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

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.

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

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.

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

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.

The detention of journalist Chen Yongzhou, his employer New Express’s front page editorial pleading that he be set free, and Chen’s subsequent televised confession to accepting bribes and writing false articles against Changsha’s Zoomlion, all the while in Changsha police custody, is, even for China, unusual.  But the question is – was it all legal?

Last week, China Law & Policy examined whether Changsha police followed proper procedures in detaining Chen, especially since they went to Guangzhou to find him.  Today, we look to the underlying charges – mainly the claim that Chen defamed Zoomlion and thus is subject to arrest.  Is defamation a crime?

Watch What You Say…..Criminal Defamation is Legal in China

Like it or not, China’s criminal law covers defamation.  Article 246 makes it criminal to “publicly humiliate another person or invent stories to defame,” providing a potential prison term of not more than three years.  But as Mei Ning Yan stated in Criminal Defamation in the New Media Environment – the Case of the People’s Republic of China, Article 246 covers defamations of actual persons, not corporations.

That is why immediately following Chen’s apprehension, state-run news outlets like Xinhua stated that Changsha police had detained Chen on suspicion of “damaging business reputation,” a defamation-like charge found in Article 221 of the Criminal Law which subjects the defendant to up to two years in prison.

According to Chinese news reports, on September 9, 2013, after over a year of alleged defamatory articles published by New Express, representatives of Zoomlion complained to the Changsha police about the articles.  The Changsha police investigated the charges and on October 18, 2013, went to Guangzhou to apprehend Chen (see Stealing Suspects to understand the law surrounding cross-province detention).  On October 30, 2013, Chen was formally arrested on charges of damaging Zoomlion’s reputation.  The allegations and the charges are all legal under Chinese law

People in Glass Houses…..the U.S.’ Use of Criminal Defamation

While many Americans are surprised to learn that defamation can carry prison time in China, China is not alone in criminalizing defamation.  As of 2006, seventeen states in the U.S. still maintain active criminal defamation or criminal libel statutes.  While in most states the charge is a mere misdemeanor, one state – Massachusetts – provides for a prison sentence of up to one year.  In 1966, in Ashton v. Kentucky, the United States Supreme Court examined Kentucky’s criminal defamation statute and although held it unconstitutional, it was only on the grounds that the use of “disturbing  the peace” to define the crime was too vague to pass muster.   The crime itself was not a problem; just the way it was defined, or more aptly not defined.  The seventeen states that retain a criminal defamation or libel statute have much more clearly defined laws that could potentially pass the Ashton test.

Since the 1966 Ashton case, criminal defamation has rarely been prosecuted.  But more recently, there has been a bit of a revival in the United States, at least in examining these statutes intellectually in light of the internet age.  Criminal libel and defamation statutes are seen as a possible to deterrent what has become a more common problem in the United States: cyberbullying.  In “Kiddie Crime: The Utility of Criminal Law in Controlling Cyberbullying,” Megan Rehberg and Susan W. Brenner note the recent rise in the call to use current criminal law, including criminal defamation statues, to criminalize cyberbullying.

While Legal, the Use of Criminal Defamation is an Odd Choice in this Case

Criminal defamation is a rarely used tool in the United States because individuals and corporations have an alternate option: civil defamation claims.  Bringing the case civilly entitles the victim to compensation.  For most, especially for businesses, monetary compensation is a lot more rewarding than having the perpetrator sit in a jail cell.

Although an October 29, 2013 op-ed by Ku Ma in the English-language version of  the China Daily asserted that there is no ability to bring a civil defamation claim, that is just not true (and might explain why that op-ed has been pulled from the China Daily website although still available here).  Since the 1987 adoption of the General Principles of the Civil Law (“General Principles”), where reputation has been harmed, civil defamation claims are permissible under Article 120 for both citizens and “legal persons” (businesses).

Under the General Principles, the victim can sue the perpetrator for the following remedies: (1) to stop the defamation; (2) to restore his reputation; (3) for an apology; and (4) for compensation, both economic and emotional.  These remedies are not available under the Chinese criminal law.

And the victim can bring the civil defamation claim in his home jurisdiction.  According to the Supreme People’s Court’s  1998 Interpretation of the General Principles, the “consequences of the crime” in defamation cases can be the plaintiff’s hometown.  So for a company like Zoomlion – where the provincial government as its controlling shareholder and it is an important economic force in Changsha – bringing a civil defamation charge in Changsha would likely have a close to 100% success rate.  According to a 2006 study by Prof. Benjamin Liebman examining defamation cases in China, cases brought in the plaintiff’s home jurisdiction have an 82% success rate.  That rate increases to 88% where the plaintiff is also a Party-State actor.

So if you are Zoomlion, why bring the criminal action?  Why not go for the civil claims and at least get paid?  Prison time for Chen doesn’t necessarily make you whole.  And Zoomlion gets the apology either way.

Only Zoomlion knows why it choose to go the criminal route and not the civil one.  But in trying to find some rational reason, one can’t help but wonder that maybe Zoomlion wanted to avoid a civil trial.  A confession from Chen, held incommunicado in Changsha, would mean that a court would only have a short criminal trial with little testing of the evidence (in China, “plea bargaining” doesn’t avoid a criminal trial, it just shortens it.  See here for a detailed explanation).   With Chen’s confession, Zoomlion would not have to worry about “truth” as a defense to defamation.

But with a civil defamation trial, New Express would likely play an active role and even though Zoomlion would likely win, New Express might want to bring them down with them, exposing even more evidence of Zoomlion’s corruption.

Another alternative theory is that the Party-State wants to send a signal to an increasingly aggressive media:  the government is still in charge; that under China’s new president, Xi Jinping, the commercial media will be reigned-in.  The years 2008 to 2012 witnessed the central government’s clamp down on a once increasingly vibrant public interest lawyer bar.  While still active, that bar is under constant assault.  Does 2013 begin the start of a similar and severe clamp down on the commercial media?

But these theories are speculation.  Perhaps Chen is guilty of accepting bribes from Zoomlion’s competitor and wrote false articles.  The only one thing we know for sure is that Chen’s televised confession and his “trial by television” (as Peter Ford has coined the term) does a disservice to a rule of law.  Instead, like the Gu Kailai trial and subsequent Bo Xilai one, the Chinese government has merely continued to demonstrate that for legal cases that would test the system and challenge vested powers, its merely sham justice.  Who the Chinese government thinks it is fooling is unclear.

Over at the Council on Foreign Relation’s China blog, Prof. Margaret K. Lewis of Seton Hall’s School of Law has written an interesting and timely piece about the role that criminal law plays in advancing China’s economic “miracle.”

As Lewis notes, and following up on recent articles in the New York Times (see here, here and here), China’s civil legal system and its regulatory state largely failed in dealing with some of China’s new economic problems – namely food safety, financial markets and environmental degradation.

But as Lewis goes on to highlight, this failure of the civil and regulatory systems does not mean that the Chinese government has not tried to stem these problems.  In fact, as Lewis observes, it has, through the use of the criminal law.  Recently, the Chinese government has stepped up the threat of severe criminal sanctions, including the death penalty, in an attempt to try to police this situation.

Lewis’ blog post is based upon her new research regarding how, since Deng Xiaoping’s 1978 “Reform and Opening” policy, the Chinese government has used the criminal law to propel its economic development.  See Margaret K. Lewis, Criminal Law’s Contribution to China’s Economic Development (August 1, 2013). Available at SSRN: http://ssrn.com/abstract=2298923.

In fact, one of Deng’s first actions after assuming leadership was to publicly prosecute the Gang of Four, signaling the changing of the guard from

political extremism to a focus on economic growth.  From there, Lewis recounts the formation of many of the laws that would underpin Deng’s policy of economic growth, showing that the intention of many criminal laws was to find the “growth-enhancing sweet spot.”  It’s no wonder that today in China, economic criminal liability is much broader than in most other developed countries including the United States.

Lewis’ well-researched analysis makes a strong argument for her point: that you cannot analyze China’s economic growth without looking at how it has used the criminal law to assist in that growth.  But even still, it leaves you uncomfortable – there is something about the use of criminal law to propel growth that seems at odds with its purpose.  This Lewis notes is likely more the result of how the West has come to define patterns of economic growth.  To achieve a sustainable market economy, the government sets in place a regulatory state with certain ground rules and then lets the actors – usually companies and individuals – duke it out within the confines of an independent legal system.

But that is not what is going on here in China and it’s this bucking of the traditional historical trajectory of growth that forces scholars to look elsewhere for its explanation.  In China’s case, that elsewhere might be the criminal law.

“Criminal Law’s Contribution to China’s Economic Development” is a must read for anyone who wants to understand the relationship between law and economic growth in an authoritarian state.  But it also raises many questions – is this use of the criminal law sustainable?  Can China solve its regulatory failure problems through state-dominated use of the criminal law?  Lewis examines a few problems with its usage, especially in attempting to deter official corruption where the Chinese Communist Party is too hesitant to prosecute its own.  She also explores the use of economic criminal liability to suppress dissent that officials determine is too “destabilizing” to development.

From Lewis’ review of recent criminal legislation, interpretations and call for greater criminal liability, it becomes obvious that she is right – the Chinese government is attempting to use criminal law to support its market reforms.  But in a country of 1.3 billion with a land mass close to the size of the United States, how sustainable is this approach?  That is a question that we hope Prof. Lewis answers in her next article.

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

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

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

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. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[10:57] MP: Correct.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[19:12] MP: Yes.

[19:12] EL: Which stands for?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Originally posted on the Huffington Post

Taxes are a tricky business in any country, let alone China.  Tax codes are usually overly complicated and let’s face it, if you are making money, you can afford to hire accountants who think “creatively.”  American country singer Willie Nelson owed close to $32 million dollars in back taxes when the IRS declared one of the tax shelters his accountant was using to be in violation of the U.S. tax code (he later settled for $16 million, raising the majority of that money through the sale of his album entitled “The IRS Tapes: Who Will Buy My Memories?”); Leona Helmsey, the billionaire New York City hotel operator, served four years in prison for tax fraud (Helmsey allegedly enlightened her staff on a regular basis that “We don’t pay taxes.  Only the little people pay taxes.”); and Al Capone, mafia hitman, bootlegger and perhaps the most famous tax evader of all time, served his longest sentence, seven years, for tax evasion.

When Chinese artist and dissident Ai Weiwei was freed from police custody last Wednesday, the question was raised, most notably by Brian Lehrer in his interesting interview with Human Rights Watch’s Phelim Kine: “are you sure his detention was for being a critic of the government and not for evading taxes?”

Since his release, the Chinese government has vaguely issued more information about the investigation that landed Ai in criminal detention for the past two and a half months.  Although neither formally charged, arrested nor indicted, Chinese officials stated that Ai was held for “failure to pay a ‘huge amount’ of taxes and for willfully destroying financial documents.”  In particular, officials alleged that Ai’s company, Beijing Fake Cultural Development Ltd. failed to pay 5 million RMB (USD 770,000) and owed an additional 7.3 million RMB (USD 1.1 million) in penalties.

But the question remains, what is Ai’s individual liability for a corporation’s tax evasion?  Is he financially liable?  Can

he be criminally prosecuted?

The answer is….you betcha,  if it is determined that Ai had some form of “direct responsibility” over Beijing Fake Cultural Development Ltd.

Article 201 of China’s Criminal Law criminalizes tax evasion (Amendment VII to the Criminal Law Amends Article 201).  Like many laws in China, the actual law is not the end all and be all.  Because China is a civil law country, often the generalities of the national law are fleshed out in various agencies’ “interpretations.”  Here, Article 201, is further defined through the “Interpretation of the Supreme People’s Court on Some Issues concerning the Specific Application of Laws in the Trial of Criminal Cases for Tax Evasion and Refusal to Pay Tax” (“SPC Interpretation”).

The SPC Interpretation further defines tax evasion as: (a) forging, altering, concealing or destroying without authorization accounting books or supporting vouchers for the accounts; (b) overstating expenses or not stating or understating income in accounting books; (c) being notified by the tax authority to file tax returns but refusing to do so; (d) filing false tax returns; and(e) after paying the tax, fraudulently regaining the tax paid through the adoption of deceptive means such as fraudulently declaring the commodities it produces or operates as export goods.

But while Article 201 and the corresponding SPC Interpretation only uses the term “taxpayer,” Article 211 of the Criminal Law clarifies liability when the taxpayer is a corporation or business unit: “Units committing offenses under Articles 201, 203, 204, 207, 208, and 209 of this section shall be punished with fines, with personnel directly in charge and other directly responsible personnel being punished according to these articles, respectively.”

Thus if Ai Weiwei is determined to be a “personnel directly in charge” (直接负责的主管人员) of the Beijing Fake Cultural Development Ltd. he could potentially be criminally and economically liable.  Ai’s family has maintained that Ai cannot be on the hook because he is not the company’s “chief executive or legal representative.”  However, the Chinese for “personnel directly in charge” is not limited to just the chief executive or legal representative; rather it is anyone in the company with management responsibility (主管人员 is better translated as executive officer).

Furthermore, the second category “other directly responsible personnel”(其他直接责任人员) contemplates a much broader group of people that could potentially be anyone affiliated with the company that has some type of vaguely-defined “direct responsibility” over the company.

Potentially, there could be some validity to the alleged charges against Ai for Beijing Fake Cultural Development Ltd. if the company did in fact evade taxes.  The Chinese government has yet to offer any evidence of the company’s tax evasion.  The company’s attorneys have appealed the charges of tax evasion and have requested a hearing before the Beijing Tax Bureau.

But if there is tax evasion, Ai’s liability will ultimately be determined by defining what his precise role is within the company.  According to friends and family members, Beijing Fake Cultural Development Ltd. merely dabbled in small design projects; the company was not involved in selling Ai’s work.  In fact, according to Ai’s family, it is his wife who is registered as the company’s legal representative not Ai; Ai was a mere consultant.

And while the Chinese government could potentially have a legitimate claim against Ai for the company’s tax evasion, it’s illegal detention of Ai, the fact that there is still no official indictment, the fact that the government continues to hold incommunicado the company’s accountant, the one person who could explain the company’s actual tax filings, and that the government went after Ai instead of his wife, the legal representative of the Beijing Fake Cultural Development Ltd., makes one suspect that the potential charges against Ai are a legal long-shot.  Instead, political considerations – the need to silence one of Beijing’s most vocal and well-known critics – are the real reasons behind the prosecution of Ai.  Again, the rule of law in China takes a back seat to politics and Party supremacy.

It is rare to wake up in the morning, turn on the computer and find that China just made huge changes to its criminal procedures, and in a positive way.  But that was exactly where I found myself Tuesday morning when I saw that China passed two new criminal justice regulations, one of which attempts to stem the tide of the increasing use of confessions obtained through torture.

Torture of criminal suspects in order to obtain a confession remains a common practice in China as the confession is usually the key piece of evidence in criminal trials.   But as a signatory to the United Nations’ Convention Against Torture, such action is nominally illegal in China.  Article 43 of China’s Criminal Procedure Law (“CPL”), forbids the use of torture or coercion in obtaining statements or evidence and in the Supreme People’s Court’s Interpretation of the CPL (“SPC Interpretation”) – a document meant to provide greater detail to the vaguely drafted CPL – Article 61 states that evidence obtained through torture cannot be used as the verdict’s basis.

But neither of these provisions directly discusses the actual admissibility of this illegally obtained evidence, and the SPC Interpretation is only applicable to judicial bodies, not administrative organs such as the police or the state security bureaus.  Because current law is silent on its admissibility, confessions obtain through torture, while nominally illegal, are routinely used in criminal cases.  And the danger associated with such methods, namely the risk of sentencing an innocent person to prison or even death, have been increasing.  Just this month, Henan farmer Zhao Zuohai was released from his 11-year prison sentence when the man he was found guilty of killing, returned alive to their village.

Zhao’s story is not a one-off event, and such occurrences usually receive a tremendous amount of media attention, causing the Chinese public to be critical of the criminal justice system, question its validity, and, as a result, frighten the Chinese government.  There have been rumors of reform for the past few years, and on Monday morning such reforms were adopted.  The SPC, the Supreme People’ Procuratorate (SPP), the Ministry of Public Security (MPS), the Ministry of State Security (MSS), and the Ministry of Justice (MOJ) released two new regulations: “Regulations on Examining and Evaluation Evidence in Capital Cases” and “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases.” The Regulations on the Exclusion of Illegally Obtained Evidence goes the furthest in providing greater protection of criminal suspects and, through various procedural safeguards, attempts to eliminate the use of torture in obtaining confessions.

The reforms, which seem to be taken directly from a Law & Order episode, are rather sweeping and sophisticated, and

if implemented, can successfully eliminate torture and provide for greater justice.  But that’s the catch: in a system where more than 70% of defendants go without counsel and in the few cases with counsel, obstacles to effective representation abound, will such reforms really mean anything?  Because the regulations have yet to be publically published, the analysis below is based upon a summary provided to the Chinese media by Prof. Fan Chongyi, noted criminal law professor at the China University of Politics and Law and participant in drafting the reforms.

(1) Oral testimony that is the result of torture may be excluded from evidence.    Oral testimony that was the result of improper procedures, such as when only one investigator partakes in an interrogation [the law requires at least two interrogators], does not necessarily have to be excluded if it can be corrected.

Although this regulation certainly clarifies that courts may exclude confessions obtained through torture, the new regulation in no way creates an absolute “exclusionary rule.”  Instead, by using the term “may,” the regulation largely leaves it in the hands of the courts to decide whether to admit evidence obtained through torture.  Given the lack of judicial independence and the power of local security bureaus in China, it is questionable if local courts, when pressed by more powerful forces, will in fact exclude confessions based on torture.  Additionally, in cases where improper procedure was used, it is unclear what would need to be done to “correct” the issue and allow for the testimony to be admissible.  Perhaps the regulations, when officially issued, will clarify this.

(2) The defendant and his attorney have the right to request a pre-trial hearing concerning an illegally obtained confession.  The court may request that the defendant or his lawyer provide the names of the alleged officer involved in the illegality, the place, the time, the method used, the content of the illegality, and anything else related to the claim.

In a society with few rights for defendants, this regulation explicitly providing for the right to raise the issue of admissibility is rather extraordinary.  Additionally, the regulation calls for a pre-trial hearing to determine whether illegally obtained evidence should be admitted.  By separating the decision concerning the admissibility of the evidence from the actual trial, the regulation attempts to guarantee that the illegally obtained evidence in no way influences the final verdict.

By giving the defendant the right to question the admissibility of evidence, the regulation raises a bigger issue: when most defendants are not represented by counsel, who will inform the defendant of his or her rights?  Presumably in a situation of a confession obtained through torture, neither the police nor the prosecutor has much interest in informing the defendant of his right to attempt to invalidate the confession they just worked hard to obtain.  The alternative, that the court informs the defendant of his or her right, does not appear to be mandated by the regulations, making it questionable if the court will, on its own initiative, inform the defendant.  Given the pressures on the court as discussed in point 1 above, such action appears unlikely.

But even with a lawyer, a defendant will still have difficulty in raising the issue of a coerced confession.  A defendant’s changing his testimony, even if the prior confession was in fact the result of torture, is not in the self-interest of his attorney.  Article 306 of China’s Criminal Law (CL) provides criminal liability, and a prison term of up to seven years, to lawyers who entice their clients to change their testimony in opposition to the facts or to give false testimony.  While the overarching purpose of the sanction – to ensure that lawyers do not encourage their clients to lie – is laudable, Article 306 has been used by police and prosecutor as a way to intimidate defense counsel from questioning the validity of any confession, even when torture is obvious.  And this is not an idle threat.  This past year, after a high-profile case representing an organized crime syndicate in Chongqing, criminal defense attorney Li Zhuang was charged with violating Article 306 by advising his client to recant his confession on the basis that it was obtained through torture.  Li was eventually found guilty and sentenced to one year and six months in prison.  Thus, as long as there is Article 306, there remains an incentive for lawyers to advise their clients NOT to recant their confession.

Finally, while the regulation’s designation of a pre-trial hearing to determine the admissibility of illegally obtained evidence is a step in the right direction, such a pre-trial hearing is meaningless if the judge deciding the admissibility of the evidence is the same judge that will determine the guilt or innocence of the defendant (in China, judges determine guilt; there are no juries).  Having the same judge decide both would defeat the purpose of attempting to prevent illegally obtained evidence from influencing the trial portion.  It will be interesting to see if the officially published regulations will clarify this issue.

(3) After the defendant or his lawyer raises the issue of illegally obtained evidence and provides the details required by the court [see point 2 above], the burden of proof then switches to the prosecutor to show that the evidence was obtained legally.

This regulation is perhaps the most impressive in that it is also the most sophisticated.  Burdens of proof are

difficult concepts to understand, and knowing when to switch the burden from one party to another, can give an otherwise ineffective rule teeth. The law seeks to switch the burden of proof to the party that has the greatest opportunity to determine the truth.  Here, as China correctly notes, that party is the prosecutor.  The prosecutor, in working with the police and at times as part of the interrogation, has the best opportunity to demonstrate the admissibility of the confession.

Additionally, switching the burden of proof can also create an entirely new incentive structure to prevent the illegal behavior from ever occurring.  Here, China utilizes this concept.  Once the prosecutor has the burden of proof to show that evidence was obtained legally, he or she will seek to have procedures in place to guarantee that the police do not violate the law in obtaining evidence so that if the defendant raises the issue, the prosecutor can win.  For example, while there has been a few cities in China that have experimented with videotaping police interrogations, this practice has largely remained isolated.  But, with the switched burden of proof, prosecutors all across China will seek to implement methods to guarantee that confessions are obtained legally, and may seek to pressure their police counterparts to begin recording all interrogations. This regulation could potentially change the way interrogations are performed and recorded, reducing the risk that torture is used.

However, it is still subject to the criticism noted in points 1 and 2 above: will the court decide to exclude evidence even if illegally-obtained since it is not required to do so and will the defendant even know to act upon his or her rights?  If the answer is no, then the incentives created by the switched burden of proof remain irrelevant.

(4) The interrogator (usually the police or the prosecutor) must appear in court and testify.

While this might seem mundane to most Americans, as Prof. Fan notes, for China, this is pioneering.  In China, there is very little live testimony during criminal trials.  Just forcing someone to actually appear and testify in court is radical.  Having that person be a police officer is even more shocking.  In China, the state security apparatus is a powerful body and far outranks the courts or the nascent criminal defense bar.  The fact that the MSS and the MPS agreed to this regulation is certainly surprising and raises a red flag: has the MSS and MPS really agreed to give the courts power over their employees?

Again, the criticism of the new regulations noted in point 1 and 2 are applicable here as well.  Will we even reach the point that there is a hearing questioning the legality of evidence?  Likely not.  But regardless of those issues, the regulation itself seems to be without any bite.  Unless the officially published version expounds upon this regulation, there are no procedures in place to determine which party can call the police office to testify or whether defense counsel will be permitted to cross-examine the police officer, both necessary to guarantee that the regulation is effective.

(5) In regards to illegally obtained physical evidence, if the illegally obtained evidence has the potential to influence the fairness of the trial, then it should be excluded unless there is a reasonable reason for the illegality or it can be corrected.

This regulation is perhaps the vaguest, and thus weakest of them all; it appears to be inspired by the U.S.’ “fruit of the poisonous tree” (FPT) doctrine.  Under the FPT doctrine, other evidence discovered as a result of an illegal search or interrogation is also excluded.   For instance, after an illegal search of a house (the poisonous tree) a key to a locker is found and in that locker is the murder weapon (fruit), that murder weapon will also be excluded.  An exception exists if it can be shows that the discovery would have been inevitable or the discovery would have been made through an untainted source.

China’s regulation here seems to adopt the spirit but not the substance of the FPT doctrine, by only looking to the FPT exceptions.  In the U.S., the exceptions to the FPT doctrine are only applied to the fruit; no exception is made for the poisonous tree.   Here, China applies similar exceptions to the actual tree, to the evidence that was obtained directly as a result of the illegal violation.

This regulation is further weakened by the fact that these terms “reasonable reason” and “corrected” are left completely undefined.  Courts are left to their own devices to determine what these terms mean, a situation that was suppose to be avoided by these new regulations.

China’s “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases” is impressive and provides the architecture necessary to guarantee greater fairness in China’s criminal trials by excluding evidence obtained illegally.  The sophistication of some aspects of the new regulations reflects China’s increasing understanding of the need for effective procedures in order to give meaning to its legal principles.  However, these regulations should be viewed as a step toward greater progress; China has only stuck its foot in the water; it has yet to jump fully in.  China needs to find solutions to the systemic problems plaguing its criminal justice system. Unless China makes efforts to foster a vibrant criminal defense bar, provide access to attorneys early in criminal investigations, and takes steps to create a judiciary independent from the state security and Party apparatus, the new regulations will likely have little impact in the short-term.