United States and Chinese National Security Policies Raise Memories of World War II

Photo by Crystal K. Huie, Courtesy of the Fred T. Korematsu Institute.

In 2018 the international community rebuked both China and the United States (U.S.) for controversial policies affecting Muslim populations. This summer it was reported that China has detained more than a million of its own citizens — Uyghurs in the Xinjiang Autonomous Region suspected of dissident sentiments — in re-education camps. Meanwhile, the U.S. instituted a travel restriction on citizens from eight Muslim majority countries in what was widely viewed as an attempt to prevent Muslims from entering the country. Despite the many differences in these two policies, China and the U.S. offer strikingly similar justifications for their actions. Both countries point to overriding national security concerns and insist that these extreme practices are permissible by law. Although extremist violence is portrayed as a new threat that requires new responses, the legal battle over the U.S. travel ban and the outcry over detention of Muslims in China resurface discussion of a similar policy from a bygone era: the internment of Japanese citizens in the U.S. during World War II.

This summer the U.S. Supreme Court ruled that the Trump administration’s travel ban is constitutional. In the same decision, the court finally overturned its ruling in United States v. Korematsu, a 1944 case holding it permissible for the military to detain Japanese Americans in internment camps as a preventative safety measure. Although the internment camps were widely condemned in the decades since that decision, the practice officially remained “good law” until this year. The fact that such a flagrant human rights abuse could be found legally permissible—and remain so for so long—offers an important lesson: Although a policy that directly or indirectly targets an ethnic group may be judged lawful in a contemporary court, it may still be overruled in the court of history.

The Internment of Japanese Americans and the Korematsu Decision

More than a half-century ago the U.S. and China united in war against a common enemy: Japan. After years of imperial expansion in Asia, Japan’s incursion into Manchuria led to the formal declaration of war with China in 1937. In 1941 Japan attacked Pearl Harbor, prompting the U.S. to enter the conflict as well. The next year President Roosevelt signed Executive Order 9066, which authorized the military to exclude people from geographic areas in the U.S. at their discretion.

Following the executive order, more than 112,000 people in the U.S., primarily people of Japanese ancestry living on the west coast, were relocated from their homes and interned in concentration camps. At least 70,000 of these people were American citizens. Despite a lack of empirical evidence that Japanese-Americans posed a threat to national security, citizens were held against their will for years because of their ethnic background.

Fred Korematsu, an American of Japanese descent who was born in Oakland, California, refused to obey the exclusion order. He was arrested, convicted of violating the order, and sent to a camp in Utah. Korematsu appealed the conviction, arguing that the exclusion order was discriminatory and violated his constitutional rights.

In 1944 the U.S. Supreme Court considered Korematsu’s case. A divided court ultimately upheld the exclusion order and Korematsu’s conviction. Justice Hugo Black, writing for the majority, argued that while restrictions on the civil rights of a racial group are legally suspect, Roosevelt was justified in his order for reasons of national security. Black opined that “exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group.”

Even at the time of the ruling, some members of the Court condemned the exclusion. In a published dissent, Justice Frank Murphy called the order a “legalization of racism.” In the decades following the end of World War II, the U.S. reached a similar national consensus that the internment was a mistake and an injustice. In 1976 President Gerald Ford issued a formal apology, stating that "[w]e now know what we should have known then—not only was that evacuation wrong but Japanese-Americans were and are loyal Americans.” President Jimmy Carter established a commission that debunked the argument that the internment was necessary for national security. Following the recommendations of the commission, the U.S. government subsequently made reparation payments to people who had been interned.

But, despite the widespread recognition by both the public and the U.S. government that the internment was unjust, the Supreme Court’s 1944 Korematsu decision remained the unchallenged law of the land for more than 70 years.

Supreme Court Decision Invokes America’s Past Missteps in Travel Ban Decision

The Supreme Court reconsidered Korematsu this year in light of a contemporary presidential directive. Immediately after assuming office in 2017 President Donald Trump issued an executive order temporarily restricting entry to the U.S. for citizens from seven Muslim-majority countries. Although the Trump administration insisted that the restrictions were intended to prevent terrorist attacks, critics of the proposal pointed to numerous campaign statements by the president that seemed to indicate the order was intended to bar Muslims from entering the country.

The travel restriction order immediately came under judicial scrutiny. Following a series of legal actions and modifications to the order, in April 2018 the U.S. Supreme Court heard opinions in the question of whether the ban violated the establishment clause of the First Amendment, which forms the basis of the constitutional right to freedom of religion. In June the court issued its decision. Justice John Roberts, writing for a narrow majority, upheld the constitutionality of the Trump order, finding that the president has broad authority over issues of national security.

In two dissents, four of the Supreme Court’s nine justices disagreed with the majority opinion upholding the travel ban. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote that the majority “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

The ghost of the court’s previous decision in Korematsu haunts both the majority decision and the dissent response to the travel restrictions. In the majority opinion Justice Roberts seemed to finally overturn the 1944 decision, stating that the contemporary debate “affords this Court the opportunity to express what is already obvious: Korematsu was gravely wrong on the day it was decided, has been overruled in the court of history, and—to be clear— ‘has no place in law under the constitution’.” Meanwhile, Justice Sotomayor wrote that while “[i]n the intervening since Korematsu, our Nation has done much to leave its sordid legacy behind,” in upholding the executive order and sanctioning a discriminatory policy in the name of national security, “the court replaces one ‘gravely wrong decision’ with another.”

The debate over Korematsu shows that even in a country such as the U.S. with a hearty tradition of strong and independent courts, when it comes to questions of national security and minority groups, what is lawful is not always what is right.

Korematsu and Lessons for China

China ought to take note of the legacy of the Korematsu decision. International news outlets reported this year that China has detained as many as a million Chinese Muslims—particularly ethnic minority Uyghurs and Kazakhs in the western autonomous region of Xinjiang—out of national security concerns. In August the United Nations Committee on the Elimination of Racial Discrimination issued a report expressing concern that these Muslims were being “held incommunicado and often for long periods, without being charged or tried, under the pretext of countering terrorism and religious extremism” and are “forced to spend varying periods in political ‘re-education camps’ for even nonthreatening expressions of Muslim ethno-religious culture like daily greetings.” In November numerous nations raised concerns about China’s treatment of Muslims at the Universal Periodic Review of China’s human rights record at the United Nations. Dui Hua’s submission to the Review highlights the Foundation’s research uncovering discrimination against Muslims in Xinjiang.

China disputes reports on its policies towards Muslims in Xinjiang. At the same time, the government passed a series of laws and regulations purportedly providing a legal basis for targeting Muslims in response to national security concerns. These new legal measures include a 2015 Counterterrorism Law that criminalized a broad range of conduct and expression, including clothes and symbols. And Xinjiang introduced regulations authorizing re-education facilities to combat “religious extremism.” Dui Hua found the first judgment involving the use of “educational placement,” a new coercive measure imposed on prisoners who are considered a danger to society even after completing their sentences for terrorism or extremism offenses. The Foundation also discovered judgments involving violators of the Islamic clothing ban in force throughout Xinjiang. Individuals can be sentenced for “illegal business activity” for selling clothing with the Islamic star and crescent symbol. In one case, a Muslim man, Gong Xiaojun, was sentenced to two years' imprisonment for “disrupting official business” after arguing with cadres over his “abnormal” beard and a black robe his wife was wearing at home. The case indicates that Xinjiang authorities have extended the reach of the ban to peoples’ homes. Across the board, China appears to be using the veil of national security law to justify openly discriminatory practice.

The Korematsu decision reminds us that while a discriminatory policy may enjoy a veneer of legality, that legality is ultimately no match for the judgment of history. The internment of Japanese Americans was wrong during WWII, despite Supreme Court reasoning to the contrary. China’s efforts to criminalize Muslim expressions of faith today are no less abhorrent, whether or not they find basis in statute. As Justice Murphy wrote in his dissent in Korematsu in 1944, “[s]uch exclusion goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism.”

Xinjiang Production and Construction Corps: Safeguarding or Endangering Security?

The XPCC 12th Division State-Owned Assets Management Company vows to crack down on terrorism during a training on July 4, 2017. People.cn.

The Xinjiang Production and Construction Corps (XPCC), known as Bingtuan (兵团) in Chinese, is a quasi-military and business conglomerate located in Xinjiang that governs a population of 2.6 million people of whom more than 200,000 are Uyghurs and other predominantly Muslim ethnic minority groups. Founded in 1954 as a conglomerate of state-owned agricultural and stock-raising farms, the original XPCC settlers were comprised of decommissioned soldiers, captive Nationalist armed forces, and “rusticated youth,” who were inspired by Mao’s revolutionary dream of converting the Westernmost desert areas into arable land. In the last six decades, XPCC has grown from a population of 170,000 to a population of 2.6 million. The conglomerate now controls an area close to the size of Taiwan within the restive province of Xinjiang.

Photo credit: The Economist

From its onset, XPCC was tasked with the mission of “safeguarding the frontier, maintaining stability and promoting ethnic unity.” Its official goal of safeguarding state security remains unchanged today. As a distinct administrative unit with its own educational, healthcare, and residence registration system, XPCC also operates as a separate jurisdiction with its own police force, procuratorates, courts, and prisons independent of the Xinjiang provincial government. In March 2012, XPCC established its own state security bureau with the aim of investigating and cracking down on endangering state security (ESS) activities. Xinjiang is believed to account for the majority of ESS cases in China; ESS crimes include splittism, subversion, and incitement. Dui Hua has previously reported that Xinjiang concluded 1,542 ESS trials during 2010-2014. The number of defendants in such cases is unknown. Dui Hua believes that the reported figures on crime in Xinjiang does not cover XPCC-controlled areas.

Has XPCC lived up to its duty to safeguard state security? Dui Hua’s research into government annals has uncovered over a decade of ESS arrests and indictments in XPCC from 2003-2015. When compared with the numbers available from other Chinese provinces and municipalities, it is clear that XPCC accounts for a disproportional amount of the arrests and indictments for ESS crimes.

Arrests and Indictments for Endangering State Security Cases in Xinjiang Production and Construction Corps, Chongqing Municipality and Nationwide

Sources: XPCC Statistical Yearbook, Chongqing Statistical Yearbook, China Law Yearbook.

The table above shows that 237 individuals were arrested in 80 cases and 209 indicted in 60 cases in the last 13 years in XPCC. When compared with other Chinese provinces and municipalities and given its population size, XPCC makes a staggering number of ESS arrests and indictments. For example, in Chongqing, home to 30.17 million people in 2015, 35 individuals were arrested in 25 cases and 29 individuals were indicted in 23 cases from 2002-2016. Dui Hua’s research into government gazettes in Shandong, Jiangsu, and Henan indicated that the number of individuals arrested or indicted in each year from 2014-2016 for ESS crimes ranged from one to a little over a dozen. The three provinces have a population of 98.5 m, 79.8 m, and 107 m, respectively.

ESS arrests in XPCC stagnated for many years until 2008. In 2008, the number of arrested individuals surged to 38. In 2011, one person was indicted in XPCC for ESS for every 24 individuals indicted nationwide; in 2014, XPCC arrested one person for every 16 individuals arrested for ESS nationwide. The surge in 2008 occurred just one year before the Urumqi riots of July 2009 and coincided with the nationwide increase of ESS arrests and indictments in 2008. Official news media reported that 1,295 individuals were arrested, and 1,154 individuals were indicted in Xinjiang in the first eleven months of 2008, accounting for 75.6 percent and 82 percent of the nationwide ESS arrests and indictments.

Religious Persecution in Endangering State Security Cases

ESS cases involving Uyghurs are linked to the crackdown on religious freedom in Xinjiang. From June to July 2009, the 4th Agricultural Division Intermediate People’s Court sentenced a group of 17 Uyghurs to three-five years’ imprisonment for inciting splittism and inciting racial hatred. According to Ili Evening News, the group organized underground religious activities to celebrate the holy holiday of Ramadan and to teach the Quran. Hazreteli Abbas, one of the 17 imprisoned, was additionally sentenced for “harboring criminals” after allegedly providing financial aid to members seeking to leave China, despite knowing that they were wanted by police.

The 2015 census indicated that there were 229,100 Uyghur residents in XPCC, accounting for less than 10 percent of the entire XPCC population. However, the majority of the ESS cases in XPCC known to Dui Hua involve Uyghurs accused of splittism or inciting splittism. In XPCC, a single ESS case can often involve over a dozen Uyghur individuals, who tend to receive substantially harsher treatment and prison terms than their Han counterparts. On July 23, 1999, the 4th Agricultural Division Intermediate People’s Court sentenced 18 Uyghurs to 10-15 years’ imprisonment for splittism at a public sentencing rally. The rally was held in an open-air theater, with an audience of more than 1,300 individuals from the 64th Brigade of the Fourth Agricultural Division. Only three of the individuals sentenced names are known: Abdurazaq Abdureshit, Ekrem Qurbantay and Shirmemet Abdureshit. All defendants in the case were likely released in the early 2010s.

Dui Hua’s PPDB has information on four other Uyghurs incarcerated for ESS (see table below), three of whom were sentenced alongside five to fifteen other defendants. Available sources do not provide details on the case specifics.

Name	Court	Sentence Date	Crime(s)	Sentence	Clemency	Remarks
Abdurusul Ehsan	1st Agricultural Division IntermediatePeople's Court	2011	Splittism, illegally manufacturing of weapons/ ammunition/ explosives	Death with reprieve	Sentence commuted to life imprisonment in 2015	Case specifics unclear
Mehmet Imin	1st Agricultural Division Intermediate People’s Court	2011	Inciting splittism	Unknown	Unknown	Sentenced alongside 14 other defendants
Enwer Obul	3rd Agricultural Division Intermediate People's Court	2013	Inciting splittism	Unknown	Unknown	Part of the 10 defendants tried for inciting splittism in XPCC
Muhyibla Niz	An intermediate court in XPCC	2014	Inciting splittism	Unknown	Unknown	Sentenced alongside 5 other defendants

Han Incitement

In My West China; Your East Turkestan《我的西域，你的东土》, dissident writer Wang Lixiong calls XPCC a “Han autonomous province within Xinjiang Autonomous Region.” While Han Chinese account for 86 percent of XPCC’s population, only a handful are known to be involved in ESS cases. Liu Weifang (刘卫方) is one such individual. Liu was sentenced to three years’ imprisonment by the 9th Brigade Intermediate Court for inciting subversion. He posted dozens of articles on multiple Internet forums, “viciously attacking the party, national leaders, the socialist system and party principles and policies.” Liu is believed to have completed his sentence before 2004. In a rare disclosure, the XPCC procuratorate website stated that its 4th Division Branch arrested an individual surnamed Yang for inciting subversion in September 2017. Like Liu, Yang was accused of using social networking apps to disseminate information and spread “rumors” about the party and socialism.

The charge of incitement is also used against Falun Gong practitioners who distribute publications critical of the party. One such case took place in XPCC. In November 2014, Wang Xiaoying (王晓莺) was criminally detained for two weeks for inciting subversion. Although the charge was eventually dropped, Wang was later arrested and sentenced to three years and six months’ imprisonment for using/organizing a cult to undermine implementation of the law. She is currently being held in Urumqi Women’s Prison and is due for release in 2019.

From Endangering State Security to Terrorism

Dui Hua has previously reported on the growing trend of authorities charging individuals with “picking quarrels and provoking troubles” for acts that would have previously resulted in charges for inciting subversion. Both Xinjiang and XPCC appear to have followed suit, applying a similar switching tactic of criminalization to obscure cases of a political nature. As such the drop in ESS arrests and indictments in 2015 by no means indicates a relaxation of suppression. Moreover, Uyghurs are now more likely to face prosecution for terrorism than splittism or inciting splittism.

Dui Hua’s research into online judgments discovered a case, involving four Uyghurs in their early twenties, who were initially detained and arrested for inciting splittism but subsequently sentenced in 2013 for organizing/leading/actively participating in a terrorist organization. The XPCC 14th Division Intermediate People’s Court sentenced the men to two to ten years’ imprisonment.

Receiving the lengthiest sentence of the four, Abdusalam Abulat was accused of watching videos and listening to audio materials about “jihad” and “hegira” with his uncle Ababaikerim Mahmut, who was previously sentenced in Hotan to two years’ imprisonment for inciting splittism in 2010. According to the judgment, the uncle spoke about his resentment towards Han Chinese in Xinjiang. “In our hometown Xinjiang today, we are not allowed to have more than three children; otherwise we will be forced to undergo abortions. Women are forced to put on contraceptive devices… We cannot worship outside of mosques. Men cannot keep beards. Not only are students forbidden to wear Islamic clothes, but also headscarves…” The uncle said Muslims should “migrate” to other Islamic nations to strengthen their religious faith before they conduct “jihad” upon their return to Xinjiang and that the first step of “hegira” was to apply for passports to study abroad in Malaysia or Indonesia and eventually Afghanistan.

Abdusalam Abulat shared his uncle's interpretations of “jihad” and “hegira” with his co-workers at a textile factory in Shihezi and started learning Arabic with them. The court alleged that they had discussed plans to leave for Afghanistan via Kashgar. Even though the four had not committed any violent acts, the court held that the physical and shooting training they received with replica guns in the factory yard of their dormitory constituted acts of terrorism.

Court judgments involving incitement, splittism, and terrorism frequently conflate the terms “jihad” and “hegira” with violence. Despite its common mistranslation as “holy war”, jihad embraces a much wider religious meaning of a non-violent struggle that prompts one to be a good Islamic believer, according to The Islamic Supreme Council of America. A Diplomat article titled “Uyghur Terrorism: A Misnomer”states that "some governments are prone to label as terrorism all violent acts committed by their political opponents... and "[G]overnments may be tempted by a ready-made narrative to back up the claim that domestic unrest derives from outside influences rather than from authentic local concerns.” Overseas observers have criticized China’s terrorism laws as being overly vague. The laws do not require actual action or violence to have taken place for authorities to initiate prosecution and other restrictions, allowing for the conflation of dissenters with terrorists.

A Bulwark of State Security?

Since its founding, XPCC has justified its raison d'être by citing the threat of ethnic unrest, social instability, and splittist activities. Severely damaged during the Cultural Revolution, XPCC was reinstated in 1981 by Deng Xiaoping as “the key force of maintaining stability in Xinjiang.” Hu Jintao has praised XPCC as a “mighty construction army” for the quelling of the 2009 Urumqi Riots. Xi Jinping has described wanting the XPCC to combat terrorism in Xinjiang with its “walls made of copper and steel” and “nets spread from the earth to sky.”

Delegated as a bulwark against “the three evil forces of terrorism, extremism, and separatism,” XPCC has extended its reach to southern Xinjiang, where a number of attacks have reportedly occurred. In January 2016, the State Council approved the establishment of Kunyu City in Hotan, a prefecture largely dominated by Uyghurs. The new county-level city is administered by XPCC’s 14th Agricultural Division. In 2017, an official news media article recommended that XPCC create a Special Economic Zone in southern Xinjiang modelled on Shenzhen to create opportunities for the many ethnic minorities who cannot speak Mandarin, have few educational opportunities, and are “extremely religious” and “dissatisfied with the status quo.” Beijing is seen to have turned a deaf ear to complaints that XPCC is taking away valuable resources from its Uyghur population, including vast amounts of arable land and abundant water resources.

Observers and scholars have described the government’s attempts to control the Uyghur population as a self-fulfilling prophecy. The perceived threats to state security and social stability provided the initial justification for the creation of XPCC. As the conglomerate expanded, the area saw an influx of Han migration drawn in by business opportunities; efforts to secularize the region routinely deny Uyghurs access to economic and political opportunities. Consequently, the already conspicuous ethnic tensions continue to mount. Contrary to its alleged mission to “safeguard the frontier, maintain stability and promote ethnic unity,” XPCC is giving its Uyghur residents even more reason to flee or seek greater autonomy.

“All Criminal Defendants to Have Lawyers”: Is Access to Defense Lawyers Enough in a System Designed Against Defendants? (Part 2 of 2)

Dr. Tan Qindong, detained for three months in Guangdong, found himself at the center of a major conflict of interest story in Chinese media. Image source: Caixin.

In “‘All Criminal Defendants to Have Lawyers:’ Is Access to Defense Lawyers Enough in a System Designed Against Defendants? (Part 1 of 2),” Dui Hua analyzed shortcomings in the pilot projects including their failure to address the role of defense counsel in pre-trial contexts and the overemphasis on measuring success by coverage rather than quality of defense. In Part 2, Dui Hua looks at a how a failure to embrace principles such as conflict of interest and clear commitment to public resources and accountability mechanisms are barriers that reformers must also consider.

Conflict of Interest

The presence of lawyers who are free from conflict of interest is key to a well-functioning criminal justice system. Recent cases illustrate that this principle has yet to be fully embraced in China’s criminal justice system. In January 2018, Guangzhou doctor Tan Qindong was arrested for writing online that in “his scientific opinion” the popular Chinese tonic liquor made by the Hongmao Liquor Company “appeared to be quack medicine, and a potential ‘poison’ for many retirees who drink it every day.” Hongmao is considered the backbone of the economy in Liangcheng County in Inner Mongolia, where the liquor is produced. Inner Mongolia police officers traveled more than 1,700 miles to arrest Tan in Guangzhou for his statements made online. The police later recommended that Tan’s wife, hire an attorney. Unbeknownst to her, the lawyer had previously served as Hongmao’s in-house legal counsel (falü guwen). The attorney advised Tan to admit guilt and to refrain from speaking to the media. Following heavy media attention and public outcry, Tan was released in April 2018. Professor Wang Yong of China University of Political Science and Law described the case as an overreach of power reflecting the influence of the Hongmao Liquor Company on the Inner Mongolia legal authorities.

Yin Chuji was investigated in 2016 for handling cases as a defense attorney while also serving as a Hunan Taojiang Party official. Source: ifeng.

In Hunan, Yin Chuji, was investigated in 2016 for simultaneously serving as a defense attorney at a Changsha law firm as well as a deputy party secretary of the Hunan Taojiang Political-Legal Commission. Yin reportedly handled more than eighty cases over a six-year period while holding both positions. In Beijing, Wang Hongguang, a former presiding Supreme People’s Court judge of the second civil division, was imprisoned in a case suggesting serious conflict of interest. The case was reported on WeChat. Wang allegedly accepted payments to influence the outcome of cases. In 2017, Beijing Dongcheng People’s Court found Wang guilty of accepting bribes. Wang’s appeal was rejected in 2018. As reformers seek to create a more robust system of defense counsels in China, efforts must also be made to address corruption and bias in the court room.

Funding for Defense Counsels

Another shortcoming of the pilot projects is adequate funding - critical for defense counsels who are expected to perform an array of functions. As a Congressional Executive Commission on China report points out, legal aid centers have “insufficient funding and eligibility restrictions continue to seriously limit accessibility to legal aid.” Local officials in Bao’an and Henan have acknowledged the varying duties defense counsels must perform, from obtaining case files and drafting briefs to applying for bail and other changes to coercive measures. However, the national regulations on the criminal defense pilot projects do not specify which government actors or units are responsible for ensuring the project’s funding.

Media outlets have stated that in some cases subsidies are provided for defendants who cannot afford to hire their own attorneys. The pilot project regulations on funding are complex, leaving a series of bureaucratic loopholes for local officials looking to cut funding for criminal defense counsel. For example, Article 9 states that defendants should bear the costs of a publicly funded defense lawyer and that any cost sharing can be determined by provincial level judicial-administrative branches based on the regions local economic development, average residents’ income, and case-handling subsidy allowance standards. Article 7 and 8 states that the responsibility for providing funding for defense attorneys in criminal cases is shared among local jurisdictions, with unspecified “areas with means” (you tiaojian de difang) relied upon to voluntarily shoulder the cost burden in different ways, including establishing a criminal defense lawyer pool to develop the criminal defense counsel pilot projects and launching government procurement of legal aid services. A clear commitment to public resources would bolster the capacity of defense counsels to perform these specialized tasks.

Sources of Accountability

Another troubling pattern has emerged in the implementation of the pilot projects – it is unclear which bodies of government are responsible for the projects. Different municipalities and provinces seem to have their own opinion on which bodies are responsible for project implementation. In some projects, party units are entrusted with carrying out the projects, even though the national regulations on the pilot projects were launched by the Ministry of Justice. In some projects, the implementation is carried out by government offices or by provincial justice bureaus and courts. In Hebei province, which was not among the pilot project jurisdictions initially selected, neither the courts nor justice bureau has been involved in the project implementation. Instead it is the party or the government office that is overseeing the implementation. In Henan province, among the first to launch its pilot project in 2016, the provincial justice ministry is the project implementer “throughout the province and in selected areas,” with plans to expand the project to 91 county-level localities.

The presence of a justice ministry bureau as the project implementer does not automatically mean the projects are better informed. For example, in the E’zhou prefecture of Hubei province, the pilot project was subsumed under a larger project of combating organized crime, with only a cursory mention of the criminal defense counsel pilot project.

Meetings on “Full Coverage” of Defense Counsel for All Criminal Defendants in China

Jurisdiction	Body Managing Pilot Projects	Reported Date	Official Pilot Project location Under Article 26 Regulations?	Status of Defense Counsel Pilot Projects
Bao’an District, Shenzhen, Guangdong	Bao’an courts and Bao’an Justice Bureau	June 2018	Yes	Achievement of “complete criminal defense coverage” in Bao’an District
Guangzhou, Guangdong	Guangzhou courts and Guangzhou Justice Bureau	May 2018	Yes	Implementation of local regulations
Henan province	Henan Justice Bureau	June 2018	Yes	Implementation of local regulations
Wujin District, Changzhou Jiangsu	Wujin Court and Wujin Justice Bureau	May 2018	No	Complete criminal defense coverage underway
Hebei province	Henan Party General Office and Henan Government General Office	June 2018	No	Criminal defense reform is part of a broader anti-crime agenda
E'zhou, Hubei province	E'zhou Justice Bureau	May 2018	No	City Ministry of Justice unit advances criminal defense reform as part of a broader anti-crime agenda

As these defense counsel pilot projects take shape across the country, precise guidelines on funding and identifying responsible actors are crucial. To understand the future implications of not doing so, the Chinese government’s needs to look no further than what has happened in the last fifty years in the U.S. In the 1963 U.S. Supreme Court decision Gideon v. Wainwright, the court unanimously announced that the Sixth Amendment of the Constitution “guarantees to every criminal defendant in a felony trial the right to a lawyer.” As Justice Hugo Black wrote, “any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him.”

Fifty years later, much of Gideon’s promise remains a myth. The resources necessary to maintain high standards for the pro bono defense bar have been largely gutted; states are incentivized to cut funding and have many tools at their disposal to do so. Remuneration for public defenders has been capped in some states; in others, defendants must jump through various bureaucratic hoops to see a lawyer. In many jurisdictions, unqualified defense attorneys are the norm. To avoid the pitfalls of Gideon’s promise, Chinese authorities would benefit from making a long-term investment in their defense counsels.

The defense counsel pilot projects are a step towards enhancing the protection of human rights in China. It is encouraging to see that provinces beyond the eight localities originally selected are also carrying out their own versions of the pilot projects, including in Jiangsu, Hubei, and Hebei provinces. However, there are obstacles that still need to be addressed, including providing better pre-trial defense, ensuring defense lawyers are free from conflicts of interest, and clarifying the funding sources and accountability mechanisms for defense counsels. As localities move ahead with expanding defense counsel appointments in criminal cases, courts and local units of the Justice Ministry should take the lead in implementing these reforms as the state institutions responsible for processing criminal cases. Limiting the role of party officials in the pilot project would safeguard defendants and minimize bias in court.

“All Criminal Defendants to Have Lawyers”: Is Access to Defense Lawyers Enough in a System Designed Against Defendants? (Part 1 of 2)

Guangdong Department of Justice Notice given to defense lawyer Sui Muqing, claiming Sui was in violation of court rules; Sui's license to practice was revoked by Guangdong authorities. Image credit: HKFP.

In January 2018, the Supreme People’s Court (SPC) announced that “all criminal defendants are to have defense lawyers.” Pilot projects in various provinces across China have since launched with this goal in mind. Official media reports boast 100% defense counsels assigned to criminal cases in certain pilot project localities. At first glance, these results are impressive considering public defenders have historically been provided in only 30% of criminal cases in China. Increased access to defense lawyers should ensure the rights of defendants are upheld, however the relationship is not always automatic. Access to defense is effective so long as lawyers have the right tools at their disposal to represent their clients. Dui Hua analyzes shortcomings in the pilot projects including their failure to address the role of defense counsel in pre-trial contexts and the overemphasis on measuring success by coverage rather than quality of defense. Additionally, basic principles such as conflict of interest and identifying clear sources of funding and accountability mechanisms are obstacles that reformers have yet to address in their attempts to institutionalize a more robust defense counsel.

“All Criminal Defendants to Have Lawyers”

The eight provinces and municipalities selected to participate in the pilot projects are Beijing, Shanghai, Zhejiang, Anhui, Henan, Guangdong, Sichuan, and Shaanxi. Senior officials have praised the projects as “serving as a well of experience for further national expansion and as a vehicle to uphold human rights and to avoid miscarriages of justice.” The regulations on the pilot projects outline procedural guidelines for expanding access to defense counsel to all criminal cases, including setting three days as the maximum amount of time that courts can take to inform defendants that they have the right to retain a lawyer and the right to receive legal assistance. The regulations also call on courts to directly provide legal aid centers with information regarding the defendant’s case.

Defense lawyers are not new to China’s criminal justice system. China’s Criminal Procedure Law mandates compulsory defense counsel for mentally ill persons and juveniles and provides guidance on scenarios in which courts should request legal aid centers to appoint a defense lawyer. Legal aid centers were nationalized in 2003 under State Council regulations and in 2017 the “Regulations on Legal Aid” fine-tuned the provisions for criminal cases stipulating defense lawyers for those incompetent to stand trial and those facing the death penalty.

Pretrial Defense

In Shenzhen, the Bao'an District Court and the Bao'an Justice Bureau announced that they had achieved their goal of assigning defense lawyers to every criminal defendant in April 2018. Bao'an officials applauded the establishment of a “green channel” (lüse tongdao) to streamline “delivery to defendant of the indictment, the court’s issuing notice to the defense, and the legal aid center assigning counsel to defendant.” In Jiangsu Province, the Wujin District of Changzhou applauded the pilot projects installation of a legal help window and a legal aid center inside its Litigation Service Hall. While focusing heavily on increased courtroom defense representation, these pilot projects fail to address questions of pretrial legal assistance. It is common for defendants to encounter difficulty meeting their lawyers once coercive measures are placed on them. In cases involving endangering state security, lawyers face obstacles in accessing evidence and escaping pressure from authorities to drop cases.

One of the lawyers implicated in the “709” crackdown in 2015, Wang Quanzhang (王全璋), was barred from seeing his family and the lawyers hired by his family during his three years in custody. On the afternoon of July 12, 2018, Wang’s lawyer was finally able to meet with him at the Tianjin No.1 Detention Center. Wang’s trial date has yet to be announced. Activist Zhang Liumao (张六毛), was detained for picking quarrels and provoking troubles on August 15, 2015 and later arrested for subversion. He died in Guangzhou No.3 Detention Centre on November 4, 2015. Police restricted Zhang’s lawyer from meeting with him because the case was considered “anti-Party” and “anti-China.” Two weeks after Zhang’s death, his family and lawyer discovered bruises on his corpse, prompting suspicion that Zhang had been tortured to death. Wang and Zhang’s cases exemplify the injustice that can result when criminal suspects are restricted from meeting their lawyers before trial.

Following the “709” crackdown, administrative penalties such as suspension or revocation of legal licenses have become commonplace tactics to retaliate against lawyers and law firms that take on sensitive cases. For example, Wang Quanzhang has so far had seven different lawyers assigned to his case. One of Wang’s lawyers was disbarred in 2017 during an annual review overseen by the party-controlled local lawyers' associations and justice bureaus. In the spring of 2018, another lawyer, who had served as Wang's counsel for two years, was barred from renewing his practicing license. In the case of Huang Qi (黄琦), the webmaster of the legal rights website 64 Tianwang, authorities in Guangdong revoked his defense lawyer Sui Muqing’s license to practice. During an interview with Hong Kong Free Press, Sui claimed that “I'm afraid the reason is that I've represented clients in too many human rights cases – the things I've said about my cases cannot be tolerated by the party.”

In cases deemed to threaten “social stability,” defense lawyers are often handpicked by authorities seeking to control the outcome of the case. This practice raises questions about whether the rights of the accused can be fairly represented by lawyers who are not of their client’s choosing. In November 2016, after being detained for 16 months, Xie Yang (谢阳), another disappeared lawyer, was finally granted access to two lawyers he had appointed. However, after exposing the torture Xie endured while in detention, both lawyers were dismissed from the case in April 2017. Xie allegedly voluntarily appointed He Xiaodian to take over the case before it was heard in May 2017, however Xie’s family argues that he was coerced into appointing He. In the same month, Xie appeared on state television where he denied torture claims and confessed to being “brainwashed” by overseas groups. On December 26, 2017, Xie was convicted of inciting subversion but was exempted from criminal punishment.

Liu Zhengqing and Huang Qi’s mother outside the Mianyang Detention Center. Image credit: Radio Free Asia.

In a healthy criminal justice system, lawyers are given adequate time to examine evidence before a case is tried. Although Article 38 of the Criminal Procedure Law grants defense counsels the right to access evidence, in practice defense lawyers face a myriad of obstacles, particularly in cases involving “state secrets.” In February 2018, lawyer Liu Zhengqing, who took over Huang Qi's case from disbarred defense lawyer Sui Muiqing, said that his request to photocopy evidence was turned down by the Mianyang Intermediate People's Court because it contained “top secret” state secrets. The so-called state secrets reportedly concerned a document issued by a local neighborhood committee about the handling of a petitioner’s complaint. Li Jinglin, another one of Huang’s defense lawyers, also claimed that his appointment to examine evidence on October 12, 2017, was cancelled because the prosecutors were allegedly busy reporting the endangering state security case to authorities in Chengdu. In February 2018, Li's request to examine evidence was again rejected, this time because the judge claimed he “had no time” to deal with the matter.

Procedural Violations During Trial

Increased courtroom representation does not necessarily guarantee the right to a fair trial. In cases concerning social stability, the role of defense lawyers is often for show – as presiding judges routinely side with prosecutors and frequently interrupt the arguments of defense counsels. In his defense of prominent activist Yang Maodong (杨茂东), also known as Guo Feixiong (郭飞雄), Zhang Lei reported that he had been repeatedly interrupted after questioning the court’s jurisdiction over the case. Yang was charged with “gathering a crowd to disrupt order in a public place” in Guangzhou’s Yuexiu District after leading a demonstration in support of the newspaper The Southern Weekend. To no avail, Zhang argued that the case should not have been investigated and tried in Tianhe District. Defending Sun Desheng (孙德胜), who was tried in the same case as Yang, Chen Jinxue also claimed that the presiding judge lacked impartiality and repeatedly interrupted the defense’s statements.

Zhang Lei also spoke about the difficulty of summoning witnesses to Yang’s trial. The court refused to issue subpoenas to witnesses and the day before trial, three key witnesses were either coerced into “traveling” or kidnapped by authorities. In a case involving a Three-Self Church pastor sentenced to 12 years’ imprisonment for fraud and a public order offense, the Nan Le County People’s Court refused the defense lawyer’s request to summon witnesses to testify in defense of Pastor Zhang Shaojie (张少杰). One of the witnesses was taken to a “black jail,” an extra-judicial detention facility.

Rights lawyer Wang Yu outside the San He City Court. Image credit: Radio Free Asia.

Rights lawyers who criticize violations of procedural justice in court also face the risk of being expelled or disbarred. In July 2015, rights lawyer Wang Yu (王宇) was representing a Falun Gong practitioner in Hebei when he was expelled and forcibly removed from court after pointing out procedural violations. The court neglected to send Wang a notice of appearance as a defense attorney before the case was heard and the court turned down Wang’s request to adjourn the trial after her client suffered a heart attack in the courtroom. The presiding judge continued to hear the multi-defendant case involving other Falun Gong practitioners and decided to only reschedule the trial for Wang’s client. Wang objected to the judge’s decision, insisting that all the defendants should be heard together in an adjourned trial. The court subsequently issued an order to expel Wang from the courtroom; court guards violently removed Wang.

Not only has the offense of “disrupting courtroom order” been used as an excuse to expel lawyers from trial and to disbar them from practicing, but the offense also has the potential to imprison lawyers who challenge procedural violations during trial. Deriving from the ninth amendment to the Criminal Law in 2015, the offence has a maximum sentence of three years in prison. The offence conspicuously targets lawyers who complain about procedural violations in cases involving social stability. Xie Yang was one of the first ones indicted for this offence in December 2016. The indictment states that Xie “slapped the table, insulted the judge and instigated claimants” in the courtroom to protest the judge’s decision to expel two other lawyers entrusted in the same eviction compensation lawsuit against a local government. Although Xie was eventually not found guilty of “disrupting courtroom order,” the offence continues to discourage lawyers from speaking out against procedural violations in court.

The Arbitrary Classification of State Secrets

China’s national broadcasting station CCTV airs Gao Yu’s confession of “illegally procuring/trafficking in state secrets for foreign entities,” blurring out her face but disclosing her full name.

In China, transparency on endangering state security (ESS) cases is low in many respects. China Law Yearbook, an official judicial compendium that publishes judicial statistics, states that 4,818 individuals were indicted for ESS crimes during the four-year period from 2011-2014. In recent years, China Law Yearbook has obscured this information by counting ESS cases under the category of “others.” Dui Hua estimates that more than 1,000 individuals have been indicted every year for ESS crimes since 2015.

There are 12 offences categorized under ESS. China has never disclosed a breakdown showing how many cases or individuals were arrested, indicted, tried or sentenced under each of these 12 offences, which include subversion, splittism, incitement, espionage, and illegally procuring/trafficking in state secrets for foreign entities. Dui Hua’s Political Prisoner Database (PPDB) has information on 779 individuals incarcerated for ESS crimes during 2011-2017.

Dui Hua has found that a substantial portion of ESS judgments disclosed online by courts concern the crime of illegally procuring/trafficking in state secrets for foreign entities, a charge that carries a maximum sentence of death. These judgments generally provide little information about the background of defendants or the nature of the illegally acquired secrets. Only a few judgments provide specifics about the cases. Some defendants were sentenced for taking photos of troops, vessels, and air force equipment. Some judgments concern individuals who allegedly provided state secrets to Taiwanese, U.S. or other foreign agents in exchange for financial compensation.

Every country has its reasons for guarding state secrets, but in China the offence has been frequently applied to regulate academic research, curb free speech, and suppress criticisms about party policy in the name of state security. Article 10 of the Law on Guarding State Secrets classifies state secrets into three levels: top secret (绝密), secret (机密), and confidential (秘密). What counts as a state secret and who is considered a foreign entity? The cases below illustrate that the classification system can be highly problematic, and the application of the offence can run counter to international norms, trumping individual rights of expression under the guise of safeguarding state security.

“Top Secret” State Secrets

The Law on Guarding State Secrets defines “top secret” as the highest level of state secrets; divulging such information is said to cause “extremely serious harm to state security and national interests.” In Dui Hua’s PPDB there are two cases involving the June Fourth protests and top secrets. Sympathetic to the protests, Fan Baolin (范宝琳) obtained six top secret documents in 1999 in his capacity as a state security cadre in Shaanxi. The documents revealed Beijing’s refusal to let exiled Chinese democracy activists return to China. Fan sent the documents to the Federation for a Democratic China, a group founded in Paris following the crackdown in 1989, which advocates for the democratization of China. In February 2001, Fan was sentenced to life imprisonment for illegally procuring state secrets for foreign entities. His imprisonment was not known by any human rights groups until 2007, when Zhao Changqing (赵常青) disclosed Fan’s case after completing his five years’ sentence in the same Weinan Prison for inciting subversion. Fan was imprisoned for a total of 17 years and was released on November 2, 2016, following multiple sentence reductions.

The case of Shi Tao (师涛) received extensive international media coverage when the journalist was sentenced to 10 years’ imprisonment for using a Yahoo! Mail account to send top secrets to a New York-based, Chinese language website. In April 2004, Shi attended a staff meeting where a memo issued by the Central Propaganda Department about stability maintenance ahead of the 15th anniversary of the June Fourth protests was discussed. The memo covered restrictions on media coverage about June Fourth, Falun Gong, and mass protests. Prosecutors accused Shi of taking detailed notes about the memo and sending them to “overseas hostile forces” under the name of “198964”, despite him “knowing full well that recording and dissemination were strictly prohibited.”

Prominent dissident Huang Qi (黄琦) is currently incarcerated for allegedly sharing a top secret report issued by a local neighborhood committee in Mianyang, Sichuan, on his 64 Tianwang website. With the help of like-minded volunteers, Huang founded the website to provide legal assistance and information to vulnerable groups. According to several volunteers, police investigating the case claimed 64 Tianwang was a “hostile foreign website” created to “spread negative news about China.” The so-called top secrets concerned a report covering the government’s handling of petitions lodged by Chen Tianmao (陈天茂), also a 64 Tianwang volunteer, who photographed the report for Huang. Pu Wenqing, Huang Qi's mother, questioned why a petitioner report would be classified as top secret and claimed the offence was trumped up since the report did not even bear a “secrets” stamp or an official seal.

“Secret” State Secrets

"Secret" information refers to important state secrets, the leakage of which is said to cause "serious harm to the state." Rights lawyer Zheng Enchong (郑恩宠) was sentenced to three years’ imprisonment for sending two documents by fax to the New York-based organization Human Rights in China (HRIC). The Shanghai Secrecy Bureau found that one of the documents contained "secrets" while the other was considered “confidential.” The secret information referred to a manuscript Zheng had compiled about police handling of a protest that broke out at a food factory in Shanghai in May 2003. Zheng was found guilty even though neither of the two faxes were actually received by HRIC due to technical errors; nor had HRIC sought to disclose information about the documents.

In a relatively recent case, journalist Gao Yu (高瑜) was sentenced on November 26, 2015 to five years’ imprisonment for illegally providing secrets to Mirror Media Group, a Chinese news outlet based in the U.S. The charge stemmed from her acquisition of "Document No.9," a warning to Chinese Communist Party members about the “seven perils.” The seven perils included the promotion of historical nihilism and Western values such as democracy, free press, and judicial independence. The full text of Document No.9 was shared online, garnering a total of 26,197 views as of April 28, 2014, according to the judgment handed down by the Beijing No.3 People’s Court. Due in part to her poor health and international outcry, Gao was allowed to serve her sentence outside prison. Her sentence will expire on April 23, 2019.

“Confidential” State Secrets

Although “confidential” is the lowest level of state secrets, individuals providing more than three “confidential secrets” to foreign entities can still face lengthy sentences of up to 10 years’ imprisonment. U.S. citizen Xue Feng (薛锋) was sentenced to eight years’ imprisonment in July 2010 for obtaining 15 geological reports classified as “intelligence” and acquiring an oil industry database classified as “confidential” on behalf of his employer, a U.S. consultancy company. The database contained information about the coordinates of more than 30,000 oil wells, each of which was “confidential” even though oil well coordinates are research data generally made public in countries other than China. Of the oil wells, 2,000 of them were either located outside of China or were already widely known. Dui Hua raised Xue's case with Chinese officials and urged the U.S. government to step up efforts to secure Xue's better treatment and early release. In November 2012, Xue was granted a 10-month sentence reduction. He was deported on the day he was released, April 3, 2015.

While the case of Xue Feng casts a spotlight on the danger of doing business in China, academics also face similar risks. Dui Hua has previously reported on the case of Xu Zerong (徐泽荣), a historian sentenced to 13 years’ imprisonment for sending photocopies of books about the Korean War, published in the 1950s, to a South Korean scholar. Unbeknownst to Xu, the books remained classified as “top secret,” even though their secrecy status should have been declassified upon the expiry of the 30-year secrecy period as stipulated by Article 15 of the Law on Guarding State Secrets.

An early case Dui Hua uncovered involved two individuals in Fujian who were sentenced to 5-10 years’ imprisonment for mailing “secret,” “confidential,” and “neibu” (i.e. internal) books to a university library in Hong Kong. The prosecutors claimed the duo illegally procured library materials in China starting in 1995 in exchange for financial compensation from the Hong Kong library. The “confidential” books covered statistical materials on broadcasting and civil administration in Hebei, which are now widely available in both Hong Kong and mainland libraries. The “secret” information referred to books published in the 1960s about the Sino-Soviet and Mongolian borders and books published in the early 2000s about Chongqing’s public security bureau and its anti-gang campaigns. The first defendant was released in September 2010 following two sentence reductions totaling 32 months; the second defendant completed his full five years’ sentence in May 2008.

Arbitrary Application

State secrets are matters that have a vital bearing on state security and national interests and are entrusted to only a limited number of people for a given period of time in accordance with proper legal procedures. The regulations governing the handling of state secrets in Chinese courts are not well understood. Dui Hua has previously reported that entire criminal cases may be classified as secret from the police investigation stage onward, based solely on the politically sensitive nature of the alleged criminal activities at play, and that this classification holds over when the case is tried in court. In the aforementioned cases, it is questionable how the defendants’ actions put China’s state security at risk. Zheng Enchong's defense lawyers claim the offence was misapplied because Zheng only recorded ordinary social news – ranging from a small peaceful protest by factory workers to a demolition jointly carried out by government officials and business corporations. Zheng’s accounts have no obvious connection to state security.

Similarly, it is hard to imagine why a document issued by a local neighborhood committee concerning a petitioner’s complaint could be classed as “top secret,” as in the case of Huang Qi. In an interview with Radio Free Asia, Huang's mother stated that “if it were really a top secret document, the staff members [allowing Chen Tianmao to photograph] should have been detained too... They have set a trap for Huang Qi...” Huang’s defense lawyer, Li Jinglin, remarked that Huang would very likely be sentenced even though the state secret charge against him had no basis.

Several Chinese legal scholars and practitioners have cast doubt on the labeling of Document No. 9 as a “secret.” Scholar Zhang Xuezhong argued that to avoid arbitrary application, courts should be required to identify and quantify the harm inflicted on state security and national interest. He remarked that a party document should not be seen as a state secret since the ruling party is obliged to make its policies and governing philosophy public so that party members can monitor and evaluate their performance. Even if a document discloses party secrets, party members only receive disciplinary, not criminal, punishment. Gao should not have received any form of punishment because she has never been a party member.

Scholar He Bing argued that Gao is innocent on the basis that the information in Document No. 9 was already disclosed by official news media outlets that warned party members to remain vigilant about the infiltration of aspects of Western ideology, dubbed the “seven perils.” These reports came out months before Document No. 9 was circulated online in August 2013. Prominent dissident Bao Tong called it “ridiculous” to treat Document No. 9 as a state secret – as it relates neither to military affairs nor commerce, but an instruction of “ideological control” given by a political party.

The two cases relating to Fujian and Guangdong academics illustrate the question of the expiration periods imposed on state secrets. In finding the scholars guilty, the courts’ decision ran counter to the Law on Guarding State Secrets, which provides that a state secret shall be automatically declassified upon the expiration of the period guarding it. The secrecy period of “top secrets” shall not exceed 30 years, whereas the time limit for “secrets” and “confidential” secrets is 20 years and 10 years, respectively. Nonetheless, Xu Zerong and the duo in Fujian were found guilty although the acquired materials had technically been “declassified” at the time of their detention.

In January 2018, Swedish national Gui Minhai (桂民海) made international headlines again after he was snatched by Chinese agents on board a train to Beijing while accompanied by two Swedish diplomats. Gui was reportedly detained for the problematic offence of illegally procuring state secrets for foreign entities. The level of state secrets involved in the case remains unclear. In a televised confession in February, Gui claimed he had been manipulated by Sweden as a “chess piece” to cause trouble for China. Given Gui’s past involvement in Causeway Bay Books, a Hong Kong bookstore which sold titles about Chinese leaders, there are reasons to believe the charge is political and Gui’s statement at the government-arranged interview was coerced.

The cases above reveal the problematic nature of the offence of “illegally procuring/trafficking in state secrets for foreign entities.” Not only is there a lack of transparency in the classification system of state secrets, there is also a great deal of evidence that the offence is being used to curb individual rights of expression under the guise of safeguarding state security. The offence has been arbitrarily used to silence dissidents, rights lawyers, journalists, and academics and to cover up events like June Fourth protests.

Stalemate on Detention Center Law

Reformers widely agree that changes are needed to the management of detention centers, which are currently governed by a set of administrative regulations issued in 1990. Image credit: Sixth Tone.

It has been more than a year since the Ministry of Public Security circulated a draft of the new Detention Center Law for a one-month period of public comment. The consultation period served as an opportunity for Chinese legal scholars and lawyers to reiterate their strong criticism of the current system of detention and express their visions for reform—positions which have been relatively consistent for many years.

It is difficult to say where the process stands now. As is common in the process of Chinese law-making, there is little transparency about how public comments are incorporated into the legislative process. No new drafts have been made public, and the only news from China’s legislative body, the National People’s Congress (NPC), is that work on the Detention Center Law will continue under a new legislative plan.

Things appear to be in a stalemate. Reformers widely agree that changes are needed to a system that is currently governed by a set of administrative regulations issued in 1990. There is widespread consensus among critics that the key to reforming China’s detention centers is shifting administrative responsibility from the Ministry of Public Security (MPS) to the Ministry of Justice (MOJ). But the draft legislation put forward by the MPS proposes strengthening legal provisions without touching the current institutional arrangement.

The argument for moving detention centers away from MPS control is based on a critique of the overlapping and conflicting functions that detention centers are currently used for. At present, Chinese detention centers play both a custodial role and an investigatory role. In addition to housing suspects and defendants, detention centers are expected to enhance criminal investigation and uncover additional evidence of crimes. According to critics like Professor Chen Ruihua of Peking University, some places have even based performance criteria for detention centers on their role in solving criminal cases. There is estimated to be at least 3,000 detention centers in China housing more than one million individuals.

One consequence of using detention centers to further criminal investigations is the widespread use of “jailhouse bullies” and informants to obtain evidence or confessions from suspects. This clearly violates evidence rules and leads to false confessions and wrongful convictions. It has also been blamed for a number of deaths in detention under mysterious circumstances.

This blurring of functions in Chinese detention centers is made possible because the public security system is responsible for both criminal investigation and detention—with the former being given higher priority in the interest of social stability and national security. Shifting responsibility for detention to the MOJ would put detention facilities in the hands of an institution with no direct interest in the outcome of a criminal investigation. This would, in principle, make detention centers more neutral sites that can focus on the protection of detainees’ rights.

Advocates of such reform believe that putting detention centers under the MOJ would not only help to reduce jailhouse abuses but also facilitate the rights of suspects and defendants to meet with legal counsel. It will lead, they also believe, to a much stronger presumption of innocence throughout the pre-trial phase of the criminal process. The current regulations governing detention centers still refer to detainees as “criminals” (renfan), as opposed to “suspects” (xianyiren) or “defendants” (beigaoren)—terms that have already been well-established in China’s Criminal Law and Criminal Procedure Law. Notably, the draft MPS legislation did propose making these changes in terminology, but critics doubt that changing the wording will lead to changing the mindset and practices that presume all detainees to be guilty. Another benefit to placing detention centers under the MOJ is that it would allow detainees to use points earned for good behavior towards future applications for sentence reductions.

The current stalemate may be hard to overcome given the institutional interests at stake in preserving the practice of using detention as a tool of criminal investigation. The fact that the MPS draft has not been enacted by the NPC suggests that there may be relatively strong support for deeper reform. But the battles and negotiations over Chinese legislation mostly take place behind closed doors, far from the public eye. The next opportunity for insight into the content of the law might well be after it’s passed by the NPC Standing Committee—at which point, the debate will have been settled one way or another.

Flouting Global Norms, China Continues to Incarcerate Prisoners for Abolished Crimes

The National People's Congress of China has abolished the crimes of counterrevolution and hooliganism, but prisoners continue to be incarcerate for these crimes. Image credit: CNN.

As Dui Hua has previously reported, the People’s Republic of China continues to incarcerate prisoners for the crimes of counterrevolution and hooliganism, despite the abolition of these crimes in 1997. A recent comparative survey of criminal laws, summarized below, notes that most countries (67%) allow some “retroactive ameliorative relief” (e.g., sentence reductions or early release) in the wake of legislative changes that abolish or lighten the sentences of certain crimes. The major governing human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), determine that prisoners should benefit from legal reforms that impose lighter penalties than those in existence at the time the offense was committed. Although prisoners serving sentences for abolished crimes have received sentence reductions, the Chinese government should unequivocally join other countries by releasing and doing more to reduce the sentences for these prisoners.

The Long Reach of Counterrevolution and Hooliganism

Chinese legal scholar Chen Jianfu points out the crime of counterrevolution has always assumed primary importance in the PRC’s criminal justice system. One of the first PRC legal provisions, the “Regulations for the Punishment of Counterrevolutionaries,” passed in 1951, reveals that counterrevolutionary crimes were primarily political in nature. When the PRC Criminal Law was amended in 1997, problems with enforcing these ambiguously worded, politically charged counterrevolutionary crimes led to the abolition of this criminal legal category; some of the activities that fell under counterrevolutionary crimes were included into the collection of “endangering state security” crimes which are tailored more directly at criminalizing specific actions that threaten the state.

Dui Hua’s research has uncovered the names of prisoners in China who continue to be incarcerated for political crimes of counterrevolution. Dui Hua has received written responses from the Chinese government that the following individuals are still imprisoned for crimes of counterrevolution:

• Chen Yulin (陈瑜琳): Chen is a former Xinhua news agency employee who was convicted of espionage by the Guangzhou Intermediate People’s Court on March 4, 2004 and sentenced to life imprisonment. Because Chen’s alleged offense took place before the amended Criminal Law took effect in 1997, he was tried under the 1979 Criminal Law for the crime of counterrevolution. Chen Yulin’s life sentence was commuted in 2007 and replaced with a fixed-term sentence of 19.5 years. Although Chen has received multiple sentence reductions, he is not due for release until August 26, 2020.
• Jiang Cunde (蒋存德): Jiang is a former labor activist serving in Shanghai’s Tilanqiao Prison for counterrevolutionary sabotage and illegal possession of weapons. He was diagnosed with schizophrenia in prison and in 1993 he was released on medical parole. In 1999, he was re-incarcerated for participating in demonstrations. Since then, Jiang has received only one sentence reduction, in 2004, when his life sentence was commuted to a fixed-term of 20 years’ imprisonment. A government response given to Dui Hua in 2015 stated that Jiang was held in a “mental retardation unit” and a response in 2018 indicated that there had been no change to Jiang’s sentence. Jiang’s sentence expires on August 22, 2024.
• Abdukerim Abduweli: Abduweli was sentenced by the Urumqi Intermediate People’s Court to twelve years in prison on May 6, 1993, for counterrevolutionary propaganda and incitement and leading a counterrevolutionary group. According to information provided by the Chinese government, his imprisonment has been extended several times. His sentence expires in December 2018.
• Omer Akchi: Akchi was detained in December 1996 for organizing the Islamic Party of Allah. Akchi continues to serve his 21-year sentence for counterrevolution.

Although prisoners serving sentences for abolished crimes in China have received clemency in the form sentence reductions, cases such as Chen Yulin’s and Jiang Cunde’s demonstrate the importance Chinese leadership should place in aligning its laws with international. Dui Hua has received government responses on both cases in 2018. The responses confirm that Jiang Cunde has not received a sentence reduction in over 14 years and that by the time Chen Yulin is expected to be released, he will have served more than 16 years in prison. Dui Hua’s research has found that sentence reductions for prisoners serving sentences for counterrevolution are infrequently handed down and those that are handed down are usually only in the months to yearlong range. In the case of life sentences that are commuted to fixed-term sentences, such as for Jiang and Chen, the time spent already served does not count towards their new fixed-term sentence, which is usually twenty years imprisonment. Another impediment to the formalization of retroactive ameliorative relief is that when sentence reductions are filed by the prisons to the courts the justification for the sentence reductions is based almost exclusively on evidence of meritorious behavior, never the fact that the prisoners are serving a sentence for a crime no longer in the books. Following the latest regulation on sentence reduction released by the Supreme People’s Court in November 2016, prisoners serving sentences for endangering state security crimes (which replaced many of the offenses previously categorized under counterrevolution) must wait three years, rather than the standard two years, before they can be considered for sentence reductions. The regulation fails to clarify the status of prisoners serving sentences for counterrevolution and hooliganism.

The ill-defined crime of “hooliganism” was also abolished in 1997, yet nearly 200 individuals remain incarcerated for this crime. Inspired by the criminal laws of the former Soviet Union and other socialist states, hooliganism was loosely defined, granting state officials the broad discretion to punish undesirable behavior as defined in interpretations issued by the Supreme People’s Court and the Supreme People’s Procuratorate. Between 1979-1997, a large but unknown number of people were convicted of this offense.

Dui Hua’s research into online judgments has uncovered the names of 182 prisoners serving sentences for hooliganism who were still in prison as of December 31, 2017. Although the offense was abolished in 1997, some of them received sentences in the 2000s or even more recently, because the Criminal Law imposes no limit on the period of prosecution for cases where the suspect has escaped after a case has been filed by police or procuratorate, or heard by the courts.

International Norms on Abolished Crimes

The Chinese government’s continued incarceration of these prisoners marks a clear break from international norms regarding changes to the criminal law and prisoners convicted of those crimes. This area of international and comparative criminal justice policy, referred to as “retroactive application of ameliorative law,” was examined in a recent report by the Human Rights in Criminal Sentencing Project at the University of San Francisco School of Law. According to the report, the international legal framework governing retroactive amelioration is explicit and clear: “The major governing human rights treaties allow an offender to benefit from a change in law that imposes a lighter penalty than the one in existence at the time the offense was committed.”

In the report, of 193 countries surveyed, 129 (or 67%) have incorporated some type of provision requiring retroactive implementation of a lesser penalty into their constitution and/or their criminal statutes. Under retroactive ameliorative relief, a law change that eases or eliminates punishments for a specific crime would result in a corresponding amendment to any convictions and sentences for persons already convicted of the crime. Revisions to death penalty statutes provide perhaps the clearest illustrations of the importance of retroactive relief: according to Amanda Solter, Project Director of the USF Human Rights and Criminal Sentencing Reform Project, when the death penalty was repealed in the US states of Connecticut and New Mexico, the change was not made retroactive, leaving prisoners on death row despite a lack of valid legal authority for the state to carry out executions. “South Africa, on the other hand, abolished the death penalty and made it retroactive for 300 to 400 people on Death Row. Russia did the same in the ’90s and commuted the sentences of roughly 700 people.”

China Should Unambiguously Follow Global Norms and Release Prisoners and Increase Transparency

To take a global leadership role in the world, China should avoid such contradictions in its criminal law and unequivocally embrace retroactive ameliorative relief when crimes are removed from applicable criminal justice statutes. This policy stance would involve releasing and/or commuting the sentences of all prisoners confined for committing the long-defunct crimes of counterrevolution and hooliganism. In the event that release or commutation is not granted, the relevant legal authorities should issue a transparent explanation justifying the continued imprisonment under valid and effective criminal law provisions.

General proscriptions against retroactive applications of law should not be an obstacle to recognizing ameliorative relief; in fact, such objections have already been addressed in the applicable international legal provisions. Article 15 of the ICCPR prohibits criminal ex post facto laws but notes the exception that “[i]f, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”

Given the global consensus on this issue, the Chinese government should clarify its policy regarding changes to the criminal law and their effects on prisoners incarcerated for those crimes. In this case, releasing prisoners whose acts of “counterrevolution” or “hooliganism” have been completely decriminalized would send a strong message and bring Chinese law into alignment with the international consensus on this issue.