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By Elizabeth M. Lynch, September 18, 2012

Anti-Japanese Protests in Beijing this Weekend

China Law & Policy has been following the anti-Japanese riots that spread across China this past weekend.  These riots appear to be a somewhat orchestrated response by the Chinese government – through the masses – to their dispute with the Japanese government over the Diaoyu/Senkaku Islands located in the East China Sea.  While this dispute has been ongoing, last week’s purchase of the islands by the Japanese government from the private owner, lead to saber rattling from China and this weekend’s violent protests.

At China Law & Policy, we have yet to blog about this affair, mostly because orchestrated, nationalist protests are difficult to divine.  Who are these protesters?  Just how orchestrated are these events?  Would the majority of Chinese allow their young children be witness to looting and violence and scream words like “kill the Japanese”?  Is this really about a pile of rocks?  There are limitations to our – and for that matter most people’s – ability to truly know what is going on.

The Western media has largely been focused on the violence that has erupted in China around these protests, and the use of the protests as possibly a government tool to hide issues of succession in the Party leadership.

But Bill Bishop, who runs the excellent blog/email newsletter Sinocism (if you are not subscribed to this, you should be), offers a much more nuanced view.  Yes, the protest are violent and yes they are likely orchestrated, but they do not reflect the sentiment of the majority of the Chinese.  Additionally, Bishop inquires as to what Japan was thinking in all of this.  Why would Japan choose to make these islands an issue now during China’s tense party leadership succession?  Bishop also analyzes the perhaps overblown contention that the U.S.’ treaties with Japan would require the U.S. to get involved.

Bishop’s post is a good read and an important fresh perspective.

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By Elizabeth M. Lynch, September 9, 2012

Jurisdiction is central in any legal system; it is jurisdiction that gives a court its power to administer justice.  Without proper jurisdiction, a court’s opinion is defective.  Thus, given its importance, all legal systems design specific rules governing when a court has jurisdiction over a case.

But recently in China, how courts have gained jurisdiction in criminal trials has been called into question.  The trial of Gu Kailai, for a murder that took place in Chongqing, was heard in Hefei.  Wang Lijun was police chief of Chongqing, but his crimes are being heard in a Chengdu court.  Has the Chinese legal system ignored all rules concerning what gives a court jurisdiction?  Or are there other rules that apply?

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, explains below that what might look like a random selection of courts actually has a basis in law.  Tiffert also reminds us that there is more than just the Criminal Procedure Law to look at in understanding the Chinese criminal legal system. 

Mixed-Up Confusion?  The Different Ways Chinese Courts Obtain Jurisdiction

By Glenn D. Tiffert

Part 1 of a two part series exploring the jurisdictional issues in recent criminal cases

As the Chinese legal system works its way through the various cases connected to the “Bo Xilai Affair,” it is a good time to review the usually unglamorous procedural rules governing jurisdiction.  The Bo Xilai Affair has brought these jurisdictional rules to the forefront and is generating more than the usual amount of interest among China watchers; even those focused on Chinese law are finding twists worth exploring.

To keep things simple, I will explore jurisdictional issues in the Gu Kailai and Wang Lijun cases alone, although my points could apply more generally to the other defendants connected to Gu, namely her accomplice Zhang Xiaojun, and the four police officers charged with covering up her crime.  This post will look at territorial jurisdiction, in other words, where the trials were held.  A later post will examine why both cases were assigned to intermediate level People’s Courts.

Gu Kailai being led into Hefei Intermediate People's Court

To recap: Gu Kailai was convicted of the intentional homicide of Neil Heywood, a British citizen resident in China, and the crime was alleged to have taken place in Chongqing, Sichuan province, the city her powerful husband, Bo Xilai, presided over as Party Secretary.  However, Gu’s trial took place 800 miles away from the city of Chongqing, in the city of Hefei, Anhui province, a place that had no known connection to the homicide, or to the alleged crimes of the other defendants associated with her.  Observers have suggested various practical or political reasons for why the trial was not held in Chongqing, and why it may have been assigned to Hefei, but those need not concern us here.  We are interested in discovering the legal authority for the assignment of the case to Hefei.

Article 24 of the Criminal Procedure Law of the PRC establishes the general rule that: “A criminal case shall be under the jurisdiction of the People’s Court in the place where the crime was committed.  If it is more appropriate for the case to be tried by the People’s Court in the place where the defendant resides, then that court may have jurisdiction over the case.”   Additionally, the Criminal Procedure Law provides rules for cases in which more than one court could claim jurisdiction, or in which jurisdiction is unclear.  For example, Article 25 states: “When several People’s Courts at the same level have jurisdiction over a case, it shall be tried by the People’s Court that first accepted it. When necessary the case may be transferred for trial to the People’s Court in the principal place where the crime was committed.”  However, in the case of Gu Kailai, none of these basic rules provide a basis for trying her in Hefei.  As a result, we must look elsewhere.

The Chinese legal system provides several routes for transferring jurisdiction over a case from one court to another.  For example, pursuant to the Criminal Procedure Law and the Law on the Organization of the People’s Courts, a lower level court with jurisdiction over a major or complex case can request a higher level court to take over the case.  But because Gu Kailai was charged with a capital crime, we can rule this path out.  Article 20 of the Criminal Procedure Law stipulates that intermediate level courts have jurisdiction of first instance over crimes punishable by life imprisonment or the death penalty and, because this case was actually tried by an intermediate level court, a lower court could not have had jurisdiction over it first.

One jurisdictional route rises above the rest.  Article 26 of the Criminal Procedure Law provides that: “A People’s Court at a higher level may assign a People’s Court at a lower level to try a case over which jurisdiction is unclear and may also instruct a People’s Court at a lower level to transfer the case to another People’s Court for trial.”

Article 26 can be parsed in different ways, with different results attaching.  To resolve the ambiguity, we must do what we do in any legal system, move beyond the four corners of the statute to consult supporting texts and practice, both of which indicate that the Supreme People’s Court (SPC) essentially regards Article 26 as comprising two independent clauses, the second of which matters here.  Hence we get: “A People’s Court at a higher level may… instruct a People’s Court at a lower level to transfer the case to another People’s Court for trial.”

The authoritative SPC Interpretation on Certain Questions Pertaining to the Implementation of the Criminal Procedure Law of the PRC (“the SPC Interpretation”) stipulates two ways that can happen.  First, under Article 18 of the SPC Interpretation, when the President of a lower level court must recuse himself[1] and it would be “unsuitable” for that court to assert its jurisdiction over a case, that court may ask a higher level court to take over jurisdiction.  The higher level court may take jurisdiction or assign it to another court at the same (lower) level as the first court.  Article 19 of the SPC Interpretation requires the higher court to send its decision on jurisdiction – 管辖决定书 (guanxia juedingshu) – to the lower court newly awarded jurisdiction and to other relevant courts.  Second, Article 22 of the SPC Interpretation allows a higher level court on its own initiative to assign jurisdiction over a case from one lower level court to another lower level court “when necessary,” without first requiring a request from below or that the second court be of the same level as the first.

Admittedly, we know few hard facts about the procedural history of the Gu Kailai case, but one nugget stands out.  The Xinhua reporting on the trial indicates that the SPC issued a decision on jurisdiction to the Hefei Intermediate People’s Court, and the Hefei court accepted the case for trial on that basis.  We do not know precisely whether this decision was based on Article 18 or 22 of the SPC Interpretation, as either might reasonably have applied, but the SPC evidently used its inherent power under Article 26 of the Criminal Procedure Law, as expounded in the SPC Interpretation, to transfer Gu’s case to Hefei.  One may furthermore assume that the Supreme People’s Procuratorate issued complementary instructions so that procurators would actually argue the case there, too.

The Supreme People's Court

Assuming that the SPC complied with its own Interpretation of the Criminal Procedure Law, we may infer from its decision on jurisdiction that another court originally accepted the case.  We do not know which court that may have been, but an obvious candidate would have been the Chongqing Intermediate People’s Court.  Under this scenario, three possibilities present: first, the unnamed court claimed jurisdiction over the case without the approval of senior Party and judicial authorities in Beijing, which seems implausible; second, Beijing granted its approval and then changed its mind; and third, acceptance by the unnamed court served, in the interests of formal compliance with procedural requirements, purely as a trigger for transfer to Hefei.  Regardless, as the highest court in the land, once the SPC transferred jurisdiction, the decision was effectively immune from challenge or appeal.

In comparison, the Wang Lijun case is more straightforward.  At least one of Wang’s alleged crimes took place in Chengdu: his purported “defection” in the United States consulate.  Notwithstanding substantive problems matching the facts as we know them to the elements of this crime, Chengdu judicial authorities may properly claim jurisdiction over the case under Article 25 of the Criminal Procedure Law (discussed above), and barring an unlikely protest from their counterparts in Chongqing or any other locale in which Wang is alleged to have committed crimes, the trial will take place in the Chengdu Intermediate People’s Court.  Indeed, given the stakes in trying Wang, one may assume that the SPC, and the political leadership behind it, assents to Chengdu jurisdiction, either tacitly or by assignment.  When the verdict is announced, we may know which.

Historically, reassignments of lower court jurisdiction by higher level courts are not uncommon in the Chinese judicial system, where concerns about local protectionism, judicial independence and varying levels of judicial competence adversely affecting trial outcomes run high.  The 2008 criminal trial of former Shanghai Party Secretary Chen Liangyu in Tianjin is another prominent, recent example.  Cases like those of Chen Liangyu and Gu Kailai shine a spotlight on one of the Chinese judicial system’s underappreciated features.

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[1] Article 28 of the Criminal Procedure Law defines the grounds for recusal, including “relations with a party to the case that could affect the impartial handling of the case.”

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By Elizabeth M. Lynch, August 29, 2012

As China Law & Policy reported last week, the guilty verdict issued against Gu Kailai for the murder of Neil Heywood came as no surprise, even with the slim evidence – much of it hearsay – presented at the August 9th trial.

One central piece of evidence at the eight hour trial was Gu’s own confession.  According to the Chinese state-run media, Gu openly confessed to intentionally killing Heywood.  But for some, this raises the question – do you need to have a trial at all if the defendant confesses?  Can’t she just plea to the murder and avoid the trial?

But does China even have plea bargaining?

China’s Summary Procedure – Not Exactly Plea Bargaining

Even in the United States, plea bargaining was not a welcomed occurrence.  Plea bargaining emerged as a grass-roots response by the actors in the criminal justice system – the judges, prosecutors, and defense attorneys – to the rapidly growing criminal docket.  Although first documented as widespread as early as the 1920s, it wasn’t until 1970, when the Supreme Court declared plea bargaining constitutional, that it became embraced, even if awkwardly.  Today, over 95% of all felony convictions in the United States result from plea bargaining.

In the adversarial system – where the prosecution and the defense battle it out to ultimately determine the truth and the judge plays a more passive role – plea bargaining has its place.  But in an the inquisitorial system – where the judge plays an active role in determining the facts – plea bargaining is not as openly accepted.  But criminal justice systems in civil law countries suffer from the same demands – too many case, too few lawyers and too little time.  As a result, even countries like Germany have developed a type of plea bargaining.  In Germany today, a remarkably high average of 20% to 30% of all convictions are the result of a confession.

In China, the story of plea bargaining has taken a similar path.  Innovation has come from the bottom up and its increasing use is a response to

Bargaining in the market - same as bargaining justice?

the exploding criminal caseload in most courts.   Beginning in 1996, with the first amended Criminal Procedure Law, China first introduced Summary Procedure – a form of plea bargaining where the trial is reduced in cases where the defendant confesses and agrees to summary procedure.  Under the 1996 CPL Summary Procedure could only be used in “minor” criminal cases, where the sentence was limited to three years or less.

But as China instituted another “strike hard campaign” and criminal dockets further ballooned, local courts began experimenting with Summary Procedure in major criminal cases (sentence of more than three years).  Eventually, most courts began issuing extending the use of Summary Procedure to major criminal cases, and most criminal cases, regardless of the sentence, were subject to Summary Procedure (these regulations referred to the use of plea bargaining-like procedures in major criminal cases as “Simplified Procedure“).  For further analysis of the development of Summary and Simplified Procedure, see “Maybe a Plea But is It a Bargain: An Initial Study of the Use of Simplified Procedure in China.”

In amending the CPL in 2012, the Chinese government officially sponsored the use of Summary Procedure by extending the use of Summary Procedure to almost all criminal cases.  See Articles 208 to 214.

Summary Procedure is Not Allowed in Death Penalty Cases

Gu Kailai could not avail herself of Summary Procedure because the CPL does not permit the use of such procedures in capital cases.  The 2012 CPL Amendments don’t specifically spell this out.  Instead, Article 208 limits the use of summary procedure to those cases within the jurisdiction of the basic-level people’s court (基层人民法院).  However, under Article 20 of the CPL, the intermediate people’s court (中级人民法院) has jurisdiction in the first instance of all cases punishable by life in prison or death.

As a result of these two provisions, Gu Kailai, even if she wanted to use Summary Procedure, could not as her case was heard in an intermediate level court, and not a basic level court.

Summary Procedure Does Not Eliminate the Trial

But even if a crime is eligible for Summary Procedure, there is still a lot more judicial oversight than what you would see in the U.S.  This is a remnant of China’s civil law system where, due to the central role of the judge, the defendant cannot avoid a trial just by admitting guilt.

Under Summary Procedure, the “trial” is not eliminated, just shortened.  The judge will still review the prosecution’s file, call the parties to court, allow the parties to argue certain points and provide the defendant with the last word prior to judgment.  Under the current amendments, someone from the prosecutor’s office should attend the Summary Procedure trial.  This is an important change from the prior CPL which permitted the absence of the prosecutor, demonstrating that Summary Procedure is not just some rubber stamp of the defendant’s confession.  Cf. 1996 CPL Article 175 with 2012 CPL Article 210.

Thus, even if Gu’s trial was not a capital trial and she was able to avail herself of Summary Procedure, much of what was seen in court – the presentation of some evidence, her confession as the last word – would still have occurred.

Summary Procedure – Interesting Developments in the 2012 CPL Amendments

In addition to death penalty cases, the 2012 CPL Amendments list other situations where Summary Procedure is not prohibit.  Not surprisingly, in cases with a vulnerable defendant (blind, mute, deaf, or mentally ill) or in cases where there are multiple defendants and not all defendants have confessed.  See CPL Article 209(1) & (3).

But the 2012 CPL Amendments limits the use of Summary Procedure in one additional instance: where the case has a strong societal impact.  See Article 209(2).  This exception did not exist in the 1996 CPL articles governing Summary Procedure.  In adding this exception, it appears that the Chinese government acknowledges the potential political use of certain criminal trials.  Not surprisingly, that appears to be what happened in the case of Gu Kailai.

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By Elizabeth M. Lynch, August 19, 2012

Happy times - Gu Kailai, Bo Xilai & son Bo Guagua

On Monday morning (Beijing time) the Hefei Intermediate Court will announce its verdict in the murder trial of Gu Kailai (pronounced Goo Kai-lie), wife of Chongqing’s purged Party Secretary and former rising star, Bo Xilai (pronounced Bwo See-lie).   The world will be waiting but not because the verdict is uncertain (Gu will be found guilty) or because she will receive the death penalty (likely her sentences will be commuted to death penalty with 2 year reprieve, a.k.a. life sentence); the world will be watching more because this absurd tale of kangaroo justice mixed with seemingly bizarre and inconsistent facts will finally come to an end.

August 9, 2012: The Eight Hour Murder Trial

Gu is accused of murdering one-time family friend and British businessman Neil Heywood in order to protect her son, Bo Guagua (pronounced Bwo Gwa-gwa).  While the eight-hour trial was publicized in the Chinese press, the evidence against Gu is flimsy at best.  Even the prosecutor’s arguments seemingly contradict the facts and common sense.  At the trial, prosecutors argued that Gu was motivated by a motherly (and as presented to the court mentally unstable) need to protect her adult son.

Allegedly, Heywood kidnapped Bo Guagua, kept him in his basement in England, and threatened his safety after a business deal went bust.  To

Neil Heywood, allegedly murdered by Gu Kailai

protect her son, in November 2011, Gu allegedly hatched a Tudor-esqe plan to convince Heywood to come to Chongqing where she met him at his hotel room, had him drink copious amounts of wine and tea, watched him vomit and then gave him a glass of water mixed with cyanide.  When Heywood’s dead body was discovered two days later, on November 16, 2011, by hotel staff, Gu allegedly convinced his wife in Beijing to cremate the body.

None of this makes sense, at least in terms of justice and accountability.  Since 2010, Gu’s son has lived in the United States, attending Harvard’s John F. Kennedy School of Government and Politics (he graduated May 2012).  At the very latest, Bo Guagua’s “kidnapping” would have occurred in early 2010, when he was a student at Oxford.  But wouldn’t Oxford have been aware of a missing student?  Wouldn’t a protective mother call the British police at the time to alert them of the kidnapping of her son?  Other than Gu’s “confession” and other witnesses’ statements read into the record by prosecutors, no tangible evidence was presented.

Gu Kailai – A Pawn in Her Husband’s Purge?

But this trial is not about sense, justice or accountability.  Instead, with its lack of evidence and with its fantastical soap-opera explanations, it is a song-and-dance number put on by the Chinese Communist Party (“CCP”) to explain the downfall of Gu’s husband, Bo Xilai.

Since 2007, Bo has had a successful run as Chongqing Party Secretary.  Starting in 2009, Bo lead a popular crack-down on corruption, prosecuting thousands of black market operatives.  Under Bo’s leadership, no one was safe; even corrupt politicians were prosecuted.   Chongqing, once the bastion of organized crime, had been cleaned up under Bo and its people were very happy.

As Chongqing Party Secretary, Bo also began efforts to revitalize Maoism.  Calling on the people to sing “red songs” and for the young to go to the countryside, Bo harkened back to the days of the Cultural Revolution.  Bo’s neo-Maoism was criticized in the Western press but was not opposed by all in Chongqing.  Namely, the “losers” of China’s economic development benefitted from Bo’s focus on public work projects and subsidized housing for the poor.

In Chongqing, Bo was becoming a powerful politician with an already regal pedigree (Bo is known as a “princeling,” the son of one of Communist China’s founding leaders).  By the middle of 2011, Bo had positioned himself perfectly for a powerful, national position with China’s change in leadership set for October 2012.  A position on the all-powerful Politburo Standing Committee was not out of reach.

But Bo’s downfall began, not with the November 14, 2011 death of Neil Heywood, but with Wang Lijun’s – Chongqing’s police chief and long-time Bo ally –  alleged attempted asylum at the U.S. Consulate in Chengdu.  On February 6, 2012, Wang fled to the U.S. Consulate, allegedly fearing for his life and confessing to U.S. Consulate staff the secrets of Bo Xilai’s reign.  The U.S. did not provide Wang with asylum; once he left the consulate, Chinese officials boarded Wang on a flight to Beijing to be disciplined by the Party.

On March 15, 2012, Bo was dismissed as Chongqing Party Secretary although retained his position on the Politburo (but not yet the Standing Committee).  On April 10, 2012, the Chinese government announced its investigation of Gu Kailai for the November 14, 2011 murder of Neil Heywood and dismissed Bo from his remaining Party positions, effectively purging him.

Gu at her murder trial.

But did Gu actually kill Neil Heywood?  With the minimal “evidence” presented at trial, it’s unclear.  It could be that Heywood unexpectedly died while in Chongqing or that someone else killed Heywood and that pinning the murder of Gu is a more pleasant way for the Party to explain Bo’s purge than the actual truth.

Does a One-Party Authoritarian Dictatorship Need to Explain Its Purge?

In the past, the CCP has purged Party leaders without any explanation.  But in the case of Bo – with his international stature, relative popularity among the people, good looks, and money – purging him without any explanation would raise eyebrows to say the least.  One thing the CCP cannot have as it jockeys its leadership transition, is a public who questions its legitimacy.

The internet, fervent micro-blogging and greater access to information (even if it is government-censored), leaves the CCP susceptible to rumors (or in some cases, to uncovering the truth).  Some Party-approved narrative is necessary to explain a popular politician’s purge.  Here, Bo’s downfall is his wife’s alleged murder of Neil Heywood.   The criminal trial – held in a Hefei, not Chongqing court – adds further legitimacy to the Party’s narrative.

But even more importantly, the trial serves as an important signaling device for China’s internet users.  By leaking some information to the government-controlled press from the trial regarding the Party-approved narrative, the Party puts Chinese society on notice as to the acceptable dialogue surrounding Bo’s purge.

But Will the Trial of Gu Kailai Ultimately Bite the CCP in the Butt? 

It could be that Gu killed Heywood.  It could also be that she didn’t and that her trial is being used to mask the real reasons for Bo’s purge.  But

Yes, some more so than others.

regardless, the flimsy manner in which Gu will likely be convicted gives the appearance of her innocence.  The facts just don’t make sense and not just to the Western audience.  Likely many in the Chinese audience see this as well (they just know that they can’t talk about it).

The Party put on this show trial to bolster its legitimacy.  But ultimately it’s this trial that will undermine the Party’s legitimacy.  The CCP has a serious trust problem with its people – its people know that food safety is flouted with abandon, that government officials’ children get away with murder, that government statistics on air pollution are a lie, and now that something weird is going on within the Party over Bo Xilai.  But a people’s trust of its own government is necessary to its ultimate success.  Yes, in every country, people question some aspect of their government or their history, but not to the extent that happens in China.  Without trust, at some point the government won’t be able to function. So the question emerges, how many lies can the CCP continue to tell before its house of cards comes tumbling down?

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By Elizabeth M. Lynch, July 23, 2012

Seeing Red in China, a blog that often posts translations of Chinese activists’ work, has just posted two must read translations (see hereand

Beds in a vacant black jail - Caijing investigation.

here).

Both concern the recent abduction and detention of Song Ze, a volunteer attorney at the Open Constitution Initiative.  Like most recent college graduates, Song Ze is an idealist young man who wants to use his education to better society.  That is what brought him to the Open Constitution Intiative and helped him to become an advocate to those petitioners illegally subjected to one of China’s black jails.  As Xu Zhiyong recollects in his essay exclusively written for Seeing Red in China, Song Ze’s advocacy brought him to the cries of Hu Yufu, an 80 year old petitioner desperate for medical attention but denied access to a hospital by his jailers.  Hu Yufu died only a few days after Song Ze first heard his story.  Relying on China’s rule of law, Song Ze assisted the family in bringing a lawsuit against the local Party for their father’s death.

As with all stories where a young idealist lawyer relies on the Chinese government’s promises of rule of law, it was that advocacy that caused Song Ze to be abducted and detained for “provoking disturbances.”  As recounted by his lawyer, Liang Xiaojun, Song Ze has been detained beyond the 37 days allowed by law and has yet to be charged or arrested.  Liang’s account demonstrates a criminal justice system that still has a long way to go before it follows its own laws.  Even citation to the law does not matter:

The officer in charge of the case was there. Upon hearing my request to meet Song Ze, he asked who had sent me and how, while recording information about me on a notepad. Then he left the room with the approval form. When he returned shortly, he told me the lieutenant, whose signature was required, was unavailable, and I couldn’t meet Song Ze on that day. He told me to come back tomorrow.

I argued that, according to China’s Lawyers Law, meeting with client required no approval. He said, the new criminal procedure law wouldn’t take effect until next year, and it was good for a lawyer to obtain approval

Song Ze’s current whereabouts are now unknown.  As Liang points out in his essay, this has become permissible under Article 73 of China’s amended Criminal Procedure Law.  Liang suspects that “residential surveillance” in an undisclosed location will become the tool of choice of the police so as to avoid even the limited protections afforded criminal defendants.

Xu Zhiyong and Liang Xiaojun‘s essays not only reflect the absurdity of China’s legal system where the police do as they please, but they also reveal what is becoming a battle for China’s future.  When the heavy hand of the Party falls on a young, idealistic volunteer, the Chinese Communist Party sends a strong warning signal to China’s other Song Zes: your idealism could silence you and cause you to become a case in and of yourself.

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By Elizabeth M. Lynch, July 18, 2012

Part 3 of a three part series on the Chinese Media Reciprocity Act & foreign journalists in China
(Click here for Part 1; click here for Part 2)

There is a chance that passage of the Chinese Media Reciprocity Act could result in China granting visas to U.S. government journalist, but that possibility is slim.  The effects of passage of the Act mentioned in Part 1 – the eradication of the Chinese press in the U.S., an all out visa war, and greater suppression of freedom of the press – are much more likely and not positive.  But the U.S. does not have to sit back and just watch the Chinese government harass and censor their journalists.  Below are some less extreme alternatives that the U.S. government can conduct to express its displeasure with the Chinese government and perhaps change the current situation.

Alternative #1: Raise the Issue When it Happens

The U.S government’s tepid response to Melissa Chan’s unlawful expulsion was a missed opportunity to underscore the U.S.’ commitment to freedom of the press to the Chinese government.  The Chinese Media Reciprocity Act is not necessary if the U.S. government publicly stresses that this is an important issue.  While some may argue that private diplomacy and comments work better with China, the current Administration has publicly censure China when its behavior bucks international human right standards.  As recently as last Tuesday, while on a trip to Mongolia, Secretary of State Hillary Clinton publicly criticized China for its lack of freedom for its own people.

Similarly, if freedom of the press means something, after Melissa Chan’s expulsion, the U.S. State Department should have issued an official statement from a high ranking official reprimanding China for unlawfully using the visa process to censor foreign journalist coverage.  Perhaps such a statement would have given Beijing pause and might cause it to change from its current course of conduct.  But a mere statement of “disappoint” permits Beijing to continue harassing foreign journalists and interfering with their coverage by threatening to deny visa renewals.  Rhetoric can make a difference or at the very least serve as a signaling device to Beijing that this is an important issue that the U.S. government is not going to take lightly.

Alternative #2: List the Harassment of U.S. Journalists on its Website

The Foreign Correspondent Club of China (“FCCC”) previously posted their members’ incidents reports and the yearly surveys on their website.  But since February 2011, the FCCC is no longer posting the reports or the surveys because of increasing pressure from the Chinese government.  As Peter Ford, president of the FCCC, told China Law & Policy, the FCCC removed mention of the incident reports because “the [Chinese] Foreign Ministry threatened the FCCC president and other officers with unspecified ‘serious consequences’ if the club continued to make public statements that the government regarded as political. To ensure the club’s continued existence we have since limited our public statements to particularly egregious violations of our journalistic rights and freedoms, such as physical injuries sustained by foreign reporters at police hands and Melissa Chan’s expulsion.”

Ambassador to China Gary Locke - can he help protect US journalists?

The public availability of the incident reports provided an important look into the treatment of foreign journalists in China, including their visa issues.  But with the Chinese government’s censorship of the FCCC, that important information is no longer available and it becomes difficult to know the current situation in Beijing.

But the U.S. Embassy in Beijing can serve this function by posting U.S. journalists’ incident reports.  At the very least, they can list the issues that U.S. journalists are having with the visa process serving two purposes: informing its citizens about the j-visa process and highlighting to the Chinese government that this is a serious matter that the Embassy plans to monitor.  The U.S. Embassy in Beijing does something similar for air pollution; the Embassy has a page dedicated to listing air quality reports every hour.  This webpage has  irked the Chinese government since the Chinese Ministry of Environmental Protection hosts a similar webpage but usually with more positive air quality numbers, making apparent that someone is not telling the truth.  There is no reason why the same can’t be done with U.S. journalists in China.

Alternative #3: Deny a Visa

But another reason why the Chinese Media Reciprocity Act is not necessary – and another tool that can be used to protect our journalists in Beijing – is that the U.S. can deny visas under current law.  The Immigration and Nationality Act provides the executive branch with a list of circumstances, which at times are very vague, where the government can deny a visa.  Section 212(a)(3)(C) allows the State Department to deny a visa if there are adverse foreign policy concerns: “An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.”  Within the courts, the executive branch is given almost exclusive deference in immigration and visa decisions.  See Kleindienst v. Mandel, 408 U.S. 753 (1972).

If rhetoric does not work with the Chinese government, the U.S. government can threaten to deny a visa to a single Chinese reporter.  This might do the trick without damaging freedom of the press too much.  In “The Visa Dimension of Diplomacy,” Prof. Kevin D. Stringer analyzed the use of visas as a diplomatic tool.  Although Stringer is not keen on the denial of a visa as a sanctioning tool, he does note that on occasion it has produced positive results.  After India unexpectedly conducted nuclear tests in 1998, the U.S. denied a visa to Dr. R. Chidambaram, the Chairman of the Indian Atomic Energy Commission, who had come to the U.S. multiple times before.

The denial was symbolic but had a larger psychological impact on Indians on work visas or those who wanted to send their children to a U.S. college.; would their visas be denied as well?  How far would the U.S. go?

Similarly, the U.S. government could threaten to deny – or just not process – a visa to a key Chinese reporter.  In February 2012, to much fanfare in China, the Chinese government launched CCTV America, based in Washington, D.C.  A threat to deny a visa to one of their top reporters or directors could put the Chinese on notice that the U.S. is not going to stand for the harassment of U.S. reporters abroad.  Similar to the 1998 India situation, given the large number of political elites’ children who attend college in America, a single visa denial could have a similar psychological impact on influential elites in China.

The U.S. does not have to pass the Chinese Media Reciprocity Act, but it does need to communicate its displeasure with the way foreign correspondents are treated in China.  There are other avenues to do that but one thing is clear, the U.S. government must start raising this issue otherwise things will only continue to deteriorate as it has for the past three years.

To see Part 1, click here; to see Part 2, click here

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By Elizabeth M. Lynch, July 16, 2012

Part 2 in a three part series on the Chinese Media Reciprocity Act & foreign journalists in China
(For Part 1, click here)

Putting aside the shrill rhetoric surrounding the Chinese Media Reciprocity Act and the fact that it only deals with the harassment of a small segment of U.S. journalists in China (the VOA and RFA reporters), the Act does draw attention to an increasingly problematic issue: the Chinese governments harassment of foreign journalists through the visa process.  It also raises the question: what should the U.S. government be doing about this harassment?

The Visa Renewal Process for Foreign Journalists – a Censoring Tool?

In the past two years, the Foreign Correspondents Club of China (“FCCC”) has documented an increasing number of incidents where the Chinese government threatens not to renew a visa or  unnecessarily delays the visa renewal process.  In China, a journalist visa (“j-visa) is only for a year and must be renewed every December.  What should be a routine event has turned into an anxiety-ridden occasion.  In 2011, the FCCC started focusing on the difficulties some of its members experienced in renewing their visas.  A 2011 FCCC  survey reported that 27 foreign journalists waited four months for a visa renewal.  According to Peter Ford, president of the FCCC, the FCCC considers waiting more than three months for a visa for a permanent correspondent excessive (for a temporary correspondent the FCCC believes it should only be a 30 day wait).  Thirteen journalists waited six months for a visa; and for three, their visa applications have been pending since 2009.

For 2012, the numbers have only gotten worse.  In the FCCC’s  2012 survey, released on May 31, close to a third of all respondents (36 out of 111 respondents) reported difficulty with renewing their j-visas or obtaining visas for new colleagues.[1]  Furthermore, the FCCC’s 2012 survey found that 21 of these reporters were told or believed that their visa difficulties were a direct result of their China coverage, demonstrating the Chinese government’s attempt to censor foreign correspondents by threatening their j-visa.  Peter Ford, president of the FCCC, told China Law & Policy that he doesn’t think that these threats and the continued harassment has had a chilling effect on foreign reporters’ China coverage.

It’s true that great and hard-hitting stories still make their way to our shores and maybe we just haven’t hit that tipping point.  But if China increases its pressure on foreign journalists, at what point will they crack and soften their stories?  A loss of a visa, especially for freelance journalists, could easily mean a loss of one’s livelihood.

A Foreign Correspondent Expelled from China: Becoming More than Just a Visa Problem

This past May, the Chinese government took the bold step of kicking out a foreign journalist: Melissa Chan, a U.S. citizen and long-time Al Jazeera English correspondent in Beijing.  The reason for Chan’s expulsion from China?  We don’t know.  The Chinese government has elected not to share that information.  But most speculate that it was a result of the Chinese government’s displeasure with Al Jazeera’s documentary of Chinese forced labor camps, a documentary that Chan played no role in filming and it was produced out of Al Jazeera’s London bureau.  Likely though, Chan’s hard-hitting coverage of official corruption, government land grabs, black jails and other sensitive topics didn’t help her case.  Prior to her expulsion, Chan was already being harassed:  her visa was not renewed for another year, instead she was on three short-term visas, probably to keep her on a “tight leash.”

Al Jazeera English China correspondant, Melissa Chan (photo from Al Jazeera)

Is Chan’s treatment a bell weather for other reporters?  Soon after Chan’s departure, Ford, as then president-elect of the FCCC was summoned to the Ministry of Foreign Affairs (the body which, in conjunction with the Ministry of Public Security, oversees foreign  journalists) and was reassured that Chan’s case was “sui generis.” “I was assured by a Ministry official that Melissa’s case was specific to her and other correspondents had nothing to fear.”  But as Ford went on to muse, the official’s statement only provided so much solace to the remaining correspondents in China; as long as the Chinese government continues to be mum on those specifics and persists in using the visa process as a censorship tool, other foreign correspondents don’t know if they have crossed that line that Chan crossed until they actually cross it.

As discussed in Part 1 of this series, one reason to oppose the Chinese Media Reciprocity Act is a belief in freedom of the press.  One would think that the U.S. government would have a particular interest in guaranteeing that journalists around the world – especially foreign journalists abroad – are left unharassed and are free to report their stories.  But the U.S.’ reaction to the expulsion of one of its citizens questions this commitment.  In a single press briefing, Department of State deputy spokesperson, Mark C. Toner, expressed the Department’s “disappointment:” “I would just say that we’re disappointed in the Chinese Government – in how the Chinese Government decided not to renew her accreditation.  To our knowledge, she operated and reported in accordance with Chinese law, including regulations that permit foreign journalists to operate freely in China.”

True Chan was not working for a U.S. media organization and instead was working for Al Jazeera, and her expulsion came soon after the difficult negotiation on Chen Guangcheng, but regardless, one would think that the U.S. government, the stalwart of press freedom, would have been more than just “disappointed.”  Even if the U.S. government did not want to raise the issue of an Al Jazeera reporter, it could have used Chan’s expulsion to highlight the case of Andrew Higgins, one of the Washington Post’s China correspondent who since 2009 has been waiting for a j-visa to enter China.

If freedom of the press is so important, how can we just sit back and watch the Chinese government toy with and try to influence any U.S. reporter, even one working for private news outlets?  What can the U.S. do to try to change this situation in China?

To be concluded in Part 3

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By Elizabeth M. Lynch, July 5, 2012

From The Printed Image in China: Qing Dynasty "Folkloric" Print

For many, wood block prints are synonymous with all things Japanese.  But as “The Printed Image in China” – a traveling show from the British Museum currently on view at New York’s Metropolitan Museum of Art – demonstrates, such a perception is totally wrong since it was China that first developed the technology, allowed it to flourish and made it an integral part of its culture and history.  The Printed Image in China is a must see, but must be seen by the end of July before it closes on the 29th.

This small, six gallery show begins with the earliest known prints in the world.  Although the Gutenberg Bible, printed in 1454, is commonly referred to as the first printed book, in reality, China was printing books, through wood block printing technology, as early as the 700s (likely even earlier).  The Diamond Sutra, purchased by Hungarian-British explorer Marc Aurel Stein in 1907 from a monk in the Dunhuang region of China, is the earliest, dated printed book in the world, with a date of 868 A.D.

Although the Diamond Sutra is not part of the show, some of the thousands of other ancient manuscripts that were a part of Stein’s Dunhuang purchase and estimated to have been printed around the same time if not earlier, start this phenomenal show.  For prints from the early Tang Dynasty (618 A.D. – 907 A.D.), the detail is truly astounding.  In particular, “Bodhisattva Mahapratisara with the Text of ‘Da Sui qiu tuoluoni,‘” gives one pause, reciting an entire sutra within the print along with detailed pictures of Guanyin, making one wonder about the difficulty of carving it and the patience required.

The show then jumps to prints to the Ming Dynasty (1368-1644), where the technology of wood block truly began to thrive and the industry flourished.  During the Ming, the use of multiple colors on a print – by carving different blocks for each color – developed, producing glorious prints that accurately copied the famous paintings of the day.  Later on in the show an entire gallery – and a highlight – is dedicated to demonstrating the genius of this technique with actual replicas of the differently colored blocks that would be used to create a single picture.  It’s easy to linger in that room, studying the intricacies of the method.

Wood block printing continued and peaked as an art form during the Qing Dynasty (1644-1911).  By the middle Qing, wood block printing was

Etching of Qianlong Battle (c. 1770) in the European Style

becoming its own art form.  Whereas the goal of the Ming artists was to make the wood block prints appear as much as a painting as possible, the Qing artists began to experiment with more vibrant colors (think hot pink) and thinner paper which resulted in an embossed, tactile texture to the print, making it obvious this was not a painting.  In addition, under the Emperor Qianlong (1711-1799), China experimented with the use of copper plates, prevalent in Europe at that time, Viewing some the etchings of famous European battles that the Jesuits priests brought with them to court, Emperor Qianlong (1711 – 1799) commissioned Matteo Ripa to create copper-plated etchings of Qianlong’s own battles.

A high point of the show is the “folkloric” prints found in the third gallery.  Unlike the pieces found in prior galleries, these prints – exploding with color – would have been everyday art, hung for New Years in an average person’s home.  Depicting the doorway gods and the Kitchen God, these prints – dating to the mid to late 1800s – were likely purchased directly by British that were in China at the time and viewed them as art to be maintained.  For the Chinese, these pictures were utilitarian in that they warded of the spirits for that year and, in keeping with tradition, would have been burned in preparation for the next New Year.

Li Hua's Raging Tide - Example of Modern Woodcut Movement

The final century, the 20th century, saw a renaissance of the wood block not just once but twice.  With the fall of the Qing, the uncertain rule of the Nationalists and the impending invasion of the country by the Japanese, the average Chinese was suffering.  Author Lu Xun (1881 – 1936), along with Li Shutong, were the major proponents of the “Modern Woodcut Movement” which used the sharpness of the woodcuts to reflect the harshness of daily existence in China.  By the 1920s, woodcutting was on the rise throughout the world and would become a common medium for many artists attempting to depict and democratize the misery of the average individual.    China was right along with Western nations in using the art form to communicate democratizing thoughts.

Wood block printing had a second 20th century renaissance under Chairman Mao Zedong (1949 – 1976).  With the founding of the People’s Republic of China, the government became the only patron of the arts and art was there to only to serve the government.  With the Communists, mass production became essential and where as in the past, wood carving was only one technique an artist might used, under the Mao, with its ability to create rapid reproductions for wide dissemination, wood carving would become a sole medium for many of the state-employed artists.  As a result, a talented pool of woodcutters emerged, taking the skill of the craft to the next level; the artists were able to use the wood block prints to create a feel to the different materials and emotions depicted in the print.

With the death of Mao in 1976 and the re-emergence of the market economy, these artists have continued with their crafted, creating new wood blocks prints that express their own emotions instead of the Party line.

The Printed Imagine in China is a must see show before it closes on July 29 but not just for the astounding prints that fill every gallery in this show.  What also emerges from this show and the careful way it has been laid out and described, is how this art form is an integral part of China’s political and cultural legacy and will be a part of its artistic future.  From the first gallery, wood block prints were printed for political reasons –

Post 1980 Woodcut: Wu Jide - Chatting over Tea

with the Tang, the politics was religion.  Spreading Buddhism was essential to the Tang Dynasty and the wood block prints, with its quicker way to reproduce the Buddha’s teaching, was important to that goal.

Under the Ming, spreading the literati culture became its own mission.  Across the Empire, a cultural language arose amongst the elites – an educated man needed to have certain books on his shelves and certain paintings on his walls.  Wood block printing created that mass culture among the literati.  With the Qing dynasty, a foreign dynasty ruled by the Manchu people as opposed to the Han Chinese, wood block printing was used to solidify its rule, especially with the  battle depictions of Emperor Qianlong.  For much of the 20th Century, first under the Modern Woodcut Movement of Lu Xun and then the Communists of Mao Zedong, the political message was clear; under Mao, it was required.

Unlike the centuries before, the 21st century finds the art form – perhaps for the first time – unhinged from any political purpose.  As the final gallery, with its post-1980s wood block prints, confirmed, the art form has exciting, new places to go that will do justice to its long history.

Tang Dynasty Wood Block Print - ca. late 700s A.D. (from the Dunhuang Purchase)

The Printed Image in China: 8th through 21st Century
The Metropolitan Museum of Art
(on loan from the British Museum)
1000 Fifth Ave (at 82nd Street)
New York, NY
Through July 29, 2012

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By Elizabeth M. Lynch, July 2, 2012

"Yi Lu Ping An" - Chinese phrase for Bon Voyage

Some blogs come and some blogs go, so what are you going to do about it, that’s what I’d like to know…

That tune I found myself humming tonight when I opened my Twitter account to slews of tweets lamenting the end of an era, lamenting the end of the China Beat.

For the past four years, the China Beat, a blog out of UC Irvine, posted some of the most eclectic, insightful and best written posts on China.  Subtitled, “How the East is Read” and run by a group of Chinese historians, the blog covered a wide array of issues in a fun and engaging way, making China accessible to everyone.  But more than just the quality of its posts, the China Beat also afforded a platform for different voices in the field:  young students of Chinese studies, non-scholar observers of China, and women.

For much of the China Beat’s history, two women have been important members of the four person team  that ran the site: Kate Merkel-Hess and Maura Cunningham.  Does gender matter?  I think it does.  Each of us has a perspective through which we view this world and our experiences in life is what determines that perspective; gender plays a part in creating that perspective.  I’m making no normative assessments of these perspectives, just acknowledge that gender can at times offer a different viewpoint.

In the Western-based China world, women’s voices are often not at the forefront.  A review of my book shelf has just two China books written by women (Susan Shirk and Elizabeth Economy); my Google Reader lists blogs written by men (aside from Flora Sapio’s Forgotten Archipeligos); and most of the major journalists who regularly cover China are men (exceptions being Lousia Lim of NPR, Sharon LaFraniere of NY Times and Melissa Chan formerly of Al Jazeera).

So it was refreshing to have a blog that was 50% female-run, with high-quality women who offered amazing scholarship.

Regardless of the gender make up of the China Beat blog team, the fact that such an amazing blog is shutting down is a travesty in and of itself.

Bye-bye China Beat

As with many blogs, the China Beat editors were finding it increasingly difficult to balance blogging with their paid jobs and ultimately it was the blog that had to go.  As much as we all try, you cannot make a living on China blogging  and some other job must pay the bills.  But with all the efforts to improve Americans’ understanding of China such as the State Department’s 100,000 Strong Initiative, blogs like the China Beat, which helped to illuminate the mysteries of China to the average American, has to close its doors.  It’s a pity that there are no grants out there to support the work of the China Beat which lessened the distance between the American people, especially the vast majority who will likely never visit China, and the Chinese.

With the China Beat closing its doors, its left to other blogs to try to pick up the mantel of honest, interesting and smart blog posts.  While China Law & Policy will try, most likely no one will be able to replace the China Beat.

Good-bye the China Beat; we hardly knew ye’.

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By Elizabeth M. Lynch, June 27, 2012

Meg Davis

This year Asia Catalyst celebrates its fifth anniversary.  If you have never heard of Asia Catalyst, then you are missing out on this tiny but powerful U.S-based NGO doing work in China.  Founded and headed by Sara L.M. Davis, aka “Meg”, a former China researcher at Human Rights Watch, Asia Catalyst is doing what others might think is unsexy work, but in reality is perhaps the most necessary work: assisting Chinese grassroots NGOs with developing the skills and best practices to become effective organizations.

Asia Catalyst is one of the few groups on the ground in China making civil society a reality.  By training China’s nascent grassroots NGOs in the nitty-gritty of running a non-profit, Asia Catalyst guarantees that Chinese civil society will have a strong foundation upon which it can successfully grow.  Asia Catalyst also teaches the tools necessary to effectively advocate both on the domestic and international levels.

China Law & Policy sat down with Meg Davis to discuss Asia Catalyst’s work with NGOs, its recently co-authored report with Beijing’s Korekata AIDS Law Center about the HIV/AIDS blood disaster, and what the future holds for civil society, rule of law and Asia Catalyst.

For those also impressed by its work and interested in supporting it, donations can be made 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).

Click here to listen to the interview with Asia Catalyst founder & executive director, Meg Davis, or read the entire transcript below.
Length: 19 minutes (audio will open in a separate browser)

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[01:06] EL: Thank you for joining us today Meg.  So five years ago, what inspired you to create Asia Catalyst? 

[01:13] MD:  It was really kind of an exciting moment in the development of Chinese civil society.  You were starting to see a lot of small groups springing up around the country to address health issues and environmental issues.  These were groups that were started by charismatic individuals who had a clear vision for the future, but maybe hadn’t worked at a non-profit before or had just worked at a similar kind of grassroots start-up.  It was the fact that I had worked with some of these folks at Human Rights Watch in my capacity as a researcher there that led me to have relationships with them.  When I left Human Rights Watch they didn’t really let me leave; they kind of followed along and said ‘can you look at this grant proposal,’ ‘can you help me to meet with this UN person,’ ‘I’m at risk of arrest, can I sleep on your sofa for a week.’ So there was a lot of that kind of stuff that eventually led to the development of Asia Catalyst.

[02:07] EL:  Just in terms of the grassroots situation in China, you keep referring to these NGOs that you work with as “grassroots NGOs.”  Can you perhaps just explain a little bit more about the NGO structure in China and how these “grassroots NGOs” that you help fit into that structure?

[02:25] MD: Grassroots is really an English appropriation of a Chinese term – caogen.  A lot of the groups we work refer to themselves as “caogen,” as grassroots groups.  It’s their way of saying they are independent.  In China, you can only really register at this stage as a non-profit, if you have, in most parts of the country, a sponsoring government institution.  For groups that do policy advocacy, no sensible government official is going to stick their necks out and sponsor one of these groups to get registered.  Some of them are unregistered and a lot of them are registered as businesses, as commercial enterprises.

[03:03] EL:  If these groups are unregistered with the government, how do they develop the skills? If you’re not there to help them, how would they develop the skills to become a professional and effective organization without you if they are kind of in the shadows?

[03:18] MD: Some groups that are more established are getting support from capacity building organizations that do exist in China.  There aren’t many people who are offering what we provide to these very small start-ups which is really one-on-one tailored coaching.  A lot of the groups we work with are founded by people with very limited education so we’re developing tools that don’t require a very sophisticated vocabulary that they can use to do strategic planning, budgeting, staff management, they can do basic qualitative research without a sophisticated background.

[03:51] EL:   In terms of Asia Catalyst’s focus, you’re focusing right now on which types of grassroots NGOs?  I imagine there are a lot of grassroots NGOs [in China], which are you focusing on?

[04:01] MD:  There are more every year.  We mostly work with groups involved in health and legal rights.  That includes groups working on HIV/AIDS, some marginalized communities including lesbian and gay groups, sex workers, drug users, people living with HIV.  But we’re starting also to work with groups that work on disability rights and with groups working on pollution and other kinds of health-related issues.

[04:26] EL: What caused you five years ago just to focus on health rights groups?

PSA in China to prevent the spread of HIV/AIDS

[04:31] MD: It was an area of growth and I think it’s also an area where forward-thinking, progressive government officials can easily engage.  If you go to them and say ‘we want to support human rights groups that are working on democracy promotion or censorship issues,’ that’s hard for someone who is a devout believer in Communist Party ideals to support.  But someone who is a socialist can get behind health rights because it is really is not that far removed.

[04:58] EL: So today, five years in, how many organizations in China does Asia Catalyst currently partner with and how does Asia Catalyst find its partners? 

[05:07] MD:  Currently this year we’re working with about 17 organizations around the country.  They’re from all over the place; from northeast China to all the way down to Yunnan and southeast China as well.

[05:18] We find most of our partners through online, open applications and we do this because when I was starting Asia Catalyst, there was a growing number of NGOs but there was a very small number that had international partners or international funding and we really wanted to cast a wider net and get groups that maybe not everybody had heard about.  I think we are starting to do that.

[05:39] EL: So just to follow up on that.  That’s one of the things that I find exciting about Asia Catalyst is this open call for applications.  I know you have a report on your website about how you put out an open call and that people can just come in.  I know most US-based organizations do partner with Chinese organizations that have been recommended through other people, so a lot of the same organizations are getting support internationally.  Sometimes some of those organizations – the US organizations – believe that it that these organizations are more reliable.  But by opening your application process to the public, do you feel that you risk spending resources on grassroots NGOs that might not be as reliable and that might just disappear.  What has your experience been?

[06:30] MD: It’s actually…our experience is the opposite.  Our experience is that some people who become, frankly, kind of donor favorites don’t necessarily have very strong infrastructure, don’t have a core team, don’t have a strategic plan or a solid budget, don’t necessarily have strong financial controls.  So by throwing the application process completely open, it’s a little bit more democratic, it’s a little bit more in line with the ideals that we espouse of transparency and accountability, and it means that groups, any groups that applies for one of our programs has to go through a process of being vetted which is quite intensive and a little bit painful for them.  They have to submit a lot of materials, they have to go through multiple interviews, they have to provide references, and in that way we try to identify groups that have certain fundamentals and one of those is a core team.  It’s easy to have one person who is very charismatic [as a] founder but that doesn’t necessarily mean that there is an organization behind them.  We’ve learned that the hard way.  So that’s one of the things that we try to identify through our intake process.

[07:33] EL: After you have done the intake and you find an organization that has been vetted, what kind of services does Asia Catalyst provide to help develop them?

[07:41] MD: The way our program is structured now, the first kind of level of engagement is through our non-profit leadership cohort which is a year-long program where 10 health rights group get intensive training in budgeting, strategic planning, and volunteer management.  Out of that, we pick two people who will continue on for a second year who will then become training assistants with a small stipend.  At the end of the second year, if they pass a certification exam, they can start their own cohort using our curriculum.

[08:15] Groups that go through the cohort then become eligible to get other kinds of assistance and sometimes that means leveraging our own donor connections to introduce them to donors, sometimes that means helping them come to international conferences.  So it can mean a variety of different possible partnerships.

[08:29] EL:  I also know that you guys have this survival skills guide.  Is that accessible to Chinese NGOs in Chinese on the web?

[08:39] MD: It is.  It’s available in English and in Chinese.  We’ve circulated hard copies through our networks in China and we’ve also made it available for free download.  That’s actually the most popular thing we developed is that tool kit which uses tools we developed with groups over the past years.

[08:53] EL: And that’s accessible to all grassroots organizations in China?

[08:55] MD: Absolutely.  Any of them.  And also our human rights curriculum which we’re still in the process of developing with Chinese and Thai partners which is called “Know It, Prove It, Change It” and is a three part curriculum series on how to analyze human rights issues, how to document them and how to conduct advocacy around them.

[09:15] EL: And then the organizations that you work with in China, I know you have this philosophy of “pay it forward” where they’re supposed to help others.  Can you just talk more about that and how you make sure that happens.

[09:25] MD:  That was something that came out of our initial partnership with the Korekata AIDS Law Center in Beijing.  After we had worked with them for a couple of years and they were ready to become independent, we asked them for some input into our strategic plan and they said, ‘How about a pay it forward element where we would then help another organization with some element of their work?’  So some of the groups that we work with now that have had a little bit more experience, we ask them to assist with some of the other organizations whether it is advising on a project or giving them a little workshop or something else.

[09:56] EL: So then they are creating a real civil society where other organizations in China teach other organizations.

[10:00] MD:  That’s the hope.

[10:02] EL:  That’s cool.  So I just want to also now turn to some of the substantive work that Asia Catalyst has published and co-authored, specifically, the March 2012 report that Asia Catalyst co-authored with Korekata AIDS Law Center entitled “China’s Blood Disaster: The Way Forward.”  Can you just give our listeners a little bit of background on the report, what role Asia Catalyst played in drafting the report and how Korekata was able to obtain the information for that report?

[10:33] MD: Sure.  I think as most people who follow China at all know, in the 1990s tens of thousands of people contracted HIV through a state-sponsored, for-profit blood collection scheme in which people were encouraged to sell their blood in ways that were unsafe and that spread tainted blood to whole villages of people. [Hospital blood supplies became contaminated, spreading HIV to more people.]

[10:54] Ten, fifteen years further down the line, a lot of those people are struggling with HIV and are still trying to get compensation and still trying to get some acknowledgement of what happened to them and their families.  Some of them suffered just overwhelming losses.  It’s really the largest blood disaster in the history of AIDS.  China has had one, and certainly the US, Canada, France, Japan, every country has had a blood disaster but China dwarfs the others by several orders of magnitude.

[11:23] So activists and people living with HIV  in China have been pushing, through petitioning and through lawsuits, to try and get compensation.  The weak legal system in China has made it difficult for them.  But in the past year or so we got some signals from UNAIDS that the government might be willing to engage on this issue and to address this vast need by creating a national compensation plan.

[11:47]  We were asked by UNAIDS to work with Korekata AIDS Law Center as they conducted research to document some of the cases.  It’s not possible to document all of them when you’re a tiny, little NGO, but to gather some of the cases from different parts of the areas that were affected and to show what some of the challenges were with obtaining compensation.

[12:06]  So Korekata conducted several dozen interviews, they got very rich testimony from people in very remote villages.  I worked with them in training them on how to do the research and then how to analyze the data.  We had a week of eating dumplings around a table and arguing about how a compensation fund should be managed which was one of the most fun things I’ve ever done.  Imagine trying to make policy for a country of 1.2 billion.  If you’re not someone already doing it it’s a challenging task.  Based on that, Korekata drafted a report which we translated into English and was submitted to the UNAIDS and to what’s called the Red Ribbon Forum, a national platform for dialogue on HIV/AIDS policy.

[12:49] EL: When you say the Red Ribbon Forum is a national platform, is that a national platform within China?

[12:55] MD:  It is.  It’s unique actually and they have kept it a little bit quiet.  Basically as far as I know it is the first platform in which the government and NGOs engage in a dialogue about human rights, and it’s about human rights and HIV/AIDS.

[13:09] EL: And just in terms when you say the government and NGOs, including these grassroots NGOs that are kind of in the shadows?

[13:17] MD:  That’s right.  Absolutely.  It’s grassroots NGOs and it’s the Ministry of Health.  And when I say dialogue it is often Ministry of Health officials giving a speech and then NGOs giving a speech.  So it’s not really a very hands-on, face-to-face discussion a lot of the time.  But it is a first to have them in the same room and talking to each other

[13:36] Out of that there was a working group [led by Professor Qiu Rrenzong] that then created proposals that went to the Chinese People’s Political Consultative Conference which met in March, [and then to the National People’s Congress, and was submitted up from there.]  So there is a proposal now for a national compensation fund that is in that process.  So we’ll see.

[13:54] EL:So this report has basically gone to the high levels of the Chinese government and hopefully has some kind of impact?

The Toll of the Disaster: AIDS orphans in China

[14:00] MD: Yes.  I have written a lot of human rights reports in China and that’s the first one.

[14:04] EL: And in terms of the report, outside of the Chinese government, I know you received coverage with the South China Morning Post, but domestically, has the report received any media coverage in China or is this issue still a little bit too sensitive.  I guess, how is the media handling the report and then just the issue in general?

[14:22] MD:  We did what is called a soft launch, so we didn’t send it out to all our press contacts and Korekata also did not because it was the “Liang Hui,” the “Two Sessions Period” which is often politically sensitive.  So we opted to do something that was a little bit more low key and just send it to a few key people we knew were interested in the issue and that would cover it.  So there was a beautiful article by Paul Mooney in South China Morning Post, the British Medical Journal and then as it happened, the Shenzhen CDC, Center for Disease Control, also reported on it.

[14:52] EL:  Wow, so this is having a lot of impact then.  In terms of the report itself, when I read through it, what I thought was the most interesting as a attorney was just the difficulty that many of these people have in getting into the court system in order to compensation cases. So you can just explain to our audience how these cases are kept out of court?

[15:18] MD:  Sure.  What’s happened in Henan province is that courts have flat-out refused to accept cases.  So a lawyer will approach the court, say that he wants or she wants to submit a case for consideration and the court clerk will just take it and then bring it back to him and say ‘sorry we cannot accept this case because it relates to HIV AIDS.’  In Henan, courts are saying that they have been issued an order from on-high not to handle any cases relating to HIV AIDS of any kind.

For AIDS compensation cases, the courthouse doors are always locked

[15:49] EL:  Have you ever seen this actual order?

[15:52] MD:  No one has seen it.  No one has ever seen this order.

[15:55] EL:  And Henan is kind of the epicenter of the crisis?

[15:57] MD:  Henan is the one that’s the hardest hit province in the whole region. [In other provinces, courts sometimes accept cases, but plaintiffs then face many procedural barriers to getting a judgment. In a few cases, people have gotten judgments but then never succeeded in getting them implemented.]

[16:01] EL:  So what I thought actually was really interesting is that in your report you actually had a list of 26 HIV/AIDS compensation settlements where you document whether it was an out of court settlement or an in-court settlement or a court judgment.  There were actually 6 cases where it was either a court-mediated settlement or a court judgment and they actually had the highest awards when I compared it to others.  And even in one of them, what I thought was interesting, the one out of Heilongjiang ordered over $30,000 for emotionally damages. 

[16:38] MD:  Heilongjiang is a good [place] to be a victim of a bad thing.

[16:42] EL:   Why are some courts taking these cases, or do you not know?

[16:47] MD: So Heilongjiang was very early on.  It’s a northeastern province in China, very sparsely populated, there was not a big blood disaster there.  So some provinces like Henan, it is tens of thousands of people.  Heilongjiang it may be a few thousands or it may be less, we don’t really know.  And so, I think what’s happening is that early on some provinces said ‘Fine, no problem, let’s address this.’  But other provinces said ‘We are going to open the flood gates and we cannot cope with this.’  And that’s part of the reason why we are calling for a national compensation fund.

[17:21] EL: Because you’re seeing such a disparity between provinces?

[17:24] MD: Yes, it’s deeply unfair.

[17:25] EL: Do you know….I mean, it was kind of unique, I mean as an attorney, seeing a judge give out a huge amount of money for emotional harm is even unique in the United States, let alone in China.  Do you have any idea why?

[17:39] MD:  I don’t and no one has been able to reach the lawyer in that case, so we don’t know all the details.  That was a case that happened fairly early on also.  So it gave a lot of people false hope I think in other places.

[17:52] EL:  In terms of new cases, I know that you had reported…Asia Catalyst had reported on its blog that there’s been a new case that a court has actually accepted about HIV/AIDS and privacy.  Do you think this is a result of publicizing the issue more?  What do you think is happening there?

[18:07] MD:  I don’t…I mean, I don’t know.  There have been a few attempts to litigate on discrimination and this was actually sort of like a discrimination case.  I think there is starting to be a little bit more awareness and more courts are accepting cases related to discrimination.  And privacy issues are probably an easier sell.  But the blood disaster remains very, very hard to litigate on.

Asia Catalyst in Action

[18:33] EL:  So it sounds like that in a short amount of time Asia Catalyst has been able to assist a good number of grassroots NGOs achieve justice for some of society’s most vulnerable.  What do you see for the next 5 years?

[18:44] MD:  Well, we are continuing to build on our work in China.  Some of the groups that come out of the cohort, we will be working with them to help them conduct their own research and do advocacy and hopefully building a system that will then self-perpetuate where people who come out of our program start to train others and it scales up and becomes really something that is locally managed .  We are also beginning to look at Myanmar and other countries in Southeast Asia to see whether we can take the tools and experience we have from China and make them work in other locations as well.  So we will see how that develops.

[19:16] EL: Okay, well that’s very exciting, it’s exciting times for Asia Catalyst and thank you for joining us today Meg.

[19:21] MD: Thank you so much.

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