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By Elizabeth M. Lynch, June 22, 2011

Ai Weiwei

For the past three months, the world has awaited news on internationally-known artist Ai Weiwei’s unlawful detention by Chinese authorities.  Originally taken into custody on April 3, 2011, Ai’s detention has remained shrouded in rumors as the rest of the world vocally called for his release.

Although not formally arrested, on May 21, 2011, the state-run New China News Agency reported that Ai was being investigated for evading “huge amounts” of taxes through his corporation, Beijing Fake Cultural Development, Ltd.  However, no official government statement confirmed this report and no arrest warrant was issued.

Finally, this morning, Xinhua News Agency, another state-run news outlet, announced that Ai was released on bail “because of his good attitude in confessing his crimes as well as a chronic disease he suffers from.”

Unlike in the United States, bail –or in Chinese qubao huoshen (取保候审) is not freely given in China.  As Prof. Jerome Cohen points out, the term bail is perhaps a misnomer in translating the Chinese since in China “bail” can be provided at any stage in the “investigation,” even before a formal arrest or an indictment as was the situation in Ai’s case (Siweiluozi also has a good piece on the inadequacies of translating qubao huoshen as bail).

If bail is limited in China, what are the circumstances in which it is given?  Prof. Cohen rightly points out that the consideration is largely political and has little to do with rule of law – it’s a good way for the Chinese government to get out of a difficult situation when international criticism mounts (Evan Osnos also has an interesting take on the impact of international pressure on Ai’s release).  But was Xinhua’s reason for bail – good attitude and a chronic disease – a legal basis for the rare reward of bail?

As a matter of fact, there is a basis in law.  Article 60 of China’s Criminal Procedure Law (CPL) makes clear bail may be granted in those cases where the “criminal suspect or accused…should be arrested but are suffering from a serious illness….”  Ai suffers from diabetes and during his ordeal, Ai’s family repeatedly expressed his concerns about his health to the international press.  So while the Chinese government likely made a political choice to release Ai, there is in fact a veneer of legality.  But the claim of “good attitude” for bail is found nowhere in the CPL.

But what is perhaps a more interesting question, is the validity of the alleged charges of tax evasion.  Ai’s company, Beijing Fake Cultural Development, Ltd., is a limited company – how is Ai personally on the hook for the company’s tax evasion?  Presumably there would be limited liability, so how are the authorities able to attribute the company’s evasion to Ai?   On that issue, tune in later, same bat-time, same bat-channel.