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By Elizabeth M. Lynch, September 18, 2012

Anti-Japanese Protests in Beijing this Weekend

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

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

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

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

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

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By Elizabeth M. Lynch, October 12, 2009

In a development that caught most foreign media outlets by surprise, the Urumqi Intermediate Court tried and sentenced the first seven of over 200 defendants on Monday for crimes relating to the July 5 riots.  After a trial that lasted less than a day, six of the defendants, all of which were of Uighur descent, were sentenced to death; the remaining defendant was given life imprisonment.  All of the defendants were given the uniquely Chinese punishment of lifelong “deprivation of political rights.”

Back in August, the China Daily, an official government newspaper, stated that trials relating to the July 5 riots in

Monday's Trial in Xinjiang

Xinjiang would begin in the middle of August.  The reason for the two month delay remains unknown.  Additionally, while Chinese papers report that the trial was public, that is debatable.  According to the government controlled media, the 400 people in the audience included officials from the Urumqi, representatives from the National People’s Congress (NPC), Chinese Communist Party (CCP) officials, relatives of the defendants, and “a group of people of various elasticities and walks of life.”  However, it is questionable if anyone else was aware of the trial as it was occurring; there was no official announcement prior to trial.

In addition to working on the meaning of a “public trial,” the Chinese criminal justice system still has a ways to go in becoming accustomed to an adversary criminal justice system.  Historically, China has had an inquisitorial criminal justice system, one based upon the civil law systems of Germany, France and other continental European countries.  In that system, the judge plays an active and central role, reviewing all evidence the prosecutors amass.  The defense attorney’s role is minor compared to the U.S. system, an adversarial one where the defense attorney and the prosecutor duke it out with the judge and jury remaining very passive.

Neither system is better than the other; both have their advantages and disadvantages and are more a choice of culture than anything else.  However, in 1996, China amended its Criminal Procedure Code to adopt more adversarial-like procedures, moving away from its traditionally inquisitorial system.  But as the trial of the seven Uighurs show, many of those amendments, even 13 years after their adoption, have yet to take hold.  The Chinese press reported that the prosecution presented oodles of evidence including the testimony of eye-witnesses, reports of the incidents, and pictures and video of the alleged events.

Defendant being brought into the courtroom in Monday's trial in Xinjiang

However this evidence was not subjected to any adversarial testing, a key, if not defining element of an adversarial system.  Instead, the Chinese press reported that the defendants merely told their side of the story with their lawyers offering their own opinions.  Questioning of the prosecution’s witnesses, or calling in experts to analyze any of the prosecution’s evidence was completely absent.  Instead, the defendants and their lawyers reverted back to their roles in an inquisitorial system, passive participants with few affirmative rights.

Nothing could be worse than a system that purports to be an adversarial one but does not allow the defense to perform the essential role of such a system – actually challenging the prosecution’s case.   China is slated to amend its Criminal Procedure Code in the next year or two.  Hopefully it will pull back on adapting more elements of an adversarial system, since as of yet, it has a long way to go before it takes hold.  And there is nothing wrong with reverting back to a more inquisitorial system, a system that works well in continental Europe.