Friday, May 31, 2019

Hurry Up and Wait: The Robert Schellenberg Case

Hurry Up and Wait: The Robert Schellenberg Case
Robert Schellenberg, Dalian Intermediate Court, Jan 14, 2019. Image Credit:

As US-China relations sink ever lower, the list of urgent criminal cases involving Western citizens in China has increased. In just the last few weeks Canadians Michael Kovrig and Michael Spavor were formally arrested on espionage charges and American Mark Swidan was given a suspended death sentence for drug trafficking.

Amid so many arrests and sentences, a May 9 appeal hearing in the case of Robert Schellenberg, a Canadian sentenced to death for drug trafficking, went largely unnoticed. Although Schellenberg’s appeal hearing concluded without pronouncement of a sentence, the timing of the hearing—the day after a hearing in Vancouver for Huawei CFO Meng Wanzhou—points to the continuing role of international politics in the outcome of his case.

Schellenberg’s case is part of a larger emerging dynamic of tit-for-tat detention diplomacy, but it is also unique because it is both overtly political and carries a death sentence. No other case is so inextricably bound up with that of a Chinese national being held in the West. Schellenberg’s fate has unfolded in parallel to that of Meng, a Chinese citizen who is currently detained in Canada pending extradition to the United States. After her detention Chinese state media representatives ominously warned there would be retaliation. Schellenberg’s sudden, unusual retrial and capital sentence followed shortly thereafter, leading many to conclude that it is Canada, as well as Schellenberg, that is being punished in this case. The fact that Schellenberg’s most recent hearing in Dalian took place the day after Meng appeared in court in Vancouver suggests that the two cases remain linked. As Huawei has moved to the center of a global struggle over China’s role in technology markets in the last few weeks, the political stakes in the two cases have increased as well.

Mark Swidan with his mother, Katherine Swidan, in 1991.
Image Credit: Katherine Swidan
Schellenberg’s case stands out not just because it is one of a prominent set of political cases involving foreigners, but also because it is the only overtly political verdict carrying a sentence likely to result in death. (Swidan, an American detained on drug charges in 2012, received a suspended death sentence on April 30, which, in accordance with Article 50 of the Criminal Law, will be reduced to a prison sentence so long as he does not commit a new crime in the next two years). Western citizens have been executed in China before, but such cases typically become international causes of concern because of China’s use of capital punishment in general, rather than doubts about the intention behind the ruling. For example, another Canadian citizen, Fan Wei, was also recently sentenced to death for drug trafficking, but so far there have been no accusations that his sentence was intended to punish Canada; in Schellenberg’s case, by contrast, it seems that the death sentence is politically motivated. While Chinese authorities insist that the punishment conforms to the rule of law, state spokespeople have also provided not-so-subtle indications that the death sentence should be understood as retaliation for Meng’s detention. Canadian Prime Minister Justin Trudeau has accused China of “arbitrarily” applying the death penalty in the case. For better or worse, Schellenberg stands out as the capital test case in a new dynamic that one legal commentator has dubbed “death-threat diplomacy.”

What has happened in the case to date, and what might we expect in the future? So far, the case has unfolded in two phases. In the first phase, which stretched from arrest in 2014 to an initial sentence of 15 years in November 2018, the case was not overtly political, and the judicial process was slow and low-profile, perhaps because the evidence against Schellenberg was weak and central authorities were called in to deliberate. In the second phase of the case, which began with an appeal court remand for retrial immediately following Meng’s detention in December 2018, the case took on a new political valence. The judicial process was fast and well-publicized. The court operated with perverse procedural formalism, meeting legal deadlines and adhering to the letter, if not the spirit, of the Criminal Procedure Law.

Following the hearing this month it is likely that the pace of proceedings will again slow to a crawl. Formal deadlines for the next legal phases of the case are minimal. The Liaoning High People’s Court may draw out announcement of the sentence. If the appeals court does come down with a death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There are no procedural deadlines in that process; the judiciary can hold up the case indefinitely, or wait until an opportune political moment in the Meng case to announce a decision.

The Background of the Schellenberg Case

Robert Schellenberg, a Canadian citizen, was arrested in the city of Dalian in 2014. (According to Canadian officials, nearly 200 Canadians are currently detained or imprisoned in China.) He stood accused of participating in a scheme to smuggle about 500 pounds of methamphetamine from China to Australia inside car tires. He was tried in 2016. In November 2018, two years after his trial, Schellenberg and his co-defendants were sentenced by the Dalian Intermediate People’s Court. He was found guilty of drug smuggling and sentenced to 15 years in prison, along with a hefty fine and expulsion from China following completion of the prison term. No one involved in the case was initially sentenced to execution, though two of Schellenberg’s co-defendants—both Chinese nationals—were given stiffer sentences: a suspended death sentence and an indeterminate life sentence (wuqi tuxing 无期徒刑). (In contrast to the U.S. parole system, China’s sentence reduction policy entails the reduction of sentences based on a system of points for good behavior, and generally means that prisoners with indeterminate life sentences are not usually imprisoned until death). The harsher punishments for the co-defendants reflect the court’s initial judgment that Schellenberg did not carry principal culpability in the case.

Dalian Intermediate People's Court. Image Credit:

Following the initial verdict Schellenberg appealed his sentence, indicating he considered the punishment too severe. If a defendant appeals a verdict, a second-instance court may not increase the sentence on review. The prosecution may also choose to appeal a sentence in order to increase the punishment, but they did not do so, suggesting they considered the penalty appropriate at the time.

Typically defendants face no risk in filing an appeal, but the Liaoning High People’s Court took an unusual approach to the case: rather than rule on it, the high court returned the case to the lower court for retrial. The retrial gave prosecutors the power to amend the charges and seek a harsher sentence, something the appeal court could not do. Prosecutors quickly amended the charges, ostensibly introducing new evidence that increased Schellenberg’s culpability. (Schellenberg’s lawyer claims no new evidence was introduced.) The lower court retried the case in January 2019 and sentenced Schellenberg to death, a significant increase in punishment from the previous trial verdict. Schellenberg appealed his verdict to the Liaoning People’s High Court a second time. On May 9, 2019—days before the four month procedural deadline for a hearing—the appeal court heard the case. However, the court declined to issue a judgment, indicating it would do so at an unspecified later date.

Liaoning Province High People’s Court. Image Credit: Zhonglan Xinwen

A Tale of Two Cases

What sentence should Schellenberg receive? A defendant’s criminal culpability and punishment ought to be determined in light of his or her own crimes. But whatever chance Robert Schellenberg may have once had of having his case interpreted in isolation ended last year. Today his case is indelibly wedded to another defendant: Meng Wanzhou, the CFO of Huawei, the world’s second largest cellphone manufacturer and one of China’s flagship companies.

Meng Wanzhou, Huawei CFO. Image Credit: Mingbao
In December 2018 Meng was arrested in Vancouver during a layover flight between Hong Kong and Mexico. Canadian officials arrested Meng based on a warrant issued by the United States Eastern District of New York, which named Meng as part of an alleged conspiracy violating sanctions with Iran. Meng is currently free on bail in Vancouver. The United States has requested that Meng be extradited to the U.S.

Meng’s arrest precipitated a diplomatic crisis in China-Canada relations. China has demanded Meng’s immediate release, alleging that the arrest is part of a Western effort to obstruct Huawei’s entry into Western markets. A representative of China’s Ministry of Foreign Affairs stated that Canada would face “grave consequences” over Meng’s continued detention. Immediately after Meng’s arrest in December, China detained two Canadians, Michael Spavor and Michael Kovrig, on accusations of endangering state security. Shortly thereafter the editor in chief of state media outlet the Global Times made a statement in English that “if Canada extradites Meng to the U.S., China's revenge will be far worse than detaining a Canadian.”

It is in this context that Chinese and Western commentators interpret Schellenberg’s situation. When Schellenberg appealed his 15-year sentence in November 2018—just before Meng’s arrest—he had every reason to think that the re-consideration of his case at a trial of the second instance could only work in his favor. A defendant who appeals a verdict is not supposed to face a more severe sentence on retrial. And the prosecution did not file an appeal raising concerns about the severity of the sentence.

But circumstances changed between Schellenberg’s appeal in November 2018 and the Liaoning High People’s Court review in December. Meng’s case became an international flashpoint and China vowed to respond. The Liaoning High People’s Court took the unusual step of inviting foreign media to the second-instance trial. Western journalists who were present noted the ways in which the event appeared staged to send signals to the audience. Rather than reach a verdict on the case, the court took the unorthodox step of sending the case back to the lower court.

The remand to the lower court allowed the prosecution to amend the charges against Schellenberg, claiming new evidence in the case. This procedural move provided the trial court with a legal justification for resentencing Schellenberg to death. Numerous Chinese legal experts have noted irregularities in these proceedings. It is striking, for example, that although it took four years to initially sentence Schellenberg to a 15-year sentence, the justice system managed to re-sentence him to death in less than a month. His lawyers also contend the amended indictment in fact does not provide any new evidence of Schellenberg’s culpability.

What Are We Waiting For?

What comes next? Schellenberg’s case has so far proceeded in two phases with very different timelines. In the first phase, which ran from arrest in 2014 through Schellenberg’s initial sentence of 15 years in November 2018, there were no public announcements indicating the case carried political significance. The court moved extremely slowly, taking four years to deliver the initial sentence. Four years is an unusually long stretch for a criminal case in China. In waiting so long to produce a verdict, the Dalian trial court surely consulted higher authorities on the appropriate course of action. Why did this process take so long? The protracted wait might be the result of weak evidence in the case. Since China’s trials virtually never produce acquittals (as Dui Hua has recently noted), cases with shaky facts are likely to be sent to an adjudication committee for deliberation on appropriate sentencing. When a case involves a foreigner, the considerations may take even longer.

The second phase of the Schellenberg proceedings began after Schellenberg appealed his 15-year sentence in November 2018. In contrast to the first phase of the case, the second phase was fast, high-profile, and politically fraught. Following Meng’s arrest on December 1, 2018, Schellenberg’s case went through second instance trial and retrial of the first instance in six weeks. The second instance trial court announced its decision the day of the trial, rather than deliberating on the evidence, as usually takes place. And after the high court remanded the case for retrial, prosecutors amended the complaint with new evidence in a mere four days. The lightning speed of proceedings and state media comments about retaliation for Meng send signals about how Schellenberg’s death sentence should be interpreted. And yet Chinese authorities and media figures also strenuously insist that the court’s judgment was “beyond reproach” and rooted in the rule of law. China’s insistence on adherence to criminal procedure in the case fits with a general trend towards legal formalism in China, despite a larger turn away from rule of law. (China’s recent Supervision Law, for example, introduces a formal legal basis for the longstanding unaccountable, extrajudicial detention powers of the National Supervisory Committee, the Chinese Communist Party watchdog.).

The second phase of the began after Schellenberg appealed his 15-year sentence in November 2018. In contrast to the first phase of the case, the second phase was fast, high-profile, and politically fraught. Following Meng’s arrest on December 1, 2018, Schellenberg’s case went through second instance trial and retrial of the first instance in six weeks. The second instance trial court announced its decision the day of the trial, rather than deliberating on the evidence, as usually takes place. And after the high court remanded the case for retrial, prosecutors amended the complaint with new evidence in a mere four days. The lightning speed of proceedings and state media comments about retaliation for Meng send signals about how Schellenberg’s death sentence should be interpreted. And yet Chinese authorities and media figures also strenuously insist that the court’s judgment was “beyond reproach” and rooted in the rule of law. China’s insistence on adherence to criminal procedure in the case fits with a general trend towards legal formalism in China, despite a larger turn away from rule of law. (China’s recent Supervision Law, for example, introduces a formal legal basis for the longstanding unaccountable, extrajudicial detention powers of the National Supervisory Committee, the Chinese Communist Party watchdog.).

We are now entering a third phase in the Schellenberg case, one in which Schellenberg’s fate hangs like a sword of Damocles over Canada. A cynical reading of the situation suggests that Schellenberg must continue to dangle there until Meng has either been extradited to the U.S. or returned to China. Meng’s most recent hearing took place on May 8. Schellenberg’s appeal hearing notably took place the following day. The timing of Schellenberg’s hearing carried a two-fold significance. The court heard the case within four months of accepting it, as required by law. But in doing so the day after Meng’s hearing, the court also pointed to the ongoing connection between the two defendants (a signal that did not, however, get much Western media coverage).

When will the Liaoning High People’s Court issue a sentence for Schellenberg? The Criminal Procedure Law indicates that the court may announce the sentence at a set time after the hearing, but does not stipulate any procedural constraints on that announcement (Articles 202 and 242). Indeed, Mark Swidan waited more than half a decade for announcement of a verdict following conclusion of his trial.

Although the court may delay indefinitely, Schellenberg’s procedural experience suggests that a verdict may be announced as a response to a development in Meng’s case. She is scheduled to next appear in court for an extradition hearing on September 23, so a sentence may be forthcoming at that time. If the high court upholds Schellenberg’s death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There is no fixed statutory period for completion of this review. Although limited data suggests that many death penalty reviews are completed in a matter of months, anecdotal evidence also indicates that some cases are under review for years. Overall, however, the outcome is extremely consistent: the SPC eventually affirms the overwhelming majority of death sentences, although precise data on this is lacking. In 2007, around 15% of death sentences were not approved, but the percentage is believed to be lower now.

Once the SPC affirms the verdict, an execution order is issued and the execution usually takes place as soon as within a week, although there are exceptions: Li Yan, a woman from Sichuan, was sentenced to death for killing her husband in 2010 in self-defense, after enduring years of horrific domestic abuse at his hands, by each court that heard the case (local city/intermediate, provincial Sichuan High People’s Court, and finally, in January 2013, the SPC.) The case provoked broad condemnation and expressions of concern both inside and outside China, including by the Dui Hua Foundation. China’s 2016 anti-domestic violence law was invoked in wide-spread calls to take seriously the situation of domestically abused Chinese women who receive harsh sentences ranging from ten years to death sentences when they act in self-defense. On April 24, 2015, Li Yan’s death sentence was commuted to death with two years reprieve, and on September 8, 2017, the intermediate court commuted the 2015 sentence and sentenced Li Yan to life in prison.

Post settings Labels Criminal Justice, Law Enforcement Published on 5/30/19, 12:13 PM Pacific Daylight Time Permalink Location Options

Wednesday, May 8, 2019

Complaints with Retribution: China’s Muffling of Gaoyangzhuang

Hong Kong-based pro-Beijing newspaper Wen Wei Po accuses democratic legislators and organizers of Occupy Central, including Joshua Wong, of making complaints overseas about internal affairs of China and Hong Kong. Photo credit: Wen Wei Po
China celebrates National Youth Day every year on May 4th, a holiday commemorating the patriotic May Fourth Movement in 1919. On this day exactly a century ago, thousands of university students assembled at Beijing’s Tiananmen Square, urging the Chinese delegation at the Paris Peace Conference not to sign the Versailles Treaty because the Allied Powers had conceded to Japan’s demand to take over the German concessions in Shandong. The procession proceeded to foreign embassies in the Legation Quarter to demand nullification of special foreign privileges, such as extraterritoriality. This was a privilege by which China was forced to yield control of sovereign powers, one of many losses as part of a series of “unequal treaties” in force since the First Opium War. Student protesters hoped that the United States would side with China over the “Shandong question,” because the U.S. was a key proponent of national self-determination and the U.S. embassy was the only foreign embassy willing to meet with their representatives and accept their petition.

A century later, the patriotic act of petitioning westerners known as gaoyangzhuang (告洋状) carries a negative connotation. Petitioning refers to the administrative system for receiving complaints from people with grievances, mostly concerning corrupt officials. While China guarantees the right to complain so long as petitioners do not bypass local authorities, the government does not tolerate the act of complaining to foreigners, in part due to the traditional notion of “not exposing family scandals.” Recent usage of gaoyangzhuang is often associated with Taiwanese president, Tsai Ing-wen, when she speaks to foreign diplomats and journalists about her rejection of Xi’s offer of the “one country, two systems” framework for reunification with the mainland. Li Jing-yu, wife of imprisoned Taiwanese activist Lee Ming-che (李明哲), has also been accused of gaoyangzhuang for criticizing China from overseas because she was prevented from visiting her husband, who is serving a five-year sentence in Hunan for subversion. The term is no less frequently used against Hong Kong democratic legislators, supporters and localists if they tell foreigners about Beijing’s tightening control over the former British colony.

In Taiwan and Hong Kong, complaining about the Chinese government does not land individuals in legal trouble because both regions are independent jurisdictions. By contrast, critics on the mainland face imminent threat of loss of personal liberty. In August 2013, Global Times stated that petitioners, alongside exiled democracy activists and “splittist forces overseas” headed by the Dalai Lama and Rebiya Kadeer, were the major users of gaoyangzhuang. Petitioners were accused of taking part in a number of “illegal behaviours” such as wearing clothing traditionally associated with petitioning. These included, for example, signs hanging both down the petitioner’s front and back, waving banners, and chanting slogans at Beijing-based international organizations, such as offices of the United Nations and foreign embassies, with the intention to “create international influence” (zaocheng guoji yingxiang 造成 国际 影响). Unlike those in Hong Kong and Taiwan, petitioners on the mainland with assorted grievances, from forced demolitions to land disputes, are most likely to face reprisals for complaining to foreigners.

Hu-Wen Era

It is unclear when the term of gaoyangzhuang entered the official lexicon. An article originally published by Phoenix Weekly in January 2009 stated that the term began to come into vogue during the Hu Jintao and Wen Jiabao administration. China’s effort to improve its global image prior to the Beijing 2008 Olympics incentivized provincial governments to track gaoyangzhuang petitioners in Beijing. In 2005, a total of 37 people from Hubei were reported to have travelled to Beijing to make complaints to foreigners, compared to 77 people from Liaoning, which was ranked as the top fourth province nationwide. In the 19 months since July 2004, over 540 people in 50 different groups had filed complaints to the Beijing offices of UNHCR and UN Development Programme, according to statistics from the Sanlitun police station. A Liaoning official was quoted as saying that gaoyangzhuang “seriously damages the country’s reputation and external image” and “creates pressure on the capital’s social security and stability.” Another Shanghai official called gaoyangzhuang “despicable,” an act tantamount to “blackmailing the Chinese people.”

A Hebei government directive in 2007 states that gaoyangzhuang petitioners adversely affect Beijing’s social stability and vilify the national image. Underlining added by Dui Hua Foundation. Photo credit: Boxun
Public censure achieved little to deter petitioners from complaining about local governments to foreigners. In view of this, provincial public security, procuratorial offices, and courts started to jointly push for punitive measures. Anhui was among the first to release an opinion in 2006, listing foreign embassies and international organizations as “key areas” for stability maintenance alongside the central organs of the Chinese Communist Party, and subjecting anyone who disturbed social order to punishment in accordance to the Public Security Administration Punishments Law.

Government officials are keen to suppress gaoyangzhuang because they use low rates of gaoyangzhuang as an indicator of good governance. A performance appraisal document in Shihu Township, Jiangsu, in 2011 categorized the prevention of gaoyangzhuang under the section appraising “critical stability control” (zhongdien weiwen 重点维稳) during “sensitive days" (such as certain national holidays and anniversaries of events that are likely to inspire protests and other forms of public political expression); the section carries two evaluation points. Each occurrence of gaoyangzhuang leads to a deduction of half a point. Similar assessment mechanisms likely existed before 2011, since the 2009 Phoenix Weekly article mentions that local public security bureaus in Henan, Shanghai and Liaoning had publicized cases of petitioners apprehended or detained for gaoyangzhuang.

In the run-up to the 2008 Olympics, both official usage of the term gaoyangzhuang and punitive measures proliferated. In June 2007, an official in Heilongjiang’s Datong District called for “detaining or giving re-education through labor (RTL)” to gaoyangzhuang petitioners before resolving their problems. Petitioners would have to pay for all expenses the government incurred for handling their petitions if deemed “unreasonable.” In January 2008, an opinion from Hebei called gaoyangzhuang an “irregular form of petitioning to Beijing” (feizhengchang jinjing shangfang非正常进京上访) and a “serious breach” of the petition regulations. The opinion recommended that public security directly detain or give RTL to gaoyangzhuang petitioners without the need to give prior admonishment or warning. In March, Liaoning followed suit and issued a similar opinion to crack down on gaoyangzhuang petitioners.

Nor did the crackdown on gaoyangzhuang relax in the wake of the Beijing Olympics. A local government directive issued in 2009 continued to blame gaoyangzhuang petitioners for “complicating simple issues, internationalizing and politicizing domestic problems” by means of “creating international influence.” Throughout the year, a total of 2,862 gaoyangzhuang petitioners were caught in Chaoyang District, Beijing, and, of these petitioners, 1,118 were detained. In February of that year, then-Secretary of State Hillary Clinton visited China. Zhao Chunhong (赵春红) led a group of petitioners to put up a banner welcoming Clinton and called on Nancy Pelosi (scheduled for a separate visit in May of 2009) to put pressure on China over its human rights records. Zhang was subsequently sentenced to three years’ imprisonment for “picking quarrels and provoking troubles.”

About half a year before Xi’s rise to power in 2012, blind activist Chen Guangcheng (陈光诚) made a daring escape from house arrest to the U.S. embassy. In May, Chen and his family left China for New York. Some mainland observers opined that the episode had emboldened petitioners to make complaints to foreigners in the belief that the Chinese government would ultimately address their problems. On May 8, 2012, elderly petitioner Nie Muni (聂木妮) and his wife attempted to “barge into” the U.S. embassy, but were intercepted by the embassy guards and taken to the Jiujingzhuang Reception Center in Beijing, an unofficial detention center where petitioners are held. In an interview with Voice of America (VOA), the couple said they wanted to “beat drums and cry injustice” (jigu mingyuan击鼓鸣冤) at the U.S. embassy because the U.S. “gives people a sense of trust and respect for human rights and dignity.” They claimed to have been inspired by Chen, who received medical treatment from the Chinese government after he escaped to the U.S. embassy.

Xi’s Regime

Despite the abolition of RTL in 2013, many gaoyangzhuang petitioners have not fared any better. They are now more likely to be convicted of “picking quarrels and provoking troubles,” which carries a maximum sentence of ten years. In 2013, over a dozen petitioners from Fuzhou, Fujian, started a series of gaoyangzhuang petitions in the hope that then-U.S. Ambassador Gary Locke would respond to their plight. In April of that year, they even planned to intercept John Kerry’s vehicle during his Beijing visit on the 13th. Upon learning that the Fuzhou government had dispatched large numbers of interceptors to Beijing, the group proceeded instead to Ambassador Locke’s residence, where they threw stacks of leaflets and some of them chained themselves to the front gate. The group of petitioners grew to over two dozen in July, but many were removed and collectively charged with “picking quarrels and provoking troubles.” Some of them were released on bail after several months in custody.

Some of the Fuzhou gaoyangzhuang petitioners who attempted to complain about corruption and rights abuses in China to then-U.S. Ambassador Gary Locke in 2013. Photo credit: RFA
Lin Yingqiang (林应强) continued his effort to petition Locke alongside a dozen of the Fuzhou petitioners into early November. After 15 months in criminal detention, Lin was sentenced to three years’ imprisonment in February 2015. The judgment stated that Lin circulated 68 blog posts about the “Fuzhou victims” to satisfy his greed in the name of “anti-corruption” and “whistleblowing.” Among these posts, two recounted his stories of “barging into” the American embassy, which were viewed over 9,000 times in 2013. A day after his November petition, he and other Fuzhou petitioners put up another blog post, entitled “Please Follow Fuzhou Petitioners Who Complained to Foreigners,” which was viewed 51,159 times within one month of posting. At least four other individuals surnamed Tang, Chen, Shi and He were sentenced to two and a half years for the same offense of “picking quarrels and provoking troubles.” According to a Fuzhou activist, the above-mentioned five Fuzhou petitioners were sentenced at three different locations on purpose, because putting all of them on the same trial would have attracted unwanted publicity to this significant gaoyangzhuang case.

In February 2016, unofficial news media reported that the Ministry of Public Security would establish a “national petitioner database” as a preventive measure of stability maintenance. The database would not only track mainland petitioners, but also those who petitioned in Hong Kong, Macao, and Taiwan. An exit ban might be placed on the mainland petitioners, who also faced restrictions from entering various municipalities and cities. Public security would liaise with Chinese embassies to track and monitor petitioners who made complaints overseas.

The petitioner database was created with the intention of curbing the rising number of petitioners who traveled abroad to voice complaints about the Chinese government, according to Bowen Press, citing an informed source. On September 25, 2015, dozens of petitioners attempted to intercept Xi’s motorcade at the end of the Obama-Xi meeting in Washington, D.C. One of them, a petitioner from Jilin, managed to stop Xi’s wife Peng Lijuan’s vehicle. Bowen reported that the incident had “frightened” Peng and made Xi “lose face.” The petitioner was taken away by police and his petition materials were subsequently received by officials from the Chinese embassy. In March 2016, another group of 50 gaoyangzhuang petitioners from 10 different provinces and municipalities were accused of “creating a nuisance” when Xi attended the Fourth Nuclear Security Summit, again in Washington, D.C. At the time of writing, Dui Hua is not aware whether the petitioner database has come into operation.

Communicating with Foreign Media

While petitioning is not the only channel for Chinese citizens seeking to publicize or change policies that they deem unfair, anyone who makes negative remarks about China to foreign media can face accusations of gaoyangzhuang. In May 2014, journalist Xiang Nanfu (向南夫) was detained for the offense of picking quarrels and provoking trouble, a charge stemming from his use of Boxun, a U.S.-based Chinese language news website, to “fabricate" news about organ harvesting and violent land grabs in China in exchange for article fees. It is worth noting that although Xiang was not a petitioner, Xinhua News called his act of “smearing” China in front of foreigners gaoyangzhuang.

Lawyers, too, have been affected by Chinese government responses to communicating with foreign sources. There has been a growing trend of using administrative penalties against lawyers following the nationwide crackdown on Chinese lawyers and human rights activists that began on July 9, 2015. During the “Two Meetings” in March 2018, the Ministry of Justice (MOJ) warned lawyers not to give dissenting views on China’s constitutional amendment that removed Xi’s presidential term limit. A notice issued by a local justice bureau indicated that violators would have his/her license to practice revoked and be barred from resuming work for five years. The MOJ also explicitly warned lawyers not to give interviews to foreign media, including BBC, Voice of Russia, and American media outlets such as NBC, CBS, VOA, and Radio Free Asia (RFA). When asked by RFA about the health condition of his client Huang Qi, the webmaster of the legal rights website 64 Tianwang, in August 2018, defence attorney Liu Zhengqing apologized for not being able to give an interview because he was under a lot of pressure with regard to talking to foreign media. On December 25, 2018, Liu’s license to practice law was revoked.

Critics in- and outside of academia frequently face harassment for speaking out to foreign media. On August 2, 2018, Shandong police broke into the home of retired professor Sun Wenguang (孙文广) while he was giving a phone interview to VOA. In the interview, Sun criticized Xi’s One Belt One Road initiative, urging Xi to spend more money in China instead of wasting money overseas on aid, loans and investments. Sun was put under house arrest for over 10 days.

A recent case involving prison sentences for who spoke out to foreign media involved Tibetan language activist Tashi Wangchuk, who was sentenced to five years’ imprisonment for inciting splittism in May 2018. In 2015, Tashi Wangchuk gave interviews to The New York Times, in which he expressed worries about the disappearance of the Tibetan language, as the Chinese authorities have been prohibiting the use of Tibetan in spheres ranging from schools to commerce even on the Tibetan plateau. Tashi Wangchuk described China’s ethnic policy as a “systematic slaughter” of Tibetan culture. Speaking to foreign media was his last resort, because government bureaus had refused to lodge a petition for him. He had also been turned down by domestic media, nor could he bring a lawsuit against the language policy. Knowing full well of the risk of speaking to foreign media, Tashi Wangchuk stressed that he was not advocating for independence. He insisted that language rights are human rights protected by China’s constitution. However, the nine-minute film made by The New York Times was cited as evidence that landed Tashi in jail. Tashi is scheduled for release from a prison in Qinghai in January 2021.

The frustration of those who apparently feel driven to complain to foreigners is succinctly described by a Caixin columnist who witnessed a gaoyangzhuang incident at the U.S. embassy in March 2014: a middle-aged petitioner holding two crutches, along with three people who appeared to have come from the countryside, were intercepted by a plainclothes officer after they ignored the warning that they would be arrested. Speaking from his own petitioning experience, the columnist wrote that the only response he received from the petition bureau was a receipt acknowledgement of his complaint, and despite an indefinite wait, his petition was never addressed. He guessed that gaoyangzhuang petitioners did not genuinely think they could succeed in obtaining redress from foreigners; they were simply trying their luck because they believed they had nothing more to lose by “speaking out against injustice” in front of foreigners.

Many gaoyangzhuang petitioners who made this or similar assumptions, however, have been mistaken. The cases explored in this article demonstrate how those who complain about China to foreigners, including foreign embassies, visiting diplomats and leaders, and journalists, could very well face several forms of retribution. Not only are they stigmatized for “badmouthing” China, but they also face the risk of imprisonment for picking quarrels and provoking troubles, and even for the very serious crime of endangering state security in cases involving ethnic minorities.

For more on petitioning in China, see also Dui Hua’s earlier reporting on the Beijing city government’s efforts to prohibit the use of “black security firms” and “black jails” to prevent petitioners from outside Beijing from coming to the capital to petition the central government, and, potentially, foreign actors.

Wednesday, April 17, 2019

China Releases Detailed Statistics on Trials

Supreme People's Court of China Photo Credit: People's Supreme Court of China Website
In an important development in judicial transparency, China has released detailed statistics on sentencing and convictions by Chinese courts in 2017. The statistics are broken down by crime, length of sentences, and age and gender of defendants. The statistics, compiled by the Supreme People’s Court, are provided in two tables in the China Law Yearbook, 2018 Edition, available for purchase in China but not overseas. The yearbook also provides, for the first time, the number of cases that have been accepted by courts for trials of the first instance that have not yet been concluded.

Tables presenting the data can be found below.

Key findings for 2017 include:
  • Trials rarely result in acquittal. More than 99.9 percent of criminal trials resulted in guilty judgments. Although the acquittal rate of 0.091 percent in 2017 is extremely low, it is actually the highest rate since 2010, when it was 0.099 percent.
  • Forty-four percent of criminal judgments did not result in time spent in prison.
  • More than 86 percent of trials in China resulted in sentences of less than five years in prison in 2017.
  • A surprisingly high percentage of trials – 27 percent – resulted in suspended sentences in 2017.
  • Deprivation of Political Rights and Deportation were rarely used as a stand-alone sentence in 2017.
  • More than 83 percent of individuals convicted of crimes were between the ages of 25 and 60 in 2017. Only two percent of those convicted were over the age of 60.
  • Women made up 9.3 percent of defendants convicted in criminal trials in 2017. This is a relatively high number and suggests that the number of women in prison continues to rise. The Ministry of Justice no longer publishes statistics on the number of female prisoners in China.
  • 32,778 juveniles (defined as individuals between the ages of 14 and 18) were convicted by Chinese courts in 2017. Of these, 217 were girls. It is not known how many juveniles were placed under coercive measures. In 2010, Chinese police arrested 80,000 juveniles, of whom 64 percent or 51,200 were placed under coercive measures.

In addition, statistics on trials reveal that trials of the first instance for endangering state security (ESS) and dereliction of military duty accepted by courts totaled 441 cases in 2017; 448 cases were concluded. The great majority of these two crimes, grouped together as "other," were for ESS. These numbers are consistent with previous years. Of cases accepted by courts, 86 cases had not been concluded by year’s end.
Although the Supreme People’s Court has taken the lead in advancing judicial transparency, the same cannot be said of other judicial organs. As noted above, the Ministry of Justice has, since 2015, declined to provide statistics on the number of juveniles and women in prison. In its 2019 work report for the National People’s Congress, the Supreme People’s Procuratorate groups the ten categories of crimes into six segments, putting endangering state security in with graft and bribery, endangering national defense, dereliction of duty, and dereliction of military duty. "By grouping endangering state security – the most serious political crime in the criminal law – with five other crimes," Dui Hua’s executive director John Kamm pointed out, "it is virtually impossible to ascertain how many people were indicted for subversion, splittism, and other national security crimes by Chinese prosecutors in 2017."

Tuesday, March 19, 2019

Three Years On: The Anti-Domestic Violence Law

It’s been more than three years since China’s Anti-Domestic Violence Law came into effect on March 1, 2016. The law was celebrated as an achievement for women’s rights activists who spent decades fighting for legislative reform. The law introduced safety mechanisms for domestic violence victims through the introduction of protection orders and warning systems that involve employers, local governments, social workers, and law enforcement in the effort to better protect women from the scourge of domestic violence. However, three years since the law’s passage, its shortcomings are troublingly evident.

On November 25, 2018, International Day for the Elimination of Violence Against Women, People’s Daily reported several shocking statistics: of a sample of 270 million families, 30% of women suffer domestic violence; domestic violence is a cause of 60% of female suicide deaths annually; of women who die from homicide, more than 40% experienced domestic violence; and that women report domestic violence to police only after suffering an average of 35 incidents. Domestic violence is certainly not unique to China – one in three women suffer domestic violence globally. A study conducted by the All-China Women’s Federation and National Statistical Bureau in 2010 found that 24.7 percent of the population experiences domestic violence in their lifetime.

“Cooling off Period” in Divorce Cases

In June 2018, a Sichuanese woman by the name of Dong Fang (pseudonym) filed for divorce to a Chengdu court after suffering repeated domestic abuse from her husband. Dong applied for a personal safety protection order to the court after unsuccessfully filing for divorce. After three trials, the court finally permitted Dong’s request. After the initial hearing, Judge Zhang Yinbin claimed that it was necessary to give the parties a “cooling-off period” before he approved their divorce. Zhang claimed that because the abuse was not “chronic” it could not be considered domestic violence, even though the Anti-Domestic Violence Law does not require that abuse be chronic in order to constitute domestic violence and the Marriage Law mandates that domestic violence is grounds for divorce. Dong’s case received heavy media attention after she released a video describing her experience and called for “the rule of law to provide reasonable protections for vulnerable groups.” Dong’s video garnered more than ten thousand messages from supporters. The concept of a “cooling-off period” was originally designed to prevent “flash divorces” (闪离), divorces that were thought to be impulsive because of their swiftness. The fact that the concept has been applied to divorce cases involving domestic violence is a worrying sign. It reinforces the idea that victims’ testimonies are untrustworthy and that disputes should be resolved privately in the home, a dangerous message for judicial authorities to be sending to the public.

Female Incarceration

Although a number of Chinese courts have released guiding opinions that call for lighter sentences and sentence reductions for women who “fight violence with violence,” nationwide, most women who fight back still receive severe punishments including up to 10 years’ imprisonment, life sentences, death with reprieve, and, death sentences, as in the case of Li Yan (李彦) whose death sentence was eventually overturned. These harsh sentences do not take seriously the realities of domestic violence and do not account for the fact that women who have committed offenses while defending themselves against a family member tend not to pose a threat to society. They also fail to recognize the equal status of women by accepting domestic violence as a private affair for which the victim deserves at least some blame.

On September 14, 2017, after suffering more than 31 years of domestic abuse, 52-year-old Li Fang (pseudonym) killed her husband. In the early morning of that day, Li’s husband beat and kicked her. When Li’s husband fell asleep, she cut his feet with a knife. When Li’s husband awoke in shock, he attempted to chase her and died shortly after from blood loss. The Changshou Hanshou County Procuratorate charged Li with intentional assault and sentenced her to eight years in prison.

Li’s daughter later told reporters that said she understood why her mother reacted the way she did. Reporters discovered that Li had gone to the county women’s federation for help in the past and that she had visited the People’s Mediation Committee in October 2016 to apply for mediation for a divorce. On September 11, 2017 Li reported the abuse to police to no avail. The next day, Li visited her husband’s workplace community service hall to confront him in front of his colleagues. The next afternoon, two days before the incident, the community service hall leader, instead of taking Li’s complaints seriously, gave her three hours of “ideological education.”

Domestic Violence Against Children

The issue of domestic violence against children presents unique complications for reformers and those seeking to use the Anti-Domestic Violence Law to protect child victims. The case of fifth grader Wenwen (pseudonym) from Hangzhong, Shaanxi province who died at the hands of her abusive father illustrates the difficulty in protecting children from domestic violence.

Wenwen was eleven years old when she died on April 4, 2016. Neighbors and teachers of Wenwen’s were interviewed by media following her death; all of them were aware of the abuse against Wenwen and had confronted her father in the past on multiple occasions pleading him to stop his behavior. In one instance, the property manager of the housing compound in which Wenwen resided, confronted her father about the abuse. One neighbor, a woman surnamed Zhang, recounted a time when she found Wenwen kicked out of her home by her father and forced to stand on the street in the pouring rain without shoes and little clothes on. While neighbors and teachers were concerned for Wenwen’s well-being, the interviews suggest that they excused her father’s behavior due to his “high expectations” of Wenwen and his time spent in the military.

Wenwen’s case is not unique – violence against children inflicted by parents is often excused as “discipline” or as an effect of one’s parenting style. Violence takes many forms and is not always physical; neglect, abandonment, threats of intimidation, restrictions of personal freedom, witnessing violence, and mental abuse are all forms of domestic violence.

Verbal and mental abuse can be difficult for victims and outsiders to identify. In Wenwen’s case there was no question that she was being abused; her suffering was visible and her father admitted his actions. It was Wenwen’s community and school that failed to advocate for her. Underlying the silence of those who fail to advocate on behalf of domestic violence victims, particularly child victims, is the outdated belief that domestic violence is a “family matter” to be resolved privately and that children are in effect their parent’s property.

Media analysis by Huike News found 216 media reports about domestic violence cases involving children from September 2014 to September 2018. Of the 216 cases:

Dating Violence

In November 2018, Japanese model Haruka Nakaura released photos on social media revealing that her boyfriend, Jiang Jinfu, a Chinese model and actor, had been physically abusing her. Jiang admitted to beating her.

The reaction to the story on social media in China was unexpected – netizens applauded Jiang for his honesty and bravery. Lu Pin, a prominent Chinese feminist activist criticized the reaction stating, “People are always trying to find many reasons to justify violence and one reason they’ve found is ‘This woman is not one of us,’” alluding to Nakaura’s Japanese ethnicity.

China’s Anti-Domestic Violence Law is not limited to marriages, it also includes "persons living together other than family members." However, in practice police are less likely to register cases where the victim and perpetrators are seen as “just dating.” In such cases, the violence inflicted is treated as a form of regular personal assault, which carries a lighter penalty. Harassment within relationships is often dismissed by authorities as simply an “emotional entanglement” (情感纠纷) and when they are brought to court, judges often treat the cases as no different from a form of intentional assault, ignoring the familial and domestic context within which the abuse occurred.

Social Credit System

Lü Xiaoquan, a Chinese lawyer who has represented victims in several high-profile domestic violence cases, proposes that "dating violence" should be included in the personal social credit system. Lü cites progress made in Shandong’s provincial Anti-Domestic Violence Regulations to implement this practice.

The social credit system is a state-run national reputation management project that is due to come into full effect in the summer of 2020. The system rewards and punishes citizens depending on certain behaviors. For example, citizens can earn points for volunteering, donating blood, or practicing “family virtues” which they can exchange for benefits like discounts on public tolls or priority enrollment to schools for their children. On the other hand, citizens can lose points for tax evasion, failure to pay bills, and in some cities for domestic violence. A loss of points bars citizens from benefits like staying at luxury hotels or buying real estate. Whether including domestic violence in the social credit system will be a more effective deterrent than criminal punishment has yet to be determined. Given the obstacles that victims face in obtaining evidence of domestic abuse and in applying for protection safety orders, the social credit system – which is very controversial as it can be seen as infringing on personal freedoms – may prove to be a more accessible method for victims to report abuse.

Progressive Reforms Underway in Yunnan

On January 3, 2019 Yunnan province became the first province to implement a “mandatory domestic violence reporting system.” This is a significant development because under Article 260 of the Criminal Law, courts can only accept domestic violence cases under procedures for private prosecution (自诉) of criminal cases. By implicating government authorities as responsible parties in collecting and reporting evidence of domestic violence, the reporting system brings greater protection to individuals who face difficulty in filing private prosecutions such as the elderly, children, people with disabilities, or people in financially dependent relationships with their abusers.

The reporting system was the result of Measures promulgated by the Yunnan Provincial Women’s Federation, the Provincial Department of Education, the Provincial Public Security Department, the Provincial Civil Affairs Department, and the Provincial Health Committee. The Measures stipulate that “schools, kindergartens, medical institutions, residents’ committees, village committees, social work agencies, rescue management agencies, welfare agencies and their staff” are all responsible parties in the mandatory reporting system for domestic violence. A highlight of the implementation method includes defining domestic violence to include an array of actions such as sexual violence, neglect, abandonment, forced marriage, forced begging, forced drug use, drug trafficking, and theft. The measure also includes the establishment of a risk assessment tool for victims and states that the Women's Federation should be involved in informing the courts’ decision-making.

The implementation of the measures has been spearheaded by the Kunming Wuhua District Mingxin Social Work Service Center. In an interview, the Center’s Director Liu Ping stated “according to the experience of our institutional services, more than 70% of women who have suffered domestic violence have experienced sexual violence, and this is difficult for them to express. The Provincial Women’s Federation is seeing the harm and prevalence of sexual violence, so it is included [in the measures].” Liu reiterated the importance of including rarer cases such as forced marriages, where domestic violence is prevalent, into the measures. Liu stressed that police should be better trained in identifying and collecting evidence and issuing warning letters and handing down administrative punishments in the many cases where the actions of perpetrators do not constitute a legal violation.

The Yunnan implementation measures suggest incremental progress in bolstering the Anti-Domestic Violence Law and addressing the barriers victims face in reporting incidents. But simply having measures on paper is not enough. Public education that tackles the deep-rooted assumptions that normalize domestic violence must be addressed. Given that most victims of domestic violence suffer in silence, local actors must actively educate community members about how to identify signs of domestic violence, connect survivors with resources, and increase public awareness about domestic violence.

In Shanghai, the Shanghai West Road Police Station in Jinfeng District established a complaint station for domestic violence cases however from 2016 to 2017, the station received only 63 complaints of domestic violence, which resulted in 61 criticism and education cases, one administrative detention and fine, and one warning. In 2016, the Yuzhong District Court in Chongqing received 53 cases of family disputes involving domestic violence. Of the cases, 41 were dismissed for lack of evidence and of the remaining 12 cases that provided evidence of domestic violence in the form of photographs, police records, witness testimonies or medical records, six cases were dismissed. The fact that two cities with populations as large as Shanghai and Chongqing have recorded such low numbers points to the growing need for reformers to focus on the forceful implementation of the Anti-Domestic Violence Law.

Monday, March 11, 2019

After Months of Heightened Tensions, American Public Opinion Sours on China

Every year since 1979, the year the United States and China normalized diplomatic relations, Washington-based Gallup Inc. has surveyed opinions of Americans on China. This year’s poll was conducted February 1-10, 2019, one year after the last poll was conducted in early February 2018. Results are based on interviews conducted with a random sample of 1,016 adults ages 18+ in all 50 states and the District of Columbia. The margin of error is plus/minus 4 percent, yielding a 95 percent confidence level.

Reflecting heightened tensions with China over a wide range of issues – trade, technology, cyber espionage, national security, ideology, Taiwan, South China Sea, human rights – this year’s results reveal a sharp deterioration in public opinion towards the Asian giant, viewed by the Trump administration as a strategic competitor.

Key results of this year’s poll include:

  • One in five Americans – 21 percent – consider China America’s greatest enemy. This is roughly double the number in 2018, when 11 percent viewed China as America’s biggest enemy. This result is second only to Russia. Thirty-two percent of Americans view Russia as the country’s greatest enemy, up from 19 percent in 2018.
  • Fifty-seven percent percent of Americans have an unfavorable view of China. Forty-one percent have a favorable view. These numbers reflect a 12-point percentage shift from the numbers recorded in 2018, when 45 percent of Americans had an unfavorable view of China, and 53 percent had a favorable view. The 2018 "favorable" number was the first time since the events of June 1989 that a majority of Americans had a favorable opinion towards China.
  • Among Americans who consider themselves conservatives, China is America’s number one enemy. More than one in four American conservatives consider China America’s greatest enemy. (Criticisms of China were much in evidence at the Conservative Political Action Committees annual meeting outside Washington D.C. in early March.) Sixty-three percent of conservatives now have an unfavorable view of China.
  • Americans are evenly split on President Trump’s handling of relations with China with 47 percent approving and 48 percent disapproving. The partisan gap is very large: 88 percent of Republicans approve of the way Mr. Trump is dealing with China, while only 14 percent of Democrats approve. Among independents, 42 percent approve.
  • Forty-six percent of Americans view China's economic power as a critical threat.
  • Impressed with the results of the 2018 Gallup poll, Chinese Foreign Minister Wang Yi, at his press conference held at the end of last year’s annual session of the National People’s Congress, urged journalists to “pay more attention to such positive things.” Given this year’s results, it is doubtful that Mr. Wang will urge journalists to pay attention to the results of the 2019 Gallup poll.

    Wednesday, February 27, 2019

    Cracking Down on Dissenting Versions of History

    “Beware of getting brainwashed by historical nihilism,” a cartoon on the nationalist website A man dressed in imperial Japanese army uniform is depicted enslaving a “hanjian,” a pejorative term used to describe Chinese national traitors.

    The term “historical nihilism” has come into vogue among Chinese government officials following Xi Jinping’s rise to power in 2012. “Historical nihilism” refers to the questioning of the official Chinese Communist Party’s version of Chinese history. A communiqué circulated in 2013 within the party known as Document No.9 calls historical nihilism one of the seven perils that threatens party rule. Under the guise of “re-evaluation,” historical nihilism “discredits revolution under the party’s leadership” and “denies the historical necessity of China’s choice of embarking on the socialist path.” In September 2015, party magazine Qiushi warned that historical nihilism would lead to a Soviet-style collapse should it be left unchecked. In February 2018, official news media outlets widely circulated Xi’s remark that historical nihilists “distort history” and “deny their own ancestry.” Historical nihilists are condemned as traitors to the Han people, “self-abased,” and as having lost their ethnic pride due to Western influence.

    Official historical narratives about the party are crafted to instill nationalism and political loyalty. The narratives stress the party’s contributions to liberating China from century-long foreign imperialism, oppressed farmers from landlords, and ethnic minorities from feudalism – in stark contrast with Chinese history written in the west that calls the first three decades following 1949 a period of catastrophe caused by Mao Zedong. Those who share similar criticisms about the party’s past put their jobs, livelihood, and even personal liberty at risk. In some cases, delving into or writing about dissenting versions of history can land researchers or publishers in jail, with charges ranging from stealing state secrets, illegal business activity, and endangering state security.

    Jailed Historians & “State Secrets”

    A well-known case involving the criminalization of historians in China involved US-based librarian and historian Song Yongyi (宋永毅) in 1999. In that year, Song was on a research trip to China to construct a database that would document the atrocities committed during the Cultural Revolution. Song collected tabloid newspapers published by the Red Guards and procured state-approved books from the China National Publications Import & Export Corporation at the Dickinson College Library in Pennsylvania. Although Song had obtained these materials through public channels, he was detained for “stealing state secrets” for six months, during which he was interrogated about whether his research project was supported by the Central Intelligence Agency. Song was not yet an American citizen at the time, but his detention sparked outrage in the American academic and diplomatic community. His release came as a result of Beijing’s wish to improve its image prior to the annual debate on renewal of China’s “Most Favored Nation” trading status.

    A similar case that did not garner as much attention as Song’s involved historian Xu Zerong (徐泽荣) who was sentenced to 13 years’ imprisonment for illegally trafficking in state secrets for foreign entities and illegal business activity in Shenzhen in December 2001. Xu was an Associate Research Professor of Southeast Asian Studies at Zhongshan University in Guangzhou, well-known for his work on China’s role in the Korean War. The charges stemmed from his photocopying of books published in the 1950s about China’s involvement in the Korean War, but unbeknownst to Xu the books were classified as “top-secret.” Xu allegedly received $2,500 for sending research materials to a South Korean scholar.

    Some observers believed that Xu was imprisoned for reasons not mentioned in the court documents. Prior to his detention, Xu wrote an article for Hong Kong-based Asia Weekly, exposing clandestine support by the Chinese Communist Party to a Malaysian Communist insurgency from the 1950s to 1970s. Xu claimed that Chinese forces helped the insurgency group set up a radio station in Hunan during that period. His research suggested a double standard when it came to the Chinese government’s approach to foreign diplomacy – they had supported a revolution abroad and interfered in the internal affairs of another country, a line of argument the government frequently uses to criticize foreign counterparts that raise human rights issues with China.

    Banned Books

    Dui Hua has previously reported on the use of the crime “illegal business activity” to prosecute Christian booksellers and publishers. The same charge is also used to curb the distribution of history books that challenge the official historical narrative. In December 2015, Fu Zhibin (付志彬) was sentenced to 20 months’ imprisonment in Jiangxi for his book titled Historie der Mentalen Manipulation. In his book, Fu argues that the CCP used the concept of “Red Terror” to stir fear in people thus culminating in the Cultural Revolution. Fu accuses Mao of using this tactic to materialize his “emperor dream” – a term Fu borrowed from Lenin.

    Published in Taiwan in 2014, the Jiangxi public security bureau accused Fu of “smearing and distorting the history of the Chinese Communist Party and denying the party’s legitimacy in the founding of the People’s Republic of China.” In the same year, Fu used a mainland publisher to print 3,000 copies of his book for domestic distribution. Of the books, 1,200 were sold online via social networking apps including WeChat and QQ.

    In a separate case in February 2017, Dai Xuelin (戴学林) and Zhang Xiaoxiong (张晓雄) were sentenced in Zhejiang to five years and three years and six months, respectively, also for illegal business activity. The duo acquired books from Hong Kong’s Causeway Bay Bookstore and distributed them to online buyers in the mainland. One of the “illegal” titles was “How the Red Sun Rose,” a monograph written by a well-known historian who examined how Mao ascended to power by aggressive intra-party purges and coercion and the legacy of Mao on China’s political structure today. The book was published by The Chinese University Press in Hong Kong in 2001. Both Dai and Zhang remain imprisoned today. Dai is scheduled for release in May 2021 and Zhang is set for release in January 2020.

    “Inalienable Part of China”

    Photo credit: The Economist

    China’s territorial dispute with Russia in the 2000s remains a thorn in the side of patriotic writers and historians. In the mid-19th century, the Qing Empire signed several “unequal treaties” with Russia, ceding over 600,000 square kilometers north of today’s Heilongjiang province and parts of Outer Manchuria, the majority of which is in Russia today. Shortly before the dissolution of the Soviet Union in 1991, border demarcation negotiations were held to resolve the longstanding Sino-Russian border disputes in Heilongjiang. The issues were eventually settled in an accord, signed by both countries in 2004, in which Russia recognized China’s ownership of Yinlong Island (Tarabarov Island) and over half of the Heixiazi Island (Bolshoy Ussuriysky Island) – both islands had been occupied by the Soviet Union since 1929. In 2008, China Daily lauded the formal territorial agreement signed by then Foreign Minister Yang Jiechi as a “hard-won” result after more than 40 years of negotiations.

    The signing of the border agreement also signified China’s recognition of Russian sovereignty over territories that once belonged to China, a blow to many nationalists who regard the land as an “inalienable part of China” – a claim frequently used to justify sovereignty over Taiwan, Hong Kong, Xinjiang, Tibet, and other disputed islands and maritime claims in the South China Sea.

    Some observers speculated that Hong Kong journalist Ching Cheong (程翔) was imprisoned for penning articles in 1998 for Hong Kong and Singaporean media that expressed his sentiments about the territorial losses, “equivalent to the size of forty Taiwans.” Ching criticized Jiang Zemin for signing a clandestine agreement with Boris Yeltsin in 1999 that delineated today’s Sino-Russian border. In signing the agreement, Jiang in turn recognized China's loss of sovereignty over the territories “plundered” by Russia following the “unequal treaties” China was forced to sign in the 19th century. Ching was detained in Shenzhen in April 2005 and was sentenced in Beijing to five years’ imprisonment for “espionage” in 2006. He was released on parole in 2008 following an international campaign calling for his release.

    Amateur historian Lü Jiaping (吕加平) was imprisoned for similar reasons. In 2011, Lü was sentenced to ten years’ imprisonment for inciting subversion in Beijing. Allegations against him included articles he published which called Jiang a “traitor” for “ceding vast Chinese territories” to Russia. Lü, now aged 77, reportedly suffers from heart disease among other ailments. He was released on medical parole in 2015.

    “Historical Nihilism”

    The “Five Heroes of Langya Mountain” are Communist soldiers portrayed in official narratives as having jumped off a cliff to avoid being captured by Japanese forces during World War II. Those who publicly question the authenticity of the official narrative not only face civil, but also criminal, consequences. Image credit: Baidu.

    In 2015, the term historical nihilism began appearing in court documents following a civil case lodged by family members of “Communist heroes” to safeguard their ancestors' “reputation” and “heroic spirit.” A Beijing court found columnists Hong Zhenkuai (洪振快) and Huang Zhong (黄钟) guilty of libel for an article that questioned the authenticity of the “Five Heroes of Langya Mountain,” communist lore that praised the valiant effort of five Communist soldiers during World War II. According to official narratives, the five men had jumped off a cliff to avoid being captured by Japanese forces. Hong argued that the men had in fact slipped off the cliff and that they did not kill any Japanese soldiers during their service. The court ruled that Hong and Huang had damaged the “heroic image” and “challenged social and public values that are both traditional and mainstream,” and “hurt the ethnic and historical feelings of the people.” Hong and Huang were ordered to make a public apology to the heroes on Weibo and in several major newspapers, including Global Times and Southern Metropolitan Daily.

    Hong and Huang’s case demonstrates how publicly questioning the historical accuracy of Communist folklore can incur civil penalties. Effective April 27, 2018, the Heroes and Martyrs Protection Law obliges Chinese citizens to “revere and honor the memory of the sacrifices and contributions that heroes and martyrs made for the nation…” and subjects anyone who “defames” heroes and martyrs to criminal punishments and civil liabilities. At the time of writing, it remains to be seen what criminal punishments will be meted out to individuals who challenge the party’s narratives of heroes and martyrs.

    Historians in and outside of China have long cast doubt on the authenticity of the “good deeds” of many Communist heroes and martyrs, including notably Lei Feng, a well-known propaganda icon who espoused values of selflessness and patriotism. Since his rise to power, Xi has further tightened the leash on historical discussions beyond the scholarly realm. Many online platforms have reportedly been investigated, fined, and ordered to shut down by the Internet Information Office for insulting heroes and martyrs. The Wall Street Journal reported that the Chinese government maintains a database of more than two million heroes and martyrs. It is doubtful whether the public knows who these two million heroes and martyrs are and therefore what kinds of criticisms might land them in legal trouble.

    In China, history is heavily censored – not only are criticisms of government and former leaders censored, but narratives are also heavily redacted to shield the party from public skepticism about its legitimacy. The cases explored in this article demonstrate how those who dig into the party’s history have faced arrest, detention, and lengthy prison sentences for a wide range of offenses.

    Most recently, two ethnic minority researchers have been taken into custody for writing histories of their own ethnic groups that are critical of the official narrative. Ethnic Mongolian historian Lhamjab A. Borigin faces prosecution for the crime of “separatism” and “sabotaging national unity” for his book written in Mongolian about the Cultural Revolution. Published in 2006 by an underground press and subsequently translated into Mandarin, the book discloses survivor testimonies and details torture techniques used during genocidal campaigns. Askar Yunus, an ethnic Kyrgyz historian, was incarcerated for an “undecided” offense due to his work that documented the history of Central Asia. Prior to his incarceration, Yunus published dozens of articles and books that examined the golden era of the history of the Kyrgyz people. An exiled Uyghur activist in the US claimed that Askar Yunus might have been accused of being “two-faced” – an accusation frequently used by authorities to allegedly place more than a million of China’s Muslim minorities in re-education camps.

    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.