Thursday, April 30, 2009

Commentary & Translations: "Online Post Case" Stirs Outrage in China Over Government Crackdown on Free Expression, Weak Rule of Law

A recent incident in China—with a defamation charge levied against Wang Shuai of Lingbao City, Henan, who satirically criticized his local government in an online post—has provoked heated public discourse around the country. In his post, the 24-year-old Wang suggested that Lingbao officials were misappropriating funds while supporting policies to increase drought to cut land values, which would then allow the government to offer less compensation for requisitioned farmland. Arrested for libel due to his comments but later released when the charge was dropped, Wang posted his remarks only after provincial authorities did not respond to his petition requesting them to investigate land deals in Lingbao.

Wang was taken into custody on March 6 in Shanghai, 1,200 kilometers from Lingbao, by police from his hometown. He was detained in Shanghai for three days and then brought back to Lingbao, where he was held for five more days before finally being released on bail after he signed a written confession. On April 8, the China Youth Daily reported on Wang’s case, setting off public outrage in China, with both common citizens and legal scholars expressing sympathy for Wang while vilifying the Lingbao City government. Moved to action by this show of support, provincial officials in Henan took some measures; they issued a public apology, suspended four police officers, and compensated Wang a total of 783.93 yuan (approximately US$115) for his eight days of incarceration. They also ordered an investigation into Wang’s original allegations that led to various punishments for local officials.

Even though the libel charge against Wang was dropped and some efforts were made to “redress” the situation, the furor that erupted over his case and its aftermath shows Chinese citizens’ concern over the excessive power wielded by local governments, which are often believed to be out to protect themselves instead of lawfully defending the public interest. The case also exposes the potential hazards of open expression over the Internet for the increasing numbers of Chinese who view online communication as an effective method for sharing opinions about the world around them—even on subjects as sensitive as alleged wrongdoing by government officials.

Translated by Dui Hua, the two commentaries below by Chinese scholars—about pervasive problems of rule of law and the limits of free expression exposed by Wang Shuai’s case and other libel cases—have recently appeared in the official Chinese press. The first article, ‘“Lingbao post case”: Who should apologize more?,” was written by Dr. Yu Jianrong, a prominent scholar with the Chinese Academy of Social Sciences. The piece (original Chinese text) critiques the issue of legal responsibility in such cases and emphasizes the importance of being persistent in taking on local government corruption.

The second translation is of an article (original Chinese text) just published on April 30, “The Winner in the ‘Wang Shuai Post Case’ is ‘Power,’ not ‘the Law,’” by Sheng Dalin, a well-known lawyer, media critic, and writer. In his commentary, Sheng decries that even the “resolution” of the case was orchestrated by the main local power brokers—the Lingbao Party Committee and city government—and, as such, an appropriate procedure that recognizes tenets of law was not followed.

"Lingbao post case": Who should apologize more?
Yu Jianrong
April 17, 2009

Yesterday, Qin Yuhai, Henan vice governor and chief of the provincial public security department, visited with the People’s Daily website to discuss the incident of the “cross-provincial arrest in Lingbao, Henan, of Wang Shuai, the online poster.” He indicated that local public security organs had made mistakes in enforcing the law, that Wang Shuai’s case did not conform to conditions of the crime of defamation, and that [Wang] had already received state compensation. Qin Yuhai also apologized for the incident and said the Henan Province Public Security Department had sent a team to Lingbao to conduct an investigation (April 16 People’s Daily website). On April 10, when Wang Shuai and I agreed to be interviewed together by the People’s Daily website, I was still concerned about whether he would be arrested and taken into custody again. Now, with Qin Yuhai having taken this position, we can rest assured, but the matter cannot end here.

Although Qin Yuhai also serves as vice governor of Henan Province, his statement mainly is made from the perspective of the public security system, and criticism is being directed at the problem of arbitrary law enforcement by public security departments. But there has yet been no clear answer regarding whether the Lingbao public security departments got involved in the case because of pressure or direct instructions from the local government.

A public security organ should carry out the sacred duties as major enforcers of the nation’s laws and the protectors of society, work in accordance with the law, and place the interests of the masses first. But it also is a government department, [and] its personnel matters, finances, and operations must be subject to the jurisdiction of government at the same level. So it is inevitable at times that a number of local political interests creep in. Police power is often abused not by local police themselves, but by those who use their authority to employ police power. In dealing with thorny issues such as land requisition, some local governments force police to overstep their authority.

The “Pengshui poem case” in Chongqing, the “Jishan document case" in Shanxi, the “Zhidan SMS case” in Shaanxi, and the “Gaotang Internet case” in Shandong—a lot of behavior clearly falling within the scope of freedom of speech has been pinned with the label of “defamation," and public power has been employed abusively in carrying out interrogation, arrest, and prosecution, all for “causing a [negative] impact on local economic development” or “damaging the local image.” It’s clearly unimaginable that all of this can take place without specific power-holders in the background deliberately “governing illegally and abusing office,” “suppressing criticism and controlling public opinion,” or “perverting the law to suit one’s own selfish needs.” In Wang Shuai’s case, the public has reason to question the role the Lingbao City government played and whether or not there was abuse of police power, and [the public] even hopes to see someone held responsible for the incident. Besides the apology by Qin Yuhai, an even more standard way of doing things for a society with rule of law would be for the Lingbao City government or a higher-level government to officially publicize the details of Wang Shuai’s case, including the entire process of its occurrence up to the recognition that the case was faulty, the specific staff who must take responsibility, and the handling of decisions by relevant departments and staff. [These actions] will make the conduct of those in power more open and transparent.

The Wang Shuai “defamation case” simply should never have happened, and withdrawing the faulty case now only solves a derivative problem. The incident emerged as a response to unlawful land use by the Lingbao City government, and this is where [our] attention should return. Since Wang Shuai did not commit libel, the Lingbao City government should provide a clear response to Wang Shuai and the public regarding the issue of illegal land requisition that he raised. If the public has misunderstandings because of Wang Shuai’s post and if the Lingbao City government thinks the image of the local government has been tarnished, then the government is obliged to clarify the actual situation, respond to the suspicions of netizens, and dispel their doubts. Without effective communication, the masses who don’t know the truth will never understand [the situation]. If the issues in Wang Shuai’s case are valid (on April 16, the China Youth Daily reported the requisition of over 27 square kilometers [of land]), the Lingbao City government should not conceal this, but instead acknowledge the problem, take responsibility, and seek an effective solution. Whether through restoration of farmland, remedial measures, or pursuit of greater land compensation, [the government] needs to provide a clear response to those affected and to members of society who care about this issue.

After attracting so much attention, if this matter simply went away without being resolved, it would actually do great damage to the image of the local government. It would seem to send the message that whatever local governments want to do—legal or not and regardless of whether a citizen who voices criticism is sent to prison or if farmers are pushed off their land at a low price [in compensation]—can be achieved through a variety of methods. Even if [such actions] bring about serious consequences, the government also can pass the buck for various reasons, with its own illegal acts falling outside the bounds of the law.


The Winner in the "Wang Shuai Post Case" is "Power," not "the Law"
Sheng Dalin
April 30, 2009

According to an April 29 report in The Beijing News, the Sanmenxia Party Committee and city government held a meeting to “seriously punish” the illegal occupation of land in Lingbao City that had been exposed in the “Wang Shuai post case.” The Lingbao City Party Committee and city government were ordered to carry out a thorough investigation for the Sanmenxia Party Committee and city governmnent, and Lingbao City Party Secretary Lü Junping and Mayor Qiao Changqing were ordered to carry out a thorough investigation for the Sanmenxia Party Committee and city government. It was decided to punish those officials who were found to be responsible.

So now, the “Wang Shuai post case” that has made such a stir throughout the nation can be said to have come to a close. No doubt many citizens who offered encouragement and support to Wang Shuai will be very happy with this result, but I can’t help but feel that the conclusion is less than perfect.

The final outcome of the “Wang Shuai post case” is certainly just as we had hoped. But did we only want to see the outcome? No—outcomes are important, but the process is important, too. We wanted to see substantive justice done, but we also wanted to see procedural justice as well. However, looking back at the entire course of the “Wang Shuai post case,” we must admit that the course of action taken was not the ideal choice.

Actually, there are many paths that could have been taken to achieve a just outcome. For example, the public security bureau could have strictly handled the case in accordance with the law and refused to file the case for investigation or withdrawn the case in accordance with the law after public opinion pointed out that the charge of “defamation” was completely untenable. But it did neither of these. After the storm of public opinion, not only did Lingbao City have no intention of rectifying the case, it actually fought back hard against public opinion. Only intervention by the Henan Province Public Security Department and Vice Governor and Public Security Department Chief Qin Yuhai’s public admission that “defamation is untenable” was there a sudden shift in their course.

It’s a clear fact that, from start to finish, the main actor in handling this case, the Lingbao City Public Security Bureau, was secondary to the Lingbao City Party Committee and city government, which was in the driver’s seat. It was the party committee and government that made public statements, and it was always the publicity department of the city party committee, speaking on behalf of the city party committee and government, that gave media interviews. Obviously, the “filing” in this case was a result of the intervention of power and its “withdrawal” was a result of the intervention of power as well. From the beginning, what the city public security bureau was enforcing was not the “law,” but rather “orders” from superiors. Even though the oversight of public opinion played an important role, what ultimately brought about a reversal in these events was power. In other words, the winner in the “Wang Shuai post case” was “power,” not “the law.”

This is not an isolated situation. From the “Pengshui poem case” to the “Jishan document case,” in recent years there have been several “defamation” cases that were nothing more than the result of “power overshadowing the law.” In the Wu Baoquan case in Hohhot [sic, should be Ordos], Inner Mongolia, there have even been a few judges and prosecutors handling the case who have openly expressed their frustration at being unable to handle the case in accordance with the law.

“Supremacy of the law” is the first tenet of the rule of law. “Power overshadows the law” is a vestige of the rule of man. Even though the “Wang Shuai post case” was recently overturned and the responsible people concerned have received “serious punishments,” not a single hair has been harmed on the “chief culprit” in this case and others like it—namely, the idea that “power overshadows the law.” Unless we eradicate this “chief culprit,” individual rights such as freedom of speech can never be protected and cases involving the punishment of free speech will never cease.

Monday, April 13, 2009

China's Human Rights Plan Met With Mixed Reactions

On Monday, China unveiled with great fanfare its National Human Rights Action Plan for 2009–2010 (full text available in English | Chinese). This plan, the first of its kind for China, is intended to set goals and measures for all of China's government to follow in the next two years in its efforts to better protect and respect human rights.

The plan, which was greeted with great enthusiasm by the China's domestic media, received a more lukewarm reception outside the country. Although the plan contained several important expressions of support for the protection of human rights and some specific proposals, skeptics question whether the plan contained enough concrete benchmarks against which to measure achievements, particularly in the area of civil and political rights, and whether China's system was transparent enough to allow for independent verification of progress.

The following essay, published on the website of the Changjiang Daily in Wuhan (and reprinted by several major Chinese-language news portals), argues strongly that China's ambitious plans need to be accompanied by sufficient action, else its goals will be in danger of not being realized. The author also reminds us that human rights are "naturally inherent" and "sacred" and not to be doled out by the state as it sees fit "according to national circumstances." Progress in the protection of human rights should move forward in all areas simultaneously: economic, social, cultural, civil, and political.

Safeguard Human Rights with Sufficient Action
Li Qiong
April 14, 2009

Yesterday, the State Council authorized the State Council Information Office to issue the "National Human Rights Action Plan (2009–2010)" (NHRAP). This is the first time China has established a national program focused on human rights, and its action plan clearly sets out the Chinese government's goals and concrete measures for the promotion and protection of human rights during the coming two years.

From 1991, when the Chinese government published the "Chinese Human Rights Situation" white paper, the first government document to positively affirm the status of the concept of human rights in China's political development, to 2004, when the phrase "the state protects and respects human rights" became part of the constitution, there has been increasingly clear and resolute identification of human rights as a common achievement of human civilization and a mainstream value of international society.

On the level of theory and perception, the concept of human rights has already cast off the cloak of ideological struggle, and in speech it is no longer a sensitive or taboo subject. A whole series of legal provisions have reflected elements of the protection of human rights. The positive significance of the NHRAP lies in its clarification of the basic elements of the protection of human rights in China and turning these national values and strategic goals into a roadmap for the near term.

In addition to progress on the level of ideas and perception, we cannot deny the accomplishments China has made in the area of action on human rights protection. But compared to the human rights content found in the NHRAP and in our various laws, we remain deeply concerned about the protection of human rights in practice.

Looking at the reality of present-day Chinese society, many aspects of respecting and protecting human rights have yet to reach the ground, and there is much that remains unfinished with regard to upholding and protecting people's rights. In some areas, whenever there is an accident involving major loss of life, the first thing that local government and enterprises think to do is conceal and cover up. In some management of society at the grassroots level, the difficulties people face in expressing and upholding their rights end up turning into intense popular confrontations or conflicts with officials or the police. In all areas of law enforcement and the administration of justice, there often appear flashes of the dark shadows of torture, prison bullies, and miscarriages of justice. In the hospitals of every major city, many parents of children with leukemia fiercely hope for a chance meeting with the Premier. The lack of basic cultural facilities in rural areas, the detention and even incarceration in psychiatric hospitals of those who make complaints and petitions—these facts make it clear that there remains a long way to go before realizing civil, cultural, and political rights.

These hard realities that run through our rule of law and human civilization remind us that it is precisely at the level of implementation that human rights continue to be in danger of being ignored, neglected, distorted, and emptied of all meaning. Government and society continues to bear an enormous responsibility to respect, protect, and improve human rights.

To be sure, it is even more difficult to break through barriers at the level of action and implementation than it is at the level of thought and speech. After 30 years of rapid economic expansion, the human rights issues we face are no longer limited to the single element of the right to life. The times are changing, and people's knowledge of and desire for rights is growing stronger and more varied. The types of rights-protection problems that need to be resolved are increasingly complex as well. In the broader context of social transformation, respect and protection of human rights means increasing public investment to strengthen important social services, overcoming institutional inertia and improving the work of government, and sweeping away unreasonable vested interests and bringing fairness and justice to society in return. Improving these areas of implementation requires sufficient political awareness, a courage to reform, and sufficient mechanisms and platforms for the expression and interplay of interests.

Human rights is something naturally inherent, something sacred; it is not a favor to be bestowed on the people or something that can be arbitrarily taken from them. We have already firmly established a national vision and system, but what we hope to see even more is respect, protection, and improvement of human rights in actual practice. When the promotion and protection of human rights is realized in practice, when it can be seen in every action taken by the government everywhere—only then can we really say that the citizens become the masters of the state and "putting people at the center" becomes the core of development.