most workplace’s secret santas.  But it’s a great way to practice your Chinese while on this side of the planet.  The lessons are fun, with native speakers with different accents.  Topics range from what’s hot on TV in China to recent changes to China’s laws.  Save the lessons to your iPod and you can practice your Chinese on your commute!

If you are looking for a cheaper present but still allows your friend to practice his or her Chinese on the commute to work in New York, buy him a metrocard and tell him to get on at Flushing.

(4)   Prof. Stanley Lubman’s The Evolution of Law Reform in China: An Uncertain Path

Unfortunately this book falls way outside of the price limits for most secret santas.  But if you have $450 to blow on a China-law-loving friend, this is the way to go.  This anthology has some of the most noteworthy essays and articles about China’s legal reform written in the past 15 years.  Prof. Lubman, the editor of the anthology and a China hand for the past 50-odd years, sets the stage for the book in its introduction, noting the ambivalent and at times regressive nature of Chinese legal reform.  The authors of the eclectic articles are both Chinese and Western providing for dueling perspectives.  The book feature some great articles from He Xin, Zhu Suli, Eva Pils, Don Clarke, Carl Minzner and Jerome Cohen.

(5)  Midnight in Peking by Paul French 

This book, a true story of the murder of a young English woman in the 1920s Beijing, is a great read and one of my favorite books of the summer.  It’s a Law & Order episode set in a long-gone and much more frightening Beijing.  If you have a friend who is planning a trip to Beijing in the near future, this is a great read for the plane.  What’s more, once she arrives in Beijing, certain old structures – the Watchtower, the old Citibank building, St. Michael’s Church – will never look the same as before.

The full China Law & Policy review of Midnight in Peking: How the Murder of a Young Englishwoman Haunted the Last Days of Old China can be found here.

(6)   Brave Dragons by Jim Yardley

I did not expect to like this book – I’m not a big fan of NBA basketball in the United States, so it seemed like NBA basketball in China would be even less interesting.  But Yardley does a great job at telling a fun story about a loser basketball team in China trying to make it big with some NBA talent.  More importantly, Yardley uses the tale the symbolize some of the problems and some of the successes in U.S.-China business relations.

This is a particularly great gift if you like China AND basketball.  For China Law & Policy’s review of Brave Dragons: A Chinese Basketball Team, an American Coach, and Two Cultures Clashing, click here.

(7)   Anything with Pandas

China watchers – even jaded, cynical ones who talk about China’s coming collapse – love pandas.  It’s totally not a stereotype.  As much as they would hate to admit it, it’s true.  So when in doubt, get your China friend something with pandas.  The weirder the better.  Here are some ideas:

• Panda Bear Animal Plush Hat with Ear Flaps & Black Poms:  This right now is huge amongst Beijing’s hipsters, along with frame-less glasses.  This will make your friend cool be it on the streets of Shanghai or L.A.

• Flipper Hello Kitty Panda Toothbrush Holder:  I almost lost it when I saw this – double cuteness – Hello Kitty dressed up as a panda!  What else could you really want for Christmas?

• Rasta Imposta Panda Costume: This needs no explanation as to why this is an amazing gift; just look at it.

• Kung Fu Panda:  For those who want to play it safe, settle for the DVD of Jack Black’s Kung Fu Panda.  It’s a great cartoon flick, with a moral and a panda!

That does it for China Law & Policy‘s recommendations for some holiday gifts.  Have recommendations of your own?  Help out other readers and put your thoughts in the comments section.

Have a happy holiday and healthy new year!

Comments (23)

By Elizabeth M. Lynch, December 11, 2012

Don’t think that we missed this one.  China Law & Policy just hasn’t had the chance to write about it.  At any rate, after 25 years of discussion, and two rounds of very vocal public comments in the past year, on October 26, 2012, the Standing Committee of the National People’s Congress finally passed its Mental Health Law (“MHL”).

One of the major improvements to the law since earlier drafts is the removal of the provision that specifically permitted involuntary commitment if the individual’s behavior was deemed to be “disturbing public order” or “endangering public safety” (see interview with Prof. Michael Perlin about this issue here).  Earlier drafts which included that clause were vigorously attacked by both Chinese and foreign experts noting that such a provision would give carte blanche to the police to involuntarily commit anyone who expressed a dissenting view.  As Chinese Human Rights Defenders (“CHRD”) highlighted in its seminal report on China’s mental hospitals, The Darkest Corners: Abuses of Involuntary Psychiatric Commitment in China, some of China’s many mental hospital “patients” are in fact dissidents who were involuntarily committed outside of any court process for expressing their dissenting views.

Deletion of this provision is certainly a step forward there are still aspects of the adopted law that make it far less than ideal and demonstrates the continued need for better protections for the mentally ill in China.

Family members are still able to commit an individual against his or her will

In addition to voluntary commitment, Article 28 of the Mental Health Law still permits family members to involuntarily commit an individual that the family member suspects has a mental illness.  In effect, the Mental Health Law places the family in a separate sphere that assumes that family will not abuse the process.

But if the goal of the Mental Health Law is to “protect the lawful rights and interests of those with mental disorders” (MHL, Art. 1) and to integrate those with mental disorders into society, then allowing family members to involuntarily commit individuals runs against these goals by putting those with mental illness or disorders at the mercy of their family.  This also runs counter to the Convention on the Rights of Persons with Disabilities (CRPD) which requires that the rights of those with mental disabilities be on equal footing with the rest of society (see CRPD, Article 3(a)).  China has signed and ratified the CRPD but the new Mental Health Law is not in keeping with many of the CRPD’s provisions let alone its spirit.

No Court Oversight of the Commitment Process

International human rights law, which the CRPD adopts repeatedly through reference, is clear that any decision to deprive one’s liberty, including on health grounds, is challengeable before a court or other judicial body (see United Nations Commission on Human Rights, Report of the Working Group on Arbitrary Detention (Dec. 2005) Para 63-66).

China’s current Mental Health Law creates a system for involuntary commitment that is completely devoid of any court oversight.  When an individual appears at a mental hospital – either voluntarily, brought by a family member, or in the case of homeless individuals, by the police (MHL, Art. 28) – he or she is examined by one of the hospital’s psychiatrists.  If the psychiatrist determines that the individual suffers from a severe mental illness and that he or she demonstrates either harm to him or herself or harm to others, then involuntary commitment is required (MHL, Art. 30 – the law here uses “应当” which has the same effect of the use of the word “shall” in English laws, making involuntary commitment mandatory if the facts apply).

There is no provision to challenge the hospital psychiatrist’s diagnosis in a court of law or even before an independent arbitrator.  Instead, if the individual or its guardian disagrees with the initial assessment, he or she can request that the hospital provide a different psychiatrist to do an second assessment or go to another mental hospital to request a second opinion (MHL, Art. 32).  It is questionable if another doctor in the same hospital will be a true independent opinion or if he or she will just agree with his colleagues.

Similarly, even if the patient or his family requests an evaluation from another mental hospital, (1) under the Mental Health Law, there is no obligation that this hospital do the assessment and (2) it is not clear that the doctors in that hospital will be any more independent.  These doctors will still be state employees and colleagues of the original doctors.

If after the second opinion, the patient or his family still disagrees with the assessment, it is only at that point that he or she can go outside of the system and hire an independent psychiatrist of his or her choosing (MHL, Art. 32, ¶3).  However, the law makes no mention as to what to do if this third opinion disagrees with the two opinions provided by the state.  Article 35 of the Mental Health Law forbids involuntary commitment where the second opinion disagrees with the first, but makes no mention of what to do with the third opinion.  Without court involvement, presumably it will not be sufficient to overturn the prior opinions and free the individual.

Guardians Are Too Easily Appointed and Too Difficult to Remove

The Mental Health Law provides a tremendous amount of power an individual’s guardian but provides no method for how that guardian should be appointed.  Instead, it is necessary to look to the General Principles of Civil Law which discusses guardianship for individuals with mental illness.

Unfortunately, the General Principles does little to flesh out the appointment process.  Instead, it makes clear the level of abuse that can occur.  Article 13 of the General Principles requires the appointment of an agent ad litem (a guardian) for mentally ill individuals who are “unable to account for his own conduct.”  But the law does not flesh out what “account for his own conduct means.”  Some individuals with mental illness may still be able to lead a relatively normal life and just need help in certain aspects.  But the General Principles is much more black and white; much more all-or-nothing and do not allow for that gray area that provides for some independence for an individual with slight assistance from a guardian.

Additionally, the General Principles provides no formal or independent process by which a guardian is appointed.  Instead, it appears that basically, if a person wants to be a family member’s guardian, she can just declare herself as such (Article 17 of the General Principles pretty much limits guardians to family members although there is a provision for a work unit member).  Based on the General Principles, the process for guardianship in China is not an appointment process but rather a declaration one.

Article 17 of the General Principles does contemplate a court action where the individual or someone else might disagree with the declaration of guardianship.  But it would be better to involve the court at the initial stage and require it to review guardianship decision to give the relationship any legal effect.  In fact, the Article 12(4) of the CRPD requires such a process – that an impartial authority or judicial body review all decisions to limit an individual’s legal capacity, such as the appointment of a guardian.  Without judicial oversight of the guardianship process, the process is subject to abuse and the individual with mental illness is again denied his ability to function equally in society with others.

Conclusion

In reality, the Mental Health Law does little to foster an environment where those with mental illness can lead an independent life and be accepted by society.   Furthermore, although the law discusses the very real (and dire) need to increase the number of mental health professionals in China, that has remained aspirational.  As of yet, the Chinese government has remained silent on how much money and what incentives it will provide to achieve that goal.  Providing adequate and sufficient medical assistance for those suffering from mental illness is just as important to making sure that those individuals will be able to lead a full life.

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* Jeremy Daum drafted this translation within days of the Mental Health Law’s promulgation.  It wasn’t until now that China Law & Policy had the chance to publish this translation.

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By Elizabeth M. Lynch, November 15, 2012

Meg Davis, Executive Director of Asia Catalyst Introduces the Speakers
Photo by Robert Burnett, Jr.
www.rburnettjr.com

Last week, the day after the United States elected its first openly gay Senator and more states extended the right to marry to gay couples, Asia Catalyst and Fordham Law School’s Leitner Center co-hosted a fascinating talk about Lesbian, Gay, Bisexual and Transgender (LGBT) rights in China entitled “China’s Comrades.”

Featuring two on the ground LGBT activists – Sam Zhao (co-founder of China’s only lesbian magazine) and Dan Zhou (a Shanghai lawyer who has taken on some hard-hitting LGBT rights cases) – and John Balzano, a law professor and China expert who provided a more macro view of the movement, the talk broke down some common assumptions about China and the development of individual rights.

Zhou started his talk stating that this discussion was a “queer event” – although talks about Chinese legal development are common, Zhou noted that rarely if ever do these talks discuss LGBT rights development.  But while true, what was perhaps most queer about the talk was learning of the Chinese government’s response to the LGBT rights movement.  Usually the narrative at many of these rights development talks are the same – an authoritarian government trampling over individual rights, fearful that its monopoly on power will be destroyed by such nascent rights movements.

But for LGBT rights, the story seems to be different.  Zhao made a joke about how in

Sam Zhao, speaking at “China’s Comrades”
Photo by Robert Burnett, Jr.
www.rburnettjr.com

1996, a friend called her, excitedly telling her to return to Beijing because there was going to be a “big” lesbian party – eight lesbians were getting together.  Fast forward a little over a decade and in 2008, Zhao helped organize a two-day lesbian independent film festival where 600 lesbians attended.

What was interesting about Zhao’s story was the fact that the Chinese government even allowed the film festival, and not because it necessarily has an anti-gay bias.  Usually, when movements get too large, the Chinese government sees the movement – be it LGBT rights activists organizing a film festival, rural villagers decrying the taking of their lands, or factory workers protesting inhuman working conditions – as an alternative source of power and threat to its rule – events are broken up and email listserves are shut down.

But both Zhao and Zhou discussed the success they have had in creating an LGBT community throughout China, with much of this success a result of the internet.  Even Balzano noted that while it is true that when movements in China get too large, too overt or too public, the government seeks to crack down, the LGBT movement thus far has not faced the same kinds of pressure.

Audience listens during China’s Comrades
Photo by Robert Burnett, Jr.
www.rburnettjr.com

Zhou did point out that the LGBT rights movement is not completely immune.  In 2012, some LGBT rights bloggers held a successful conference in a southern city that many activists attended.  When they tried to re-create the event in Beijing, the government put a stop to it.  But according to Zhao, when the activists asked the Beijing government if the reason was because the event was about LGBT rights, the government said no.  According to the authorities, the basis for denying the activists their conference was because it bordered upon a “mass incident” which the law forbids.

But not everything is rosy for LGBT individuals in China.  While Balzano remarked that there is no law in China that is overtly discriminatory toward the community, the law is still used at times to harass LGBT individuals.  Zhao confirmed this, noting the difficulty in obtaining the proper government approvals for her lesbian film festival because many officials equated lesbian film with pornography.

Zhou also commented that while there is no law that governs sexual relations in a

Photo by Robert Burnett, Jr.
www.rburnettjr.com

private place, what is still up for debate, at least with some government officials and courts, is what is private.  There have been cases where a hotel room is considered public or a bedroom in an apartment that serves as a business office during the day.  Zhou also discussed the prosecution of one of his clients – a gay D.J. who was part of a party in a gay nightclub.  He was taken in for “lewd” behavior.

Finally, although only briefly touched upon in the talk but much more fully fleshed out in the readings that Asia Catalyst and the Leitner Center diligently selected (see “Resources” list below) is the societal pressure that all Chinese face but is more acute in the LGBT community – parental pressure for a heterosexual marriage and a grandchild.  All of the reading went into depth on this issue, noting that traditionally in China, homosexual conduct has been tolerated so long as that behavior is more “on the side” of a heterosexual marriage that produces children (in this regard, Balzano’s article made an important distinction between traditional acceptance of homosexual behavior and not necessarily homosexual identity).  This pressure and to some degree behavior is still very much present in the LGBT community in China (the Kam article interviewed a number of Shanghai lesbians to ascertain how they deal with the heterosexual marriage issue).

Photo by Robert Burnett, Jr.
www.rburnettjr.com

Although China’s LGBT community is still in greater need of protection, especially since vague laws are arbitrarily used to harass some individuals, its movement appears to be on more solid footing than other rights groups.  By the end of the talk, Zhou’s initial remark – that it is queer that discussions of LGBT rights rarely happen – made one wonder, why isn’t Western China watchers especially those who focus on and seek to promote civil society development, examining China’s LGBT movement more.  The LGBT rights movement is an outlier in the normal course of civil society development in China.  What is it that allows it right now to be a bit more immune to traditional government pressure?  And is there anything other movements can learn from the LGBT rights movement?  China’s Comrades proved that more a deeper understanding of the LGBT movement are necessary.

Resources:

John C. Balzano, Toward a Gay-Friendly China?  Legal Implications of Transition for Gays and Lesbians, 16 Tul. J. L. & Sexuality (2007).

Lucetta Kam, Opening up Marriage: Married Lalas in Shanghai, in As Normal as Possible: Negotiating Sexuality and Gender in Mainland China and Hong Kong (Yau China ed., 2010; Hong Kong University Press).

Holning Lau, Grounding Conversations on Sexuality and Asian Law, 44 U.C. Davis L. Rev. 773 (2011).

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If you are interested in learning more about Asia Catalyst, its events or how you can support this on-the-ground organization, please visit its website here.  For its Fifth Anniversary Campaign, Asia Catalyst’s Board of Directors has generously offered to match all individual gifts donated in 2012 (up to $8,000).  All donations are tax deductible.

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By Elizabeth M. Lynch, October 24, 2012

Asia Catalyst and the Leitner Center for International Law & Justice :

• John C. Balzano, Visiting Assistant Professor, Boston University School of Law

• Zhou Dan,  legal advocate and Executive Director of Yu Dan, a Shanghai-based organization with a mission to achieve positive perception of, and full recognition of, gay rights in China

• Sam Zhao, leading lesbian activist and co-founder and co-editor of Les Plus, mainland China’s first lesbian magazine

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By Elizabeth M. Lynch, October 23, 2012

On Monday night, the world experienced the third and final presidential debate.  This time, topic was pure foreign policy, or at least it was suppose to be.  Needless to say, China Law & Policy was anxiously watching – China’s rise was supposed to be one of the few subjects to be discussed.

After an hour and twenty minutes, the debate finally turned to China.  With less than ten minutes, each candidate was forced to discuss his policy toward the world’s second largest economy and a rising global power.

Was ten minutes sufficient to discuss a foreign policy matter as important as our economic, military and moral relationship with China?   Absolutely not.  One hopes that the next president has a policy toward China that is more complicated than what can be explained in less than his allotted five minutes.

But in all fairness, the lack of attention to China was likely not a result of ignorance of China’s importance vis-a-vis the United States.  This debate is for the American people and let’s face it, right now the Middle East is at the forefront of most American minds.  For the past few months, Syria, Iran, Afghanistan, Pakistan, or  Libya, have appeared on the front page of major national newspapers; it’s in this region where American lives are on the line on a daily basis; and with all the saber rattling in the region there is a very real fear amongst Americans that the U.S. entanglement in a third war in the region is a possibility.

While we would have liked to have seen more discussion on China, the focus and time spent on the Middle East was necessary.  And hey, China should feel lucky – it got more time than the European debt crisis (0 minutes) which arguably is a much more time-sensitive crisis with severe, global repercussions.

But back to China.  Between the two candidates, there was no clear winner or loser in terms of China.  The only real loser was Bob Schieffer who pivoted to the China topic by saying “Let’s turn to China.  Mr. President what is the U.S.’ biggest national security threat?”  Gee Bob, I wonder who YOU think is the biggest national security threat.  Not surprisingly, neither candidate fell into Bob’s trap.

What was the most interesting aspect of the debate was that it was perhaps the clearest representation of how similar China policy is and has always been between the two parties.  Each candidate began his statement on the importance of the U.S.-China trade dealings and the symbiotic relationship between the two countries.  Neither candidate discussed cutting or changing this mutually dependent relationship.  Instead, each candidate underscored the need for China to “play by the rules” and trade fair – Obama highlighted the many WTO cases his administration has brought, and won against China, and Romney emphasized the need to protect intellectual property.  So in reality, the two China policies were pretty much the same.  Two key differences, and where each candidate lost equal points, were the following:

• Romney declaring China a currency manipulator.  Romney has promised to declare China a currency manipulator on his first day in office.  But what he doesn’t mention is that this declaration is largely symbolic – like Amtrak declaring May 10 National Train Day – it’s sort of self-serving.   As Bloomberg noted in a great article about this last week, presidential declaration of currency manipulation does nothing.  All it would do would be for the Secretary of the Treasury to analyze whether the president’s claim is true using a specific formula.  If it is, then the Treasury Secretary is required to work with the International Monetary Fund to negotiate a solution with the offending nation.  There is no guidance about what to do if negotiations fail.  So basically, Romney’s plan is to do what is currently being done – negotiating with China to limit its currency manipulation.

• Obama highlighting the need for government to support the green tech industry.  Obama reinforced the need for government funding for industries like green tech so as to compete with China.  Romney was critical of government’s role and thought that funding of industries should be left to business and venture capitalists.  China Law & Policy has long maintained that government policies and funding of green technology is important in maintaining any competitive advantage over China.  (See How China Beat the U.S. and Became the New Green Tech Giant).  But what Obama failed to mention is that one of the bills that could have kept us in competition with China – the Climate Change Bill – failed to pass a Democratic-controlled Senate (after passing the Democratic House).

On China – Same, Same but Different

Missing from the discussion was any mention of the Senkaku/Diaoyutai islands, the U.S. military’s abysmal relations with the Chinese military, reasserting US power in the region, potential Chinese cyberattacks, or human rights.

In the end, the debate did little to distinguish between the two candidates in terms of China.  Anyone who is an undecided because of China issues will likely stay that way.

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By Elizabeth M. Lynch, October 14, 2012

A few weeks ago, Glenn D. Tiffert, a Ph.D. candidate in History at the University of California, Berkeley with a focus on the legal history of the PRC, posted an article on traditional problems of jurisdiction, issues that any legal system would have – which courts have the right to hear a case and why.

But China’s legal system is far from traditional. Tiffert makes that clear in his new article “Hold the Champagne: The Bo Xilai Affair, the Party-State, and Rule of Law,” posted below. How are criminal trials of government officials handled in a one-Party state, where the overlap between the Party and the state is strong and omnipresent? What does the fact that Gu Kailai and Wang Lijun went through the criminal legal process and not the Party’s disciplinary process mean for the rule of law? And does the fact that Bo Xilai was very much handled by the Party disciplinary process mean anything else?

Hold the Champagne: The Bo Xilai Affair, the Party-State, and the Rule of Law

by Glenn D. Tiffert

Part 2 of a two-part series on the Bo Xilai Affair. Click here for Part 1.

With its personal and political dramas, and its broader implications for leadership succession, the Bo Xilai Affair (“the Affair”) has captivated observers of the People’s Republic of China (“PRC”). But beneath the headlines, the Affair affords an opportunity to take stock of the evolving relationship between the Chinese Communist Party (“CCP”) and the PRC state, a task this post briefly undertakes in the context of discipline and punishment.

Although China today largely has a market economy, the Leninist political concept of the “Party-state” remains a useful one. The term suggests a duality in which each component maintains a distinctive identity amid mutual, deep entanglements.

According to one recent description: “The Party is like God. He is everywhere.”Its tendrils penetrate every corner of Chinese political, economic,

Vladamir Lenin: His Ghost Still Lives on in the Chinese Party State

social, religious and cultural life, and it tolerates no organization it cannot monitor or control. Hence, in principle, every institution of significance in China has internal Party representation that links to a parallel, external hierarchy of Party organs. This arrangement is intended to maintain the Party’s intimacy with Chinese society and leadership of it, and facilitate tight discipline over ideology as well as policy formation and implementation.

Yet, the boundaries and terms of the Party-state duality are far from stable. Historically, they have generated fierce contestation and fluctuated widely, not just in the PRC, but also under the Nationalist regime that preceded it. In short, Party and state, though tightly entwined, variously face one another in tension.

The Bo Xilai Affair illustrates the ongoing complexities of the Party-state relationship well, particularly as it pertains to the legal system. To explore this more concretely, let us reconstruct from the public record the differential handling and case procedural histories of the Affair’s principal players –Bo, his wife Gu Kailai, and Chongqing police chief, Wang Lijun.

A Tangled Web: Discipline Through Both Legal and Party Means

Generally speaking, the PRC maintains three official channels of discipline and punishment for government officials and Party members. These channels may overlap or intersect in specific cases.

The first channel involves ordinary criminal liability. All citizens accused of crimes – including officials and Party members – are subject to the state legal system familiarly comprised of police, procuratorates and courts. But, Article 74 of the PRC Constitution exempts deputies to the National People’s Congress (“NPC”) from arrest or criminal trial without the consent of the NPC Presidium or its Standing Committee. At the time the Affair erupted, both Bo and Wang were NPC deputies.

The second channel, also governed by state law, involves administrative sanctions and applies specifically to government officials and Party members, who are subject to a thicket of regulations and laws enforced by an assortment of agencies, including the Law on Public Servants and, in complex or serious cases, investigation and sanction by agents of the Ministry of Supervision pursuant to the Administrative Supervision Law.

The third and final channel exists in parallel to the state legal system and is purely Party. Under the Party Constitution and subsidiary rules and regulations, CCP members are subject to Party discipline. In fact, the CCP maintains a hierarchy of internal Discipline Inspection Commissions charged with investigating both concrete cases and maintaining the overall organizational and ideological health of the Party.

Attempt to Separate Legal Liability and Party Discipline

Deng Xiaoping takes power in China and the early 1980s sees "reform & opening"

When the CCP began reconstructing its state legal and internal disciplinary organs in the early 1980s after the disruption of the Cultural Revolution, an effort was made to assert their separateness. Thus, the Party’s Central Discipline Inspection Commission and Organization Department jointly opined in 1982 that CCP members could be arrested and tried in the state legal system under the criminal law without first waiting for the Party to dispose of their cases internally, and that the Party disciplinary process could even begin after a judicial verdict. They added that punishment under the criminal law should, with limited exceptions, result in expulsion from the Party. Indeed Article 38 of the Party Constitution declares in part that “Party members who seriously violate the criminal law must be expelled from the Party.”

Very little public information is available on the operation of the Party disciplinary process, but observable practice indicates that this stab at separation did not get very far. Although the 1982 Party Opinions intended to loosen the chains that bind the state legal process to the Party disciplinary process, in practice, the Party exercises a right of first refusal towards suspected criminals within its ranks. Accordingly, Party officials suspected of offenses prosecutable under the criminal law are routinely held to account only through internal disciplinary channels, where anecdotal evidence suggests they often get off more leniently than the criminal law would allow – in many cases effectively suffering no more than setbacks to their careers. This amounts to a double standard of justice for Party members and understandably outrages those who believe that everyone in China should be equal before the law.

It appears that the Party countenances prosecution by state judicial authorities only of members suspected of especially serious or notorious crimes, crimes that in its estimation cry out for punishments heavier than mere internal Party discipline, or in which the Party wishes to set a public example. Consistent with its 1982 Opinions, the Party may in these instances allow the police and procuratorate to originate a case in the state legal system, or it may refer a case to them after exhausting its own internal disciplinary process. Of course, the latter – in which the Party has already made its own internal decision – effectively constitutes a form of political guidance on the expected outcome of the state criminal prosecution and trial.

In addition, because police and procuratorial personnel often participate in Party disciplinary investigations, they are familiar with the details of the referred case before it formally enters the judicial process. What is more, at the time of referral, the Party forwards to them the report of its Discipline Inspection Commission and the official findings therein. Thus, the Party disciplinary process – even though it appears on paper as separate from the legal system – contaminates the judicial process at multiple points, making independent adjudication that much more difficult.

How Does the Party-State Discipline Model Play Out in the Bo Xilai Affair?

How do these arrangements bear on the Bo Xilai Affair? The three principals – Bo Xilai, his wife Gu Kailai, and Wang Lijun – were all members of the CCP. So far as we know, Gu Kailai held no Party or state offices, but Wang Lijun held both, and Bo Xilai held Party, but no state, office. As the table below indicates, these facts determined the channels through which their cases publicly traveled.

– The Case of Bo Xilai

The Party’s handling of Bo Xilai exemplifies a classic sequence of discipline and punishment for Party members: (1) suspension of Party posts pending the results of disciplinary investigation, (2) expulsion from the Party upon the completion of that investigation, (3) seamless referral to the state judicial system for prosecution and, eventually, (4) conviction. The key outstanding questions concerns the specific charges that will be leveled against Bo and the severity of his ultimate sentence.

Bo Xilai

Deconstructing his case further, as a member of the Politburo, Bo fell directly under the Party jurisdiction of the Central Committee. Thus, on March 15, 2012 and pursuant to the Party’s internal Regulations on Disciplinary Punishment (中国共产党纪律处分条例), the Central Committee removed him from his Chongqing Party posts, chief among them Party Secretary. Further following the sequence mentioned in the prior paragraph, on April 10, 2012 the Party suspended his membership in the Politburo and the Central Committee and announced that his case would be sent to the Central Discipline Inspection Commission (CDIC) for investigation of “serious disciplinary violations.” On September 28, 2012, after considering the CDIC report on his case, the Politburo of the Central Committee expelled Bo from the Party and referred him to judicial authorities for prosecution. Divested of his Party membership, on September 29, 2012, Chongqing municipal authorities formally requested that the National People’s Congress (NPC) strip Bo of his seat (and the immunity it conferred) in order to formally clear the way for prosecution. As of this writing, we await the trial and sentence.

Another outstanding question concerns Bo’s whereabouts since his last public appearance in mid-March. As a subject of Party investigation, he was likely held under shuanggui (双规), an extra-legal form of detention used by the Party in its disciplinary process to investigate and interrogate members suspected of violating Party rules or state law. Party rules restrict shuanggui to a term of six months, which coincides well with Bo’s mid-March disappearance. We may learn at trial that he was transferred to state custody on a date that falls plausibly within this six-month time limit.

– The Case of Wang Lijun

Wang Lijun’s case traveled a different route. On February 7, 2012, Wang left the United States Consulate in Chengdu and surrendered

Wang Lijun

immediately to central authorities, reportedly from the Ministry of State Security, disappearing from view until his trial in mid-September. However, Wang was not formally arrested by State Security until July 22, 2012, having been stripped of his NPC seat and the immunity it conferred several weeks before, on June 30.

Authorities have offered no public account of his whereabouts between early February and late July. Three possibilities suggest themselves. First, in China, the police can detain an individual for investigation in a detention center or jail without arrest for up to 37 days, though they may be able to reset that clock and lawfully extend detention further by tacking on charges with strategic timing. A five and a half month detention, however, would have stretched that to the point of unlawfulness and, while hardly unprecedented, the intra-Party stakes would arguably have made the Party averse to tainting its handling of this case with that kind of procedural irregularity.

A second, more remote, possibility is the extra-legal Party form of detention called shuanggui, discussed above. Third, Wang may have been placed under “residential surveillance (监视居住),” a controversial form of prolonged detention famously used against government critics that, contrary to its connotations, is frequently served at a place or facility designated by the police. Under the Criminal Procedure Law, residential surveillance is limited to a period of six months, which fits Wang’s disappearance from public closely.

Gu Kailai

– The Case of Gu Kailai

Gu Kailai’s detention raises the same questions. She disappeared from public view in mid-March, was not formally arrested until July 6, 2012 and reappeared only at her trial for the intentional killing of Neil Heywood on August 9, 2012. Nearly four months separated her disappearance and arrest, and again the official record offers no explanation. Investigatory detention for that length of time for a single charge of homicide too would have been unlawful.

Foregrounding the State: CCP Reticence in the Gu & Wang Cases

Wang and Gu were both Party members, but interestingly the Party has only spoken of their cases in the context of the state legal system; it has studiously avoided associating them with its internal disciplinary process. This would favor residential surveillance, rather than shuanggui, as the explanation for their extended disappearances.

The Party’s inhibitions about connecting these two cases to discipline manifests in another important way as well. Wang and Gu have both been convicted of “serious” crimes, but no public announcement of Party disciplinary sanctions, most obviously expulsion, has followed; Article 38 of the Party Constitution requires expulsion.

In the past, such announcements routinely arrived at the outset of the state legal process. The practice of announcing expulsion just prior to referring the case to judicial authorities suggested a convention that Party members in good standing were immune from state prosecution, irrespective of the 1982 Opinions. Bo Xilai’s case, for example, conforms to this model, as did those of Chen Xitong and Chen Liangyu before him. There are signs, however, that this practice has changed, at least for some defendants.

For cases like Gu’s and Wang’s, which originate in the state legal system rather than with a disciplinary investigation, the Party is no longer consistently publicizing the disciplinary consequences of conviction. One might read this as a positive development if it indicates that the Party has rediscovered the spirit of the 1982 Opinions and is again loosening the chains that bind the state legal system to its internal disciplinary process. After all, given the clarity of the Party Constitution on the consequences of conviction for serious crimes, one may assume with good reason that Wang and Gu have been, or will be, expelled. On the other hand, with public faith in the capacity of the CCP to police its own at a nadir, continued silence on their standing in the Party, especially in light of their notoriety, invites cynicism and conspiratorial theorizing.

Discipline Through the Administrative Channel: Greater Rule of Law by the Party?

In addition to the Party disciplinary and state criminal processes discussed so far, there remains another channel: the state administrative process. A dizzying array of state administrative organs regulate malfeasance by government agencies and their personnel. The relation of these various administrative organs to one another and to the Party disciplinary process is not always clear, though one example stands out from the pack and demonstrates how intertwined the state administrative disciplinary process is with the Party’s.

Historically, the crowning organs of the state administrative and Party disciplinary channels have had overlapping memberships, with key cadres concurrently holding leadership positions in both. For example, the current Minister of State Supervision, Ma Wen, also serves as a Deputy

The Downfall of Bo Xilai begins with the Party

Secretary of the Party’s Central Discipline Inspection Commission, just as her predecessor, Qian Ying, did in the 1950s, when Qian established the precedent. In fact, the correspondence between these organs extends deeper still: in 1993, the Central Discipline Inspection Commission actually absorbed the Ministry of State Supervision in a merger, and while they remain distinct on organization charts, their twin apparatuses often function as alter-egos in concrete cases.

Strictly speaking, only one of the three defendants held state office at the time the Bo Xilai Affair erupted, Wang Lijun, and I will have more to say about him in a moment. But in a curious twist emblematic of the overlap between Party and state, Bo Xilai himself is also subject to the 2005 Law on Public Servants (公务员法), paradoxically through his Party status.

In 2006, the CCP Central Committee and State Council, as the top organs of Party and state administration, jointly issued an Implementation Plan for the PRC Law on Public Servants(中华人民共和国公务员法实施方案) (“the Plan”). The Plan makes clear that, pursuant to subsidiary Rules on the Scope of Public Servants (公务员范围规定) (“the Rules”), functionaries in CCP organs (工作人员), with the exception of service workers (工勤人员), qualify as public servants and thus are subject to the Law on Public Servants; Hence Party officials who hold no state office are now counter-intuitively subject to state law regulating public servants.

Article 4, Paragraph 1 of the Rules is still more explicit, listing among the categories of CCP personnel included within the scope of public servants “leading personnel of Party Committees and Discipline Inspection Commissions at the central and various local levels.” Under this rubric, Bo Xilai, as Chongqing Party Secretary and a member of the Politburo qualified doubly, and hence the announcement of his referral for prosecution properly lists the state Law on Public Servants among the legal bases for the Party’s decisions to remove him from his Party posts.

The optimistic reading of this convoluted logic would go something like this: the Party, having conceded that it is subject to the law, faithfully submits its leading members to the same regulatory standard as state public servants, a refreshing acknowledgment perhaps of their actual powers and functions amid the blurred boundaries of the dualist Party-state.

But before we break out the champagne to celebrate this milestone in the tortuous journey of the rule of law in China, it bears keeping in mind that while such maneuvers reference state law, they reach it only after an initial, internal determination by the Party; it is the Party that permits a case to attain this point.

Moreover, a further cautionary note underscores how provisional the change is in the relationship between Party and the state. Though the Party has gone to considerable lengths to present its handling of the Bo, Wang and Gu cases as procedurally unimpeachable models of socialist rule of law, certain details belie its tidy narrative, and Wang Lijun helps to show how.

Recall that of the three defendants discussed here, only Wang is known to have held state office at the time the Affair erupted. On March 26, 2009, the Chongqing Municipal People’s Congress, acting under its constitutional authority, appointed him Chongqing Police Chief, and on May 27, 2011, it elevated him to serve concurrently as Deputy Mayor. The power to reassign or dismiss Wang from these posts similarly fell under its jurisdiction.

Nevertheless, Wang’s February 2, 2012 reassignment from police duties, the event that precipitated his flight to the United States Consulate several days later, was not in fact ordered by the People’s Congress or by another legally authorized state body, but by the city’s Party Committee, controlled by Bo Xilai. This unlawful conflation of Party and state – where the Party performs duties reserved to the state – was then compounded on March 15, 2012, when the CCP Central Committee, via its Organization Department, removed Wang from his position as Deputy Mayor.  It was not until March 23, 2012, that the Chongqing Municipal People’s Congress formalized Wang’s dismissals from these posts, making them legally valid.  For as long as fifty revealing days, the gaps between Party and state, power and law, brazenly lay bare.

Party authorities, at both the municipal and national levels, in their haste could not be troubled to maintain appearances by first arranging Wang’s dismissals through regular state channels. Instead, the Party violated the Constitution and other laws, thereby poking holes in the self-congratulatory, socialist rule of law banner it attempted to wrap around these cases. In short, Wang’s case reminds us that even after considerable effort to systematize Party and state administration and bring the Party under the ambit of state law, old Leninist habits and sensibilities remain alive and well, and are never far from the surface.

This is the second article in a two-part series. For Part 1, click here.

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By Elizabeth M. Lynch, September 25, 2012

Part 2 of a two part interview series with Margaret K. Lewis.  Click here for Part 1. 

Prof. Margaret K. Lewis

After 16 years and a world of changes, China finally revised its Criminal Procedure Law (“CPL”).  Implementation is set to take place in three months.  So the question remains, is China ready for these changes?  Are the lawyers aware of how these changes will impact their practice?  Will we see a different landscape?

As Margaret K. Lewis, associate professor of law at Seton Hall University and Chinese criminal law expert, explained on Monday, the revised CPL was a compromise between two powerful dueling interests – reformers and the security apparatus.  But who wins out?  In Part 2 of this interview, Prof. Lewis continues to explain some of the major changes, including the inclusion and legalization of the public security’s use of residential surveillance.  Is it better that the rules are finally written down?  Read below to find out.

Click here to listen to Part 2 of this two part interview series with Prof. Margaret K. Lewis, or read below for a transcript of Part 2 of the interview.
Length: 16:02 minutes

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Will Witnesses Appear in Court?

EL:  Going from confessions, which form the basis of most convictions in China, I want to switch to another aspect of the CPL that I just find really, really confusing which is witness testimony.  Right now, under the current CPL, or just as a general practice, witnesses usually don’t appear in court, is that right? 

ML: That is right.  Although we don’t have an official statistic, I regularly hear that witnesses appear in less than 10% of cases, and even that is likely being generous. The more common practice is to read written statements that witnesses gave to the police or prosecutors. Once when visiting a court in China, the group I was with toured an empty courtroom. It was beautiful: beautiful polished wood, it was gorgeous. The judge giving us the tour pointed out where the defendant would sit and where the lawyers would sit. We asked, “Where does the witness sit?”  There was an awkward pause and then it was said, “Well, a chair would be brought up here for the witness.”  But it was clear that this was not common practice.  Again, hopefully that will change but, to date, witnesses have played a very limited role when it comes to the actual trial process.

Coming soon to a Chinese court near you - Live witness testimony?

EL:   So with the new CPL, in reviewing the added provisions, I have noticed that there are a lot of provisions that talk about witnesses: compensating them for attending a trial and forbidding employers from docking pay or injuring an employee who has to go to court.  I think you find that in Article 63.  But then later on when I was looking through the amended CPL, we see Article 181, which seems to imply that only in rare circumstances will a witness be required to appear and if the court thinks they have to appear.  Do you think based on some of these additions, but yet the retention of Article 181, do you think we will start to see greater in-court witness testimony under the new CPL? 

ML:  As you note, on paper, the revised CPL puts greater emphasis on witnesses appearing in court. But I share your skepticism that these provisions will lead to a marked increase in witness participation.  We need buy-in from the prosecutors, from the judges in particular to welcome this change in the actual courtroom.

Again, a related issue is that lawyers remain restricted both in law and practice.  The scarcity of lawyers who handle criminal cases in China combined with the highly constrained scope of publicly funded representation means that the majority of criminal defendants proceed without any counsel whatsoever. Having witnesses appear is generally of little use to the defendant unless there is competent counsel to examine, or cross-examine, the witness depending on whose witness it is.

EL:  This is all really interesting because I think it shows—the fact that there is a tremendous reliance on confessions and there aren’t witnesses in court—it shows how different the Chinese criminal court system or how a trial is performed in China from the United States.  If you don’t have witnesses and you have confessions, what is really going on in a Chinese criminal trial? What else happens? Or is there anything else that happens?

ML:  I have only seen parts of a few trials in China—my blonde hair and white face doesn’t help—and I know those trials were selected as appropriate for foreign visitors. As a result, I cannot speak much from personal experience.  Instead it is anecdotes and talking to people who have a much more intimate understanding.

But what we do know is that, the further a case progresses, the more likely that a suspect will be found guilty. China’s approximately 99% conviction rate emphasizes the need for early advocacy on behalf of suspects if there is any hope of avoiding criminal liability. The trial itself routinely focuses on whether the defendant merits lenient punishment instead of whether the evidence is sufficient to support a guilty verdict.

I believe in giving criticism where criticism is due. People should realize that here in the U.S. cases seldom go to trial. Most cases are resolved by way of a guilty plea, not a dramatic Law & Order episode in the courtroom. That said, China is still even more dramatic in its conviction rate and how trials have always been of relatively little importance.

The Controversial Provisions on Residential Surveillance

When your home becomes your prison: residential surveillance

EL:  Switching gears let’s go back to what goes on before the trial during the investigation phase.  I think this is perhaps one of the biggest changes to the CPL and most people think for the worse—is the codification of what’s known as “residential surveillance.”  Can you first explain a little bit what is residential surveillance and how the new CPL addresses it?

ML:  The government’s ability to deprive people of liberty prior to conviction or even charging really was a focal point of the debates surrounding the revisions. This deprivation can occur, as you know, through [1]“residential surveillance” [jianshi  ju zhu – 监视居住] though not necessarily at the suspect’s own residence, or [2] through “detention” [juliu – 居留] at what’s known as a detention house or a kanshousuo  [看守所].

Following release of the draft revised CPL last summer, critics quickly pointed to the provision in the law that allowed police to hold suspects under residential surveillance in cases involving crimes of endangering state security, terrorist activity, or serious bribery. Nor would the police have to notify the suspect’s family.

But after [the draft’s release], there was really potent criticism both from people inside China and outside China, the final law was revised and first to limit use to “especially” serious bribery and second to cabin the initially sweeping lack of notice provisions by changing it to “except where notification cannot be processed that there should be notification to the family.”  But critics continue to raise concerns that notice might not include the actual location of the suspect or other crucial information.

With respect to detention, there is a provision that provides that a detainee’s family needs to be notified within twenty-four hours unless again notification cannot be processed or where the detainee is involved in crimes endangering state security or crimes of terrorist activities, and notification may hinder the investigation. What these exceptions to the standard rule of family notification actually mean in practice, this will only be apparent over time.

EL:  Just to follow up and to clarify a little bit, can anyone be placed under residential surveillance for any crime?  How do they distinguish or is it just left totally in the prosecutor and public security bureau’s hands?

ML:  It is limited to certain crimes and types of suspects by law but I can’t verify how it will be used in practice and some of those categories are quite broad. Other [provisions] are more direct saying that for certain categories of people for whom residential surveillance can be used when the conditions for arrest have been satisfied, such as people who are seriously ill or pregnant women…so I’d currently be eligible for residential surveillance.  If you see residential surveillance as an alternative to locking someone up in what could be a very harsh jail-type setting, it comes across as a positive thing.  If you’re pregnant or breast feeding, to have you in a comfortable place, albeit secured and you’re being watched.  But if it becomes a sweeping way to have suspects being held for long extended periods of time, it starts to look a little less rosy.

EL:  When exactly are the police or the prosecutor allowed to put someone under residential surveillance?  Do they have to be arrested?  Or can it be before that, during the interrogation stage?

ML: It can be used both for suspects during the investigation stage or for people who have been formally arrested.  The term “arrest” [daibu – 逮捕] in China often occurs much later than how we colloquially think of arrests in the U.S. People in China can be in custody without being formally arrested.  Bottom line is its scope is quiet broad as far as when it can be invoked in the criminal process.

EL:  We do know there are time limits to detention but is there a time limit under which one can no longer be under residential surveillance or is it not clear at this stage? 

ML: The law provides that the period for residential surveillance shall not exceed six months. Again, only time will tell whether this time limit is followed in practice.  It’s unclear at this point whether there might be some ways to reset the clock, some new charges, how this might be massaged, but the law does at least provide a clear time limit that might give lawyers and families something to work worth.

EL:  When the draft first came out back in 2011, I think the majority of China’s legal academics were rather alarmed by the legalization of residential surveillance.  But there were a few that did argue that in a way it was a positive development, that residential surveillance was happening anyway and now at least there are rules governing the process that must be followed.  What do you think of that argument, do you think there is any validity to that?   

ML:  I agree that there is something to be said for honesty instead of simply codifying an ideal system that has no basis in reality. That said, I personally am worried that the procedural limits on residential surveillance and other liberty-depriving mechanisms will not be strictly enforced; they’ll take the power that the law gives them without the restrictions. As implementation proceeds, a question to watch is whether these new provisions merely expand the tools available to police without providing any concrete safeguards against their unfettered use.

Training on the New CPL

Police training

EL:  I think that brings us to an issue that I think has been floating under the surface during this whole interview which is that at least on paper there seems to be better protect the rights of criminal suspects.  But it seems like a lot of the initiative in protecting criminal suspects has to come from the police and the prosecutor’s offices.  Since the new law was passed in March 2012, do you know if there have been any training for the police and/or the prosecutors to prepare them for January 1, 2013, implementation, when it takes effect?

ML:  As was done after release of the 2010 evidence rules and all sorts of prior declarations, there are reports of course that police, prosecutors, and judges are undergoing various trainings in preparation for the new law taking effect.  Of course we are also waiting for this guidance that should come not only from the Supreme People’s Court but similarly guidance from [1] the Supreme People’s Procuratorate to the prosecutors, and [2] the Ministry of Public Security, to the police, some of which could be public some of which might not.

Even with the new CPL, it is important to emphasize that it does not address the full criminal process. The law spans the life of the case from its initial filing through appeals and execution of punishments. The law does not comprehensively address procedures for the earliest handling of a case by the police prior to involvement by the procuratorate. This entirely police-dominated phase remains the least understood aspect of China’s criminal justice system and, arguably, the most crucial.  So there is still a lot we don’t know and that is important to recognize.

EL:  Right, right.  That is very interesting that you bring that up, that there are no changes with what’s going on with the police and we don’t know. But in that regard, what about with the criminal defense bar.  Has there been any efforts for the criminal defense bar to better learn the new law and to perhaps strategize how to use it to better protect their clients? 

ML:  There are many dedicated, and even fearless, defense lawyers in China who are hard at work to figure out how best to use the new law. As is

Courtesy of the Illustrated Guide to Criminal Law: http://thecriminallawyer.tumblr.com/

the case currently, a lawyer’s good relations with the local authorities handling a case is what’s truly critical when advocating for a client.

I commend anyone who takes on the difficult task of being a defense lawyer in China. The long complaint of the defense bar is that they have the “Three Difficulties”— the difficulty in meeting with clients, the difficulty in getting access to the prosecution’s case files, and the difficulty in carrying out investigation and collecting evidence.  But lawyers have been recently expanding this critique to the “Ten Difficulties”— you take the original three and then we add on the difficulties of obtaining bail, getting witnesses to appear, obtaining a hearing for an appellate trial, pleading innocent, participating in the process of death penalty review, abolishing the criminal law that criminalizes when lawyers specifically encourages witnesses to change their testimony, and also the difficulties in proving that evidence was illegally obtained.

There are so many barriers and perhaps this new law will diminish those barriers, but I think there is a sense of being beleaguered amongst the defense bar right now.

EL:  What’s interesting too is what you mentioned before, that most criminal defendants aren’t actually represented in court or in any part of the proceedings. Has there been anything done to guarantee that those defendants without lawyers, which is probably the majority, know about their rights?  Have there been any public education campaigns? At the very least, does China have any TV shows like Law & Order? I feel like everybody in the United States knows their rights through Law & Order.

ML:  Even more interesting is that people in China watch our TV shows. When I was over there earlier this summer I got a number of questions about whether plot lines on The Good Wife were actually reflecting what happens in courtrooms, and I don’t watch the show so I was at a bit of a loss. But obviously that’s hit the DVD stands as well.

The revised CPL mentions an increased role for legal aid and that raises hopes that the revisions could usher in some meaningful changes, though I am again withholding much in the way of praise until we see changes in practice.

I think the bigger force for change will be weibo and other technologies that can quickly and broadly spread word of cases like Zhao Zuohai’s where there has been a clear miscarriage of justice. That would have been swept under the rug a matter of years ago but, once that was out there in the public sphere and spread like wildfire, there was no way to put that toothpaste back in the tube. So really the most effective push for real change will likely come from large-scale public outcries based on real cases rather than government slogans.

EL:  Right, and that Zuo….what’s his name?

ML:  Zhao Zuohai.

EL:  Zhao Zuohai.  A lot of people think that’s what brought about the 2010 exclusionary rules.

ML:  And there are other cases that continue to come out, and I think that when you put a real face on the injustice it does a lot more than having slogans painted on a bulletin board.

EL:  Well, okay.  There is still a lot to talk about with the new CPL and I think you’re right, a lot of it we won’t really know what happens until it is actually implemented and starts going into use, but I do want to thank you very much Prof. Lewis for sitting down with us today and explaining a lot of the new developments with China’s new Criminal Procedure Law.  Thank you. 

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By Elizabeth M. Lynch, September 23, 2012

Prof. Margaret K. Lewis

Part 1 of a two part interview series with Prof. Margaret K. Lewis

This past March, after almost a year of public comment and almost sixteen years of waiting, China’s National People’s Congress finally revised its Criminal Procedure Law. The revisions were ostensibly designed to bring China more in line with the rest of the world, providing greater rights to criminal suspects and defendants.

But while the law on paper provides some greater protections, the question remains – does it go far enough.  Will it ever go far enough given the immense power of China’s Public Security Bureau.

With the law set to go into effect in three months, on January 1, Prof. Margaret K. Lewis, associate professor of law at Seton Hall University and a noted Chinese criminal law expert, took the time to speak with China Law & Policy and explain many of the law’s new developments and many of its potential problems.  In Part One of this two part series, Prof. Lewis explains the background to China’s Criminal Procedure Law, the different stakeholder who influenced the recent revisions, a confusing new “right” against self-incrimination and the new provisions to limit confessions obtained through torture.  Will they actually work?

Click here to listen to Part 1 of this interview series with Prof. Margaret K. Lewis, or read below for transcript of Part 1.
Length: 14:35 minutes (audio will open in a seperate browser).

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EL:  Thank you for joining us today Prof. Lewis. 

ML:  My pleasure

Background on China’s Criminal Procedure Law & the Battle Over the Revisions

EL:  Before we delve into the details of China’s new Criminal Procedure Law or

NPC busy at work, passing laws

what is known as the CPL, can you give our listeners some background: what exactly is a criminal procedure law?  Does the United States have anything like that? 

ML: China has both a Criminal Law and a Criminal Procedure Law or CPL that apply to the entire country. This legal system would be more familiar to students of Continental civil-law jurisdictions than to American lawyers. There is not one unified Criminal Law that applies across the U.S. because, in addition to federal criminal law, each state has its own laws.

Now, for criminal procedure, although there are laws, regulations, rules and other types of formal legal documents that shape the criminal process in the United States, we rely heavily on case law to determine what procedures are allowed.  For example, what constitutes an unreasonable search?

Importantly, in China, the Criminal Law and CPL are distinct, standalone laws with the former addressing substantive crimes and defenses—such as what constitutes theft, murder, and other crimes—and the latter addressing the process for investigating, prosecuting, and adjudicating alleged criminal activity. Yet these laws are closely intertwined.

For example, use of the death penalty is first constrained by the substantive offenses for which it is a possible penalty; this now stands at fifty-five, down from sixty-eight in the pre-2011 version of the Criminal Law—not a small number.  If a person is prosecuted for a death-eligible crime, the CPL lays out the procedures that must be followed, including a final review by the Supreme People’s Court (SPC) prior to execution. How China actually uses the death penalty is still largely opaque, with the number of annual death sentences and executions remaining a state secret and estimates really range widely though generally now in the several-thousand range. That said, the trend in recent years has been to constrain the scope through both through substantive and procedural reforms.

Today in China, we have a revised CPL that will go into effect as you said in a few months. The law is written at quite a high degree of abstraction. Rumors have been swirling this summer about a forthcoming interpretation from the Supreme People’s Court that will flesh out the provisions in the law.  This process happened in previous times when we had a new law and is par for the course.  Most important, we need to wait to see how government authorities actually implement the law in practice.

EL:  I feel like for at least the past six years, the Chinese government has been actively talking about revising and amending the Criminal Procedure Law, the CPL. Why did it do it now?  Why 2011, 2012?  

ML:  I would emphasize at least the past six years. It’s been a boy who’s cried wolf or a Congress who’s cried law for a long time.  It’s always difficult to read the tealeaves, but anecdotal reports indicate that there were deep-rooted differences of opinions among various stakeholders in the drafting process.   Generally speaking, the 2013 CPL retains the same structure of the previous law but expands the number of articles from 225 to 290. The revisions themselves reflect tension and compromises between the public security forces and more reform-minded academics and other individuals involved in the drafting process.

For instance, re-education through labor has long been a contentious issue.  This is a police-controlled sanction which is considered administrative, not criminal, and thus does not go through the courts as would a criminal sentence.  Yet the police can send someone away for three years with a possible one-year extension.   Reports circulated for years that China would revise re-education through labor by including it within the CPL or creating some sort of separate court review to comply with provisions in international human rights documents or just abolish it entirely. To date, none of these proposed reforms have prevailed over resistance from the public security forces and they maintain control over the re-education through labor system.

EL:  Just to follow up on that…so basically the two main stakeholders you think are the public security interests and then the academic interests?

ML:  Of course there are also prosecutors, there are courts.  I think the extremes are represented by the most human rights-oriented scholars—of course not all scholars agree on that—and then the real law-and-order police forces.  I think it gets more complicated when you look at prosecutors and judges: their interests can cut both ways.

A New Right Against Self-Incrimination?

EL:  Right, right.  In talking about the generalities, you mentioned the changes or

US' Miranda Rights find their origin in the Constitution's 5th Amendment

some of the lack of changes like re-education through labor.  But I want to focus now on something you have actually written about recently in your article Presuming Innocence, or Corruption, in China, [and] one of the big changes to the new CPL which is basically a right against self-incrimination which we find in Article 50.  Did the previous Criminal Procedure Law not provide such a right to defendants?  Is the right in the 2012 CPL similar to the right to silence that criminal suspects and defendants have in the U.S.?

ML:  The right against self-incrimination in the U.S. has a complex history and its contours are notably different than the new provisions we’re seeing in China’s CPL.

The revised CPL has neither a clear right against self-incrimination nor a clear presumption of innocence. It moves in that direction but stops short.  A way we commonly think of the right against self-incrimination is, as you say, a right to silence, which is included as part of the famous Miranda Rights [in the U.S.].  Anyone who has ever watched any TV knows those by heart.  In China, the 2012 revisions have been lauded for providing that interrogators not force people to incriminate themselves, but this welcome addition fails to provide a clear right to silence, especially when combined with the lingering requirement that suspects must answer questions truthfully. And there’s still an overt emphasis on leniency for confessions, which puts greater pressure on suspects to be forthcoming with information.

EL:  Right, and just to follow up on that.  I noticed that too when I looked at the new CPL, that you have this sort-of right against self-incrimination in Article 50 and then you have what is still left in the new CPL from the old CPL, is this requirement in Article 93 that the suspect answers truthfully and that the interrogator asks questions and they have to talk about their guilt or innocence, and that they answer truthfully.  How do you see those two provisions playing out, or at all? 

ML:  It is difficult to square Article 50 with Article 93. The best I can tell is suspects must answer truthfully, but interrogators are limited in the measures they can take to force people to talk. At base, this tension reflects the horse-trading that went on in the drafting process. We had more reform-minded drafters who wanted a robust right against self-incrimination but there was no way that this was going to get past the public security forces and other more law-and-order factions.

Evidence Obtained through Torture – Will it Really Be Excluded?

EL: That’s really interesting because I think a lot of people think China is just this one-party state and there isn’t these factions and there isn’t horse trading.  And it seems like in your response, you alluded to one of the bigger things that I think a lot of people are applauding which is the adoption of provisions excluding evidence obtained through torture, especially confessions.  Confessions in China are usually the basis of most convictions I believe, but correct me if I am wrong, and there has been a lot of recent stories of murder victims who appear alive and then they have to set the person free.  Can you talk more about these new provisions found primarily in Articles 54 to 58 of the new CPL?

ML:  Confessions still are king in China and certainly the easiest case for a wrongful conviction is when the alleged murder victim returns alive, as seen in the case of Zhao Zuohai.  In that case, the murder “victim” returned to the village alive after his self-confessed “murderer” had spent a decade in prison.  Obviously you don’t need DNA evidence to prove someone’s innocence when someone who is supposedly beheaded now returns to the village intact.

That case brought unprecedented public scrutiny to methods used to extract confessions. It eventually came to light that police had beaten Zhao during the interrogation process. Zhao’s case and other reports of coercion and outright physical torture prompted the release of new evidentiary rules in 2010.  That included, among other provisions, a pre-trial mechanism to challenge the admissibility of illegally obtained confessions.

These new rules have largely been incorporated into the [revised] Criminal

Zho Zuohai with a compensation check for being wrongfully convicted

Procedure Law and this has marked a step towards recognizing the extreme reliance on confessions and the concerns for abuse and mistakes that are inherent in such a one-dimensional method of evidence collection. Again, the new CPL is not yet in effect, but reports of defendants invoking the 2010 rules are few and news of successful challenges limited to at best a handful.

EL:  Just in trying to understand how these new provisions will work, who can actually raise the issue of a confession obtained through torture and what happens once it’s raised?  I think you mentioned a pre-trial mechanism to analyze that.

ML:  The law provides that prosecutors should conduct an investigation on their own volition if they are tipped off that investigators used unlawful methods of evidence collection [Article 55].  But should is different than will. How enthusiastic prosecutors will be using this power is subject to doubt.

Similarly, judges should conduct an investigation if they suspect that investigators used unlawful methods of evidence collection [Article. 56].

Moreover, and most interestingly, the defense may request the court to exclude the evidence gathered by unlawful means. This is a marked change from the prior Criminal Procedure Law. However, as with the 2010 Evidence Rules, it is questionable how receptive courts will be to these applications. Defense counsel is also hampered in its ability to access evidence that would prove illegal means.  And you need to have a defense lawyer who understands these rules to begin with.

There are a number of practical hurdles that stand between what the law says and what we are actually going to see in practice.

What new rights will suspects & defendants have in China's new CPL?

EL:  Another interesting thing, and I don’t know how this works as much in a civil law country, the CPL does not define what is considered torture.  Even in the U.S., there are tactics used in interrogation that while rough, are not legally torture.  Are there any other regulations in China which define torture?  How will the courts go about defining torture?  I know it is a civil law system but will there be any, sort-of, common law definitions emerging for torture?

ML:  First there is an issue of translation. The phrase you often hear in Chinese—xingxun bigong [刑讯逼供] —is often translated as “extracting confessions through torture” but it uses a different word for torture than, for example, in United Nations Convention Against Torture, which is kuxing [酷刑]. Right there, sometimes there is a little bit of questioning what we are dealing with.

To my knowledge, there is no clear definition of torture in Chinese law, but that is true in other jurisdictions as well. I think one concern is that, by giving a clear definition, it can be easier for people to inflict suffering on another person and say, “But, look, what I did is not in the definition of torture.”  Sometimes there is a reason not to have the definition too clearly spelled out.

And as you point out, a related issue is what practices short of physical torture are deemed illegal; for example, coercion, lying to suspects, playing psychological games. When do interrogators cross the line from using creative, acceptable tactics to measures that society really wants to condemn.

Part 2 of the Interview to Follow