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.

“Illegal Business Activity” and Christian Bookstores

A member of a house church holds a Bible during the Christmas Eve service in an apartment in Beijing on December 24, 2014. Image Credit: lagranepoca.com.

Last month, the Chinese government banned online retailers from selling the Bible on their platforms. Within days after the ban was announced, ecommerce giants Taobao and JD.com had removed the book from its websites. In an officially atheist country where stories of religious oppression often make international headlines, many would be surprised to learn that the Bible is a bestseller. In March 2017, more than 160 million Bibles were printed by Nanjing-based Amity Printing – the state-approved company that holds a monopoly on all Bible printing and distribution in China. Approximately sixty percent of Amity’s Bibles are for domestic consumption in state-sanctioned churches where they are sold at an affordable price. Under Chinese law, it is illegal to publish, print, or distribute the Bible without a license, not only at privately-owned bookstores but also state-run chains such as Xinhua Bookstore.

While the number of Christians in China is a contested figure, scholars broadly agree that Christianity is the fastest growing religion in the country. The millions of Bibles printed by Amity certainly do not meet the demands of the rising number of Christians. Smaller and independent publishers that are not state-approved have attempted to satisfy the excess demand by either directly importing Bibles and religious texts from overseas or by printing and selling such texts outside of the state-sanctioned churches. Some distribute the materials free of charge, while others seek to make a small profit to support their own churches. Many are subject to imprisonment under the charge of “illegal business activity” – an economic crime said to undermine the socialist market order.

The crime of illegal business activity has also been used against booksellers who sell political books, not necessarily of a religious nature, that are banned in the mainland. A court in Guangdong Province sentenced an American citizen to five years in prison for illegal business activity in 2016. The businessman, Wang Jianmin, published political magazines in Hong Kong of which a small number were distributed in China. The Causeway Bay booksellers – Gui Minhai, Lee Bo, and Lam Wingkee among others – were abducted in Thailand and Hong Kong and brought back to China where they have been investigated for illegal business activity. Gui is currently being held somewhere in China. His legal status is not known.

An early case involving the charge of illegal business activity and Christian booksellers concerns the Beijing-based house church pastor Shi Weihan (石维翰). Shi gave away free Bibles and other devotional texts printed by his private printing company. The texts were not government approved and Shi was consequently detained in November 2007. The police seized over 140,000 unlicensed Bibles and devotional texts and in June 2009 the shareholders and executives of Shi’s printing company were sentenced to one to three years’ imprisonment alongside Shi.

No less sensational is the case of Enyu (lit.: Grace of Rain) bookstore, the first and only Christian bookstore in Taiyuan, Shaanxi, founded by house church leader Ren Lacheng (任拉成). The bookstore sold Christian gift items in addition to traditional print and video offerings. In 2012, Li Wenxi (李文习), who came from a Beijing-based Christian bookstore, provided staff training at Ren’s newly expanded bookstore. The Xiaodian District People’s Court accused the duo of making an illegal profit of 5,460 yuan from the sale of 780 hymnals. In June 2013, Ren was sentenced to five years’ imprisonment and Li received a two-year prison sentence for selling books procured from a Guangzhou-based church. Unofficial news sources reported that Li completed his full two-year sentence in December 2014. A judgment Dui Hua discovered online indicated that Ren was released one year early on December 18, 2016, following a sentence reduction granted to him one month before his release.

Taobao and Bibles

Dui Hua has uncovered two related cases involving individuals punished for selling religious texts and items on Taobao, a Chinese ecommerce site – long before the recently announced ban. Shortly after Han X (韩某), a Shandong resident, opened his online bookstore in July 2012, he got in touch with Tu X (屠某), another online Christian bookstore owner in Jilin. For the first three years of operation, Han acquired Bibles and hymnals from other Taobao vendors and sold them to customers nationwide. Payments were made through Alipay, a popular Chinese mobile payment platform. The payment record showed that Tu had sent Han a total of 391,191 yuan between August 9, 2012 and June 29, 2015. In addition to reselling the hymnals acquired from Han, Tu also sold Bibles he acquired from state-sanctioned churches, audio Bibles, and Christian-themed paintings, calendars, and couplets on Taobao. Neither Tu nor Han had obtained a license to operate their online bookstores. The courts found that their online business violated state regulations and the circumstances were grave enough to disrupt the “normal market order,” even though Tu was found to have made a profit of only 15,000 yuan over the three-year period. Tu claimed that he only made a few cents worth of profit from each item sold online. The judgment did not state how much profit Han had made from Taobao, but a local court in Shandong handed down a three-year suspended sentence for the crime of illegal business activity, with a supplemental fine of 80,000 yuan. Tu was given a suspended sentence of two years in Jilin and a fine equal to the entire 15,000 yuan profit he had made.

State-Sanctioned Churches Are No Exception

One would be mistaken to assume that sentences for illegal business activity are generally as lenient as they were for Han and Tu. The case of Li Dongzhe (李东哲) is an example of how severe the punishment for selling religious texts can be, even for members of state-sanctioned churches.

Li Dongzhe is an ethnically Korean pastor who was based at Chaoguang Church, a state-sanctioned church in Liaoning. The church had a small store that sold Christian books, which Li and his wife Piao Shunnan (朴顺南) procured from a Guangzhou-based church. To raise funds for the church, the couple entrusted their church officer to procure over 100,000 copies of Christian books worth approximately 500,000 yuan from Guangzhou. The books were then sold to church members in Liaoning and other provinces at prices 10-20 percent higher than the purchase price, allegedly to cover transportation costs. The church made a profit of 1-2 yuan per book, with a total profit of approximately 60,000 yuan. It was later discovered that the books were printed by a publisher only licensed to process book design and packaging, not to print literature. The book covers were designed by church members, and the books had no author names, place of publication, or ISBNs. Dui Hua has previously reported that Korean Christians, including both South Korean nationals and ethnically Korean Chinese, disproportionately face arbitrary detention and harassment.

As with the other Christians convicted of illegal business activity, the purchase and reselling of unauthorized religious books by Li and his wife were said to constitute a “grave circumstance” and to have “seriously disrupted the market order.” In February 2017, the couple were each sentenced to seven years’ imprisonment and are now scheduled for release in May 2023. Three other members of their church were sentenced to three to five years' imprisonment.

Illegal Business Activity Without a Business

The offence of illegal business activity has also been applied to those who give away religious materials for free and those who make just a marginal profit. The standard of conviction for illegal business activity does not require intent to establish a profitable business. Unofficial news media reported that Beijing house church pastor Cai Zhuohua (蔡卓华) had been interrogated by state security police nearly ninety times before he was sentenced to three years’ imprisonment in November 2005. Cai was accused of printing over 200,000 copies of the Bible and other Christian texts. He gave away the texts for free. The Ministry of Public Security called his case the “largest foreign religious infiltration in the history of the People’s Republic of China.”

The judgment for aforementioned Korean pastor Li Dongzhe revealed that his case was first discovered and investigated by guobao (i.e. Internal Security Bureau of the Ministry of Public Security) in 2016. Guobao probed the church officer’s personal email account and concluded that Li’s church had sold 71,515 copies of illegal books, which the police valued at 291,326.90 yuan.

Dui Hua uncovered a similar case in Shenzhen where two partial-named members of Shenzhen registered churches were convicted of illegal business activity for helping warehouse and deliver more than 200,000 Christian books and 7,000 CDs. The two were given suspended sentences in December 2017, even though the court failed to obtain evidence of them having received any monetary gains.

The Politicization of “Illegal Business Activity”

Prosecutors in China frequently denounce underground Christian bookstores for undermining the “market order.” Market order in China is predicated on a rigid licensing network managed by public security, industry, and commerce bureaus and by a set of stringent administrative rules. By franchising monopolies to Amity Printing and Three-Self churches, the central government can readily control circulation and censor content. Attempts to privately print, distribute, and sell without a license not only constitute an administrative violation but also a criminal offence. In the Taobao case, the bookseller was criminally liable for disrupting the “market order” as he had violated the Publications Management Regulations, an administrative regulation issued by the State Council in December 2001.

The offence of illegal business activity bears striking resemblance to the now-defunct crime of “profiteering,” encoded in 1979 to safeguard state policy and administrative rules against the private businesses that emerged during the reform and opening era. The first illegal publishing case was in Tianjin in 1987, two months following a State Council notice that authorized a crackdown on illegal publishing. The notice called for criminal punishments in publishing cases that had “serious consequences,” even though the 1979 Criminal Law made no reference to publishing as a crime. What followed was that the Supreme People's Court (SPC) deemed the Tianjin case a significant case, in which infringement of the state’s management over publishing and printing constituted profiteering. In the Tianjin case, the defendants were sentenced for compiling and printing criminal law casebooks without a license.

The amended 1997 Criminal Law also makes no reference to publishing as an illegal business activity. The vague clause of “other activities” in Article 225(3) of the law gives authorities the discretion to punish undesirable behavior as defined in interpretations issued by the SPC. To coordinate with the central government to suppress unauthorized publishing following a series of administrative notices issued between 1994 and 1997, the SPC issued a judicial interpretation in December 1998 making illegal publishing criminally punishable under “other illegal business activities.” The interpretation extended criminal liabilities to violators of administrative regulations, allowing authorities to criminalize virtually any unfavorable activity under the guise of disrupting the “market order.”

In the case of Christian bookstores, illegal business activity is disguised as an economic crime that is used to legitimize criminal punishments against religious groups and private individuals operating outside of the state’s control. In the case of Li Dongzhe and the partial-named duo in Shenzhen, all three individuals were connected to registered churches, but that status alone did not protect them from being punished for distributing unlicensed religious materials. While China rebukes criticisms of its religious affairs by stating that its citizens enjoy freedom of religion in accordance with the law, the charge of illegal business activity clearly works alongside the more overtly repressive crimes such as “organizing/using a cult to undermine implementation of the law.”

Dui Hua’s Political Prisoner Database has recorded information on over 1,500 Christians who have been detained or sentenced for either illegal business activity or using a cult to undermine implementation of the law since 1997. Most recently, the Chuxiong Municipality People’s Court in Yunnan tried seven Christians for organizing/using a cult to undermine implementation of the law on April 27 and 28, 2018. The procuratorate accused the Christians of setting up an illegal printing shop in Chuxioing and reading illegal religious books, among other offenses.

Call for Constitutional Review of Custody and Education

Zhu Zhengfu, Vice President of the All-China Lawyers Association and member of the Chinese People’s Political Consultative Conference. Image Credit: Weibo.

In the lead up to this year’s session of the National People’s Congress (NPC), prominent Chinese lawyer, Zhu Zhengfu, called on the NPC to review the constitutionality of the system of custody and education (收容教育). Zhu is the Vice President of the All-China Lawyers Association and a member of the Chinese People’s Political Consultative Conference. Custody and education is a form of administrative detention designed to punish both sex workers and their clients.

Those who find themselves in one of these centers can be detained for up to two years without judicial process. Similar to previous debates over the system of “re-education through labor,” which was abolished in 2013, calls for the abolition of custody and education have been made ahead of the annual NPC meeting. The detention of well-known Chinese actor Huang Haibo in 2014 for soliciting a sex worker also helped put a spotlight on the coercive measure.

During the 2016 NPC session, Taiwanese delegate Zhang Xiaodong proposed to the NPC, on similar grounds as Zhu, that custody and education be abolished. In this years’ proposal, Zhu emphasized the weak legal basis of the system, specifically citing its inconsistency with the Constitution and the Legislation Law.

As a form of administrative detention, custody and education is exclusively overseen and carried out by public security organs and is beyond the supervision of procuratorates and courts. Public security organs have comprehensive control over the investigation and incarceration process as well as the operation of the custody and education centers, an environment in which abuse of power thrives. The centers were originally created with the goal of educating and rehabilitating sex workers and treating sexually transmitted diseases (STD). The education detainees received was intended to direct them towards other occupations upon release, while the treatment of STDs would help contain ongoing public health issues such as the prevalence of HIV/AIDS.

Instead, the centers are often riddled with stories of arbitrary arrests, forced and unpaid labor, and charging detainees fees for their living and medical expenses as well as their rehabilitation treatments. Detainees undergo compulsory testing and treatment for STDs, which they must bear the costs of; many are not informed about the results of their tests or provided adequate counselling. The centers not only violate detainees’ right to health and privacy, but critics argue that they have also been counterproductive at achieving their goal. Detainees frequently return to sex work upon release, having failed to obtain an education, new professional skills, or the health services and counselling needed to protect themselves as they reenter the sex work industry.

Experts estimate that somewhere between 18,000 to 28,000 individuals are sent to custody and education centers each year. From 1987 to 2000, more than 300,000 people had been housed in custody and education centers across China and as of 2014 there were more than 116 custody and education centers in the country.

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Discussing the System of Custody and Education

Restricting the Personal Freedoms of Individuals Through Administrative Regulations Goes Against the Spirit of the Constitution

Beijing News (BJ News): Why does your proposal focus on custody and education? What are the current problems with this system?

Zhu Zhengfu (Zhu): The system of custody and education has many facets, including legislation passed at the 1991 National People’s Congress (NPC) Decision on the Strict Prohibition Against Prostitution, the State Council’s Measures on the Custody and Education of Prostitutes and Clients of Prostitutes, and the Ministry of Public Security’s regulations governing the sites of custody and education centers. The thrust of the legislations targets sex workers and their clients. Around the time of 1991, societal conditions were decadent and sex work was on the cusp of spreading. In hindsight, we cannot say that those who hired sex workers were right or wrong. However, following constitutional amendments and the passage of the Legislation Law, problems underlying custody and education’s legislative process, its legislative jurisdiction, and its enforcement began to gradually surface. The main problem is that as an administrative penalty, custody and education can restrict the personal freedoms of an individual from six months up to two years prior to trial and without judicial process before the punishments take effect. In other words, there is no legal defense and no cross-examination of evidence. Long periods of restricting personal freedoms under administrative penalties, without corresponding procedural safeguards, clearly demonstrates that the measure violates [the principle] of procedural fairness.

BJ News: In other words, when you punish by limiting the personal freedoms of an individual, it should not be governed by administrative regulations.

Zhu: Yes, Article 8(5) of the Legislation Law clearly stipulates that coercive measures and penalties that restrict personal freedoms must be governed by law. Article 9 of the Legislation Law also stipulates that if laws have not been formulated regarding this matter [Article 8(5)], the NPC or its Standing Committee can authorize the State Council to formulate administrative regulations, except for when it involves regulations that restrict personal freedoms. However, the 1991 NPC Decision on the Strict Prohibition Against Prostitution authorized the State Council to formulate specific measures for custody and education, which is legally at odds with the Legislation Law.

Besides its inconsistency with the Legislation Law, custody and education also touches on the issue of the inconsistency of legislative jurisdiction. Custody and education is now regarded as a measure carried out by public security organs. Administrative penalties can be appealed and litigated on. The Law on Administrative Penalties covers different types of administrative penalties, however it does not include custody and education. Even as the most serious form of an administrative penalty, the system of custody and education is inconsistent with the Law on Administrative Penalties.

Furthermore, the Criminal Law provides exemption from criminal punishment in cases where there is a sentence of less than two years' imprisonment; in cases involving six-months [or less] criminal detention or control; and in cases where the circumstances are minor, even though the action constitutes a criminal offence. The Criminal Law targets and punishes those who commit criminal offences, however sex work is merely an administrative offence, yet it carries a punishment that is more severe than a criminal offence. In doing so, [custody and education] has disrupted the order set forth by the various measures stipulated in the Criminal Law.

BJ News: You have repeatedly proposed abolishing the system of custody and education at the time of the Two Meetings, why are you so closely committed to ridding this system?

Zhu: In 2003, I joined several members of the Guangdong People’s Consultative Conference and proposed to abolish the system of Re-education Through Labor (RTL); through many calls for action, media spotlight, and several important RTL cases, RTL was finally abolished in 2013. Custody and education and RTL are similar, on a legislative basis they have clear flaws and they both work through administrative organs that enforce punishments to restrict personal freedoms. Thus in 2014, [I proposed to] abolish custody and education, and again in 2016 and 2017.

Prior proposals have all tackled the issue from an abolitionist perspective, this year’s proposal takes a constitutional review angle. In the 19th Party Congress work report, it clearly states the importance of “strengthening the implementation and supervision of the constitution, advancing constitutional review, and maintaining the authority of the constitution.” Because the work report has such a focus on this area and because I believe that the era of conducting constitutional reviews and establishing constitutional authority has come, I made the proposal to conduct a constitutional review of custody and education.

BJ News: There are many vocal supporters of abolishing custody and education. At present, what do you regard as the hardest part in abolishing this system?

Zhu: The hardest part is that [custody and education] has already become an established system that is well-embedded into mutually beneficial relationships; law enforcement organs may believe that the existing system could aid in problem solving – once you get rid of it, you are also removing a tool of law enforcement.