China’s Supreme People’s Court Releases Detailed Statistics on Trials, 1949-2016

China’s Supreme People’s Court (SPC) has compiled and released detailed statistics covering the adjudication work of China’s courts from 1949 to 2016, inclusive. The first six volumes are devoted to criminal trials of the first and second instance as well as retrials. They include breakdowns of cases and individuals in trials accepted, concluded, and held over for each article of the Criminal Law, as well as information on sentences, supplemental sentences (e.g. deprivation of political rights), age, occupation, gender, and, in recent years, ethnicity of defendants.

Records of People’s Courts Historical Judicial Statistics: 1949-2016 (Renmin fayuan sifa tongji lishi dianji 人民法院司法统计历史典籍) was compiled and edited by the SPC. It was published in September 2018 by the China Democracy and Legal System Press under the National People’s Congress. It became available in March 2019, but thus far the 12-volume set, priced at RMB 1,980, has attracted few readers and received little attention from scholars. Information is not provided on the number of volumes published.

The sets are marked “for internal release” (neibu faxing 内部发行). A small market in second-hand volumes has emerged. Dui Hua has purchased a set. All 12 volumes are available at the H.C. Fung Library of the Fairbank Center for Chinese Studies at Harvard University.

The publication of these volumes is a major step forward for judicial transparency in China and is a boon to scholars studying China’s justice system.

In the coming months, Dui Hua will release reports in its Reference Materials series which will draw on topics derived from the statistics published in the 12-volume set. Topics will include use of Article 300 to suppress unorthodox religious groups; trials of Hong Kong, Macau, and Taiwan residents as well as foreigners; splittism and inciting splittism; espionage and trafficking in state secrets; Cultural Revolution court trials; and treatment of juveniles, including girls, in the criminal justice system.

Counterrevolution in One Country: China, 1989

Drawing on data in Volume Two of the Records, Dui Hua Executive Director John Kamm made a presentation at the Fairbank Center of Harvard University on October 24, 2019. Entitled “Counterrevolution in One Country: China, 1989,” the presentation covered trials for counterrevolution during the years 1989-1991. This period coincided with the political unrest in Beijing and other cities that took place in the spring of 1989 and its aftermath.

Before beginning the presentation based on the data in the Records, Kamm made a few points about the crime of counterrevolution. Counterrevolution is a crime defined by motive. According to the 1979 Criminal Law, “All acts endangering the People’s Republic of China committed with the goal of overthrowing the dictatorship of the proletariat and the socialist system are crimes of counterrevolution.” In the tables in the Records there is a line for “other” counterrevolutionary crimes. Kamm related a story of a worker convicted of counterrevolutionary rape in the late 1970s. He was sentenced to death for sexually assaulting the wife of a foreign diplomat.

Although the crime of counterrevolution was removed from the Criminal Law in 1997, there are still prisoners serving sentences for counterrevolution in China. It is commonly thought that counterrevolution was replaced by the crime of endangering state security in 1997. It was not. Crimes that were included in the articles on counterrevolution, like organizing a prison break or using a cult to commit crimes of counterrevolution, found their way into different parts of the Criminal Law.

Not all individuals detained for offences committed during the protests were tried (some were placed in re-education-through-labor camps, for instance) and, of those tried, not all were tried for counterrevolution. According to Judicial and Administrative Records of Hunan Province, 1978-2002, 33 people were sentenced to prison for counterrevolutionary propaganda and incitement, 43 for robbery, and 57 for hooliganism or sabotaging transportation equipment in Hunan Province for June 4 related offenses.

More than 1,700 people were tried for counterrevolution during the 1989-1991 period, the majority of whom are believed to have been detained and subsequently tried for their involvement in the political protests that took place in Beijing and approximately 300 other cities.

Of those tried for counterrevolution during the 1989-1991 period, roughly half were convicted and sentenced for counterrevolutionary propaganda and incitement. Seventy-three counterrevolutionary groups were brought to court and 257 of their members were convicted and sentenced. In all, 75 percent of trials were for non-violent offenses – counterrevolutionary propaganda and incitement, organizing or leading a counterrevolutionary group, and using a cult to commit counterrevolutionary crimes.

Nearly all tried for counterrevolution were male and most were 25 or older. In a surprise finding, the biggest group of tried counterrevolutionaries were farmers, accounting for 35 percent of defendants. Fifteen percent of those tried were workers, followed by government cadres and unemployed people. Students made up a relatively small number of those tried, accounting for seven percent.

Although most of those tried were found guilty, 93 were acquitted in the first instance trial during the three-year period; 131 were exempted from criminal punishment, including the labor leader Han Dongfang. In 1991, nearly 19 percent of those tried for counterrevolution were either acquitted or exempted from criminal punishment. (In recent years, less than 0.1 percent of trials have resulted in acquittal). Eleven were acquitted on appeal, and 36 had their sentences reduced on appeal. Roughly half of counterrevolutionaries sentenced during the three-year period received sentences of at least five years in prison.

As time passed, the sentences handed down for counterrevolution by courts grew shorter. The longest sentences were given before the end of 1989. According to materials collected by Dui Hua, the longest sentences were handed down in Shandong, where a student leader and a farmer were each given 18-year sentences.

Most of the names of those tried for counterrevolution in the three-year period are not known. Despite strenuous efforts by Dui Hua and other human rights groups over the past 30 years, the foundation has found only 15 percent of their names.

Look for future installments on these statistics on our Reference Materials site.

Leftist Dissent Under Xi: The Old Leftists, Part II

In "Leftist Dissent Under Xi: The Old Leftists," Part I, Dui Hua discussed the phenomenon of neo-Maoism among a number of social groups, including veterans and laid-off workers. In this post, we look at attempts to form political parties intended to resurrect the ideology, culture, and legacy of the Mao era, and the government’s reactions to these efforts.


Political Parties

Despite faltering public trust in local officials, the central government still earns the approval of many patriotic workers and veterans, especially since the launch of Xi’s anti-corruption campaign, which appears to have won the hearts and minds of the majority of Chinese. However, there exists a small segment of aggrieved leftists who believe their plight cannot be addressed without an ideological overhaul within the CCP. They believe that the CCP must revert to pre-reform era socialism, restore the people’s communes, re-collectivize, and provide employment, education, healthcare, and housing for all throughout China. They also think that the alternative communist parties they created are the true vanguard of socialism, a path from which the CCP has been straying for over 40 years since Deng Xiaoping’s economic reforms began.

Dui Hua has previously reported cases of leftist subversion from 1980-2012, where individuals received harsh prison sentences for founding political groups with the aim of overthrowing the CCP, which some on the far left believe has morphed into totalitarian capitalism. A year before Xi came to power, Dong Zhanyi (董占义), founder of the New Era Communist Party of China, was sentenced to life imprisonment for subversion and contract fraud. The party was established around 2008 with the mission to fight rampant government corruption.

Under Xi, new political associations created by the Old Leftists continue to emerge. Instead of promoting regime change like Dong Zhanyi, some of these newly formed groups call for mutual coexistence with the CCP. One such case involves Wang Shiji (王士吉), who calls himself Mao Jidong (毛继东, literally “Mao’s Successor”). Wang had attempted to set up the “China Communist Party Revolution Commission” in 1999, but was arrested on September 8, 1999. Wang completed his three-year sentence for inciting subversion in August 2002. In August 2016, at the age of 72, apparently undeterred, he founded a new party, the “Defend Mao Zedong People’s Party.” This Hebei-based party, which he claimed had about 40 members from across China, aimed to promote love for Mao and the concept of popular sovereignty. Casting it as a “fraternal” party that sounds less radical than the programs of his leftist counterparts, Wang said that his party would co-exist and enjoy equal status with the CCP, and that privatization must be stopped in order to solve China’s current problems of corruption and a widening gap between rich and poor. However, after being summoned and warned by officials in Shijiazhuang, Hebei, Wang dissolved the party, one day before he was scheduled to convene the first “national congress,” which he had claimed would be attended by representatives from a number of major cities. He is not known to have received any criminal punishment thereafter.

Wang Zheng founded the Supreme Constitution Party at the age of 48 in 2013. She commended former Chongqing Party Secretary Bo Xilai for being a genuine socialist, because, she believes, he improved the lives of ordinary people in Chongqing. Image Credit: VOA

It would be mistaken to assume that Maoism enjoys only grassroots popularity. Leftist ideologies are no less appealing among certain educated professionals looking for solutions to present-day China’s social ills. Wang Zheng (王铮), a former associate professor at Beijing Institute of Economics and Management, set up the “Supreme Constitution Party” in November 2013, two months after Bo Xilai was sentenced to life in prison for bribe-taking, embezzlement, and abuse of power. Bo, who won national renown with his “sing red, strike black” campaign while serving as Chongqing Party Secretary from 2007-2012, was hailed as a hero by many leftists. Wang is a vocal supporter of Bo, calling the former rising star in the Politburo a genuine socialist who spent money in Chongqing on public housing to improve lives of ordinary people. In a New York Times interview in 2013, Wang claimed that her party aimed to promote “common prosperity,” a core socialist value that the CCP has largely ignored, mostly through its failure to address widening income disparity. Although Wang never met Bo, she said Bo’s stated egalitarian views and his self-defense in court had inspired her. Wang believes that Bo was a victim of a power struggle within the CCP and her party is an answer to what she sees as serious political problems. When asked whether her party was legal, Wang retorted that "even the CCP didn’t register when it was set up… it was a revolutionary party!” Wang and other members elected Bo as the “Chairman for Life” before the party was banned by Beijing’s Bureau of Civil Affairs in December 2013.

In 2013, the Shandong High People’s Court upheld the life imprisonment sentence of Bo Xilai, the former Party Secretary of Chongqing, who tried to revive Mao-era culture by encouraging locals to sing revolutionary songs. Image Credit: CCTV

Since Xi put Bo and other big “tigers” behind bars on corruption charges, the threat posed by Wang’s political party to the CCP was negligible at best. Nevertheless, Wang remained a target of police surveillance because of her high-profile support for Bo. In 2016, Wang organized a protest against the demolition of Xinghai Square in Dalian, an iconic landmark built by Bo when he served as the mayor from 1993-2000; the demolition is part of a drive by the new leaders in the north-eastern port city to wipe out the lingering “poisonous” legacy left by Bo. In the same year, Wang published articles calling county- and township-level elections a “black-box operation” and Xi the “most unruly leader.” Wang’s insistent demands for Bo’s political rehabilitation led to her detention in Beijing in March 2017, this time for “picking quarrels and provoking troubles.” Hefei, provincial capital of Anhui, was later instructed by the Supreme People’s Procuratorate to investigate this “important and sensitive” case in December 2017. In July 2018, she was sentenced to five years’ imprisonment. Wang is currently scheduled for release in March 2022.

The "Genuine Communist Party"

A small group of leftists continue to seek regime change by forming political parties which they believe represent genuine vehicles for Mao Zedong Thought. Dui Hua discovered several names of prisoners belonging to the so-called “Genuine Communist Party,” a virtual party founded in 2010 by a Jiangsu worker naned Chen Jianmin (陈剑敏). Chen, who was born in 1962 and is also known by his internet nickname Zhou Qun (周群), founded and led a party entitled “The Central Committee of the Chinese Proletarian Revolution.” Unlike Wang Shiji and Wang Zheng, Chen, through his party, openly calls for the overthrow of the ruling CCP and condemns Chinese leaders from Deng Xiaoping to Xi Jinping as “fake communists” and “capitalist bureaucrats.” Although the party claims to convene weekly online meetings, the minutes posted on its party website indicate that the meetings have been sparsely attended by a mere handful of netizens.

Chen has now been placed “under supervision,” (beikongzhi 被控制), according to information posted in May 2019. The wording suggests that his personal liberty is restricted with an unknown coercive measure being placed on him. Information from the party’s online forum also reveals that since 2013 seven members of this party from Fujian, Hubei, Hunan, Guangdong, Gansu, and Jiangsu have been beaten, received administrative detentions, or have even been committed to psychiatric hospitals.

Dui Hua’s research also found that some “young leftists,” believers in Marxism or Maoism born after Mao’s death in 1976, have joined the Genuine Communist Party. One of the known members was Ye Dongdong (叶东东), a sophomore in Chongqing Vocational College of Media in 2013. In February of that year, Ye was detained for ten days after putting up public notices in Chongqing and his home province, Gansu, that claimed China is a capitalist, not a socialist, country and promoted the Genuine Communist Party. Four years later, in November 2017, Ye was re-detained and later indicted in Longnan, Gansu, for inciting subversion. Ye stood trial in the Longnan Intermediate People’s Court in 2018, but the trial outcome is unknown.

In a separate case, another Genuine Communist Party member, Zhou Liangliang (周亮亮), completed his three years’ sentence for subversion in Beijing in 2016. Dui Hua unearthed this case from a civil judgment handed down by the Chaoyang District People’s Court in December 2016. In this civil case, Zhou, born in 1983, was the plaintiff, seeking compensation because he had been dismissed by a power consulting company in 2013 on the grounds that Zhou was a member of the “illegal” Genuine Communist Party. Zhou was also accused of using the company’s Internet connection to plan and publicize activities aimed to “overthrow the government and party and subvert state power.” Unsurprisingly, the court found that Zhou had been lawfully dismissed. The company was not required to pay compensation to Zhou.

Look for upcoming installments in this series to find out more about contemporary China’s “Leftists,” which will be focused on the Young Left and posted in the coming months.

Leftist Dissent Under Xi: The Old Leftists, Part I

                               Souvenir plates with images of Xi Jinping and Mao Zedong. The “Great Helmsman" is among the series of honorifics given to Mao. Image Credit: RFA

In the West, Mao Zedong gained notoriety as a totalitarian dictator responsible for the deaths of millions of people. His promotion of an extreme cult of personality and two political movements in particular, the Great Leap Forward, resulting in the Great Famine, and the Cultural Revolution, which Mao masterminded to crush his political foes, were among the most destructive aspects of his leadership. Although by some estimates Mao Zedong caused more deaths in peacetime than either Adolf Hitler or Joseph Stalin, the portrait of the man who “brought calamity to an entire nation still hangs in Tiananmen Square and is still found on the banknotes we use every day,” wrote Mao Yushi in a critical essay in 2011. (Mao Yushi, who is not related to Mao Zedong, is a prominent economist who won the Cato Institute’s 2012 Milton Friedman Prize for Advancing Liberty.)

China has allowed some room for the public to question the officially sanctioned reputation of Mao since the “Great Helmsman” died in 1976. Nonetheless, scholars, journalists, and other public figures can stand accused of “historical nihilism” if they reject Mao’s legacy of liberating China from Japanese occupation and Western imperialism, and critics may risk ruining their careers for holding “hostile” views on Chairman Mao. Because of his critical essay, Mao Yushi has even received death threats and has been widely vilified by Mao Zedong’s supporters. Criticism of Mao Zedong in the public space continues to be considered politically incorrect today, because Mao Zedong Thought, or Maoism, is enshrined in China’s constitution and represents the ideological orthodoxy of the Chinese Communist Party (CCP). Mao’s ideology provides justification for the CCP to prevent the spread of destabilizing western values, such as multiparty democracy, and maintain its “perennial ruling party” status.

After Xi Jinping rose to power in 2012, his policies and rhetoric have often evoked memories of the Mao era. Just ahead of Mao’s 120th birthday on December 26, 2013, Xi Jinping said, during a visit to Wuhan in July 2013, “We must turn Chairman Mao’s old residence into a base for patriotism and revolutionary education.” Xi’s promotion of the singing of “red (revolutionary) songs” in official settings as diverse as government offices, schools, television stations, and even prisons strikes a chord with adherents of Mao Zedong Thought. Some observers believe that Xi manipulates Maoism to cultivate a sense of pride and consolidate support from the powerful group known as the princelings (i.e., sons and daughters of prominent CCP officials). He does so, not just to bolster ideological support for himself, but also to foster an aura of respectability on behalf of their “revolutionary” parents, who contributed to or even sacrificed for Mao’s socialist cause, according to veteran China analyst Willy Wo-Lap Lam, author of Chinese Politics in the Era of Xi Jinping: Renaissance, Reform, or Retrogression?. In 2015, one Maoist observer even lauded the Xi era as “a golden period” for the leftists, as Xi “has ushered in fundamental change to the status quo, shattering the sky.”

But despite this leftist revival, many adherents of Mao who are nostalgic for his egalitarian ideals continue to find themselves disillusioned with Xi’s “new era of socialism with Chinese characteristics,” largely due to pervasive corruption and social inequality. They make up a large pool of leftist dissenters who refuse to acknowledge the achievements made by the CCP over the 40 years of economic reform. Leftist dissent, however, is far from being monolithic. The dissenters are from diverse backgrounds, have assorted motives, and use different means to channel discontent. There is also a generational divide within this group.

This post defines “old leftists” as the generations who either lived through the Mao era as adults or adolescents, or have only vague but fond childhood memories of Mao before his death in 1976. Many of them are veterans and employees laid off by state-owned enterprises; both groups believe that pervasive corruption is the root cause of their problems. As many of them grew up during the Mao era with limited means and educational opportunities, they do not necessarily understand what Mao’s ideology or legacy entail. They may uphold the simple belief that Maoism is a panacea for their livelihood problems, due in part to state propaganda campaigns to deify Mao since 1949. Many old leftists take part in tens of thousands of mass incidents across China every year in the form of protests and collective petitions, whenever public policies put their material benefits at risk. A small fraction of these “old leftists” even proclaim themselves the real descendants of Communism, in the belief that China’s problems must be solved by a reversion to pre-reform era socialism, which would amount to a complete ideological overhaul of the current core philosophy of the Chinese government. They resort to forming political associations in order to challenge the CCP as the legitimate leader of the one-party state.

State-Owned Enterprise Workers

Leftist ideologies appeal to many grassroots workers, especially employees of state-owned enterprises. As of 2013, state-owned enterprises employed around 37 million people. Once the pillar of Mao’s planned economy, they are nostalgic for Mao’s promise of an “iron rice bowl” (i.e., guaranteed lifetime employment). The generation of the urban “sent-down youth” born in the 1940s and 1950s was ordered by Mao to “receive education from living in rural poverty” and many were consequently deprived of the opportunity to receive higher education when Mao suspended university entrance exams in 1966. Members of the generation of Mao’s sent-down youth have been less competitive in the job market than younger generations. They see economic reform and marketization as anathema because the state-owned enterprises provided a livelihood for most of them. From 1993-2003, the restructuring of state-owned enterprises resulted in around 28 million redundancies. Despite Xi’s 2018 remark that “state-owned enterprises would grow stronger, better, and larger,” labor protests against the privatization of state-owned enterprises show few signs of abating in the Xi era.

Since 2014, China Labor Bulletin has documented hundreds of protests joined each year by state-owned enterprise workers across China. In these protests, workers sometimes employ Maoist rhetoric to advance their claims in defence of their rights. One such protest over labor retrenchment rocked Nanyang, Henan, on September 9, 2014. Hundreds of workers laid off by a state-owned pharmaceutical factory took to the streets to commemorate the 38th anniversary of Mao’s death. They chanted slogans against privatization, corruption, and capitalism, and “Only Mao Zedong Thought Can Save China!” A middle-aged female protester interviewed by the prominent Maoist website Utopia described her life during Mao’s era as “heaven” because workers enjoyed free or low-cost medical services, education, housing, and retirement benefits. She likened the plight of workers in present-day China to “having fallen through the eighteen levels of hell.”

Laid-off workers join a spontaneous parade in Nanyang to commemorate Mao Zedong on the 38th anniversary of his death, carrying his portraits and banners, and demanding unpaid pensions from a privatized pharmaceutical factory.                    Image Credit: Utopia

Today, many of Mao’s supporters continue to converge on Hunan, Mao’s birth province, to pay tribute to the Great Helmsman they have long revered. On April 23, 2018, around three hundred retired workers, many of whom were former state-owned enterprise workers, protested against the policies of the Shaoyang City government in Hunan. They demanded punishment for police officers who fired tear gas at them when they petitioned against cutbacks in post-retirement medical benefits. The protesters, whom unofficial media reports called “Mao’s fans,” gathered to sing red songs to express their discontent.

Veterans

Official statistics released in 2018 indicated that China had 57 million veterans, and the number has been increasing by several hundred thousand each year. Those who answered the party’s call to fight in the 1979 Sino-Vietnam War or other earlier wars especially feel that they are not afforded the dignity they deserve from the state. Since being demobilized, they have been assigned low-end jobs, subsequently laid off, or granted only limited medical care and other benefits. Many demobilized soldiers believed their material benefits were squeezed by corrupt officials and consequently joined the ranks of leftist protesters to defend their rights. Disaffected veterans typically wear camouflage uniforms to convey pride in their past military service. To show allegiance to the CCP, they also wave national flags, sing red songs, and carry photos of Mao. Xi’s attempts to pacify veterans, however, appear to have achieved little. The Ministry of Veterans Affairs, created in March 2018 with the goal of streamlining bureaucracy concerning veterans’ benefits, has become another site frequented by protesting veterans who feel that local officials have ignored their complaints.

Expressions of discontent by veterans often become flashpoints across China. On September 20, 2018, a group of veterans converged on the Ministry of Veterans’ Affairs. In attendance was a 91-year old veteran who complained about local governments’ failure to comply with the CCP’s veterans’ benefits policy. Hundreds of veterans sang “Unity is Strength,” a patriotic song about the People’s Liberation Army popularized by Mao. They were soon drowned out by plainclothes police loudspeakers ordering the veterans to stop singing. A veteran petitioner reported that none of them were allowed to meet with a ministry representative. Some were sent back to the Jiujingzhuang reception center. While most were subsequently sent back to their original residences, some were sent from the reception center to the network of infamous “black jails.”

In an undated photo, Hubei veteran petitioners hold a banner that reads, "Firmly Support Xi Jinping, Follow the Party Forever." Image Credit: RFA

Perhaps the most notable incident over the years was the veterans’ protest in Zhenjiang, Jiangsu, in June 2018. A group of veteran petitioners were assaulted by government-paid thugs. The incident crystalized the broader anger of veterans who came from across the nation to Zhenjiang to express solidarity with their comrades. Video footage from witnesses showed that around 100 veterans gathered outside a hospital with banners that read, “We are CCP members, not criminals.” Another online video even shows a protester shouting over a loudspeaker, “Perish together with the reactionary government.” Checkpoints were set up to prevent other veterans from entering the city. Police dispersed the protesters on June 23, injuring dozens of them, and sent many back to their home cities.

At the time of writing, at least nine veteran protesters in the Zhenjiang protests are known to have been sentenced on April 19, 2019 to two to four years’ imprisonment on charges of “gathering a crowd to disturb social order” or aggravated assault. On the same day, the Weicheng District People’s in Shandong sentenced another group of nine veterans to three to six years’ imprisonment for similar offenses.

Stay tuned for Part II next week.

“Two Restraints, One Leniency”: Part II, The Legacy of a Controversial Policy

In “Two Restraints, One Leniency”: Part I, Dui Hua looked at the origins of, and controversies over, this policy. It originated in a criminal policy pushed through the Central Committee as a part of Document Number Five by then-General Secretary Hu Yaobang in 1984. The policy called on law enforcement to be lenient towards criminal offenders from ethnic minority groups, by making fewer arrests and handing down fewer executions and lighter sentences to ethnic minority offenders. In Part II, Dui Hua looks at its legacy in Han-minority relations today and its current, still unsettled status.

The execution of Wo Weihan, an ethnic Daur accused of spying for Taiwan, indicated that members of ethnic minorities do not necessarily benefit from leniency in accordance with China’s policy of liangshao yikuan. Wo’s execution received widespread state media coverage in late 2008.  Image Credit: dahe.cn (大河网)

Liangshao Yikuan: The Current Status

There has been ongoing debate concerning the current status of Two Restraints One Leniency, or liangshao yikuan, since the Publicity Department, the State Ethnic Affairs Commission, and the United Front Work Department jointly issued a statement on policies toward minorities in 2010. Some observers believe that the policy has been abolished by virtue of this statement, which maintains that “everyone should be equal before the law, and all criminals should be punished regardless of ethnicity.” In 2014, the Fourth Plenary Session of the Eighteenth Central Committee of the Chinese Communist Party reiterated the principle of equality irrespective of ethnicity and incorporated equality as a core socialist value. Nevertheless, liangshao yikuan remains formally in effect because the joint statement cannot override an earlier national policy apparently promulgated by a superior authority, the Standing Committee of the Central Committee. Thus, while the actual hierarchy of authority regarding the policy initiated by then-General Secretary Hu Yaobang in the 1984 criminal policy document Number 5 remains somewhat obscure, liangshao yikuan has not yet been repealed.

Academics cannot reach a consensus concerning how liangshao yikuan is being implemented across China. Prior to his imprisonment, prominent Uyghur scholar Ilham Tohti expressed support for repeal in an interview in 2012. He claimed that abolition would be easy because the policy itself was not being enforced in ethnic regions. Another opinion published by legal scholar Chen Lanxin on the social media website Douban states that the policy is implemented only “to some extent.” His argument highlights the ambiguity about how liangshao yikuan is being enforced, or even fundamentally understood. Such a status is also underpinned in the findings of a doctoral thesis by a Uyghur scholar, Erken Shumamshak, who points out in a 2013 article that judicial personnel in minority regions may not be cognizant of liangshao yikuan despite over 30 years of its existence. The author found that a number of judicial personnel in the cities of Urumqi, Kashgar, Hotan, and Tacheng in Xinjiang had “never heard” about the policy. Another study conducted among judicial officials in Gansu’s Tianzhu Tibetan Autonomous County indicated that ethnicity played no role in law enforcement because the officials claimed there were no marked political, economic, or cultural differences between Han and ethnic minorities in the county.

Beyond Liangshao Yikuan: Security Trumps Leniency

Policy makers in the 1980s might not have foreseen the complex problems brought about by the increase in inter-ethnic contact in the subsequent decades, resulting from the mass migration of Han Chinese to traditionally minority regions in China’s interior. Eastward migration to traditionally Han Chinese cities by ethnic minorities on the lookout for better job opportunities, albeit on a smaller scale, has also contributed to the surge of inter-ethnic conflicts. Although the arguments against liangshao yikuan are not entirely without grounds, recent public discussions reveal the rise of Han chauvinism in both physical and virtual spaces. While stressing that preferential policies for ethnic minorities violate the right to equality, many critics fail to realize that ethnic minorities today face discrimination in many other respects. For instance, Tibetans and Uyghurs are placed on a security blacklist when they seek accommodations in major cities. Their right to travel both internationally and abroad is severely restricted because their passports have been seized in a bid to tighten control over their movements.

While Han Chinese widely believe that liangshao yikuan has contributed to an increase in petty crimes by ethnic minorities, some critics believe that the policy’s negative effect has been exaggerated. A 2010 article originally posted on a website founded by Ilham Tohti, www.uighur.biz.net (no longer valid), claimed that the problem of Uyghur petty thieves is chiefly caused both by the lack of social mobility among Uyghurs and the criminal policy that exempts children under the age of 14 from criminal liability, rather than liangshao yikuan. The age of criminal responsibility has likewise benefited many Han Chinese juvenile offenders. Prominent Tibetan blogger Woeser has written that the policy of restraints and leniency has virtually no effect on political cases.

Woeser’s argument is in line with Dui Hua’s observation that ethnic minorities receive excessive punishment in endangering state security cases. The offenses of splittism and inciting splittism are almost exclusively used to punish Uyghurs, Tibetans, and, to a lesser extent, ethnic Mongolians. Dui Hua’s Political Prisoner Database (PPDB) indicates that, since 2000, over 180 ethnic minority prisoners were sentenced to ten years’ imprisonment or more severe sentences, including life imprisonment, death with reprieve, and death, for these two offenses. Two-thirds of them are Uyghurs, while the remainder are mostly Tibetans. In regard to death sentences specifically, Dui Hua’s research found that five Uyghurs were sentenced to death for splittism alone, and five Uyghurs for splittism combined with terrorism or other charges. The number of ethnic minority offenders receiving harsh sentences for splittism or inciting splittism is strikingly high compared to Han Chinese democracy activists sentenced for subversion and inciting subversion, which are also categorized under endangering state security. Dui Hua’s PPDB showed that about 50 prisoners, 37 Han and 13 others with unclear ethnicity, have received prison sentences of ten years or more since 2000 for subversion and inciting subversion.

The principle of restraints and leniency has been largely superseded by the “War on Terror,” after China employed similar rhetoric from the U.S. to justify the anti-terrorism campaign following the September 11 attacks in 2001. After 2009, propaganda offensives against the “three evil forces” of terrorism, ethnic separatism, and religious extremism have intensified. China’s 2019 white paper on national defense reported that Xinjiang’s armed police forces have broken up 1,588 terrorist gangs and captured 12,995 terrorists since 2014.

Based on information selectively publicized by Chinese government sources, many of these terrorists are believed to be Uyghurs. Of the over two dozen people sentenced to death in connection with the 2009 Urumqi Riots, at least two were Han Chinese, whereas the remainder are thought to be Uyghurs. A decade on, those who are continuing to serve their lengthy sentences for splittism or inciting splittism are almost exclusively Uyghurs, including Gulmire Imin and Gheyret Niyaz. None of them are known to have received any sentence reductions or other forms of clemency.

There are additional coercive measures targeting Xinjiang’s Muslim minorities. Dui Hua previously reported on educational placement (anzhi jiaoyu 安置教育), a coercive measure which targets prisoners considered “a danger to society,” even when they have completed their sentences for terrorism or extremism offenses. The measure provides no time limit for how long someone can be held under the measure, leaving open the possibility of de facto life imprisonment. It has been used exclusively against Uyghurs and ethnic Kazakhs. Today, these two Muslim minority groups are facing repression unprecedented in China, as exemplified by the massive internment camps which are said to house over one million people across the autonomous region, as well as intensive surveillance, enabled by artificial intelligence, of those not, or no longer, confined to camps.

There is little evidence to suggest that liangshao yikuan serves to mitigate criminal sentencing when members of other ethnic groups are accused of endangering state security, even outside of restive Xinjiang and Tibet. Tong Daning (佟达宁), an ethnic Manchu, and Wo Weihan (沃维汉), an ethnic Daur, were sentenced to death in 2005 and 2007, respectively, for spying for Taiwan amid the strained cross-strait relations during Chen Shui-bian’s presidency. Tong, who spent many years working at the Ministry of Foreign Affairs before taking a senior position at the National Council for the Social Security Fund, was one of the top Chinese officials to have been executed for providing top military secrets about China’s military preparations against Taiwan. As part of the anti-spy propaganda in China, videotapes of Tong’s trial were distributed as a deterrent to civil servants. Wo, an entrepreneur and medical scientist, was convicted of providing photocopies of a missile defense system and information on a senior leader's health to a Taiwanese intelligence agency. Wo’s execution in 2008 was strongly condemned by the European Union and U.S., which had sought a stay of execution.

Example of reporting on the execution of Wo Weihan. In the photo accompanying this article, which takes up four columns, he is shown in happier days at his daughter’s wedding.
Image Credit: dahe.cn (大河网)

Other discriminatory rules and practices against ethnic minorities prevailing in the carceral system are much in evidence. For example, Dui Hua has reported that clemency provided to prisoners convicted of the now-defunct offense of hooliganism has a clear ethnic bias against non-Han. Unlike Han Chinese who were considered for clemency a few years into their sentences, the same opportunity was not given to Uyghurs possibly (based on the date, as no precise reason is given in the judgment) sentenced for their involvement in the 1997 Ghulja Incident—demonstrations in the Xinjiang city of Ghulja, or Yining in Mandarin Chinese, which ended with repression by the Chinese military—until they had served many more years of their sentences. Finally, prisoners from ethnic minorities who fail to comply with the Mandarin-language-only visitation rules also have slimmer prospects for obtaining clemency than Han Chinese.

Whither Liangshao Yikuan?

The policy of liangshao yikuan might have saved the lives of many ethnic minorities from execution during the Strike Hard campaign in the 1980s, when the party deemed it necessary to preserve interethnic harmony as it countered the surge in criminal offenses across Han Chinese cities following the economic reforms. Nevertheless, as we have seen, the need to safeguard state security trumps liangshao yikuan, especially in Xinjiang and Tibet, where the majority of China’s endangering state security cases are believed to take place today. The role of liangshao yikuan in restraining harsh punishments and enabling lenient treatment for ethnic minority offenders has virtually disappeared in cases deemed to endanger state security. The same state security rationale has produced a spate of prejudicial rules, measures, and harsh sentences intended to suppress separatist sentiments. It is likely, in fact, that these policies are responsible for negative outcomes instead: higher levels of interethnic tensions, more grievances, the desire for greater autonomy or even independence by ethnic minority groups, and more efforts to flee the country by minorities who fear for their lives and safety.

There is no easy way to strike a balance between tolerating ethno-cultural diversity and promoting interethnic harmony. Hu Jintao’s rhetoric of building a “harmonious society” contrasted sharply with the incidents of ethnic unrest that began to occur towards the end of the first decade of the 21st century. The continuing incidents of interethnic violence into the Xi Jinping era have been widely seen as proof of the failure of the liangshao yikuan policy by both Han and other ethnic groups. The fact that Xi continues to blame “hostile foreign forces” for instigating ethnic problems demonstrates Beijing’s reluctance to change the status quo. The controversy surrounding “Two Restraints, One Leniency” is only the tip of the iceberg of China’s ethnic relations challenges. Even if Xi accepts the mainstream desire to have liangshao yikuan repealed, China’s ethnic policies will still fall far short of the principle of equality before the law, as long as China’s overall domestic strategy is to maintain stability by indiscriminately suppressing ethnic minorities.

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

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

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

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

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

The Argument by Supporters

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

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

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

On a propaganda poster from the early years of the People’s Republic of China: “All ethnic groups in our country have united to become a great free and equal family of nationalities.”
Image Credit: Woeser Blog

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

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

The Abolitionist Argument

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

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

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

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

Stay tuned for Part II next week.

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

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

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

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

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

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

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

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

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

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

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

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

Illegal Business

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

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

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

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

The Costs of China’s Criminalization of VPNs

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

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

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

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

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

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

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

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

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

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

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

Before & Now

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

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

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

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

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

"Politically harmful content": The categories of offenses

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

"Picking quarrels and provoking troubles"

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

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

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

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

"Offenses related to defamation"

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

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

Disseminating terrorist, subversive, divisive, and reactionary information

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

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

Stay tuned for Part II next week.