Thursday, February 7, 2019

Jailhouse Informants and Wrongful Convictions

Zhang Hui (right) and his uncle Zhang Gaoping (left) were acquitted in March 2013 after spending a decade in jail due to false testimony given by a jailhouse informant. Photo credit:

A controversial issue facing criminal justice reformers around the world is the use of jailhouse informant testimony, which has been discredited as being unreliable and a leading cause of wrongful convictions. Jailhouse informants are detained or incarcerated individuals tasked with obtaining inculpatory information about criminal suspects. Informants are often pressured into becoming informants in exchange for financial rewards and sentence reductions.

Authorities in China acknowledge the practice of using jailhouse informants to gather information for investigations. Detention centers receive funding from the Ministry of Public Security (MPS) to help deploy a network of informants. The MPS Working Rules of 1986 classify informants into two groups: one group collects intelligence about criminal suspects to maintain jailhouse security and the other group assists police in the investigation of difficult cases.

Prisoners with at least three months remaining on their terms typically serve their sentences in prisons, however an exemption is made for long-serving prisoners to be placed in detention centers where they can act as the prison guards’ watchful eyes and ears. While the exact figures are unknown, a study revealed that of the 480 detainees in Xinjiang’s Yining Detention Center in 1990, 14 were informants. In the early 2000s, Xinjiang’s Yopurga County Detention Center used a total of 18 informants – 14 security informants and 4 “special case” informants. A recent estimate indicated that three to five percent of the entire prison population in China are informants in detention centers.

There has been widespread public criticism over the use of jailhouse informant testimonies in cases resulting in wrongful convictions. Below are three examples of cases where informant testimony was used to push forward on investigations when evidence against the accused was weak or non-existent.

Yuan Lianfang - “The Jailhouse Snitch”

Ma Tingxin

Yuan Lianfang (袁连芳) is a former jailhouse informant known to have produced false testimonies leading to two wrongful conviction cases involving three victims. In February 2003, Yuan was transferred to the Hebei Detention Center to collect information for a homicide case, which the county public security bureau had pledged to solve within three months. Ma Tingxin (马廷新) was mistakenly identified as a criminal suspect after failing a polygraph test. Investigators were unable to find sufficient evidence to use against Ma and ended up coercing six witnesses into providing false testimony. It was later discovered that Yuan was assigned to be the informant responsible for extracting Ma’s confession.

In an interview, Yuan admitted that he would take any opportunity to complete his six-year sentence early. At the time of Ma’s detention, his wife and father had been taken into custody for investigation. Using his position as a “cellblock boss,” Yuan did not allow Ma to sleep if he failed to memorize the confession script Yuan had composed for him. Yuan later threatened the safety of Ma’s family, prompting Ma to write a five-page long statement in which he admitted to committing the murder. After Ma’s “confession,” Yuan was transferred back to Hangzhou’s Gongshu District Detention Center on April 8, and one month later, he earned a sentence reduction of 18 months.

In July 2004, Ma was acquitted in the trial of first instance, but the prosecution appealed the judgment insisting that evidence for conviction was sufficient. The appeal was not withdrawn until April 2008. Ma spent five years in a detention center for a crime he did not commit.

Two Zhangs

Yuan Lianfang’s name did not garner media attention until a case involving a rape and murder conviction overturned by the Zhejiang High People’s Court in March 2013 came to light. Zhang Hui (张辉) and his uncle Zhang Gaoping (张高平) were sentenced to death with reprieve and 15 years’ imprisonment, respectively, in the appellate trial in October 2004.

Initial investigations against the duo produced no substantive evidence of their guilt. The victim was last known to have hitchhiked by truck from Anhui to Hangzhou before her corpse was found in a ditch. The DNA found on the victim belonged to neither of the Zhangs, but to another individual who could not be identified by police at the time. As the investigation dragged on, Yuan was transferred to Gongshu District Detention Center where he collected testimony from Zhang Hui. Yuan alleged that Zhang Hui had voluntarily confessed to strangling the victim to death after raping her. Zhang did not appear in court to testify. As in Ma’s case, Yuan used his position as the “cellblock boss” to coerce Zhang into writing a confession letter. The court ignored accusations against Yuan and convicted the two Zhangs for rape and murder.

In the appellate trial, the Zhejiang High People’s Court held that the facts in the two Zhang’s case were “clearly established.” In the judgment, the court only mentioned in passing that Zhang Hui “is not a criminal who requires immediate execution due to the special circumstances of the case” without explaining what constituted the “special circumstances.” In the absence of admissible circumstantial evidence, their conviction was yet another violation of the presumption of innocence – a principle established in the Criminal Procedure Law.

Both Zhangs were released in 2013 after they had been in prison for almost a decade. While serving his sentence in a Xinjiang prison in March 2008, Zhang Hui read about Ma Tingxin’s acquittal in a newspaper and learned that Yuan had given false testimony leading to Ma’s wrongful conviction. The prosecution accepted Zhangs’ request to re-examine the admissibility of Yuan’s testimony. Yuan admitted to perjury in both Ma and Zhangs’ cases. It was later found that the DNA on the victim belonged to another criminal who had been executed. An interview with Yuan in 2013 revealed that he had suffered a stroke while in prison, leaving him with permanent health issues. At the time of the interview Yuan was living in a small rented apartment in Hangzhou with limited means and fearful for his safety due to the reputation he had garnered as a jailhouse informant.

Jailhouse Bullies

In May 2018, Caixin Media's coverage of the case of Wang Baiyu (王柏玉) brought much discredit to both law enforcement and jailhouse informants in China. Wang, a native in Jilin province, was sentenced to death with reprieve in 2004 after “confessing” to the murder of his fiancée. The investigation failed to uncover sufficient evidence that Wang was to blame for the murder and basic facts of the case were not disclosed to the defence, such as the victim’s time of death. Wang might have been able to provide a credible alibi had these details been disclosed. There was no witness testimony or forensic evidence linking Wang to the murder scene. The only evidence used to substantiate the conviction was Wang’s confession, which had been extracted by jailhouse informants.

Wang’s confession was full of inconsistencies. He gave three different accounts detailing how he committed the murder. It was later discovered that Wang’s confession was coerced in the detention center by investigating officers who also instructed several informants to inflict torture on Wang, including “banging Wang’s head against the wall, kicking him in his chest, suffocating him with plastic bags, depriving him of water, food, and sleep for consecutive days.” On May 31, 2002, Wang delivered his first written confession to his informants. In mid-August, the informants tortured Wang again, leaving him with a nasal fracture and bruises all over his body. Wang signed another fabricated confession statement. One of the informants received a sentence reduction of two years in January 2005 as a reward for his “meritorious service” in eliciting Wang’s confession.

In the appeal statement published in February 2017, Wang stated that at least four detainees witnessed the abuse and torture he suffered and that he knew of at least one other detainee, surnamed Song, who also fell victim to the same informants in June 2002. For the past 15 years, Wang has been lodging a post-conviction appeal. On August 26, 2016, the Jilin People’s Procuratorate refused to re-examine the admissibility of Wang’s testimony and determined that there were insufficient grounds to lodge an appeal. At the time of writing, Wang has 12 years left on his sentence.

Reform in United States

In the U.S., there is ongoing legislative debate concerning the use of jailhouse informant testimony. In response to Texas legislation that would end the use of incentivized jailhouse informants in death penalty cases, a Washington Post op-ed in May 2015 criticized that “[M]ost jailhouse snitches are lying. Informant testimony has become such a critical tool for prosecutors precisely because it allows them to put on testimony that is a) damning, b) easy to manufacture and c) allows b) to happen while giving them plausible deniability.” The Texas bill that was later passed in 2017 has been widely applauded. In California, Florida, Washington, New York, and Pennsylvania, legislatures have also sought to restrict the use of informant testimony. In November 2018, Illinois passed a bill making it mandatory for prosecutors to disclose their use of jailhouse informant testimony at least 30 days before trial. The bill gives defence attorneys time to examine informant testimony and forces prosecutors to prove that informant testimony is admissible and to disclose what rewards will be given to informants in exchange for testimony.

In China, reformers widely agree that the use of jailhouse informant testimony is problematic. Informants are deployed by police in detention centers administered by the Ministry of Public Security. Police play both a custodial role and an investigatory role and they routinely use informants to boost crime clearance rates for their own career advancement. In 2015, Secretary of the Central Political and Legal Affairs Commission Meng Jianzhu announced the removal of crime clearance rates as a performance indicator for police officers. The arbitrary power of police could be more easily restrained if the Ministry of Justice (MOJ) administered detention centers, since it has little direct interest in the outcome of criminal investigations.

Wrongful convictions reduce public confidence in the criminal justice system. The consequences are severe when miscarriages of justice result from the use of forced testimony obtained by torture. Legislative restrictions are needed to curb the arbitrary use of testimony. China can draw on the U.S. experience by improving transparency in how informant testimony is collected, and by restricting and banning its use in certain cases such as cases involving the death penalty.

Thursday, January 10, 2019

Administrative Penalties Against Lawyers: Another Strike Against Professional Autonomy and Religious Freedom

A conference organized by the Supreme People's Court and the Ministry of Justice on expanding coverage of defense lawyers in criminal cases. November 29, 2018, Hefei, Anhui province. Image credit:

The recent license suspensions of two lawyers in Yunnan have come under public scrutiny for the strange circumstances that led to the suspensions: the lawyers were making legal arguments based on government regulations and criminal statutes, with citation to relevant parts of the national constitution, on behalf of their clients. Their plaintiffs were Falun Gong practitioners accused of “using a cult to undermine the implementation of the law.” The case sheds light on a pattern emerging in the legal profession in China – the penalization of criminal defense attorneys, who represent clients in sensitive cases, with legally dubious accusations of professional misconduct.

“Disorder in the Courtroom”

On November 2, 2018 the Hunan Changsha Ministry of Justice issued administrative penalty decisions against defense lawyers Hu Linzheng and Zeng Wu, claiming that both lawyers “denied the nationally recognized nature of a cult organization.” In December 2017, the two lawyers appeared at the Yunnan Honghe Prefecture Kaiyuan City Court to defend their clients. Hu argued there was no evidence that Falun Gong is a cult and that Article 36 of the Constitution grants Chinese citizens freedom of religion, which at least theoretically limits the government from restricting the practice of Falun Gong. Zeng was faulted for arguing in court that there are “no direct legal regulations that determine Falun Gong is a cult,” and that his client “believed that Falun Gong is protected by the freedom of religion provided in Article 36 of the Constitution.”

The administrative penalty decisions concluded that Hu and Zeng’s conduct violated Article 49, Section 8 of the Lawyers Law of the People's Republic of China, which states that lawyers can be penalized for speech that severely “disrupts courtroom order.” The decision also cited Articles 2, 39, and 53 of the Measures on the Administration of Lawyers' Practice, which states that lawyers must support the Communist Party and the socialist rule of law, that lawyers’ conduct cannot disrupt the normal handling of legal cases, and that violations of these measures are punishable by Article 49 of the Lawyers Law.

The Changsha Justice Bureau suspended each of the lawyers’ licenses for six months, without providing evidence that Hu and Zeng had in fact caused disorder in the courtroom. Perhaps as an indication of how baseless the decision was, the Changsha Justice Bureau indicated that leniency was provided to the two lawyers when determining the penalty because both were “sincerely remorseful and cooperated with the investigation.”

A Catch 22 for Defense Lawyers

Defense lawyers in China assigned to politically sensitive cases are faced with a dilemma: either they deny representation to accused defendants (which contradicts the spirit of the central government’s goal to have “all criminal defendants in China represented by counsel”), or they take these cases and risk their careers.

Hu and Zeng’s clients’ alleged crime is an apparent reference to Article 300 of the Criminal Law, which criminalizes “using a cult to undermine the implementation of the law.” A defense lawyer would need to point out, as Hu did, whether the government provided any evidence establishing Falun Gong’s legal classification as a cult. Zeng’s argument similarly cast doubt on the premise that there is a law that categorizes Falun Gong as a cult. Although Falun Gong has been categorized as a cult by the China Anti-Cult Association, neither the State Council nor the Ministry of Public Security has recognized Falun Gong as a cult in their public notices.

In the penalty decisions, the Changsha Justice Bureau did not challenge the lawyers’ arguments, nor did it attempt to establish Falun Gong as a “cult” under Article 300. Hu and Zeng’s claims before the court were relevant legal arguments that a defense attorney would make in the course of representing a client. As such, it is difficult to see why a lawyer would be punished for bringing these arguments in a court of law and citing the country’s own constitution and the relevant legal facts surrounding the issue.

Contradictions with China’s New Criminal Defense Counsel Policy

The license suspensions of Hu and Zeng will likely discourage other criminal defense lawyers from pursuing perfectly legal and effective defense strategies. The Changsha Justice Bureau’s interpretation of the Administrative Penalty Act is well on its way to becoming another legal tool used to threaten defense lawyers. Experts on the legal profession in China have also criticized Article 306 of the Criminal Law (aka the “Big Stick 306”) which states that any defense lawyer who assists in a client’s false testimony, or “encourages perjury,” can be sentenced to three to seven years in prison. “Big Stick 306” has been abused by the police and the procuracy to “take revenge on those defense lawyers who dare to vigorously challenge the prosecution in court.”

In the wake of the “709” crackdown on rights lawyers in 2015 and without a better explanation for the Changsha Justice Bureau’s decision, the penalties against Hu and Zeng contradict the central government’s goal to advance the level of professional expertise in the legal system and to guarantee that criminal suspects in all cases have meaningful access to defense counsel. What’s more, on December 22, 2018 the Fujian Provincial Lawyers Association issued a set of rules that require defense lawyers in certain criminal cases to report their defense strategies prior to trial for approval by the provincial level justice bureau. Lawyers in China have spoken out against the rules arguing that it violates both the Criminal Procedure Law and the Lawyers Law. Without even a bare minimum of professional autonomy for criminal defense attorneys in China, there is significant danger that local officials will continue to categorize the reasonable efforts of criminal attorneys to defend their clients in court as “disruptive behavior.”

Monday, December 10, 2018

Will Revisions to the Lay Assessors Law Help Limit the Number of Executions in China?

Lay assessors sitting in court alongside judges in China. Image Credit: China Daily.

In April, the National People’s Congress (NPC), China's national legislature, passed a revised Lay People’s Assessor’s Law (renmin peishenyuan fa), substantially affecting the role that ordinary citizens play on adjudicatory panels in criminal cases in China. Revisions to the law had been contemplated since at least 2015, when a series of pilot projects were launched to determine the feasibility of enacting nationwide reforms. Whether the law’s revisions will affect criminal trials and sentences involving the death penalty is a major question especially in light of China’s efforts in recent decades to limit the number of executions.

Though some might see an expansion of the role of lay assessors in Chinese courts as an imported legal idea, a robust role for lay assessors is arguably a revival of practices from China’s own not-so-distant past. Traces of China’s lay assessor system can be found as early as the 19th century in the late Qing Era, and in Communist-controlled territories before and after the founding of the PRC, lay assessors were granted authority in adjudication practice rivaling that of judges. It was not until the more radical periods following the Great Leap Forward and Cultural Revolution that the lay assessor system was discontinued as part of the larger dismantling of legal institutions countrywide.

The lay assessors’ system was revived along with other aspects of the legal system at the conclusion of the Cultural Revolution, first as part of the 1978 Constitution and subsequently in several pieces of relevant legislation including the Law on Organization of Courts and the Criminal Procedure Law. In 2004, The NPC Standing Committee decided to reform the lay assessor system, and the effort to revamp the adjudicatory function of lay assessors eventually led to a pilot program in 10 provincial-level regions starting in 2015.

The Role of Lay Assessors Expands to Include Death Penalty Cases

In April, a second draft of a law on lay assessors was passed by the NPC, which expanded the role of lay assessors in participating in judgments in many types of disputes, including sentencing in criminal cases that involve the death penalty. A draft law on lay assessors was initially submitted to the NPC Standing Committee in December 2017, and recognized that the lay assessors “‘have equal rights’ as professional judges in trials, unless the law specifically provides otherwise.” According to the law, high-school educated citizens of the PRC who are 28 years of age or older can serve as lay assessors, with some exceptions; once in court, an assessor can exercise power equivalent to that of a judge but cannot hear cases independently or serve as chief judge of a collegial panel (heyi ting). In a report on lay assessors’ pilot projects conducted across China since 2015, Supreme People’s Court President Zhou Qiang reported that a total of 13,740 assessors in the ten pilot locations participated in 30,659 criminal cases, 178,749 civil cases and 11,846 administrative cases.

More specifically, when the Lay Assessors’ Law came into effect in April, assessors were granted authority to serve on seven-person judicial panels that pass judgment on death penalty cases. Although observers, researchers, and human rights advocates will need a much longer period of time to examine whether the expanded role of assessors can help continue the decrease in the number of executions in China, developments in the early days after the passing of the revised law indicate that the law is being followed in local courts even in potentially sensitive, high-profile cases. In April, Zhao Zewei killed nine classmates and injured several others in a school in Mizhi County, Shaanxi province in one of the most violent mass murders in China in recent times. In the trial presiding over Zhao’s eventual conviction and death sentence, media outlets reported that four lay assessors and three judges sat on the seven-member panel ruling on Zhao's guilt and death sentence, indicating that plans to include lay assessors on judicial panels even in high profile death penalty cases with potentially “severe social impact” continues to move forward.

Lessons from Reforms in a Neighboring Country

Allowing lay assessors to participate more actively in death penalty cases would mark an important opportunity for human rights advocates and researchers to examine whether changes to the lay assessor system will continue to influence efforts to limit the number of executions. According to the new law, lay assessors who serve on seven-person benches will have more weight when questioning lawyers and defendants and examining physical evidence.

Based on research from other legal systems, China’s reforms of its criminal legal system toward incorporating greater input from lay actors – away from the unquestioning authority and deference given to the criminal judges – is a step in the right direction. As noted, a robust role for lay assessors is consistent with legal practice at various periods in China’s Communist and non-Communist past. Expansions of the role of jurors in the neighboring country of South Korea also indicates that concerns that expansions in the authority of assessors, and even the adoption of a full jury system, were overblown. Although many in Korea criticized the implementation of a jury system as being against cultural norms, the recent jury reforms in Korea beginning in 2007 have shown that culture is not a deterrent to the effectiveness of a jury system; in fact, the adoption of jurors seems to have raised the quality of the legal profession, a shared goal of the Korean and Chinese governments. The need to persuade a jury has been cited as a factor in raising the quality of oral advocacy of criminal lawyers and improving the quality of evidentiary rules and discovery processes.

An expanded role for lay assessors in China appears to be a positive step in the careful adjudication of serious criminal cases, and for human rights in China more broadly. The next step is to ensure that assessors are given more than simply a passive role in the criminal justice system, and strong enforcement of elements of the law on lay assessors designed to guard against retaliation for criminal verdicts is critical in this regard.

Friday, November 30, 2018

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.”

Monday, October 15, 2018

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.

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.

Wednesday, August 29, 2018

“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.