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

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

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

Conflict of Interest

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

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

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

Funding for Defense Counsels

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

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

Sources of Accountability

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

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

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

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

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

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

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

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

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

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

“All Criminal Defendants to Have Lawyers”

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

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

Pretrial Defense

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

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

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

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

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

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

Procedural Violations During Trial

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

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

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

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

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

The Arbitrary Classification of State Secrets

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

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

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

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

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

“Top Secret” State Secrets

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

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

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

“Secret” State Secrets

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

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

“Confidential” State Secrets

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

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

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

Arbitrary Application

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

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

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

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

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

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

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

Stalemate on Detention Center Law

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

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

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

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

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

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

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

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

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

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

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

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

The Long Reach of Counterrevolution and Hooliganism

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

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

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

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

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

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

International Norms on Abolished Crimes

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

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

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

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

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

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

The Resurgence of Big-Character Posters and Switching Tactics of Criminalization

Big character posters were found on Peking University's campus calling for action on sexual assault cases. The posters were removed by authorities. Image credit: Radio Free Asia.

The iconic big-character posters (dazibao) of the 1970s and 1980s are often thought to have lost their purpose in a China now dominated by smartphones and WeChat. Popularized during the Cultural Revolution, big-character posters were used by competing political factions to instigate “mass mobilization.” In the revision to the 1982 Constitution, the right to use big-character posters was removed. During the June Fourth protests of 1989, the posters became ubiquitous when protesters used them to criticize the path of economic reform. In official narratives, authorities used the word fandong (reactionary), implying a hindrance to progress and reform, to describe cases involving big-character posters.

Today, these wall-mounted posters, often handwritten and on a few sheets of paper are used by activists and petitioners seeking to air grievances and direct attention on a range of issues from forced evictions, to government corruption, to wage theft. In some cases, big-character posters allow the disgruntled to circumvent the extensive surveillance and censorship of the internet.

In December 2017, Tianjin dissident Zhang Changhong (张长虹) was sentenced for using big-character posters to call for the rehabilitation of the June Fourth protests. In June 2013, Zhang put up posters at various bus stops and subway stations and in December 2016, he filmed videos of himself in front of his posters, one of which read “Do you know about the Tiananmen Massacre?” He published videos and articles calling on the public not to forget about the bloody suppression. The court accused Zhang of provoking a serious public disturbance for disseminating “fabricated” information and sentenced him to three years and three months’ imprisonment. Zhang is scheduled for release in 2019.

In April 2018, big-character posters appeared on the campus of Peking University. The posters were put up in support for Yue Xin, a female student who sought information from the university about an alleged rape case in the 1990s involving a former professor. Yue wrote online that she had been warned by the school to stop requesting information about the rape case, or risk facing “treason” charges. The posters were promptly removed by the school security personnel.

The following month, during the 120th anniversary of the university, 24 big-character posters briefly appeared on Peking University’s campus. Written by alumnus Fan Liqin, the posters stated that Mao Zedong’s promotion of a personality cult was disastrous for China. Fan warned the Chinese people to be vigilant of history repeating itself under Xi Jinping’s reign, following the removal of presidential term limits and the insertion of “Xi Jinping Thought” into the party constitution. Fan was reportedly escorted away by police officers and campus security personnel; he is not known to have received any coercive measures.

Switching Tactics of Criminalization

As big-character posters continue to be used for political purposes, Dui Hua has noticed an increasingly prevalent tactic of criminalization – a shift from charging “reactionaries” caught with big-character posters with inciting subversion to charging them with “picking quarrels and provoking troubles.” When “endangering state security” was introduced into the 1997 Criminal Law, inciting subversion was frequently used against “reactionaries” who used big-character posters to “vilify” party and senior leaders. In recent years, the term “reactionary” has disappeared from official narratives about petitioners. Instead, petitioners are more likely to be charged with the crime of “picking quarrels and provoking troubles.” At first glance, this shift seems like a welcome reform as inciting subversion is a more serious crime carrying a harsher sentence than picking quarrels and provoking troubles. However, Dui Hua’s research shows that in cases involving big-character posters, those charged with picking quarrels and provoking troubles can still find themselves serving as harsh of a sentence as those charged with incitement for committing similar acts. The reason behind this shift is unclear, but given the similarity in the harshness of sentencing, perhaps there is an attempt to obscure cases of a political nature that attract scrutiny by putting them into a pocket crime like picking quarrels and provoking troubles. In 2016 alone, China’s public security bureau filed more than 77,000 cases involving picking quarrels and provoking troubles; the scope of acts that count under this crime is indeed obscure, ranging from criticizing local officials on Weibo to drunken assaults.

Incitement Cases involving Big-character Posters

Dui Hua’s library research into government gazettes has uncovered several previously unknown incitement cases involving big-character posters. One of the earliest cases concerns Ding Qingyun (丁青云), a man from Zhenjiang, Jiangsu, who was caught putting up “reactionary” big-character posters on three separate occasions. In October 1997, he put up a poster titled “New Tongmenghui Propaganda” at a farmer’s market, signed by the “New Tongmenghui Dantu Township Branch.” Tongmenghui bore the same name as the secret society and underground revolutionary movement founded by Sun Yatsen in 1905 against the Qing Dynasty. Available sources did not provide further information about Ding’s Tongmenghui.

Ding went on to write more “reactionary” slogans in April and May of 1998. In a restroom of the Dantu Township government building, Ding hung up big-characters posters reading: “Down with the Communist Party,” “Down with Socialism,” and “Down with the proletarian dictatorship.” In May 1998, Ding was taken into custody on suspicion of inciting subversion. Although the gazette record did not reveal Ding’s fate, a government response subsequently provided to Dui Hua confirmed that Ding completed his two-year sentence for inciting subversion in May 2000.

Dui Hua previously reported on an incitement case involving Chen Shifu (陈世富), a coffin seller from Hunan who used big-character posters to call on residents to oppose local government policies on property demolition and forced evictions. The prosecution statement claimed that Chen’s big-character posters that called on people to overthrow the CCP and reestablish Kuomintang rule posed a threat to state security. The statement also described the books Chen possessed about Kuomintang leader Chiang Kai-shek as “reactionary.”

The Switch to Picking Quarrels and Provoking Troubles

Today, those who use big-character posters to criticize the government and party are likely to face the charge of “picking quarrels and provoking troubles.” Dui Hua uncovered a judgment involving a farmer from Shaanxi surnamed Zhang, who was sentenced to two years’ imprisonment in December 2017. On July 1, 2017, the 96th anniversary of the founding of the CCP, Zhang stood in front of a series of big-character posters, which the court judgment later described as “distorting history,” and proceeded to deliver a three-hour long speech that “insulted the party and Chinese leaders.” Zhang had hired someone to film his speech while he delivered it on a busy street in a village in Shaanxi. The court deemed Zhang’s actions as leading to “social disorder” as crowds of onlookers gathered and vehicles stopped in the middle of the street to listen to his speech.

In his speech, Zhang criticized a court decision to side with the township government over a longstanding property dispute. After futile attempts at petitioning, Zhang began pointing fingers at the central government. In 2000, he put up big-character posters calling past and present Chinese leaders, including Jiang Zemin, “traitors” and their rule “a disaster for the country and ruinous for the Chinese people.” Zhang accused local officials of colluding with mafia groups. His big-character posters made references to the “Tiananmen Massacre” and ridiculed Deng Xiaoping’s “black cat, white cat theory.” In 2005, Zhang was sentenced to one years’ re-education through labor for “insulting” the party and various leaders. After repeated detention and time under re-education through labor, Zhang allegedly refused to repent and continued to put up big-character posters. In December 2017, the court decided that Zhang had persistently refused to show remorse and that his slanderous remarks against the party, senior leaders, and other cadres qualified as a public disturbance. Zhang is scheduled for release in June 2019.

In this case, the court described Zhang’s remarks about the party and leaders as “improper.” The same act would have been tantamount to a “vicious attack on the people’s government,” a phrase commonly used in official narratives about counterrevolution propaganda and former incitement cases such as that of Ding Qingyun’s and Chen Shifu’s. Although Zhang’s big-character posters were as politically charged as that of Ding and Chen’s, the political nature of Zhang’s case was obscured by its categorization under the crime of picking quarrels and provoking troubles, most telling is that the sentence he received was as harsh as Ding’s.

Obscuring Political Cases

The latest available statistics from China Law Yearbook shows that 576 individuals were arrested for endangering state security in 2016, a significant drop from 1,105 in 2012. However, this decline is no cause for celebration. As the big-character poster cases show, individuals previously charged with inciting subversion are now more likely to be prosecuted for picking quarrels and provoking troubles. The number of endangering state security cases alone does not give a comprehensive picture of the scale of suppression of dissent in China.

The crime of picking quarrels and provoking troubles has long been decried as a pocket crime, meaning that because of its vague definition “anything can be stuffed into it,” after all 77,451 such cases were filed in 2016. Given the enormous variety of acts that can be prosecuted under this charge, it is no easy task to identify which ones are of a political nature. Dui Hua researchers continue to delve into government sources to uncover the names of political prisoners incarcerated for this charge.

Mixed Signals in Reports of “Zero Confession” Executions

In 2016, Nie Shubin was exonerated 21 years after his execution. Nie's parents burn a copy of the exculpating court documents near Nie's tomb in Hebei province, December 2016. Image credit: SixthTone.

“Hunan Has Executed its First Criminal in a ‘Zero Confession’ Case; The Female Drug Lord Went to Her Death Refusing to Admit to Drug Trafficking” reads a recent Chinese news headline. The coverage suggests that Yang Kelian—a middle-aged woman with an elementary school education—thought that she could get away with her crimes if she did not confess, but she was nonetheless found guilty and put to death. Dui Hua has uncovered similar recent reports of “zero confession” capital convictions and executions for non-violent drug crimes in Sichuan, Jiangsu, and Hubei.

In a healthy legal system, the presence or absence of a confession does not bear on the fairness and accuracy of judicial proceedings. Sometimes the guilty confess and sometimes they do not; sometimes the innocent insist on their innocence, but sometimes they admit to crimes they did not commit. Unfortunately, in China suspects are often pressured to confess, and face consequences if they do not. In recent years China has embarked on criminal procedure reform aimed at addressing these concerns. Insofar as recent “zero confession” headlines herald a departure from a singular focus on self-incrimination, these reports signal a laudable development. However, upon closer inspection, these cases depict a legal process in which the role of confession remains problematic.

The tone, timing, and facts of these reports on zero confession cases send ambiguous signals about the rights of defendants and the role of evidence in capital cases today. In tone, defendants are portrayed as obstinate or foolhardy in their refusal to admit guilt. With respect to timing, state media tends to report these cases in the run-up to high-profile and heavily politicized anniversaries such as China’s June 26 International Anti-Drug Day. The evidence in these cases is impossible to judge independently, because these verdicts are not being posted online, despite the Supreme People’s Court’s professed commitment to release case documents on its new central database. Altogether, despite invoking improvements in criminal procedure, these reports serve as veiled warnings about the consequences for any criminal suspect who might wish to stay silent.

“Zero Confession”

What is a “zero confession” (零口供) case? In a widely cited 2001 article published in the People’s Procutorial Monthly, criminal law scholar He Jiahong describes “zero confession” as a legal standard used by Chinese law enforcement in deciding whether to pursue prosecution. When a defendant has not confessed, He writes, the procuratorate should view the lack of a confession as having zero or nil confessions—that is, the lack of a confession is indicative of neither guilt nor innocence. The procuratorate should therefore rely on the sufficiency of other evidence in deciding whether to proceed with the case.

While the term zero confession was originally limited to charging decisions, it is now a catch-all term for defendants who do not confess at later stages of adjudication as well. In a zero confession drug trafficking case from Hubei, defendants Long and Hong (both are presumably pseudonyms) did not confess during the trial. And in the case from Hunan, Yang Kelian was convicted and executed without ever making a confession.

The zero confession standard emerged as a response to a Chinese criminal procedure culture in which nearly all cases include confessions and virtually all prosecutions result in convictions. This system has long been criticized for both incentivizing coerced confessions and producing wrongful convictions and wrongful executions. In 2012, China amended its China’s Criminal Procedure Law to better safeguard the rights of criminal defendants and improve the rules of evidence, particularly in capital cases. While the 2012 Amendment (which took effect on January 1, 2013) was a step forward for criminal procedure reform, the language of the Amendment is in some places contradictory, and fails to establish an unambiguous “right to silence” for criminal defendants. The amendment also falls short in establishing rules of exclusion that prevent the introduction of confessions obtained through coercion. In practice, it is widely reported that law enforcement still coerces confessions in many criminal cases, including through the use of torture. In 2008, a grocery shop owner named Nian Bin was sentenced to death for allegedly poisoning his neighbors. Nian claimed he confessed to the crime under the duress of police torture. Years later, Nian’s lawyers proved that the police had fabricated evidence against Nian and withheld information that would have proven his innocence. One of most famous cases of forced confession involving torture and resulting in execution is the case of Nie Shubin. In 1995, Nie was sentenced to death for murder, even after rights groups and fellow inmates argued that Nie’s confession was forced under torture. More than twenty years later it was discovered that Nie was in fact wrongfully convicted when the real perpetrator came forward to admit guilt. In Nian’s case, the Fujian high court upheld the death sentence despite also finding that the case had “unclear facts and insufficient evidence.” In Nie’s case the only evidence was the confession he gave under police torture.

A common theme in zero confession case coverage is the sufficiency of evidence in the absence of confession. In this regard, media coverage shines a welcome light on the legal and practical requirements of substantiating a case without the words of the defendant. In the case of Wei and Quan, two defendants from Jiangsu (who are only identified by last names), reports go to great pains to enumerate the evidence: including cell phone records, eye witness testimony, confessions from other defendants, and bank records. Ultimately, this evidence was deemed sufficient to sentence the two people to death for sale and transport of drugs.

Recalcitrant Defendants

Although the term zero confession was originally intended as a value-free description of a defendant’s decision not to confess, state media reports of zero confession convictions universally portray a defendant’s lack of confession as evidence of conniving or bad faith, rather than an assertion of rights or a sincere avowal of innocence. In describing the motivations of defendants in a case from Hunan, the reporter asserts that the two individuals, Long and Hong, believed that so long as they did not confess, they would not be convicted of a crime. Similarly, defendant Yang Kelian is described as thinking that as long as she didn’t confess, she would get away unpunished. In a zero confession case of drug manufacturing in Sichuan, state media reported that a Mr. Liu (full name withheld) was trying to “escape the crackdown of public security agencies. In the face of the interrogation of the police, Liu, a suspect in drug crimes, was not only deaf and mute, but also refused to sign all legal documents.”

Nowhere in this coverage of zero confession cases is it suggested that these defendants have a right to stay silent, or that they might choose to do so because they believe themselves to be innocent. As is often the case in China, neither the condemned nor their representatives are interviewed or quoted in the coverage; in some of the reported cases defendants have already been executed. Reporters based their stories exclusively on law enforcement officials and investigators.

Non-Violent Drug Crimes

Although zero confession cases occur for other types of criminal charges, there appears to be a trend in state media reports that link zero confession cases with capital drug crimes in particular. This trend is likely due to both an underlying rise in capital drug cases and a Chinese state policy to combat drug crimes with harsh punishment.

China has a drug problem. By the country’s own account, drug users, drug cases, and drug seizures have all increased dramatically in recent years. The increasing ease of manufacturing synthetic drugs has also dramatically scaled up drug operations and diffused drug enforcement challenges from border regions into the nation’s interior.

China’s response to the drug epidemic has been to continue a course of punitive measures for narcotics, even as the state has reportedly eased off capital punishment for other types of crimes. Today, four types of drug crimes—manufacturing, trafficking, sale, and smuggling—are eligible for the death penalty in China. It is estimated that drug crimes make up a large portion of China’s annual executions. China is one of a small minority of countries that imposes the death penalty for drug crimes, a practice that violates both international laws and norms (although US President Donald Trump has recently voiced support for executing those convicted of drug crimes).

China does not seem to be moving away from imposing capital punishment for drug offenses. Indeed, state media reports of zero confession convictions reflect not only the underlying phenomenon of capital drug cases, but also state efforts to publicize a crackdown on drugs. Two of the cases highlighted here, from Hubei and Jiangsu, were published in the week leading up to China’s June 26 International Anti-Drug Day. State media traditionally announce harsh punishments for drug offenders during this anniversary. Coverage of zero confession cases seems designed to make a public example of defendants who do not confess. One story about the Yang Kelian case from Hunan sums up, “presently, the number of drug cases is increasing. The quantity of drugs is increasing. Drug networks are becoming increasingly widespread. The age of participants is getting younger. Connecting drug crimes is becoming easier. This case has a deterrent effect.” A story about the Jiangsu case concludes in a similar way, stating that sentencing the two defendants to death “is of great significance for cracking down and preventing drug-related crimes.”

Transparency and Rule of Law

Ultimately the fairness of a conviction in any capital case—regardless of whether a confession is involved—can only be assessed through a public judicial process and a transparent court record. The Supreme People’s Court has made valuable steps in this direction by launching a central website hosting judgments from China’s courts. A review of the documents in zero confession cases is a necessary check on the claims about these cases published in state media.

Dui Hua conducted a search on the central court website for records related to six defendants sentenced to death in four zero confession cases in four different provinces over the last year. Each case was reported in some detail by state media, (although in the cases from Sichuan, Hubei and Jiangsu just the defendants’ surnames or pseudonyms were provided). Dui Hua was able to locate a record related to only one the six defendants, Yang Kelian, the “Female Drug Lord” mentioned at the beginning of this article. That record is from the case of a co-defendant; it is a Hunan High Court second instance trial verdict from 2017 for defendant Chen Wenxin. The record indicates that Chen, who was given a suspended death sentence for drug trafficking, named Yang in a confession he provided to the court. Despite the detailed media accounts of Yang’s case, the judgment in her own case has not been published.

Dui Hua calls on China’s Supreme People’s Court to publish all death penalty case records online. As a first step, the court should consider making public any cases that have been reported in state media. That way, even if those put to death will remain silent forever more, the public may still have the information necessary to make up its own mind about a defendant’s choice not to confess.