Posts tagged: Criminal Law

Putting One’s Life on the Line: Criminal Liability for Xinjiang Documents Leak

By , November 26, 2019

A prison camp in Xinjiang

Last October, after denying the existence of internment camps in Xinjiang for over a year, the Chinese government finally admitted to their existence but claimed that they were nothing more than “vocational education and training centers.” Places where “students” – over one million of them and almost all Uighur and other Turkic Muslims – could rid themselves of Islamic extremism while simultaneously upgrading their job skills.  But camp survivors’ stories paint an entirely different, and much darker picture.  In story after story, former detainees talked about the prison-like conditions, of being held for months to years without access to the outside world, of physiological and physical abuse, and punishment solely for practicing their faith.  Women have consistently spoken of rape, forced sterilization and forced abortion.  Unfortunately, with the Chinese government’s refusal to allow outside monitors unfettered access to the camps, these survivors’ stories could not be corroborated.

Until now.  In the past two weeks, both The New York Times and the International Consortium of Investigative Journalists (“ICIJ”) have published two different troves of confidential Chinese government documents (the “Xinjiang Papers” and the “China Cables,” respectively) that confirm the unlawfully detention of Uighurs in what are essentially prisons.  According to the Xinjiang Papers, any direct inquiry by relatives as to whether their detained family member has committed a crime, officials are to answer no but immediately follow it up with the assertion that the their family member still needs  “education” to rid themselves of “unhealthy thoughts,” likening Islam to a disease.

Inside a Xinjiang Camp – looking more like a prison than a job skills class

ICIJ’s China Cables provide even more detail into the everyday operations of the prison camps.  Detainees are kept in “double-locked” rooms at all times and are constantly watched, even in the bathroom. Preventing escapes is paramount and there must not be any “blind spots” in the video surveillance of the detainees.  Guards are trained in “combat exercises” to ensure their immediate response if “something happens.”  Detainees are forbidden from having cell phones and family visits are never in person; only periodic phone calls and occasional video chats are permitted. Detainees are forced to remain in the center for at least a year.  And while the government documents refer to the camps as “vocational skills training centers,” it is apparent from the guidance provided to the camp administrators that the focus is to Sinicize the Uighurs and stamp out their religion.  In fact it is only after a year of ideological indoctrination do some – not all – detainees continue on for a three to six month “skills improvement” training, a training that is more responsive to future employers’ needs than to the individual’s.

In no way did the Chinese government ever want these documents released.  And the people who leaked these documents to the New York Times and to ICIJ put their lives on the line to stop the mass atrocities in Xinjiang.  According to Margaret K. Lewis, a professor of Chinese law at Seton Hall University, at least some of these documents would be considered state secrets.  “What is a state secret is very vague, can be defined retroactively and doesn’t need to be stamped ‘state secret’ to be considered a state secret,” Lewis told me when I asked her about the leak of the Xinjiang documents. Under China’s Criminal Law (“CL”), leaking state secrets is a serious offense, carrying a sentence anywhere from 10 years to life where the circumstances are especially serious (CL, Art. 111), which one would think is present here.  A death sentence is possible if the leak causes particularly grave harm (CL, Art. 113).

“They could also be charged with subverting state power,” Lewis told me.  “It’s not just what the documents were but also why they were giving these to foreigners” Lewis continued.  Like state secrets, subverting state power (CL, Art. 105) can carry up to a life sentence and if the person colluded with foreigners in the subversion, arguably what the whistleblowers did here, then the law requires that the punishment be severe (CL, Art. 106).  But, unlike state secrets, subverting state power is not subject to the death penalty.  In pressing Lewis further on what she thought the whistleblowers would be charged with and what type of sentence they would get, Lewis was clear: “This is less of a legal question and more of a political one.”  To Lewis, it will come down to what is best for President Xi Jinping: is it better to make an example of the whistleblowers, or are the whistle blowers high enough officials that publicly identifying who they are could be an embarrassment to the Chinese government, and thus their prosecution may never be public.  Under Article 183 of China’s Criminal Procedure Law, state secrets trials are closed to the public.

“The one thing that is certain,” Lewis told me “is, if the whistleblowers are caught, they will experience long-term detention and suffering.” And their families. “You’re not just putting yourself at risk, but also your loved ones,” Lewis said. “Whoever this person is, I am grateful for the risks taken to bring the documents to light.”

Protest in Brussels Calling on the EU to Speak Up Against the Internment of Uighurs

These whistleblowers must have known the high costs associated with leaking the documents.  But still they determined that it was worth it; that the world must know precisely what is happening in the Xinjiang prison camps; that Uighurs are unnecessarily suffering at the hands of the Chinese government; and that it must be stopped.  But since the release of the China Cables on Sunday, only the United Kingdom and Germany have demanded that China provide unfettered access to United Nations human rights observers.  But where is everyone else?  Where is the United Nations’ response?  Will Antonio Guterres, the current Secretary General who has stayed mum for the last two years about China’s treatment of Uighurs, finally condemn China’s actions?  And while the United States issued a strong statement, it could do more. The Uyghur Human Rights Policy Act is just sitting in the House; the State Department has yet to call call for the UN to be given unfettered access to Xinjiang; and Treasury makes no mention of  Maginsky Act sanctions against some of the high-level officials named in the Xinjiang papers.  And what about Australia, Japan, Canada, or any of the Arab nations?  Finally, where is the International Olympic Committee?  Do we really want Beijing’s 2022 Olympics to be a replay of Nazi Germany’s 1936 Games?

I can only hope that in the next few days I can add more countries to this post as ones that spoke out. But more than anything, I hope that these countries and organizations unite to take action to stop the crimes against humanity currently occurring in Xinjiang.  Individuals in China have put their lives on the line.  It’s time the rest of the world follow suit and have the courage to act.

 

Meng, Kovrig & Spavor – Same Same But Different

By , March 4, 2019

On Friday, Meng Wanzhou, the chief financial officer of Chinese telecommunications giant Huawei, filed a lawsuit alleging that the Canada Border Services Agency (“CBSA”), the Royal Canadian Mounted Police and the attorney-general of Canada violated her constitutional rights prior to her arrest for extradition to the United States. In her claim, Meng alleges that on December 1, 2018, while transferring flights in Vancouver, CBSA detained her under the guise of a routine immigration inspection.  It was only after three hours of questioning and the seizure and search of all her electronic devices did CBSA finally inform her that she was under arrest, had the right to remain silent and had the right to an attorney.

Meanwhile, in China, two Canadians face a similar predicament.  Like Meng, they have been held in detention; they have been denied access to a lawyer; and they are being bombarded with questions, all in the attempt to have them incriminate themselves. But unlike Meng, their detention is now approaching three months, not a mere three hours; and there is no hope that they will ever be able to bring the claims she has raised – the abuse that is inherent when detained and questioned about a possible crime without a lawyer – against the Chinese government. 

Detained Canadian Michael Kovrig

On December 10, 2018, in what many believe was retaliation for Canada’s arrest of Meng, Chinese public security bureaus (“PSB”) picked up Michael Kovrig and Michael Spavor, two Canadians working on conflict resolution between North Korea and pretty much the rest of the world.  Kovrig, a former diplomat at the Canadian embassy in Beijing, was working for the non-profit International Crisis Group. Spavor was a consultant living in China and working on North Korean issues, include travel tours of North Korea.  Both were picked up by public security, Korvig by Beijing PSB and Spavor by Dandong PSB, for questioning related to possibly “endangering national security,” a crime that could encompass a variety of activities. (See China’s Criminal Law (“CL”) – English translation courtesy of China Law Translate – Arts. 102-112).

But unlike Meng, who is out on bail in Vancouver, free to meet with her lawyers and assist them in bringing new cases that challenge her current situation, Kovrig and Spavor sit in an unknown location in China, at the beck and call of the PSB and with little contact with the outside world.  Unfortunately the rights that Meng can avail herself – right to bail and the ability to challenge the constitutionality of her arrest – are not available to those suspected of crimes in China. Instead, for anyone suspected of crimes endangering national security, Chinese police are able to institute residential surveillance at a designated location (“RSDL”) for up to six months. (See China’s Criminal Procedure Law (“CPL”) – English translation courtesy of China Law Translate – Arts. 75 & 79).  And this six-month RSDL occurs before the police arrest the suspect, giving them unlimited access to interrogate the individual in order to build their case, or more aptly to pressure the suspect into confessing.

Detained Canadian Michael Spavor

While the designated location cannot be a detention facility (CPL Art. 75), it can be any other place where the police maintain constant surveillance. And while most criminal detainees have the right to meet with their lawyer, those suspected of endangering national security do not.  Instead, the investigating body – either the PSB or the prosecutor’s office – must approve the meeting. (CPL Art. 39). And largely they do not approve such meetings. Why should they?  From the six-month RSDL to the denial of lawyer access, the system itself incentivizes the PSB and prosecutors’ offices to ratchet up the possible charges, detaining individuals with crimes of endangering national security and then use the next six months to figure it out. 

Add to that the fact that the detention of Korvig and Spavor comes in the midst of the Chinese government’s row with Canada over the arrest and possible extradition of Meng to the United States.  A day after Meng’s lawyers announced that she filed a lawsuit against the Canadian government, the Central Political and Legal Affairs Committee of the Chinese Communist Party posted an article on its website about Kovrig’s detention and possible crime.  Relying on an unnamed source within a “relevant department,” the article stated that Kovrig is being investigated for the specific crime of stealing and spying on China’s state secrets and intelligence (CL, Art. 111).  According to this unnamed source, since 2017, Kovrig would enter China on his work visa and obtain state secrets from Spavor. The article failed to state what those state secrets were and how two Canadians meeting and discussing a topic they both work on could somehow rise to the level of stealing state secrets. Oddly, Spavor’s legal liability in all of this was not mentioned.

Huawei CFO Meng Wanzhou

But the article raised the very real possibility that the Chinese government is willing to send Kovrig to jail for a very long time. Stealing state secrets carries a prison sentence of five to 10 years but for those situations where the circumstances are considered “serious,” the sentence can be anywhere from 10 years to life. (CL, Art. 111). If for some reason “grave harm” to China resulted, then the death penalty is a possibility. (Id.)

So while Meng rightfully accesses the protections afforded to all suspects in Canada’s criminal justice system, including the right to zealously challenge the state’s case, Kovrig and Spavor have another three months to go in RSDL before they even find out what charges will be filed against them.

A Very Unmerry Christmas from China

By , December 25, 2018

In happier times, Wang Quanzhang, his wife Li Wenzu and their son.

This Christmas night, as many across the Western world celebrate this holiday of peace, Wang Quanzhang, a Chinese human rights lawyer, will be jolted awake from his jail cell, rushed to get dressed, and paraded into a courtroom in Tianjin for a criminal trial whose verdict was likely already determined.

Wang is the final victim of the Chinese government’s nation-wide crackdown on human rights advocates, a crackdown that happened three and a half years ago in July 2015.  While most of the other victims of the crackdown have been dealt with, Wang has been held incommunicado – in violation of Chinese law – for over three years.  Unable to see his lawyers or his wife, news of Wang’s well-being has been limited, with news reports occasionally confirming that he is in fact still alive.

But on Christmas Eve, his wife, Li Wenzu, tweeted that she was just informed that Wang would go on trial on December 26.  Make no mistake, the Chinese government’s choice of the day after Christmas for Wang’s trial was intentional.  And does not bode well for Wang.  Knowing that much of the Western world shuts down between Christmas and New Year’s, the Chinese government has used that time to sentence some of its most famous advocates to harsh – and unjustified – prison sentences.  As RFI has pointed out, Nobel Laureate Liu Xiaobo, who eventually died in a Chinese prison, was sentenced to 11 years on Christmas Day 2009.  And on December 26 of last year, human rights advocate Wu Gan, another victim of the Chinese government’s 2015 crackdown, was given an eight-year sentence.

For Wednesday, expect another severe sentence for Wang Quanzhang who has been charged with the serious crime of subverting state power.  Not only has Wang refused to “confess” in exchange for leniency and agreeably participate in a show trial, the Chinese government has vilified Wang by name in the press, including naming him as a ringleader.  It also has alleged that because of the alleged influence of “foreign forces,” specifically the use of foreign NGO funds, these lawyers, including Wang, are  national security risks.  And don’t expect the passage of time to soften the government’s view of Wang, especially as China’s economy slows down, threatening the current regime’s stability and power.

The crime of subversion of state power – Article 105 of the Chinese Criminal Law – carries some of the most severe penalties short of capital punishment.  Much is determined on the role of the individual in the subversion.  A ringleader must receive a minimum of 10 years; the maximum sentence is whatever the court – or in this case the Chinese government – wants.  For those who actively participated in the subversion but were not ringleaders, the sentence can be anywhere from between three and 10 years; and those who were mere “participants”, the sentence cannot be more than three years and can be as minimal as controlled release or the deprivation of political rights.  For those who incite subversion (as opposed to actively participate in it), ringleaders shall receive no less than five years and all others no more than five years.

Li Wenzu, Wang Quanzhang’s wife, shaves her head in protest of the three and a half year detention of her husband.

The Chinese government has failed to make the indictment public and likely Wang’s wife – who has been protesting her husband’s detention including publicly shaving her head last week – has not seen it either.  So it is unclear under what portion of Article 105 the Chinese government will seek to punish Wang.  But given the fact that it has already claimed that Wang was a “ringleader,” have held him for over three years with limited access to a lawyer, and is setting this trial for the day after Christmas, expect a severe sentence, likely in the double-digits.  But for Wang, his wife and five-year-old son’s sake, and for China’s future, we hope we are very, very wrong.

Two More Civil Rights Activists to Be Sentenced on Tuesday; Lawyer Wang Quanzhang still MIA

By , December 25, 2017

UPDATE – Dec. 26 @ 10:00 AM, EST – As expected, Wu Gan was found guilty of subverting state power.  He was given one of the harshest sentences yet – 8 years (with about 2 and a half already served).  His release date is May 18, 2023.  Xie Yang escaped any prison time, with his court noting that he plead guilty to the charge of inciting subversion and his actions did not cause severe damage to national security.  Xie also again publicly withdrew his claims of torture while in custody.

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China Human Rights Lawyer Concern Group announcement about the upcoming court appearances in Wu Gan’s (R) case and Xie Yang’s (L) case

As the sun sets on Christmas 2017, China will awake on Tuesday to two more civil rights activists being convicted for seeking to end injustice in their country.  According to lawyer Liang Xiaojun, the courts will finally issue verdicts – and possibly sentences – in the cases against advocate Wu Gan and lawyer Xie Yang, two civil rights activists arrested and charged in the wake of the Chinese government’s July 9, 2015 nationwide crackdown on over 250 civil rights lawyers and activists (“the 709 Crackdown”).  Although both had their trials months ago – Wu Gan on August 17, 2017 at a closed-door trial at the Tianjin Intermediate Court and Xie Yang on May 8, 2017 at the Changsha Intermediate Court – verdicts, and in the case of Xie Yang, a possible re-trial, will be announced tomorrow morning at each of the respective courts.  Wu’s verdict will be handed down at 8:30 AM local time and Xie’s court will deal with his case an hour later.

While both have undergone severe treatment in custody, with allegations of torture, expect a much harsher sentence for Wu Gan.  First, Wu Gan has been charged with the more severe crime of “subversion of state power,” a charge that, if he is determined to be a ringleader, carries a sentence of no less than 10 years under Article 105 of China’s Criminal Law.  If he is considered a mere participant, the law still requires a sentence of no less than five years.  Xie Yang has been charged with “inciting subversion of state power.”  It’s the verb of inciting that will inevitably lead to a lesser sentence under Article 105 of five years or less (unless of course he is considered a “ringleader; then five years minimum).  Further, since his trial, Xie Yang has been out on bail.  Although constantly surveilled  by police, it provides a touch more freedom than being trapped in a Chinese detention facility.

A female character who stabs to death a government official after he assumes she is a prostitute and tries to rape her in Jia Zhangke’s A Touch of Sin.

Second, Wu Gan – who often uses the online pen name of Super Vulgar Butcher – is the activist that defies the Chinese government’s current narrative – a narrative that believes that middle class, intellectual lawyers have become entrapped by “foreign forces,” forces like George Soros and the U.S. government that funds Chinese civil rights non-profits.  But that is not Wu Gan.  Instead, for the first 35 years of his life, Wu Gan was just an average Chinese citizen.  A former soldier, Wu Gan was a security guard at the Xiamen Gaoji International Airport until he resigned in 2008 to work full-time on his online activism, wanting to expose the everyday injustices that frustrated him.  In 2009, Wu Gan brought societal attention to the case of Deng Yujiao, a waitress who stabbed to death a government official who attempted to rape her.  While her story would eventually appear in Jia Zhangke’s internationally-acclaimed film, A Touch of Sin, it was Wu Gan who brought the injustice of her case to light.  His activism around the case sparked an online debate about rampant government corruption, the flagrant abuse of prostitutes by government officials as well as the right of women to defend themselves.  It was also successful, resulting in Deng Yujiao being convicted of the much lesser crime of “causing injury with intent” as opposed to the original murder charge.

Photo of Wu Gan at his May 2015 protest outside the courthouse. Photo courtesy of Change China

Further, Wu Gan’s strategies just get under the skin more.  Wu’s advocacy includes using online humor, satire, crowdfunding and street performances to draw attention to the Chinese government’s abuse of people’s rights.  In 2011, Wu published a series of online “How To” pamphlets: Guide to Butchering Pigs (strategies on how to conduct a campaign to protect human rights); Guide to Drinking Tea (how to deal with the police during interrogations); and Guide to Petitioners Fighting Against Forced Demolitions (instruction manual on how individuals can fight to protect their home from force demolition).  Each are widely popular in China and not just for their fun titles but because they are effective teaching tools.

But the straw that broke the camel’s back was Wu Gan’s May 2015 street protest to overturn the death sentence of four criminal defendants who had been convicted of capital murder even though each was tortured while in custody.  Wu stood outside the courthouse with two handmade signs – one with a picture of the chief judge with a Hitler moustache and one with the tombstone of the chief judge with an engraving highlighting his lack of integrity and ignorance of justice.  Situated between the signs was Wu, with his middle fingers up on each hand.  While that kind of protest elicits chuckles in the West, in China it is not tolerated.  Wu Gan was detained and has been in custody since.  Regardless of the fact that the four criminal defendants were exonerated in 2016, Wu Gan will still likely see a prison sentence as a result of his advocacy for justice.

Xie Yang in happier times with his daughter. Xie’s wife and two daughters were able to flee China earlier this year and now are in the United States.

But make no mistake, lawyer Xie Yang’s detention has been no walk in the park.  While being held incommunicado, Xie was physically tortured according to his lawyers who eventually got access to him.  And like Wu Gan, Xie’s crime has been his advocacy on behalf of others.  Xie Yang has long represented China’s most vulnerable: Christians; members of China’s Democratic Party; petitioners whose land was unlawfully seized by the government; and other activists.  In May 2015, Xie had been retained by the family of Xu Chunhe after the police officer who killed him was found not guilty of any crime.  Although Xu Chunhe, unarmed, was with his three young children and his 81 year-old mother in a crowded train station, the officer still shot and killed Xu Chunhe.  According to the officer, his act was one of self-defense; but for for most Chinese people, Xu Chunhe’s case was yet another example of police acting with impunity.  Thus, Xie Yang’s advocacy in bringing a wrongful death case on behalf of the family would go to the heart of the Chinese government’s police state.  And for that, he is now facing the charge of inciting subversion of state power.

But while Wu Gan and Xie Yang’s cases will finally be dealt with tomorrow, there is still one activist that has disappeared completely, lawyer Wang Quanzhang.  Another victim of the 709 Crackdown, Wang has not been heard from since August 4, 2015, when he was detained for “inciting subversion of state power.”  Neither his wife, family, nor the lawyers hired by his family have been able to meet with him and no trial has been set for Wang even though it has been more than two years since he was first taken into custody.  While Wu Gan and Xie Yang’s fates will be known tomorrow, it is the unknown of what is happening to Wang Quanzhang – and why – that is most alarming.  Denied access to lawyers, unable to meet with family, no speedy trial, how is this a country with a rule of law?

China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer?

By , January 20, 2016

Will these fake gay marriages in China become real?

For China’s LGBT community, Tuesday, January 5, 2016 proved to be a historic day: the first case challenging the ban on gay marriage was accepted by a Chinese court. While it might not sound like a triumph, in a legal system ultimately run by the Chinese Communist Party, getting a case officially “accepted’ is usually considered a major step forward on the road to victory.

Or is it? Does this “case acceptance” signal a regime that is ready to accept gay marriage? Or is there something more? Given the recent criticism of the attorney who is handling the case, likely not.

In China, A Court “Accepting” Your Complaint is Not Given

In the United States, filing a court case is exclusively a technical affair. You bring your summons, complaint and filing fee to the court’s clerk office. The clerk, almost always a non-lawyer, might examine the papers to ensure you signed the summons and the complaint, that you brought enough copies and that the check is the right amount, but as long as your ducks are in a row paper-wise, the clerk will accept your case, give it an index number and then spin the wheel to assign a judge. Your case is now in the system and will be heard by a judge. All substantive and procedural arguments – that your claims are bogus, that you sued the wrong person, that you are outside the time frame to file the suit or that you don’t have enough evidence – will be raised by the other side, through a motion and hearing before the trial judge.

Let’s file a case!

But since the early 1990s, China has been different from the U.S. (see Nanping Liu & Michelle Liu, Justice without Judges: The Case Filing Division in the PRC (2011). Under China’s Civil Procedure Law (which governs cases between two private entities) and China’s Administrative Procedure Law (which governs lawsuits brought against a government agency or actor), filing a case, even if your papers are technically proper, is insufficient to get it in the court system. Instead, the Case Filing Division (立案庭), staffed by judges, would examine some of the substantive and procedural aspects of your case – does the plaintiff have an interest in the matter, is there a specific defendant, are there specific facts, claims and causes of action and is the case brought in proper court, geographically (Civil Procedure Law, Art. 108; Administrative Procedure Law, Art. 41). All of these issues, which in the United States would be raised in a motion to dismiss, would be determined by the judges in the Case Filing Division, behind closed doors and generally with no argument from either side. If the Case Filing Division rejects your case, it does so with a mere cite to the law and with little to no explanation.

It was this lack of transparency that proved problematic in more politically-charged cases. With a Party-controlled legal system, the Party was able to use the Case Filing Division to reject cases (or just have them sit there without ever issuing a decision) so as to ensure that certain issues would never have a public airing by reaching a courtroom. While some experts estimate that only 1 to 2% of cases are rejected by the Case Filing Division, in a country the size of China, that amounts to tens of thousands of cases a year. So for a more controversial case to make it through the Case Filing Division, that was a good sign.

Recent Changes to the Case Filing System

Coat of arms for the Supreme People’s Court

But starting in May 2015, that calculus may no longer apply. Likely sensing that denying access to the courts is not the best way to raise the people’s confidence in their court system, in early 2015, the Supreme People’s Court (“SPC”) made reform of the Case Filing Division a major focus of its agenda. On May 1, 2015, new regulations on case filing took effect.

Under the new regulations, the Case Filing Division no longer “reviews” any of the merits of the case. Rather it’s role is just to “register” the complaint after the Division ensures that the complaint is compliant with the technical aspects of the law. Decisions whether to register the complaint are encouraged to be made “on the spot” (SPC Case Filing Regs, Art. 2 & 8). If more time is needed, then the Division must follow the statutory deadlines of responding to the request. If any review demonstrates that the complaint does not meet the technical requirements, the Case Filing Division shall issue a written statement explaining all the deficiencies (so no more piece meal requests for more information from the party that was usually used to needless delay the decision on whether to accept the case), and affording the party the opportunity to amend the complaint so as to meet the case filing standards (SPC Case Filing Regs, Art. 7).

It’s under these new regulations that China’s first gay marriage case was accepted by the Furong district court in the city of Changsha in central China. According to a press release from the Chinese non-profit, Yirenping[1], plaintiff Sun Wenlin (pronounced Swen When-leen) sought to bring a complaint against Furong District’s Civil Affairs Bureau which, in June, denied his and his boyfriend’s application for a marriage certificate. After facing difficulty finding a lawyer to take his case, Sun finally found one, the noted civil rights lawyer Shi Fulong (pronounced Shi Foo-lung). On December 16, 2015 Shi attempted to file his client’s complaint. Although not accepted on the spot, after amending it at the suggestion of the Case Filing Division to add his boyfriend as co-plaintiff, on January 5, 2016, Furong court accepted Sun’s lawsuit. A decision must be rendered within six months.

Case Accepted, But Far From Won – Civil Rights Lawyer Shi Fulong Criticized

Lawyer Shi Fulong

Since Sun’s case was accepted, the Chinese state-run media has openly – and often positively – covered this milestone. Not the usual M.O. for a politically-charged case against a government agency. But does this mean that China is ready to permit gay marriage?

Highly unlikely. For the Chinese state-run press, the positive focus has been the success of the new case filing system; that even a case that seeks to permit gay marriage is now accepted by the courts. And for sure, that is something that should be celebrated.

But more recently, in questioning the ethics of attorney Shi Fulong in taking the case, the Chinese press has signaled that the case will not be won. Given the current climate, namely the wholesale detention, arrest and suppression of China’s civil rights lawyers, the fact that there was still a lawyer to take this politically-charged case is shocking. But Shi Fulong is not one to avoid hard cases. Shi has represented Falun Gong practitioners, people fighting the illegal taking of their land, and in July 2015, during the mass detention and disappearance of hundreds of civil rights lawyers, signed a petition calling for their release.

It’s within this current crackdown that Shi bravely agreed to represent the gay couple. But that has not been without its potential cost. Last week, China’s state-run Legal Daily criticized him for continuing to represent his clients. In an op-ed by Hao Tiechuan, a Party member, former government official and law professor, the Legal Daily cites to various provisions of China’s Constitution and the Marriage Law to argue that, contrary to the complaint’s statements, the law is clear that marriage is only between a man and a woman. But unfortunately for lawyer Shi Fulong, the op-ed does not leave the case alone on its legal merits. Rather, it attacks the professional ethics of Shi in taking the case and continuing to represent the parties. The editorial argues that Shi has disrespected the law and filed a baseless lawsuit, all in violation of China’s Lawyers Law. Violations of the Lawyers Law could lead to a monetary fine and suspension or disbarment.

While alarming, on some level Shi Fulong is lucky that the op-ed does not cite more although he is certainly bordering on the danger zone. Likely in an attempt to contain China’s civil rights lawyers, in the past couple of years, the Chinese’s government has sought to penalize and contain the zealous advocacy that is required of lawyers, especially civil rights lawyers. In the Supreme People’s Court’s (SPC) recent Court Reform Plan, issued in February 2015, the SPC makes it a point to penalize what it considers false lawsuits. Paragraph 58 specifically commands the SPC to “[e]stablish record and discipline systems for good faith litigation. Punish false lawsuits, malicious lawsuits and unreasonably entangling litigation acts in accordance with law. . . .”

But what the SPC aspires to contain, recent amendments to the Criminal Law criminalizes. Effective November 1, 2015, China’s Criminal Law, Article 307(1), now provides up to a three year prison term for “[t]hose raising a civil lawsuit on concocted facts and seriously obstructing judicial order or seriously infringing on the lawful rights and interests of others. . . .”

For both of these admonitions, “false litigation” and “lawsuits on concocted facts” are left undefined. Meaning it will be in the discretion of the court – or more realistically the Chinese government and Communist Party – to determine what these terms mean. Which indicates that there will be a certain political determination involved.

What would Thurgood Marshall say about what is happening in China?

But as a civil rights lawyer, Shi Fulong’s job is to challenge the current law and push it to its limits. It was this type of lawyering that in 2003, caused China to eliminate the archaic and unjust custody and repatriation system. In the words of civil rights attorney and U.S. Supreme Court justice Thurgood Marshall, civil rights lawyers should “do what you thinks is right and let the law catch up.” Here though, by citing to the Lawyers Law and questioning Shi’s ethics in pursing this case, the state-run media seeks to further squash any hope that China’s civil rights lawyers can independently push Chinese society – or more apt, the Chinese government – forward. But I guess we have to remember that the world in which this was possible in China – namely 2000 to 2005 – has long since died. Fortunately for the Chinese people, there are still lawyers willing to wage this battle. And hopefully for Shi, the Legal Daily op-ed is as bad as it gets.

 

[1] Yirenping’s press release is on file with China Law & Policy.

The Anatomy of a Crackdown: China’s Assault on its Human Rights Lawyers

By , October 18, 2015

PlightandprospectscoverWhen the Chinese government detained, harassed and disappeared over 280 human rights lawyers and legal activists in July 2015, the international community took notice. These simultaneous, country-wide, nighttime and early morning raids made front page news in the United States, often described as the Chinese government’s attempts to eradicate cause lawyering from its shores.

But as the Leitner Center and the Committee To Support Chinese Lawyers‘ new and seminal report Plight and Prospects: The Landscape for Cause Lawyers in China reveals, in some ways, these arrests and detentions are the least of the human rights lawyers’ worries. Instead, Plight and Prospects makes clear that over the past five years, the Chinese government has quietly and methodically used a more effective means to limit the space for cause lawyers: the law.

Although the Chinese government still relies on extra-judicial measures such a illegal detentions, torture, constant surveillance when “free,” and pressures on families, employers and even landlords in an attempt to destroy the lawyer’s life, Plight and Prospects underscores that soon these extra-judicial methods will be unnecessary. Through amendments to the Lawyers Law (amended 2007), the Criminal Law (amended 2015), the Criminal Procedure Law (amended 2012), the National Security Law (passed 2015) and through the annual lawyer licensing procedure, the Chinese government can limit the ability of cause lawyers to practice and still pay lip service to “the rule of law.”

Chinese President Xi Jinping

Chinese President Xi Jinping

As Plight and Prospects points out, under President Xi Jinping (pronounced See Gin-ping) there has been a stepped-up effort to enshrine in law methods that will effectively break the cause lawyering movement. But even before Xi took power in 2012, there were already concrete efforts in the Chinese government to use the law to limit human rights lawyers’ advocacy.

Take for example, the Lawyers Law. Amended in 2007 and believed to provide the profession with greater protection to practice law, it has proven to be a double-edged sword. Sure Articles 36 and 37 of the Lawyers Law maintain that the lawyers “rights to debate or a defense shall be protected in accordance with the law,” but Article 49, which lists the examples of lawyers’ conduct subject to punishment, increased the number of categories from four to nine with the 2007 amendments. Added to the Lawyers Law as Article 49(6) was instances where a lawyers “disrupts the order of a court . . . or interferes with the normal conduct of litigation or arbitration.” Vague and unclear, this provision could be used to limit the courtroom advocacy of lawyers who take cases the government just does not like.

Lawyers Liu Wei and Tang Jitian review papers in April 2010

Lawyers Liu Wei and Tang Jitian review papers in April 2010

And in 2010, it was. In April 2010, Tang Jitian (pronounced Tang Gee-tee’an) and Liu Wei (pronounced Leo Way), two cause lawyers who had represented a practitioner of the spiritual movement Falun Gong and who both quietly left the courtroom in protest when they were unable to present their client’s defense, were hauled before the Beijing Bureau of Justice for a hearing concerning whether they should be disbarred (see China’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law). While Tang and Liu both raised Article 37 – that their ability to practice law was being infringed upon – as a defense, both were permanently disbarred under Article 49(6) for “disrupting the courtroom.” (Id.).

Further attempts to limit the advocacy of human rights attorneys have been proposed more recently by the All China’s Lawyers Association (ACLA), the national bar association that operates under the guidance of the Ministry of Justice.  ACLA’s draft revisions to the Lawyers Code of Conduct (proposed in 2014), if adopted, could limit methods of advocacy that lawyers must use when representing vulnerable populations, including the use of the media and internet (draft Article 9), organizing demonstrations or “inflaming” public opinion (draft Article 11), or supporting organizations that do cause lawyering (draft Article 13).  These draft provisions are in contravention of Article 35 of the Chinese Constitution which provides for freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

When your home becomes your prison: residential survellience

When your home becomes your prison: residential surveillance

The Criminal Procedure Law (CPL) provides another example. Amended in 2012, it was hoped that the amendments would better protect suspects’ rights and ensure a more fair system. But, as Yaqiu Wang at China Change has pointed out, it left one gaping loophole: “residential surveillance at a designated place.” Articles 72 through 77 of the CPL deal with residential surveillance. Although this sounds like a more mellow way to be detained than at a detention center, for those investigations that might involve crimes of “endangering state security,” “terrorism” or “serious crimes of bribery,” residential surveillance does not occur at one’s home. (CPL, Art. 73) Instead, it occurs at an undisclosed location – the family is informed of the fact that the person is being detained under residential surveillance (required by CPL, Art. 73), but not necessarily of the location of the residential surveillance. The suspect has a right to retain a lawyer (see CPL, Art. 73, applying CPL, Art. 33).  But because “residential surveillance in a designated place” presupposes a possible state security, terrorist, or serious bribery charge, the requirement that a meeting with the lawyer take place within 48 hours (CPL, Art. 37) is suspended for those possible charges.  (CPL, Art. 37).  Instead, any meeting must be approved by the police. (CPL, Art. 37).   Which fits with the rules that the suspect must follow when in residential surveillance: only with permission of the public security agency can the suspect meet or correspond with someone else. (CPL, Art.75(2)). And it is not hard to place someone under residential surveillance at a designated place. All that the police need is approval from the chief of public security above the county level. (see Ministry of Public Security Implementing Regulations of the CPL, Art. 106). Residential surveillance pending investigation is permitted for up to six months. (CPL, Art. 77).

Whereabouts Unknown: Lawyer Wang Yu

Whereabouts Unknown: Lawyer Wang Yu

As Plight and Prospects points out, the use of residential surveillance at a designated place has been used with abandon in the current crackdown. The section entitled “Whereabouts Unknown” highlights that eight of the suspects still being held as a result of the July crackdown are held under residential surveillance at a designated place but no one outside of the police, not even their lawyers, know where. Amnesty International researcher William Nee has pointed out that although a legally-authorized form of detention under the amended CPL, it still carries with it the dangers associated with enforced disappearances: held secretly and without access to a lawyer, these suspects in residential surveillance are vulnerable to torture to force a confession.

By being able to point to the law it is using to crackdown on cause lawyers, the Chinese government likely aspires to punt the international critique of a failure to follow a rule of law. It is following a rule of law, it will say. But as Plight and Prospects notes, it is a hollow one where the Chinese government undermines its own Constitution, other provisions of many of the laws it has used in the crackdown, its international treaty obligations as well as the desires of its own people.

 

To Arrest or Not to Arrest – Prosecutors Have to Today to Determine Fate of Five Female Activists

By , April 13, 2015

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Women Hold Up Half the Sky? And Half the Detention Centers?

On Thursday, the New York Times reported that the Beijing police requested that the local prosecutor formally arrest the five Chinese women detained for planning an anti-sexual harassment demonstration on Intentional Women’s Day (March 8).  According to the detained women’s lawyers, the recommended charges are “organizing a crowd to disturb public order” (Article 291 of  China’s Criminal Law), a charge different than the initial basis for detention: “picking quarrels and provoking trouble” (Article 293(4) of China’s Criminal Law). 

Since the inception of these detentions on March 6, 2015, little has been transparent, even to the lawyers for the women.  In fact, according to the New York Times, the women’s lawyers were not even informed that a request for arrest had been made to the prosecutors on April 6, 2015.  According to a phone interview with Liang Xiaojun, one of the detained women’s attorneys, the police’s April 6 request for arrest means that the prosecutors must decide by today if there is enough evidence for such an arrest.  (see also Criminal Procedure Law (“CPL”) Art. 89 requiring that the prosecutor’s office determine within 7 days whether to formally arrest the suspect).  But like everything else that has been happening in this case, likely the detained’s lawyers will continue to be kept in the dark of today’s decision.   

Two years ago the Chinese government heralded the passing of its amended

Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

Criminal Procedure Law, which was intended to bring China more inline with the international community.  Scholars and government officials praised the law for its greater protection of criminal suspects’ rights and improved access to defense lawyers early in the process.  But the detention of these five women, exemplifies the continued weaknesses of the Criminal Procedure Law and its failure to protect suspects’ rights.  Where it does offer some protections, what’s happened to these five women, demonstrate that Chinese police and prosecutors continue to skirt the law with impunity.  This post will review some of the major issues with the detention of China’s five women activists.

The Police Have Not Issued Any Document with the Charges. Is That Legal?

China's Amended Criminal Procedure Law

China’s Amended Criminal Procedure Law

No.  In a phone interview with Liang Xiaobin, Wu Rongrong’s attorney, Mr. Liang informed China Law & Policy that the police have yet to issue any formal document regarding the detention or potential charges against his client.  But Art. 123 of the Ministry of Public Security’s “Procedural Regulations on the Handling of Criminal Cases by Public Security Organs (revised 2012)” (“MPS Regulations” or “Regs”) which implements the CPL, a detention notice must be issued to the family of the detained within 24 hours of detention.  That detention notice would list the charges being investigated. Presumably if such a notice was provided to Wu’s family, it would be transmitted to Liang.  But Liang has yet to obtain any verification of any charges other than those verbally communicated to him.

The Police Did Not Inform the Five Women’s Lawyers that it Had Recommended Arrest.  Is This Legal?

Yes, and this is where one of the major weaknesses in the new Criminal

Will the five women be formally arrested?

Will the five women be formally arrested?

Procedure Law and its implementing regulations is obvious.  During the pre-arrest phase, even when a suspect has retained a lawyer, that lawyer has very little ability to access any of the police or prosecution documents.  In fact, neither the CPL nor the MPS Regulations require that the police or prosecutor inform the lawyer of what is happening in the case.  There is some information that has to be told to the detained’s family (that the suspect has been detained (CPL Art. 83 & MPS Reg Art. 123); that the suspect has been formally arrested (MPS Reg. 141)), but the police do not have to affirmatively inform the family that the police have recommended arrest to the prosecutor, even though there is a paper trail for all of this (see CPL Art. 85 & MPS Reg. Art. 133 both requiring a written formal request be made by the police to the prosecutor)  Without this information, it becomes difficult to hold the prosecutor to the 7-day limit to decide whether to arrest (CPL Art. 89).

Chinese defense lawyers kept in the dark

Chinese defense lawyers kept in the dark

But no where in the CPL or the MPS Regulations does anyone have to inform the retained lawyers of anything.  It is not until the prosecutor begins to investigate for indictment (审查起诉) do rights attach to the defense lawyer.  When that occurs – and again, the law is unclear if anyone has to be affirmatively informed that such a review is occurring – can defense counsel access information from the state.  At that point, the prosecutor’s office is required to share the case file (CPL Art. 38).  But up until that point, keeping the defense attorney in the dark is completely legal.   

Allegedly, the Women Were Denied Easy Access to their Lawyers & When Able to Meet, Conversations Were Recorded.  Is this legal?

No.  The amended CPL was specifically modified to rid the Chinese criminal justice system of these patently unfair practices.  But according emails issued by Yirenping, a Chinese-NGO that many of the women are affiliated with, many of the lawyers’ requests to meet with their clients have been ignored.  The few times the lawyers have been able to meet with their clients, according to Yirenping, the conversations have been recorded. 

Article 37 of the CPL clearly requires that detention centers promptly schedule meetings between lawyers and their clients when the suspected charges do not include national security; such meetings must be scheduled no later than 48 hours after the request.  The MPS Regulations reiterate that right (MPS Regs. Art. 48).  Further, Article 37 of the CPL plainly states that conversations between the lawyer and his or her client are not to be monitored (see also MPS Reg. Art. 52).

Is the Limit for Detention 30 days?

Detention in China

Detention in China

This is unclear.  Although the lawyers for the five women have stated that detention can only be for 30 days before moving to the next stage of the case (here, the police formally requesting that the prosecutors arrest the women) and the police have conveniently stated that it did in fact move the case forward on April 6 (approximately 30 days after the initial detentions), it is unclear whether there is in fact a 30 day limit to detention.  Article 89 of the CPL states that detention, without a request for arrest, is generally limited to three days.  But the police can unilaterally extended that limit for an additional four days (making for a total of seven days). 

But for suspects being investigated for “multiple crimes” (like the women here) or “crimes across multiple regions” (again, like the women here), the police may add an extra 30 days to the detention (CPL Art. 89).  In both the English and Chinese, it is unclear if that 30 days is added on top of the seven that was permissible or if 30 days is the outer limit of detention before request for arrest.  Although both the attorneys in this case and the police seem to maintain that 30 days is the limit, the law is not clear.  But at the most, 37 days is limit for detention. 

Was it legal to bring Wu Rongrong and Zheng Churan to Beijing for detention?

One of the five detained, Wu Rongrong, founder and executive director of the Weizhiming Women’s Center in Hangzhou

One of the five detained, Wu Rongrong

Yes.  Of the five women detained, two – Wu Rongrong, director of the Hangzhou-based Weizhiming Women’s Center and Zheng Churan, staff member at Yirenping Guanzhou, live outside of Beijing.  Both  were planning their International Women’s Day demonstrations in their respective cities and both were initially detained by the public security officials in each city.  But both were eventually transferred to Beijing’s Haidian Detention Center where the other three women, Wang Man, Wei Tingting and Li Tingting, all residents of Beijing, were being held. 

Both the CPL and the MPS Regulations permit the easy movement of suspects between cities, counties and provinces when appropriate.  Although the default presumption is that jurisdiction of a criminal case is where the crime was committed (see CPL Art. 24; MPS Regs Art. 15), both the Criminal Procedure Law and the MPS Regulations contemplate instances where that might not be the case, especially when there are multiple crimes and/or multiple defendants.    

In fact, an entire Chapter of the MPS Regulations – entitled Cooperation in Case-

One of the detained, Zheng Churan, 25, and staff member of Yirenping based in Guangzhou

One of the detained, Zheng Churan

Handling (Chapter 11, encompassing Articles 335-344) – specifically deals with these situations.  Unlike in the United States, where extradition from one state to another is a formal affair, here the transfer of a criminal suspect is more informal (see MPS Regs Art. 335 requiring local public security bureaus to cooperate with a request to detain a suspect & Art. 336 requiring only a “letter of cooperation” to obtain the locality’s cooperation). Presumably the Beijing PSB provided such a letter to the Hangzhou and Guangzhou PSBs in order to detain and eventually transfer Wu Rongrong and Zheng Churan to Beijing. 

Will the Women Be Arrested?

Their Fate is in the Prosecutor's hands

Their Fate is in the Prosecutor’s hands

Increasingly likely.  The fact that the police have changed the charges and have added more incidents to the charge, such as the women’s street performance demonstration against domestic violence where they dressed up in wedding dresses with fake blood and their “occupy men’s toilets” day to demonstration the insufficiency of women’s toilets in public places, provides for more evidence for arrest.  Further, adding extra incidents and making this multi-crime case, arrest and continued detention is all but certain.  According to Article 139(1) of the People’s Procuratorate’s Criminal Procedural Regulation (revised 2012), the prosecutor’s implementing regulations of the CPL, arrest is necessary when the criminal suspect may commit a new crime.  What provides evidence that the suspect might commit another crime if not detained?  The fact that “the suspect has committed multiple crimes, changed locations in committing multiple crimes, committed related crimes…” 

Within 24 hours of the police’s decision to arrest, the police must inform the family (MPS Reg. Art. 141).  Under Chinese law, the world should know by Tuesday if an arrest was made.  But that’s assuming that anyone actually follows the law.

Without Committing a Crime, Five Female Activists Detained in China

By , March 15, 2015

International Women's DayWhile the rest of the world celebrated International Women’s Day (March 8) with gender equality marches, women empowerment conferences, and female-oriented concerts, the Chinese government opted for a decidedly different approach: detaining a number of Chinese women activists.

On March 6 and 7, 2015, in various cities across China, public security officials rounded up at least 10 women, each of whom sought to mark International Women’s Day with a nation-wide campaign highlighting the increase in sexual harassment on public transportation.  Their goal?  To pass out leaflets and stickers calling for the end of such sexual harassment and for the police to take some action against sexual harassment on public transportation.

One of the five detained, Wu Rongrong, founder and executive director of the Weizhiming Women’s Center in Hangzhou

One of the five detained, Wu Rongrong, founder and executive director of the Weizhiming Women’s Center in Hangzhou

While five of these 10 women have been released, five were officially criminally detained on Friday allegedly under the Chinese government’s increasing catch-all for ideas and speech it does not like: “picking quarrels and provoking trouble.” (Article 293(4) of China’s Criminal Law).

“It is extremely alarming that these five young women have been criminally detained for ‘picking quarrels and provoking trouble’” Dr. Leta Hong Fincher, author of Leftover Women: The Resurgence of Gender Inequality in China, wrote in an email to China Law & Policy.  “The women were merely planning to commemorate International Women’s Day by raising awareness about sexual harassment on public transportation – hardly an issue that would threaten the central government’s power or social stability in any way.”

In fact, the Chinese government itself has noted the growing problem of sexual harassment – including groping, rubbing and pictures taken under one’s skirt – on public transportation.  Unfortunately, instead of stepping up law enforcement of this quality-of-life crime, the Chinese government has largely left it to women to combat this harassment, urging female riders to forgo wearing mini-skirts or “hot pants” and looking to have women-only subway cars during rush hour.

Another of the detained, Wei Tingting (right), the director of Ji’ande, an LGBT rights organization based in Beijing

Another of the detained, Wei Tingting (right), 27 and director of Ji’ande, an LGBT rights organization based in Beijing

“The detention of these women reveals the hollowness of [the] Chinese government claims of commitment to gender equality, particularly as China prepares to co-host the 2015 Global Women’s Summit at the United Nations, and the world marks the 20th anniversary of the Fourth World Conference on Women in Beijing” Dr. Hong Fincher wrote to China Law & Policy.

But if you think detaining people for leafleting an issue we can all get behind is scary, here is the real frightening part: these five women – Wu Rongrong, Zheng Churan, Wei Tingting, Wang Man and Li Tingting – never actually committed a crime, even under Chinese law.  By detaining these women prior to March 8 – when they were going to distribute their stickers and pamphlets – the women never caused a public disturbance as required by Article 293 of China’s Criminal LawPu Zhiqiang, Cao Shunli, Xu Zhiyong, all detained, arrested or jailed for “picking quarrels and provoking troubles,” were at least able to partake in their “public disturbance” before the authorities took them away.  These women did not.  At most, in their attempt to make this a nation-wide campaign, they amassed an online following, all eager to partake in the March 8 events.

One of the detained, Zheng Churan, 25, and staff member of Yirenping based in Guangzhou

One of the detained, Zheng Churan, 25, and staff member of Yirenping based in Guangzhou

But, as Jeremy Daum at China Law Translate has noted, the Supreme People’s Court (SPC) and Supreme People’s Procuratorate’s (SPP) Joint Interpretation of Article 293 (July 2013) makes it clear that causing a disturbance by picking quarrels must happen in some kind of public venue – a bus station, a market, a train station, a park, or “other public venue.” In prosectuting an Article 293(4) case, the courts are required to analyze the totality of the circumstances, including the type of public venue, the number of people attending the event, etc.  (See Article 5 of the Joint Interpretation of Article 293).

Further, as Daum has highlighted, even the SPC’s and SPP’s controversial Joint Interpretation on Internet Speech Crimes (Sept. 2013), which does interpret Article 293(4) of the Criminal Law, would only apply in situations where the individual has spread rumors on the internet or other online network.  The only public prosecution under Article 293(4) involving the internet – the case of blogger Qin Houhou – is precisely this situation.  In addition to being charged with violating Artcile 293(4) – the picking quarrels provision – Qin was also charged and convicted of criminal slander.

Another detained activist, Li Tingting, 25 and Beijing-based manager of the LGBT program at the Beijing Yirenping Center

Another detained activist, Li Tingting, 25 and Beijing-based manager of the LGBT program at the Beijing Yirenping Center

By criminally detaining these women, the Chinese police have stepped up this game, making a formal arrest and prosecution more likely.  While prosecution under Article 293(4) usually has a maximum prison sentence of five years, that sentence can be extended to 10 years where the defendant organizes others to commit the disturbance multiple times.  Given that these women likely were the organizers of the event, a 10 year prison term is a possibility.  Even though the current charge is groundless under Chinese law.

On Friday, the U.S.’s Ambassador to the United Nations, Samantha Power, tweeted her disgust with the Chinese government’s detention of Wu Rongrong, Zheng Churan, Wei Tingting, Wang Man and Li Tingting.  But the United States, and the rest of the world, must maintain this rhetoric.

 

Fifth detained activist, Wang Man, Beijing-based coordinator for the Global Call to Action Against Poverty (GCAP).

Fifth detained activist, Wang Man, Beijing-based coordinator for the Global Call to Action Against Poverty (GCAP).

Twenty years ago, in Beijing China, Hillary Clinton ignored Chinese pressure to soften her remarks at United Nation’s Fourth World Conference on Women.  Instead, she rocked the world by forcefully stating that ” human rights are women’s rights, and women’s rights are human rights, once and for all.”  It’s time that Secretary Clinton, a potential presidential candidate, renew that sentiment and call for the release of these women – innocent even under Chinese law.

Translation – Beijing News Interviews Tian Wenchang on Custody & Education

By , June 25, 2014

Criminal Defense Lawyer Tian Wenchang

Criminal Defense Lawyer Tian Wenchang

With the hoopla surrounding actor Huang Haibo’s six month sentence under China’s Custody & Education (“C&E”) system – an administrative punishment outside of the court system – on June 9, 2014, Beijing News ran an article examining that system. Included with the article was a telling diagram that highlighted the lack of a legal basis for C&E. The article effectively called for the repeal of C&E.

For an explanation of C&E and the current debate, see China Law & Policy’s previous post here.

That article is no longer available on the Beijing News website. However, it can still be found here. Additionally, below, China Law & Policy translates the portion of the article that was an interview with Tian Wenchang (pronounced Tea-en When-chang), one of China’s most famous attorneys and the current director of the Criminal Law Committee of the All-China Lawyers’ Association. In the short interview, Tian persuasively argues for C&E’s abolishment.

*****************************************************************************************************************************

Beijing News [BJN]: As one of the people pushing [for reform], why do you want think to do this?

Tian Wenchang [TWC] (Director of the Criminal Law Committee of the All-China Lawyers’ Association): The fact is that after Reeducation through Labor (“RTL”) was abolished, people forgot about Custody & Education (C&E). But because a case relating to C&E recently emerged, society is once again examining C&E, questioning whether it is legitimate and whether it should still exist.

BJN: What do you consider to be the biggest problem with C&E?

TWC: The biggest problem is with C&E is the same as with RTL: administrative agencies can deprive individuals their liberty without due process, so lots of problems appear in implementing it.

BJN: What kinds of problems?

TWC: For example, for sex workers and their clients, after undergoing an administrative punishment [under the Public Security Administrative Punishment law], public security bureaus are able to decide on their own whether the individual should also receive a C&E sentence. There are no specific standards to guide this decision. For example, six months to two years of custody, how is this term determined; it’s very possible that there are variations in the implementation. Without due process and public transparency, it’s easy for there to be a hidden agenda.

BJN: Six months to two years, is that too heavy a punishment for prostitution and solicitation?

TWC: Under the Public Security Administrative Punishment Law, [the police] are able to keep someone in custody for 15 days for a prostitution-related offense. But under C&E, the maximum sentence may be up to two years. This is often more severe than the punishment under the criminal law. Whether this [disparity] is fair or not is pending discussion.

Repealing C&E Will Likely Take A Long Time

BJN: Based on your observation, do local public security bureaus often use C&E as a form of punishment?

TWC: My understanding is that in the overwhelming majority of provinces in the country, C&E is not used very often. But this does not mean that the public security bureaus do not have the right [to use C&E]. So long as they have this right, there will be problems.

BJN: What is the relationship between C&E and RTL?

TWC: Because both are systems that restrict personal liberty, in essence they are the same. It is only the people targeted and the length of the punishment that are different. Furthermore, both are systems that don’t go through the judicial process and instead the administrative agencies unilaterally make the decision. In looking at the legal principles governing C&E, the public security bureaus don’t have a problem; rather the C&E-related legal provision are not in line with the current law. As a result, they must be repealed.

BJN: How likely do you think are the proposals to abolish C&E?

TWC: It will be like RTL which took a long time to repeal; I think repealing C&E will be like that.

**********************************************************************************************************************************

Interview Portion of the Beijing News Article on C&E – Full Article Can Be Found Here

 

新京:作为推动人之一,为什么想到做这个事情?

田文昌(全国律协刑事专业委员会主任):实际上在废除劳教制度后,收容教育制度正在被人们遗忘。但是最近相关案件的出现,让社会重新对它开始有所审视,这个制度到底合不合理,应不应该存在。

新京:你认为收容教育制度最大的问题是什么?

 

田文昌:最大问题是它和劳教制度一样,行政机关可以直接剥夺人的人身自由,没有经过正当的司法程序,执行过程中会出现很多问题。

 

新京:会有哪些问题?

田文昌:比如说,一个卖淫嫖娼人员,在经过行政处罚后,公安机关可以决定是否进行收容教育,这个决定没有特定的标准。再比如6个月到2年的收教,这个期限怎么判定,很可能出现执行偏差。没有正当的司法程序,没有向社会公开,里面容易有猫腻。

 

新京:6个月到2年的收教期限,对于卖淫嫖娼处罚重吗?

田文昌:按照治安处罚法,卖淫嫖娼犯罪行政拘留15天。但是收容教育最高可到两年,这个在很多时候比刑罚还要严重,合不合理是有待商榷的。

 

  废止收容教育或需很长时间

 

新京:据你观察,各地公安机关用收容教育制度惩戒的情况多不多?

田文昌:据我了解,全国绝大多数省份用这个制度的已比较少了。但是这并不表示公安机关没有这个权力,只要有这个权力,就可能出问题。

 

新京:收容教育和劳教制度有什么关联?

田文昌:本质上都属于限制人身自由的制度,是相同的,只是针对的人群和惩戒的期限不同。另外,它们都是没有经过司法程序,行政机关就可以单方决定的制度。从法理上看,收容教育制度并不是公安机关的问题,毕竟以前有这样的相关法规,但是已经和现在法律制度不协调,所以应废止。

 

新京:你认为这次建议废止收容教育制度的可能性有多大?

     田文昌:和劳教制度一样,推动废止需要很长的时间,我想废止收教制度也是如此。

It’s a Man’s, Man’s, Man’s World: Current Efforts to Abolish China’s Custody & Education System

By , June 23, 2014

Actor Huang Haibo

Actor Huang Haibo

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

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

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

C&E’s Dubious Legal Status

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

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

Sim Chi Yin for The New York Times

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

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

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

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

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

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

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

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

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

Will C&E Go the Way of RTL?

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

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

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

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

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

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

Allegedly the woman found with Huang Haibo - a Chinese "any one"?

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

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

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

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

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

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

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

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

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