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.

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.

Cracking Down on Dissenting Versions of History

“Beware of getting brainwashed by historical nihilism,” a cartoon on the nationalist website cwzg.cn. 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.

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: news.ifeng.com.

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.

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

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

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

“Disorder in the Courtroom”

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

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

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

A Catch 22 for Defense Lawyers

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

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

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

Contradictions with China’s New Criminal Defense Counsel Policy

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

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

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

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

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

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

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

The Role of Lay Assessors Expands to Include Death Penalty Cases

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

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

Lessons from Reforms in a Neighboring Country

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

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

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

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

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

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

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

The Internment of Japanese Americans and the Korematsu Decision

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

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

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

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

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

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

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

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

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

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

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

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

Korematsu and Lessons for China

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

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

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