Wednesday, September 11, 2019

“Two Restraints, One Leniency”: Part I, China’s Ethnic Minorities and Criminal Law

An image of an early propaganda poster (1964), that states, "Long live the great unity of all ethnicities across the country," from a discussion of "Two Restraints, One Leniency" reposted by Tibetan blogger Woeser in 2014. Image Credit: Woeser Blog

China’s criminal policy of “Two Restraints, One Leniency” (liangshao yikuan 两少一宽) was enacted during the administration of reformist leader Hu Yaobang (1982-1987). Derived from a Soviet-era policy that granted regional autonomy and preferential protection to ethnic minorities, the policy had the intended purpose of strengthening the political loyalty of ethnic minorities in the multi-national country. Hu believed that granting sufficient autonomy to members of ethnic minority groups was indispensable for safeguarding national unity. To this end, Hu improved ethnic representation in politics across autonomous regions. This progressive policy was reversed by Deng Xiaoping and Hu’s successors. In 1984, Hu pushed through the Central Committee Document Number Five, a new criminal policy which called on law enforcement to be lenient towards criminal offenders from ethnic minority groups by making fewer arrests and handing down fewer executions and lighter sentences to ethnic minority offenders.

The policy has been a source of contention since its promulgation. Supporters of the policy argue that it embodies the government’s deep respect towards China's diverse population and upholds the ideal of “ethnic unity.” Critics of the policy have become increasingly vocal following a spate of violent attacks involving Uyghurs on Han Chinese targets after 2009. They argue that the policy runs counter to the principle of equality before the law. Preferential treatment towards ethnic minorities stokes anger within a large segment of China’s Han population. Many Han Chinese claim to have experienced discrimination because of prejudicial law enforcement, or because ethnic minorities have been exempt from strict policies restricting family size and have easier access to tertiary education and lower business taxation rates – many of which are legacies from reformer Hu.

This article, the first of two on this topic, serves to provide an overview of public opinion from the two opposing camps in the liangshao yikuan controversy. Despite being a national criminal policy, liangshao yikuan has been enforced only to varying degrees across the country. In matters relating to state security, today the policy is largely disregarded. The instrumental use of the policy to further the interests of the state has left the treatment of ethnic minority offenders highly unpredictable, and dependent on the political climate of the day.

The Argument by Supporters

An article published in 1991 by the Journal of Qinghai University for Nationalities, entitled “We Must Enforce ‘Two Restraints and One Leniency’ for Criminals from Ethnic Minorities,” has been widely circulated by supporters of liangshao yikuan. The article claimed that ethnic minority communities were “culturally and economically behind” their Han counterparts, and called for more lenient policies towards them. In Qinghai, liangshao yikuan was said to be enforced in six major types of criminal cases: rape, hooliganism, bigamy, assault, murder, and crimes triggered by historical grievances or mass disputes. The authors stated that sex crimes inflicted a lesser degree of social harm on ethnic minorities than other crimes. Statutory rape, for instance, was generally not perceived as heinous in the ethnic regions. According to the article, liangshao yikuan protects ethnic minority women from social stigma, because many Tibetan, Mongolian, and Monguor women in the province faced mockery or discrimination as victims of sex abuses. The authors claimed that these women would suffer even more humiliation within their communities if offenders received severe punishments.

The authors also argued that liangshao yikuan was designed to protect ethnic minorities from China’s first Strike Hard (yanda 严打) campaign in the early 1980s, during which criminal offenders were given “swift and severe” punishments, with sentences up to immediate execution, not only for violence or trouble-making, but also for other non-violent acts seen as “immoral.” The offense of hooliganism could have landed tens of thousands of ethnic minorities in jail, since “immoral” behaviors such as premarital sex and promiscuity remained commonplace in minority communities, said the authors.

A major argument for liangshao yikuan is premised on the political need to maintain stability and interethnic harmony: a rigid application of the Criminal Law, irrespective of cultural differences, is bound to provoke ethnic resentment across the nation. Supporters of liangshao yikuan say that by giving flexibility to law enforcement, the policy pays respect to ethnic diversity. The 1991 article also stated that the Criminal Law was at odds with numerous ethnic minority traditions, particularly regarding marriage. Although concubinage, polygamy, and polyandry had shown signs of abating after 1949, some of these practices remained commonplace in the Islamic and Tibetan communities in Qinghai. Under the Criminal Law, many people in these regions would have been convicted of bigamy.

On a propaganda poster from the early years of the People’s Republic of China: “All ethnic groups in our country have united to become a great free and equal family of nationalities.”
Image credit: Woeser Blog
Legal awareness in China remained weak even after the Criminal Law was enacted in 1979. Ethnic minorities typically resorted to their own customs and traditions to resolve inter- and intra-ethnic disputes. In cases in many minority communities that involved violence, offenders offered compensation, either monetary or non-monetary, to the victim’s family in exchange for forgiveness; the 1991 article contrasts this with what it claimed was the Han Chinese deeply-rooted retributive belief in “a life for a life.” In handling members of ethnic minorities involved in incidents “involving mass weapons resulting from interethnic disputes,” the authors called on the government to give severe punishments selectively to ringleaders, masterminds, and those who caused serious injuries or deaths, while generally observing the policy of leniency for ordinary participants, in order to minimize inter-ethnic resentment

Ethnic minorities’ religions, customs, and traditions varied from region to region, and their psychology and concept of law differed greatly from those of the Han Chinese, according to the article: “Imposing a set of laws in the Han areas [that also apply to ethnic minorities] will inevitably lead to political chaos and intensify contradictions among ethnic groups, thus creating new political inequalities.”

The Abolitionist Argument

The arguments put forward by supporters in the 1991 article are now widely seen as anachronistic. Even if the arguments held true, many of them have lost validity because the problems liangshaoyikuan sought to address have largely ceased to exist. In the four decades of modernization following China’s reform and opening, many of the customary practices and marriage traditions that could have triggered confrontation between ethnic minorities and the criminal justice system have weakened or died out.

The policy has garnered fierce criticism among Han Chinese who believe that liangshao yikuan has turned into a privilege pertaining exclusively to ethnic minorities in their interaction with Han Chinese. For example, many Han feel that law enforcement is lax when it comes ethnic minorities’ practices, such as operating unlicensed businesses in street stalls or selling banned animal products. In recent years, the policy has been blamed for causing a surge of Uyghur thieves, pickpockets, and aggressive purveyors of street foods in urban areas, like the so-called “nut cake gangs,” Uyghur street vendors who coerce customers into paying exorbitant prices for large portions of traditional Uyghur confectionary. Because of a high level of negative media coverage, language barriers, and, more importantly, liangshao yikuan, many Han Chinese believe law enforcers typically let Uyghur offenders off lightly compared to Han Chinese, thus inciting them to commit more petty crimes and even violence.

Today, Uyghurs are universally blamed in state discourse when they are involved in incidents of ethnic unrest. In the aftermath of the 2009 Shaoguan Incident (a brawl between Uyghur and Han workers at a Guangdong toy factory that turned violent), the Urumqi Riots, also in 2009, and a series of terrorist attacks both inside and outside of Xinjiang, China’s Internet has been filled with expressions of anti-Uyghur sentiments. After the Kunming train station attack in 2014, state news media reports even ascribed cases of terrorism, splittism, and incitement to the liangshao yikuan policy. A policy originally designed to promote ethnic harmony has instead exacerbated the rift between Han and other ethnic groups. In view of its deleterious impact, many legal experts have advanced proposals to phase out the policy. From a legal point of view, liangshao yikuan serves only to provide guidance and is not criminal law per se. Using a government policy as a basis of conviction in place of law runs counter to the legal principle of no penalty outside the law.

In the absence of a unified nationwide standard, it was to be expected that judicial officials throughout the country would have different understandings of how liangshao yikuan should be implemented. For example, in 1992, legal scholar Ma Kechang proposed that the policy be indiscriminately applied to all ethnic minorities, regardless of the locations of their residences. Another school of thought, proposed in 1988 by legal scholar Zhou Mohen in China Legal Science, advocated for restricted application: only ethnic minorities with a low level of education residing in the autonomous regions should benefit from it (i.e., excluding minority migrants residing in urban areas). In recent years, some experts have argued that liangshao yikuan has fulfilled its mission to safeguard the lives of many ethnic minorities in the historical context of the Strike Hard campaign. They suggest adopting the policy of “combining leniency and severity” (kuanyanxiangji 宽严相济) in place of liangshao yikuan, because in 2010 the Supreme People’s Court issued a judicial interpretation to clarify the use of this new legal principle. The interpretation calls for the use of discretion in granting prisoners clemency and lenient punishment in cases considered “less heinous” by society, such as those involving juvenile or elderly prisoners. More importantly, the policy has the stated purpose of preventing and reducing crime without ethnic preference or bias.

Stay tuned for Part II next week.

Thursday, August 22, 2019

Fortifying the Great Firewall: The Criminalization of VPNs, Part II

In “Fortifying the Great Firewall: The Criminalization of VPNs, Part I," Dui Hua looked at the various cases where internet users were criminally punished for using unauthorized VPNs. In Part II, Dui Hua examines the crackdown on providers of VPNs.

An individual surnamed Zhang (张) is given a two-day administration detention by cybersecurity police in 2018 for selling software that speeds up connections to overseas websites. His profits were also confiscated.
Image Credit: Jiangsu Cybersecurity Police

In 2017, a series of criminal cases against VPN providers and users began to surface after the Ministry of Industry and Information instituted VPN restrictions earlier that year by issuing the Notice on Cleaning Up and Regulating the Internet Access Service Market. In these cases, authorities invoked the offense of “illegally providing a tool for intruding into a computer information system.” In a legal opinion column published in October 2018, China University of Political Science and Law Professor Luo Xiang likened the offense to the now-abolished crime of “hooliganism” (liumangzui 流氓罪), calling it “cyber hooliganism” (jisuanjiliumangzui 计算机流氓罪), because it is increasingly being misused by law enforcement, as hooliganism once was, and is raising what Luo sees as “similar challenges.” Prior to its abolition in the 1997 Criminal Law, “hooliganism” was used as a catch-all offense based on weak legal logic that gave authorities discretion to punish a broad range of vaguely defined crimes. Luo uses the term cyber hooliganism as an analogy to imply that the offense of illegally providing a tool to intrude into computers has become a new “pocket crime” (kou daizui 口袋罪). Such ill-defined offenses can all too easily be used, especially by police, to criminalize cyber activities, even those which “no explicit stipulations of law deems (sic) a crime,” and for which, according to Article 3 of the Criminal Law, they should not “be convicted or given punishment.”

An additional reason for concern is that the offence of using VPNs, which is now incorporated as Article 285 of the Criminal Law, is applicable in a broad range of circumstances, when an offender violates a decision or law formulated by the National People’s Congress (NPC) and its Standing Committee (SC), or even an administrative regulation, measure, or order issued by the State Council. In addition, the offense has been widely used even when an individual does not engage in any of the aforementioned cybercrimes: VPN providers are prosecuted simply for violating the 2017 VPN ban, an administrative notice by the Ministry of Industry and Information. As the VPN ban was not formulated by the State Council, however, violating this administrative measure should not incur criminal liability under Article 96 of the Criminal Law.

Hooliganism in the Cyber Age: What counts as a serious crime?

Available information shows that most offenders of cyber hooliganism were born in the 1980s to 1990s. Deng Jiewei (邓杰威) is one of the young VPN sellers known to have been convicted and sentenced to nine months’ imprisonment in Dongguan, Guangdong, in March 2017. The judgment stated that in October 2015 Deng began selling software on his website that allowed users to “visit foreign websites that could not be accessed by a mainland IP address” and “made an illegal profit of RMB 13,957.57.” Although Deng turned himself in and pleaded guilty during the trial, the court refused to mete out a lenient sentence on the grounds that Deng had been “committing the crime for a long time” and his actions “caused relatively great social harm.” Professor Luo disputed Deng’s conviction and sentencing in his column, because violating an administrative notice issued by the Ministry of Industry and Information should not have constituted a criminal offense.

In a separate case, news media sources widely reported that an individual surnamed Dai was sentenced to three years (with a three-year suspension), in Baoshan District, Shanghai, in September 2018. Dui Hua’s research revealed that his full name is Dai Guimao (戴贵茂). Dai, a software developer for a securities management company, was accused of renting multiple servers from overseas internet service providers and providing VPN services for hundreds of mainland users from April 2016 to October 2017. The transaction records of Dai’s Wechat and Alipay accounts were cited as criminal evidence against him. Dai was also given a fine of RMB 10,000, equivalent to all the revenue he made from selling VPNs.

Dui Hua also unearthed five other cases, in which a total of 17 individuals were sentenced for selling VPNs from 2017 to 2019 for crimes stemming from the concept of cyber hooliganism. Article 285 of the Criminal Law subjects offenders to no more than three years’ imprisonment in cases where the circumstances are "serious," and three to seven years’ imprisonment if the circumstances are “especially serious.” In 2011, the Supreme People’s Court issued an interpretation defining both serious and especially serious circumstances. A case is considered serious if an offender provides a special program or tool that can be used for intruding into or illegally controlling a computer information system that reaches more than 20 people, or makes an illegal income of RMB 5,000. Once either the number of users or the amount reaches five times this standard, the circumstances become especially serious.

Although the court judgments stated that all five cases were “especially serious,” their sentences varied from suspended sentences to 39 months’ imprisonment. Lu Bo (卢勃), who received the longest sentence among the 11 offenders in Henan, was accused of setting up a company that provided VPN services to 2,499 internet users and making an income of RMB 375,332 between April 1, 2015 and September 23, 2017. Lu and six other company employees, who were sentenced to 14-15 months’ imprisonment, lodged an appeal, but the Sanxiamen Intermediate People’s Court upheld the judgment on December 17, 2018.

In a separate case, also in Henan, Liu Bingyang (刘冰洋 ) was only given a three-year sentence with a five-year suspension, even though he had earned roughly the same amount as Lu by providing VPN services to over 4,000 internet users. Another two people, surnamed Sang (桑), were also given two to three years’ imprisonment (with suspensions of two to three years) in Kunming, Yunnan, for amassing a profit of RMB 300,000. They claimed to have served 20,000 users. In another case concluded on January 29, 2019, in Hubei, Liu Xiaokang (刘小康) was also given a three-year sentence (with a suspension of four years) for making an illegal profit of RMB 2,662,280, seven times more than Lu and all his employees had made. The prosecutors found that 486,830 online users had registered for Liu’s VPNs. Of these, 37,077 were paying users. In the most recent case, concluded on April 22, 2019, six defendants who had made a profit totalling RMB 263,669 were given three-year suspended sentences. The judgment did not state how many users had purchased their VPN services.

Evidence also suggests that promoting the use of VPNs even without an intent to profit can result in prosecution. On March 25, 2019, Sun Dongyang (孙东洋) was indicted for “illegally providing a tool for intruding into a computer information system.” Sun founded, a website that provides free-of-charge instructions for online users, not only about VPNs but also about other circumvention software, such as Telegram and Shadowsocks. At the time of writing, Sun remains incarcerated in Henan’s Xinmi City Detention Center.

Illegal Business

Internet users who sell VPNs unapproved by the state are can also fall victim to the “illegal business activity” charge. The most severe sentence known to have been given involved Wu Xiangyang (吴向洋), a network engineer who was sentenced to five years and six months’ imprisonment in Guangxi in December 2017. Since 2013, Wu had operated an online store on his own website, popular e-shopping site Taobao, and social networking sites, where he made an “illegal profit” totalling RMB 500,000 from leasing or selling VPN software and hardware devices without applying for a business permit. Wu’s VPN service, which aimed to provide better access to overseas audio and video programs, claimed to have served 8,000 foreign clients and 5,000 businesses. Wu is expected to complete his sentence in December 2022. Dui Hua’s research recently revealed that the Guigang Intermediate People’s Court ordered the Pingnan County People’s Court to retry the case due to insufficient evidence on September 25, 2018. The outcome of the retried case remains unknown at the time of writing.

Dui Hua’s research also discovered four similar cases involving eight defendants who were also sentenced in 2018. Their sentences ranged from suspension to nine months’ imprisonment. In one of these cases, a defendant surnamed Liao (廖) was given a prison sentence in Anhui for allegedly making revenue of about RMB 1.2 million in the 16 months from May 2016 to September 2017 from selling VPNs and EVO boosters, a software application that speeds up connections to overseas game servers, without a business license.

The amount of proceeds made from selling VPNs and other software applications, again, does not appear to be an important factor in determining sentencing. For instance, both Wu and Liao, who received prison sentences, made substantially lower revenues, while three other people whose revenues were much higher were only given suspended sentences. The three, surnamed Chen (陈), Cao (曹) and Zeng (曾), sold VPNs for around RMB 8.8 million and made profits of RMB 250,000 each. Despite the scale of their businesses across China, the court in Hunan gave them suspended sentences, because the judgment stated that they each had surrendered RMB 500,000 before they were indicted.

Dui Hua has previously reported that the offense of illegal business activity is also commonly used against Christian book sellers. The offense, which contains a vague clause of “other activities” in Article 225(3) of the 1997 Criminal Law, has allowed the Supreme People’s Court to issue judicial interpretations that extend the scope of criminal liabilities to violators of administrative regulations under the guise of “disrupting market order.” In the cases discussed above, VPN sellers were likewise found guilty of disrupting the market order governed by the Ministry of Industry and Information.

The Costs of China’s Criminalization of VPNs

China pays a high price for enforcing high-stakes and arbitrary control over the internet. Externally, it is an important irritant in U.S.-China relations. In 2016, the U.S. for the first time began calling China’s online censorship a trade barrier. According to the American Chamber of Commerce in China's 2016 American Business in China White Paper, among the severe challenges faced by its members was the fact that “China is extending this restrictive regulatory framework beyond traditional telecommunications services into any IT sector that utilizes Internet connectivity, including…. technical standards that often diverge from global standards, Internet content restrictions, and privacy and cross-border data flow restrictions.”

Domestically, internet users forced to spend money on VPNs to access overseas information are additionally often subjected to slow and low-capacity internet connections. The Great Firewall is detrimental to creativity and innovation, because mechanisms that block access to the web leave entrepreneurs, artists, scientists, and inventors unfamiliar with global trends and practices, and unable to communicate with peers abroad. In 2017, The Guardian, which appears intermittently on the list of blocked foreign websites, wrote that the ban on VPNs also harms academics, software developers, and foreign businesses: “For years Chinese researchers have complained they lack adequate access to overseas journals and methods to communicate with universities around the world, while developers rely on code hosted on websites based outside China.”

While online information is not necessarily easy to access even in democratic societies, netizens there face no legal risk for using or selling VPNs. China under Xi has made the pursuit of internet freedom even more costly than under his predecessors. Since 2017, providers and users of VPNs have faced criminalization as part of Xi's bid to fortify the Great Firewall against any ideas or information that Xi deems threatening. VPN providers can easily fall prey to charges of “illegally providing a tool for intruding into a computer information system” or illegal business activity, since, as we have seen, both “pocket crimes” effectively extend criminal liabilities to violators of administrative regulations. More research is needed to understand the rationale behind sentencing. Despite an announcement by the Beijing city government on August 15 of a three-year plan to expand openness in some areas in internet content service, it is doubtful that the trend towards increasingly strict government control over the distribution and sharing of content in cyber space that could be interpreted as political will see meaningful change. What is crystal-clear, however, is that Xi has magnified his internet control by punishing online users who access or post information that is deemed sensitive or subversive by the state, or enable others to do so, outside of China’s government-approved domestic networks.

Wednesday, August 14, 2019

Fortifying the Great Firewall: The Criminalization of VPNs, Part I

China’s Great Firewall keeps people inside the country from accessing thousands of overseas websites, 
including Twitter, YouTube, and Facebook. Image credit: Megan Pendergrass

With a netizen population of 829 million at the end of 2018, China is arguably the world’s most sophisticated surveillance state: with increasing effectiveness, China blocks information deemed sensitive or harmful by the party from entering its domestic network. Its notorious censorship scheme, widely known as the “Great Firewall,” came into operation not long after the internet arrived in China in 1994. The Chinese government realized the need to protect the regime from “flies” once “the window is open for fresh air,” a famous quote from Deng Xiaoping, who sought to keep the nation away from western influence, despite a commitment to economic reform.

The Great Firewall has blocked around 10,000 domain names, including Dui Hua's, according to, a non-profit group that monitors the status of online censorship in China. Almost all popular social media websites and mobile apps are censored, including Google, Facebook, YouTube, Instagram, and Twitter. The New York Times, The Wall Street Journal, Reuters, Bloomberg, and the BBC are among the best-known foreign media outlets blocked by China’s domestic network. Just ahead of the 30th anniversary of the events of June Fourth, 1989, all versions of Wikipedia, in all languages, joined the long list of foreign websites blocked by the Chinese government. Even academic, cultural, and scientific sites can be blocked: current examples include Google Scholar, The China Quarterly, Northwestern University Medical School, and Shutterstock.

Driven by their desire for information filtered out by the domestic network, an estimated 20-30 million internet users rely on virtual private networks (VPNs) to get unfettered access to overseas websites (commonly referred to as “scaling the wall”). They typically do so by paying a small subscription fee. The academic sector relies on VPNs for research data and to connect to libraries worldwide. VPNs are also a necessity for both Chinese companies that conduct business overseas and foreign companies that conduct business in China.

Xi Jinping expresses his views on cybersecurity: “There is no national security without cyber security.” Image credit: Xinhuanet

In view of the growing number of internet users accessing overseas information, Beijing has not hesitated to target VPN providers and cripple their services. VPN service providers describe the battle against online censorship as a game of cat-and-mouse, in which they play mice trying to evade a giant cat—the Chinese government—by continuing to modify or develop new tools to skirt the increasingly fortified Firewall. The mice, however, have been playing a tougher game ever since Xi, in early 2017, called on other countries to respect different models of regulating the web space and extolled his concept of “cyber sovereignty.” A hallmark of how Xi exercises his cyber sovereignty is the launching of clean-up campaigns that periodically shut down websites and online accounts containing or propagating “harmful” online information. China’s state-owned internet service providers China Mobile, China Unicom, and China Telecom were ordered to completely block VPNs by February 2018. Green VPN, one of the most reputable China-based VPN companies, ceased service on July 1, 2017. In the same year, Apple defended its decision to remove 674 VPN apps from its China app store because they violated Chinese laws. All companies and individuals must seek government approval to use and install VPNs, effective March 31, 2018.

In addition to expanding the list of blocked foreign IP addresses and shutting down unofficial VPN services, Xi has recently shifted to targeting individual users and providers of VPNs. Those who attempt to escape the tight leash on internet control, or those who enable others to do so, not only face fines, but also criminal detention and imprisonment for varying offenses.

Before & Now

China started regulating the use of VPNs with the enactment of the Regulations of the Administration of International Networking of Computer Information in 1996. Article 6 of the regulation states that “[c]omputer information networks within the territory of China, when connected with international networks, must use international inward and outward channels (guojichurukouxindao 国际出入口信道) provided by the national public telecommunication network of the Ministry of Posts and Telecommunications.” Violators shall be ordered to terminate their networking activities and are subject to a maximum fine of RMB 15,000. But in over two decades of existence, the regulation was not enforced until 2017, when Xi began tightening control over the VPN market, according to Lee Jyh-An, at the Chinese University of Hong Kong, who publishes extensively on Chinese internet law.

An early case concerning the criminalization of internet users who bypass the Great Firewall, however, predated the VPN ban in 2017. In May 2015, Chen Lefu (陈乐福) was detained for 28 days in Shanghai on suspicion of sabotaging a computer information system. Chen promoted the use of Twister, an open source peer-to-peer (P2P) microblogging network whose decentralized platform prevents sent messages from being blocked or deleted after they are published. The tool also protects publishers’ identities from being tracked, since the posts’ IP addresses are not recorded. Exiled activist Wen Yunchao speculated that another reason for detention was that Chen helped other dissidents to circumvent the Great Firewall. Chen also published a list of Shanghai and Chongqing netizens he suspected of being the 50 Cent Army, a colloquial term referring to state-backed online commentators. Human rights lawyer Liu Xiaoyuan said that several other individuals were detained alongside Chen, but their identities are not known.

In December 2018, news media sources began reporting more cases concerning VPN users. Zhu Yunfeng (朱云枫) was given a warning and a fine of RMB 1,000 by public security in Shaoguan, Guangdong, for “establishing or using an unauthorized channel to access the international internet” via Lantern, a globally recognized circumvention tool. The administrative punishment decision stated that Zhu had logged into the VPN 487 times in one week prior to the warning. A similar case occurred in Chongqing on January 4, 2019. Police summoned Huang Chengcheng (黄成成), on suspicion of the same offense. Huang was previously sentenced to two years’ re-education through labor in March 2011, after circulating online messages calling on netizens to “go for a stroll” to support China’s pro-democracy protests that year, known as the Chinese “Jasmine Revolution” and inspired by the Arab Spring in Tunisia.

In addition to individual VPN users, police have also targeted unauthorized use by trading corporations. In June 2019, a news media source reported that an overseas trading company in Haining City, Zhejiang, received an administrative punishment for installing an unauthorized circumvention application. Police alleged that the use of such applications from an unidentified developer exposed the risk of privacy leakage. Nothing else is known about the administrative punishment.

It must be noted, however, that using VPNs does not necessarily incur a penalty, nor is it necessarily criminal. Global Times editor-in-chief Hu Xijin, an active user of Twitter, is known to use a mobile circumvention tool frequently to tweet while defending China against international criticism, including over Xinjiang’s political re-education camps, which hold or have held over one million Muslims. China’s state media outlets China Daily and Xinhua, as well as Chinese telecommunications companies, rely on foreign social networking sites that are blocked in China to launch soft-power, marketing, and advertising campaigns. For example, Xinhua has accounts on both Facebook and Twitter, although these sites are blocked for most Chinese users. Similarly, despite being widely mocked online for tweeting “Happy #2019” on New Year’s Day with a “Twitter for iPhone” stamp clearly visible due to a VPN issue, Huawei continues to actively use Twitter and Facebook to rebut accusations that the telecom giant poses a threat to U.S. national security.

"Politically harmful content": The categories of offenses

While the Chinese government justified its internet clean-up campaigns to combat economic crimes, online gambling, and pornography, the crackdown is also conspicuously aimed at eradicating “politically harmful content.” Within one month after the Cyberspace Administration of China launched a campaign on October 20, 2018, about 9,800 social media accounts had been scrubbed for posting sensational or vulgar content, or “spreading politically harmful information, maliciously falsifying the party history, slandering heroes and defaming the nation’s image.” As part of the internet clean-up, the crackdown has extended its reach to online users who post or circulate online messages unwanted by the party, or sometimes even local officials, beyond the Great Firewall.

"Picking quarrels and provoking troubles"

The offense of picking quarrels and provoking troubles is typically invoked to punish such VPN users. In November 2018, Radio Free Asia (RFA) reported that Liu Jichun (刘继春) was formally arrested in Chongqing because he refused to delete a large number of his tweets attacking social ills. Available sources, however, have not revealed the exact content of his tweets. Another case, also reported by RFA, sheds light on the political nature of offenses that resulted in imprisonment: in December 2018, Jiangsu netizen Liu Hongbo (刘红波) received a six-month sentence for picking quarrels and provoking troubles. The judgment stated that Liu Hongbo posted 72 tweets between August 2017 and August 2018 that “defamed the party and national leaders” and 329 tweets that harmed the image of the party and government. Liu Hongbo stated in his defence that the tweets were not composed by himself; he only liked and retweeted Guo Wengui's tweets. Guo is an exiled billionaire tycoon wanted by China for a variety of crimes. He is currently seeking asylum in the U.S.

An indictment statement recently circulated online stated that Shi Genyuan (施根源) was indicted for the same offense as Liu Hongbo in March 2019, because he used Twitter and Facebook to post 383 messages that “attacked the party and Chinese leaders, and exaggerated and distorted certain sensitive cases and incidents.” His messages, which have been discussed, forwarded, and liked 2,316 times, were said to have “caused a serious disturbance in a public place.” Since the Supreme People’s Court issued a judicial interpretation in 2015, the crime of picking quarrels and provoking troubles has extended its reach into virtual space, even though, ironically, most citizens do not have access to much of the space without VPNs.

Dui Hua’s research into online judgments uncovered several cases that have not been reported by news media sources. A day prior to detention on October 7, 2018, Xu Nailai (许乃来) staged a solo protest on Beijing’s Wangfujing Street with a banner that read, “End the Chinese communist dictatorship; no more sexual assaults and faulty vaccines; taxpayers are in dire straits.” On March 25, 2019, Xu was sentenced to three years and six months’ imprisonment in Tianjin for picking quarrels and provoking troubles. The allegations against him also included posting a large number of tweets that “vilified the Communist Party and political system, slandered Chinese leaders, and hurled insults at public security.”

The criminalization of VPN users also extends to critics of local officials. In a separate case also concluded in Tianjin in September 2018, Mu Zhixiang (穆志祥) was sentenced to 22 months’ imprisonment and convicted of the same offense as Xu Nailai, in addition to illegal business activity. Apart from using his personal blog and domestic online forums that required no circumvention, Mu was accused of posting multiple messages on Facebook and Twitter that allegedly attacked Tianjin public security officials and smeared the government.

"Offenses related to defamation"

VPN users can also stand accused of defamation. Initially detained and arrested for picking quarrels and provoking troubles in the second half of 2017, Yin Zhenglin (殷正林) was sentenced to 11 months’ imprisonment for defamation in Chongqing in July 2018. The prosecution accused Yin of obtaining a large amount of information that defamed the party and Chinese leaders concerning four issues: the Malaysian aircraft MH370 that went missing on March 8, 2014, with 153 Chinese nationals on board; the wrongful conviction and execution of Nie Shubin; the abnormal death of Lei Yang in police custody; and Guo Wengui, the tycoon mentioned above, now living in the U.S. Yin was said to have spread this negative information using three different Twitter accounts, “seriously harming the image of the party and nation, endangering state security, and disrupting social and public order.”

Also convicted of defamation, Wang Zhiqiang (汪志强) was sentenced to one and a half years’ imprisonment in Benxi, Liaoning. Wang was found guilty of composing 412 tweets that defamed the Chinese leaders, with 637,610 views between June 2016 and September 2018. The judgment stated that his tweets “harmed the nation’s image and seriously endangered state interests.”

Disseminating terrorist, subversive, divisive, and reactionary information

VPN users who share dissenting versions of narratives about Xinjiang could be charged with a different set of offenses. For instance, Shandong netizen Wang Mingde (王明德) was sentenced in 2018 to 15 months’ imprisonment for “fabricating or intentionally disseminating false terrorist information,” a charge stemming from, among other things, his posting messages on Twitter and Facebook about “East Turkestan.” The Chinese government calls “East Turkestan” a terrorist group advocating both violence and Uyghur independence. In another case, Xinjiang resident Tian Weiguo (田卫国) was accused of tweeting two “fake” messages from his account, which has 98 followers. One of his tweets concerned the deadly incident in Shache, Xinjiang, that left 96 dead (including 59 terrorists) on July 28, 2014, according to official accounts. Tian called the incident the “Shache Massacre,” and claimed thousands of people were killed, many of whom were Uyghur women. Tian also called on the UN to look into the incident. In March 2016, Tian was sentenced to three years’ imprisonment for “inciting racial hatred” in Xinjiang’s Ili Autonomous Prefecture.

More recently, Zhou Yongjun (周勇军) has been charged in Dongxing City, Guangxi, with picking quarrels and provoking troubles on the grounds of using overseas social networking media, presumably with the help of a VPN, to disseminate “reactionary information.” This is the fourth time Zhou has been taken into custody since he took part in the Tiananmen Square protests of 1989. Before he was charged with picking quarrels and provoking troubles, Zhou was initially detained for “using a cult to undermine implementation of the law” and then indicted for inciting subversion. Both charges stemmed from his alleged possession of Falun Gong materials, and his critical tweets about the Communist Party.

Stay tuned for Part II next week.

Wednesday, July 24, 2019

From Hu to Xi: China’s Grip on Environmental Activism: PART II: Environmental Activism from Above and Below

Environmental Activism from Above and Below

In Part 1 of this series,  Dui Hua analyzed a decade of environmental activism, both mass protests and individual actions, and the price paid by those trying to protect the environment. In Part 2, Dui Hua looks at civil society engagement in activism to protect the environment, and China’s shrinking space for the work of environmental NGOs.

Civil Society

The concept of environmental non-governmental organizations (ENGOs) was entirely foreign to China until, in the nation’s first bid for the Olympic Games in 1993, its delegation was asked by the International Olympic Committee whether China had ENGOs. A year later, China’s first ENGO, Friends of Nature, formerly known as The Academy for Green Culture, was formally incorporated. Both grassroots and foreign-funded ENGOs thereafter emerged, and provided help for victims stricken by environmental disasters.The most famous of these were the deadly floods along the Yangtze River in 1998, caused by deforestation, and the Nu River hydropower project, which would have flooded a natural UNESCO site on the lower reaches of the river in Yunnan, had then-prime minister Wen Jiabo not put a dam-building moratorium on the river due to ecological concerns.

An early criminal case involving six villagers, all surnamed Ye, who joined an environmental non-profit organization did not garner the attention it deserves. The leading members were sentenced in 2010 to 6-18 years’ imprisonment for multiple violent offenses, including organizing/leading an organization of a gangland nature. The case took place in Guangdong’s Huangshawei Township, not far from another township well-known for ceramics, where a clay quarry began operation in 2008. Southern Farmer’s Daily reported that half of the quarry sites were illegal and over 300 haul trucks without mechanical covers passed through Huangshawei Township every day, causing both safety hazards and considerable dust pollution. As government officials refused to take measures to protect the villagers, the villagers set up The Huangshawei Education Foundation in July 2009 to defend their environmental rights. The foundation used its funds to provide subsidies to affected villagers and hired armed road guards to intercept haul trucks. Within two months of its founding, the foundation successfully pressed the local government and quarry operation for compensation over pollution. In October 2009, a verbal argument turned into a group brawl after the foundation members intercepted a haul trucker who refused to use a mechanical cover. The foundation was then labelled a “gangland” organization and the compensation it had received from the government was cited as evidence of extortion. In 2017, a Chinese government response provided to Dui Hua confirmed that one of the foundation members, Ye Bailian (叶百练), received three sentence reductions, 32 months in total between 2013 and 2017. Ye is now scheduled for release on May 6, 2025.

According to Southern Farmer’s Daily, similar environmental rights groups emerged in four nearby villages after The Huangshawei Foundation was founded in 2009. While it is unclear whether they all suffered the same fate, the fact that all of them targeted the same clay mining operations reflected a growing trend in grassroots environmental consciousness. Over the two decades since 1994, there was an exponential growth in ENGOs nationwide. The number had grown from just nine in 1994 to 8,000 in 2017, according to Gulf News, citing the French Embassy in Beijing. ENGOs were said to have enjoyed an unusual degree of freedom – many, in fact, were co-funded by local governments to evaluate the environmental impact of factories and even to critique public policy.

Nonetheless, Xi Jinping has tightened his grip on environmental activism, particularly since the Foreign NGO Law came into effect in 2017. The law requires all foreign NGOs to abide by strict requirements related to funding sources and registration procedures, which has sharply limited their ability to support or collaborate with Chinese NGOs, including ENGOs. Police can also question foreign NGO employees and seal off their assets and offices. While in 2016 there had been about 7,000 foreign NGOs active in China, according to former vice foreign minister Fu Ying, in January 2019 ChinaFile reported that the number of new foreign NGOs registering to work in China dropped from 303 in 2017 to only 133 in 2018. Of these, the number of ENGOs dropped from 36 to 13 (although the number of ENGOs applying for temporary registration increased from 39 to 71, very likely indicating efforts to work around the difficulties of registering to operate permanently in China.) While exact numbers vary according to different reports, the drop in registration from the beginning of 2017, when the law went into effect, is consistent across sources. An ENGO from the U.S. said of its work in China that “[w]e chose to stop all activities to avoid putting ourselves and partners at risk… it’s not like the law allows any wriggle room.”
A poster of Green Leaf Action, an
environmental group founded by Xue Renyi,
calls on the Chinese government to improve
food safety and air and water quality.
Image Credit: Boxun

Members of Green Leaf Action, a Chongqing-based environmental group that promoted food safety, clean air, and clean water, were among the first to face suppression for having “foreign connections.” In December 2016, founder Xue Renyi (薛仁义) was warned by police that his group was “controlled” and “manipulated” by overseas forces. Xue was later detained for picking quarrels and provoking troubles in May 2018, and in January 2019, Xue’s fiancée claimed that she had not been allowed to visit him in custody. Another active member of Green Leaf Action, Pan Bin (潘斌), was sentenced in December 2018 to four years’ imprisonment for the same offense.

The case of Liu Shu (刘曙) indicates that environmental surveying can also be considered a state secret. In 2013, the Ministry of Environmental Protection called soil pollution information a state secret in a reply to a Beijing lawyer’s request to make the information public. Liu, founder of ENGO Shuguang Green, was accused of revealing China’s state secrets related to counterespionage work in October 2016. Liu collected soil and paddy samples to examine the level of heavy metal pollution in the waters of Lake Dongting, a shallow lake in northeast Hunan. One of her samples indicated that heavy metal pollution exceeded the national limits by 715 times. In January 2016, Liu wrote that the degree of freedom in the realm of environmental protection had significantly declined because she had faced repeated harassment in the three years since her ENGO came into operation in 2013. Liu was given a ten-day administrative detention by the Changsha state security bureau.


China appears to have encouraged the public to monitor environmental affairs in the “war on pollution” that began in early 2013. The initiative has the intended goal to hold local governments accountable by encouraging informers to report environmental violations. In 2015, substantive amendments were made to the Environmental Protection Law, which imposes harsher penalties against polluters and requires that enterprises disclose information about discharged pollutants and that authorities keep reports filed by whistleblowers confidential.

But disclosing information concerning an imminent danger to public health, safety, or the natural environment remains a highly risky proposition. In March 2018, Lei Ping (雷萍) was accused of rumor mongering after she made complaints online about illegal quarrying and disposal facilities near a national-level conservation area in her hometown of Xinyi City, Guangdong. Lei volunteered for the government-funded non-profit China Biodiversity Conservation and Green Development Foundation. Lei Ping spent ten days in detention and she was released in part due to public outcry; the foundation had issued a public letter to police calling for her release. Sixth Tone, a sister publication of The Paper (澎湃), cited a Beijing-based lawyer specializing in environmental cases as saying that the handling of Lei’s case by police gave a bad impression to the public that informers were being punished to cover up private business violations.

A group of protesters from Funing, Jiangsu, assemble in support of environmental whistleblower Ji Shulong. The banner says: “Xi Jinping, release environmental rights defender Ji Shulong. We want blue mountains and green waters, not mountains of gold and silver. Ji Shulong is innocent.”
Image credit: RFA

Independent whistleblowers without support from government-funded environmental groups are not as fortunate. Ji Shulong (嵇书龙) tipped off the environmental authorities in Beijing that a local government in Yangcheng, Jiangsu, planned to reintroduce Aoyang Industrial Park (Yancheng is the same prefecture-level city where the plant explosion mentioned in Part I occurred in March 2019). Aoyang is a chemical enterprise widely discredited even by domestic news media for causing severe pollution, and has previously been ordered to suspend production for environmental violations. Ji led a group of villagers to petition Beijing to request intervention from the central government after Aoyang seized and converted approximately 130,000 square meters (32 acres) of farmland into a landfill. Ji continued her efforts to expose Aoyang’s environmental violations after completing her two-year sentence for picking quarrels in 2014. In October 2017, Ji was re-detained for the same offense, and remains incarcerated after spending 21 months in custody at the time of writing.

Zhang Wenqi (张文奇) is yet another case highlighting how people who expose wrongdoing on environmental issues are given insufficient protection and subjected to retaliation . In July 2018, Zhang was sentenced to 17 months’ imprisonment for damaging business reputations and causing financial losses to three companies in his home province of Henan, even though the environmental authorities had verified Zhang’s complaints. Having worked for a Shanghai-based biochemical technology company, Zhang is well-informed about the environmental impact caused by crystal violet lactone (CVL), a dye used in carbonless copying paper. In 2014, Zhang found pollutants such as ammonia and heavy metals in the gases and solid waste discharged by the two manufacturers of CVL in Henan, and witnessed the companies illegally dumping waste near the industrial zone. Both manufacturers were connected to the same parent paper company, a major taxpayer in Wuzhi County. Unconvinced by the Ministry of Environmental Protection’s 2015 investigation that rebutted Zhang’s complaints that the companies were manufacturing CVL, Zhang continued to file anonymous reports against environmental violations. A year later, the Henan provincial environmental bureau confirmed Zhang’s allegations and ordered the companies to terminate CVL production. In March 2017, however, Zhang was detained for using a fake identity to fabricate the accusations against the companies over the past three years for personal gain. In a document submitted to the court, the parent company claimed that Zhang’s allegations had cost them a financial loss of 800,000 yuan, even though the defence lawyer claimed that the amount had not been independently verified by auditors.

Despite the positive publicity Xi has received for his stated commitment to “ecological civilization,” the term is in fact not Xi’s own creation. It was first coined by Hu Jintao in 2007 as a guiding principle to cure environmental woes associated with China’s biggest and fastest industrial revolution in the world. From Hu to Xi, both regimes have made commitments to climate change targets and rolled out a number of corresponding measures to curb pollution. However, an article from The National Bureau of Asian Research (NBR) in 2014 argued that there was an apparent gap between rhetoric and reality in China’s air pollution control, due to an absence of a robust legal system, a free press, and an active civil society.

After years of government-driven environmental efforts, China remains the world’s biggest polluter. It emits more carbon dioxide than the U.S. and EU combined. NBR explained that historical precedents have demonstrated that people who bore the direct consequences of pollution provided the driving forces of environmental reform. A top-down approach to environmental governance could not succeed in bringing about substantive changes without active assistance from below.

Factors impeding the progress of grassroots environmental protection persist, or have even increased, in Xi’s “new era.” Xi shows few signs of tolerating individual rights to protest about environmental problems. His state security and NGO legislation have created an unfavourable atmosphere for environmental civil society, making activists who join independent groups more likely than ever to fall victim to state security charges. The cases discussed in this article also indicate that mechanisms intended to guarantee the safety of environmental whistleblowers are insufficient. To make meaningful progress in environmental protection both domestically and internationally, the Chinese government must reconsider its approach to environmental governance. It must respect human rights, because freedom of expression, assembly, and association are indispensable to the protection of public health and the environment.

Wednesday, July 17, 2019

From Hu to Xi: China’s Grip on Environmental Activism PART I: Mass Protests and the Threat to Activists

Threats to China’s natural environment, and the resulting negative impact on public health and well-being, have galvanized an impressive range of individuals and groups across Chinese society. Whatever the diversity of the groups, they all face risks of official harassment, including detention and prison sentences. For example, in November 2018, a group of Buddhist monks from Sansheng Temple in Changzhou, Jiangsu, attempted to stop the construction of an underground rainwater pipe in front of a chemical plant across from the temple. While authorities claimed that the construction was intended to repair a road and improve traffic for local residents, the monks believed that the pipes would be used to dump industrial waste from the plant. This striking case of religious involvement in environmental activism did not surface until Chinese news media sources reported in July 2019 that three monks had been indicted for “disrupting public services.” This case not only demonstrates the range of Chinese groups involved in environmental protection, but also the growing mistrust of official narratives concerning environmental matters, and the risk of action against infrastructure projects that threaten to damage the environment.

Having catapulted through the ranks of developing countries during the four decades of economic reform, China is now the world’s second largest economy. Its breakneck GDP growth, however, comes at the cost of egregious environmental degradation. Smog continues to blanket major cities surrounding heavy-industry hubs, while riverfront, lakeside, and coastal localities are hit hard by water contamination. Over the years, China has vowed to combat pollution and take a global lead in fighting climate change. In November 2016, Xi Jinping spoke to President Donald Trump about China’s commitment to combat climate change “whatever the circumstances,” in stark contrast to Trump’s climate change scepticism and subsequent withdrawal from the Paris climate accord.

Domestically, China is making efforts to keep its environmental promises, although its carbon inventory for 2014, submitted to the UN in June 2019, revealed a surge of 53.5% over the 10-year period from 2004-2014. During the “Two Sessions” meetings in 2017, Li Keqiang pledged to make the nation’s smoggy skies “blue again” and curb pollution caused by burning coal for heat and electricity. Xi echoed the same sentiment by calling for constructing a system of an “ecological civilization” (shengtai wenming 生态文明) to bring back “clear waters and green mountains” for his “New Era of Socialism with Chinese Characteristics.” To redress the damages done to skies, water, and soil, authorities prosecuted 42,195 individuals nationwide for environmental offenses in 2018, including deforestation and illegal mining and fishing activities, a one-fifth increase in prosecutions compared to 2017.

Algae Bloom on Lake Tai Image Credit Global
Despite sharing the same green agenda with the central leadership, local governments have not steered away from their pursuit of GDP growth. They continue to cooperate with police, prosecutors, and judges to maintain social order. Two significant cases during the Hu Jintao administration indicated that environmental activists face reprisals from officials or businesses. The first case involved Wu Lihong (吴立红), who was sentenced in 2007 to three years’ imprisonment for extortion for bringing attention to the environmental plight of Lake Tai, China’s third largest freshwater body in the coastal province of Jiangsu. Once an agricultural heartland, the surrounding region of the lake is now home to thousands of chemical plants that are continuing to dump effluent straight into the lake. Liu Futang (刘福堂), another activist who, like Wu Lihong, had earned the nickname "Eco-Warrior”(huanbaoweishi 环保卫士), was named the Person of the Year 2007 for his environmental work by South Reviews, a subsidiary of Guangzhou Daily News Group, and named the Person of the Year 2011 by the Hainan Channel of Despite his fame, Liu was given a three-year suspended sentence for illegal business activity, a charge stemming from his self-publishing of books that exposed pollution scandals in the southernmost province of Hainan.

The impetus unleashed by the army of green activists continues to be deemed a destabilizing force under Xi, who has put the utmost emphasis on the longstanding policy of “stability above all else” to ensure the party’s “perennial ruling status,” as well as his permanent role as the leadership core. Despite nationwide government-driven initiatives to strengthen environmental protection, Beijing often construes criticisms “from below” -- ie, from individuals and grassroots organizations -- about environmental policies as endangering the foundations of China’s economic miracle. Space for environmental activism has shrunk, as a result of the slate of legislation Xi introduced against perceived threats to state security between 2014 and 2016, including the National Security Law, the Counterespionage Law, and the Cybersecurity Law. Since Xi’s rise to power in 2012, Dui Hua’s political prisoner database has recorded over 50 individuals who have been detained, arrested, or imprisoned for participating in environmental protests, joining environmental civil society organizations that promote environmental awareness, or whistleblowing.

Environmental protests

The Chinese Academy of Social Sciences estimated that half the large-scale protests between 2000 and 2013 were triggered by concerns over pollution and lack of transparency on environmental issues. Such protests were linked to land expropriation and forcible relocation. China’s Ministry of Environmental Protection claimed that major environmental protests surged by 120 percent a year before Xi’s rise to power, after which the Chinese government stopped releasing official statistics. At that time, violent protests initiated by parents of children suffering from lead poisoning due to heavy metal pollution from smelting and chemical plants frequently made domestic and international headlines.

Observers continue to believe that environmental concerns are a prime cause for mass incidents during Xi’s administration. Some estimates suggest that there were as many as 30,000 or even 50,000 anti-pollution demonstrations over the four-year period from 2013 to 2017. When Xi began his first term as president, grassroots protests organized by residents of “cancer villages” were a flashpoint for mass incidents. “Cancer villages” refer to communities near chemical, pharmaceutical, or power plants where cancer rates far exceed the national average. In 2013, it was estimated that 459 cancer villages were spread across every province except Qinghai and Tibet. A peaceful protest occurred in Shantou’s Guiyu Township in March 2016. Over 10,000 residents assembled to demand that the township government terminate the construction of a waste incineration plant. Once the world’s largest e-waste dumping site, Guiyu is called Guangdong’s No.1 cancer village, as villagers have reported a suspiciously high number of deaths from cancer. As a result of the four-day protest, the township government gave in and shelved the incinerator proposal.

There are signs that local governments were willing to yield to protesters’ demands to scrap or even terminate infrastructure projects during the Hu years, and even the early years of Xi’s era. From 2011-2016, official proposals to build or expand Para-Xylene (PX) factories triggered mass demonstrations every year across China, including in DalianNingboKunmingMaomingShanghai, and Longkou. PX is a chemical necessary for producing clothes and plastic bottles. Residents feared that the chemicals from the nearby PX factories would cause air pollution and even cancers. These anti-PX plant protests successfully pressured local governments to compromise, at least temporarily, in an attempt to pacify local discontent. The protest in Dalian, for instance, was caused by fears about PX leakage after a typhoon struck the city and breached the factory’s dyke. Although the government promised to suspend production and relocate the factory, Chinese news media reported in the following year that the factory had clandestinely resumed operation of the the PX plant.

In November 2017, Michael Standaert wrote in Yale Environment 360 that fewer environmental protests were taking place in China. This argument is in line with Dui Hua’s observation that unofficial news media sources have been reporting noticeably fewer protests in recent years, in part because demonstrations, as Standaert noted, tended to be quickly broken up by police. The pesticide factory blast in Yancheng, Jiangsu, in March 2018 that caused nearly 80 deaths and dozens injured reportedly did not trigger any mass incidents. Authorities were swift to suppress signs of social instability by detaining family members of the deceased and injured who questioned the government’s handling of the man-made disaster. Zhang Wenbin (张文斌), a volunteer from a local environmental group, was summoned by police for “picking quarrels and provoking troubles” after he criticized local authorities for refusing to evacuate nearby residents after the blast and warned about the possible risks of contamination. Another individual, Cao Jianshan (曹建山) was criminally detained for “defamation” in April, after he called on the government to disclose information about the deceased victims. The authorities had previously rejected Cao’s request on the grounds that publicizing such information would cause “great harm to their family members.”

Since June 2019, mass protests against official plans to build waste incinerator plants have become the latest type of environmental protest to take place in China. One week after hundreds of thousands of residents filled the streets in Yu’nan County, Guangdong, another large protest erupted in Wuhan, Hubei, on June 28, 2019. In mid-June, Wuhan protesters first learned of the government’s plan to build an incinerator plant on an existing landfill in a densely populated residential area. While the landfill is already causing severe land and ground water pollution, protesters are even more alarmed by the incinerator proposal, which had been previously shelved. The protests underscored the mounting discontent not just about public health, but also over the lack of public consultation and transparency of the projects. RFA reported that around 20 protesters were detained, many of whom were WeChat users who posted or forwarded information about the protests. The government quickly blocked mobile phone signals and possible contacts with Hong Kong, where the controversial extradition bill in the former British colony set in motion successive rallies and clashes in June 2019.

Dui Hua’s research into Chinese-language judgment websites has uncovered approximately 20 criminal cases involving criminalization of anti-pollution protests since 2014. Some of them involved violence and did not receive any media coverage. While the offense of picking quarrels and provoking troubles is commonly used against protesters, other offenses include gathering a crowd to disturb social order, gathering a crowd to attack an organ of the state, and holding an illegal assembly. Among the protests recorded in the judgment websites, one broke out in July 2017 in Xiangtan, Hunan, where hundreds of villagers protested the Huashi township government's plan to construct an animal carcass disposal plant, which would specialize in disposing of piles of pigs that had died of swine fever. The protesters used WeChat and blogs to discuss their fear of pollution and raised funds to print leaflets and produce banners. At its peak on August 3, over a thousand villagers took to the streets. (On the exact same day a year later, China reported its first case of African swine fever in Shenyang, Liaoning.) The Huashi township government refused to back down. Four leading protesters were sentenced from nine months' to one year’s imprisonment for gathering a crowd to disrupt an organ of the state.

Lawyer-turned-environmental activist Chen Wuquan initiates the “War to Protect the Sea” against illegal reclamation and destruction of marine resources in his home village in Zhanjiang, Guangdong, in 2017. Photo credit: RFA

The case of Chen Wuquan (陈武权) indicates that even peaceful protesters can receive severe sentences. In 2012, Chen Wuquan represented Chen Kegui, nephew of prominent dissident Chen Guangcheng, before his law license was rescinded in the same year for taking the sensitive case. Chen Wuquan (no relation to either Chen Guangcheng or his nephew Chen Kegui) returned to his home village in Zhanjiang, Guangdong, and initiated a campaign to protect the tidal flats and natural abundance that has provided a livelihood for the villagers for centuries. Chen Wuquan argued that the destruction of marine life in his village was caused by forced demolition, land reclamation, and mangrove logging—all conducted without the villagers’ consent. Prior to detention in February 2018, Chen Wuquan staged a seaside protest with over a dozen villagers, calling on the government to terminate the reclamation project. In January 2019, Chen Wuquan was sentenced to five years’ imprisonment for picking quarrels and provoking troubles, and six other villagers were each sentenced to 12-18 months for the same offense.

Stay tuned for Part II next week.

Tuesday, June 25, 2019

Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad Part II of II

Camp Glenwood One-on-One Counseling with Probation Officer. Image Credit: Dui Hua

Can China's Juvenile Justice Policymakers Receive Lessons from Abroad?

In “Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad” (Part 1 of 2), Dui Hua analyzed a number of challenges in juvenile justice, both in China and elsewhere, including deciding the age of criminal responsibility and alternatives to criminal confinement. In Part 2, Dui Hua looks at promising programs and important research findings from outside China that could be useful for Chinese experts in juvenile justice to study as part of China’s ongoing juvenile justice reforms.

World Health Initiatives Regarding Juveniles

The experiences and practices of other countries and institutions can play an instructive role in China’s efforts to reduce violent behavior by adolescents. Relevant international human rights principles include the 1989 UN Convention on the Rights of the Child, especially articles 37 and 40. UNICEF’s Child Protection Information Sheet on Children in Conflict with the Law, in its summary of key applicable human rights principles, states that “children in conflict with the law have the right to treatment that promotes their sense of dignity and worth, takes into account their age, and aims at their reintegration into society. Further, UNICEF recommends that placing children in conflict with the law in a closed facility should be a measure of last resort, to be avoided whenever possible.” In light of these provisions, UNICEF aims to “reduce incarceration while protecting children from violence, abuse, and exploitation,” while also promoting “rehabilitation that involves families and communities as a safer, more appropriate, and effective approach than punitive measures.” Mirroring some of the policies mentioned by China’s juvenile judges at Dui Hua’s 2017 expert exchange, UNICEF also strongly advocates diversion, restorative justice, and alternatives to confinement.

Experiences from Europe might help Chinese officials in adopting some of these principles as it adjusts its juvenile justice practices. In the European context, the World Health Organization’s (WHO) adolescent mental health programs focus on reducing depression and anxiety disorders, severe cases of which can contribute to violent acts. As evidence of the severity of mental health problems for juveniles, suicide is the “leading cause of death among 10–19-year-olds in low- and middle-income countries of the [European] Region, and the second-leading cause in high-income countries.” To reduce risk factors associated with juvenile violence, European member states of the WHO find that “supportive parenting, a secure home life and a positive learning environment in school are the key factors in building and protecting mental well-being, or mental capital, in childhood and adolescence.”

In 2015, WHO European member states formalized their approach to supporting the mental well-being of adolescents and others experiencing major life transitions. According to the Minsk Declaration, the WHO life-course approach “encompasses actions that are taken early and appropriately to transitions in life,” recognizing that “adolescence, the transition from child to adult, marks the pivotal change to greater personal autonomy. It could signify a new beginning for those who were disadvantaged in their start in life. It also represents an opportunity for policies and programmes to influence key decision-making processes such as the timing of sexual debut and parenthood, the onset or avoidance of risky and addictive behaviours, as well as the acquisition of life skills, the start of independent living, building resilience and the capacity to bounce back in the face of adversity…Effective intervention is also essential to modify the course of other critical phases in life in which people experience dramatic changes in roles and status, such as...the transition from adolescence to adulthood.”

Making Every School a Health Promoting School Image Credit: WHO/SEARO/Sanjit Das

One of the policy initiatives with potential to be used in tandem with the life-course approach is the Health Promoting School concept, developed by WHO and UNESCO. According to these agencies, “Health Promoting Schools have been recognized as a strategic vehicle to promote positive development and healthy behaviours such as physical activity, physical fitness, recreation and play, balanced nutrition, prevent (sic) tobacco use, and preventing being bullied.” Chinese policymakers might gain significant insights, for instance, by comparing the role of schools, parents, and work-study institutions to the Health Promoting School concept, to see if improvements to existing Chinese institutions can be made.

Using Lessons from Abroad to Limit Dominant Role of Police in Juvenile Cases

In addition to improving outcomes for juveniles, thoughtful consideration of the life course approach and health promoting schools concept might help reduce the dominance of police authority in juvenile cases and alleviate the caseload burden on China’s juvenile courts. Too often, police officials focus on exercising punitive measures, like fines and/or administrative detention in juvenile cases. When the police or procurators dismiss cases (which they often do to lower the crime rate and meet bureaucratic goals), they might also be failing to redirect youth to community resources that can help them from re-offending. Taking a holistic and inclusive approach to mental health intervention could be a way to limit police dominance in juvenile justice policy implementation, as, in most cases, local police lack the necessary training or proper tools to deal with juvenile offenders. A local police inspector suggested recently that although a child’s discipline is generally a parental decision, the police could still request young offenders to be sent to government rehabilitation with parental consent. This approach could be beneficial if police officials took a consultative approach to such requests, rather than treating the case solely as a criminal investigation. In the U.S., for example, since the early 2000s US juvenile judges have been “re-establishing their authority to decide whether to transfer youth in conflict with the law from juvenile court to the criminal court and corrections system. Transfer and waiver of juvenile court jurisdiction is frequently used in cases involving serious crimes by offenders aged 16 and younger.”

Adopting lessons from the European and U.S. experiences that incorporate a stronger role for social workers and schools might also ease the caseload burden on China’s courts, which have been hearing cases involving juveniles at least since 1984, the year that the first specialized “juvenile courtrooms” were opened. Adding more juvenile cases to court dockets might simply overwhelm overburdened juvenile judges, who have generally been focused on delivering light sentences, but a focus on light punishment does not address affirmative steps needed to address adolescent mental health through community programs and non-custodial measures. The WHO “life course” approach taken in Europe sees a prominent role for schools as well in supporting adolescent mental health, by providing “a positive learning environment” that serves a key role “in building and protecting mental well-being,” a critical process in reducing violence among juveniles.

Towards Evidence-Based Juvenile Reform in Lieu of Lowering the Age of Criminal Responsibility

Instead of focusing on lowering the age of criminal responsibility as a principal concern, the WHO initiatives strongly suggest that reductions in juvenile violence result from providing a safe and supportive environment for children to grow. While European member states have come together in support of a life-course approach to juvenile mental health, they have not adopted a uniform age for criminal responsibility. According to the London-based Child Rights International Network, France and the Netherlands, for instance, allow children under 14 to be criminally sentenced, while Germany and Italy do not. This seems to suggest that the critical element in European juvenile justice has less to do with selecting a minimum age of criminal responsibility and more with identifying and implementing effective policy solutions based on non-custodial and preventive measures. Similarly, Dui Hua has previously written that the age of criminal responsibility varies significantly among different U.S. states, but there has been a trend to raise the age of criminal prosecution to 18 in light of two important findings: 1) recent neuroimaging studies showing important structural differences between adolescent brains and adult brains that persist well past the age of 20, and 2) evidence that criminal penalties for juveniles lead to more, not less, teen recidivism.

Mental health evaluations are critical for the administration of juvenile justice. Findings support legislation that would establish clear court procedures “regarding when and how juvenile defendants should receive mental health evaluations...A 2016 NCBI/NIH study on mental health and juvenile crime examined the effectiveness of various intervention and treatment programs/approaches, finding that treatment models including Cognitive-Behavioral Interventions (CBI) and Functional Family Therapy (FFT) are effective treatment frameworks for juvenile offenders.” Changes to the age of criminal responsibility in China, such as lowering it to 12 from 14, are unlikely to reduce crime, and conversely, are likely to increase juvenile recidivism. Instead, a comprehensive approach to non-custodial measures that involves a variety of actors, and not just police and prosecutors, needs to be considered for implementation.

Although China’s courts and juvenile justice system have made great strides since the establishment of the first juvenile courtrooms in the mid-1980’s, Chinese policymakers should eschew a focus on lowering the age of criminal responsibility and instead work to fully establish a comprehensive juvenile system that focuses on non-custodial measures. Such an approach would also avoid over-reliance on the police and procuratorial organs and integrate social workers, schools, and parents into the process of promoting well-being among China’s youth.