Thursday, November 18, 2010

Translation & Commentary: "To Refuse Compensation is to Turn a Blind Eye to Torture"

When it comes to human rights in China, one can point to many provisions in the constitution, laws, and regulations designed to protect all sorts of individual rights. Problems often arise, however, when these provisions are inconsistently enforced or, in some cases, willfully ignored.

There is perhaps no clearer illustration of this than the case of Li Jiyi. Arrested in 2002 on suspicion of theft, Li died in custody after being tortured by four police officers in Qiongzhong County, Hainan. Li’s family spent years trying to get some accountability for this police abuse, but were faced with repeated obstacles by a local public security bureau unwilling to investigate itself. The officers involved were eventually sent to prison and in the end a court awarded Li’s family with state compensation. But faced with the court’s compensation order, the public security bureau refused to pay, arguing that to do so would weaken police morale and initiative.

China frequently reiterates its commitment to combat torture. “Coercion of confessions” is prohibited under Chinese criminal law, and new rules were recently issued governing the exclusion as evidence statements extracted under torture. But despite these prohibitions, torture remains an endemic problem in a criminal justice system that places a heavy emphasis on confession of guilt and features few real credible institutions to oversee a powerful police force.

To Xu Mingxuan, who frequently comments on legal issues in the Chinese media, what happened to Li Jiyi is bad enough, but what his family subsequently endured is simply inexcusable. In an opinion published in the November 17 edition of the Beijing News, Xu points out that privileging police morale and power over justice for victims of police brutality is incompatible with any reasonable conception of rule of law. He asks rhetorically how police can be so audacious and ignorant of such common-sense ideas. Perhaps one need only look to the emphasis given to “stability above all else” for an answer. 


To Refuse Compensation is to Turn a Blind Eye to Torture
Xu Mingxuan
Beijing News
November 17, 2010

     In a country with rule of law, such defiance of the law by local law-enforcement agents is hard to imagine. Over the past eight years, police in Hainan’s Qiongzhong Li and Miao Ethnicity Autonomous County first tortured a man to death, then resisted investigating the case, and finally refused to honor a court’s 580,000-yuan state compensation judgment on the grounds that it would “hurt police initiative.”

     According to a report on the People’s Daily website, Li Jiyi was taken into custody in 2002 for theft and was later tortured to death. His family members sought answers from police, but the Qiongzhong County Public Security Bureau did not put the case on file [for investigation]. After two years of petitioning and lodging complaints, in 2004 the procuratorate performed an autopsy and police filed a case, but the next year the county public security bureau again said that it could not proceed with the case. After two more years, in 2008, four defendants were found guilty of coercing confessions and given sentences of up to 13 years. In 2009, Li’s family sought state compensation from the county public security bureau, but the bureau gave no response. Family members again filed an administrative lawsuit, and in a final ruling this past June the public security bureau was ordered to pay more than 580,000 yuan in compensation to family members of the deceased.

     I have tried to relate as succinctly as possible the story of how Li’s family spent the past eight years petitioning and defending their rights, yet it still takes up considerable column space. But the difficulty involved in describing their story briefly is nothing compared to their unimaginable pain, suffering, and anger. Yet at each step of the way, local police slammed the door on justice, passed up every opportunity to regain public trust, and never showed an ounce of shame.

     On another level, though, local police showed real “compassion” in the reasoning they gave for refusing to pay compensation to [the family of] the deceased. According to the State Compensation Law, the public security bureau would have to recover any compensation paid from the four who carried out the torture. But they were already paying a heavy price for the “lack of caution” that led to Li Jiyi’s death, and to make them come up with large sums in compensation as well would seriously dampen the initiative of public security officers! This explanation is ridiculous in the extreme—do they mean to protect the “initiative” to coerce confessions?

     The court’s two binding judgments on coercion of confessions and state compensations could not be any clearer. Coercion of confessions is contempt for a suspect’s procedural rights and right to life. Refusing to investigate is contempt for the state’s law-enforcement authority and the procuratorate’s oversight authority. Failure to implement a court’s binding judgment is contempt for the court.

     State compensation is a mechanism of self-correction for state organs and a way to make amends to victims. It is mandated by state law, so whether the public security bureau wants to pay compensation is not an issue. Moreover, as enforcers of the law [the police] are obliged in principle to set an example in carrying out a binding judicial decision—otherwise, doesn’t this put them in the same league as other “deadbeats”?

     Refusal to compensate the victim’s family on the grounds that it would damage “police initiative” is the same as approving and turning a blind eye to torture. It seems that after eight years of being the target of rights defense activity, these local police still don’t have even the slightest basic understanding of rule of law—torture is illegal and those who enforce the law have no special extralegal authority. Eight years on, there is no reason why the local police should not possess this basic understanding of the law. So, where could the motivation and audacity to refuse to compensate the victim of torture possibly come from?

Related link:

Thursday, November 11, 2010

Taking a Stand in the Name of Rule of Law

The Chinese government’s response to petitioners has been much in the news this past week, thanks in large part to the efforts of the country’s more outspoken investigative journalists.

Earlier this week, the Beijing News earned the ire of local officials in Fuping County, Shaanxi, after it reported on the case of two women who had been forced by police to stand before an audience of hundreds, arms shackled, as a warning to others about engaging in “illegal petitioning.” Legal experts denounced the action as a violation of legal provisions against public shaming of prisoners or suspects—especially given the fact that the women had merely been given light administrative punishments.

For their part, officials in Fuping publicly insisted that their handling of the situation had been legal and proper. “It increases transparency of law enforcement,” they claimed. “The goal is to educate [the women] themselves and to educate the public.” In support of their actions, they point to a 2009 directive from the Central Politics and Law Committee authorizing use of “serious measures” against persistent petitioners or those who act unlawfully.

Meanwhile, from Hunan, there emerged an account in the Southern Metropolis Daily of a farming couple subjected to “preemptive punishment” for “preparing to petition.” Tang Fengyin had sued the local government in Yongzhou over the illegal requisition of his land, but despite a local court finding in his favor, government agents continued to infringe on his property rights. So, Tang and his wife traveled to Guangzhou to meet with a lawyer and seek out a sympathetic reporter to whom they could recount their plight. But police from Yongzhou tracked them down, dragged them back to Hunan, and gave Tang a 10-day administrative detention for “preparing to petition.”

Like the Fuping case, the treatment of the Tangs has generated a lot of outrage from Chinese commentators. Today, in the Beijing News, Wei Yingjie writes:
Petitioning is no crime, much less “preparing to petition”! By giving the Tangs an administrative punishment before they had gone to petition, local police can be said to have “preemptively violated the law.” Even if the Tangs subjectively had the intent to petition, they had not yet in fact taken action, so for local police to slap them with this is a classic case of trumped-up charges.

Even more alarming is the ruling mentality behind the “preemptive punishment” of citizens. Petitioning is both a lawful administrative channel for seeking redress and also an effective means of defusing tensions in society. Some local governments go to so much trouble to block and intercept petitioners because, first, they are afraid their dirty laundry will be displayed in public and, second, they have been warped by their ruling mentality. By this I mean that some local governments and officials, out of self-interest, often have a tendency to see citizens as potential “enemies.” This is the most frightening and worrying part about this “detention of citizens for preparing to petition” incident.

When local government agencies and officials in possession of unquestionably strong public power see citizens as being opposed to their interests, the consequences are obvious. It’s not limited to petitioners normally exercising their “right to petition”—any ordinary person can be reduced to a “prisoner” of those holding public power at any time. Therefore, this is not merely an ordinary case involving administrative punishment but a serious violation of the law, one that tramples on legal institutions and infringes on citizens’ legal rights.
Perhaps not coincidentally, these reports of local abuses of power against petitioners come in the same week that China’s State Council released a new “opinion” on the importance of rule of law, calling for fairer administration of justice and government accountability in order to reduce the level of social grievance.

Perhaps more than anything, the cases described above illustrate the dilemma facing local officials in China. On the one hand, they are being constantly reminded of the paramount importance of social stability and pressured to take serious measures to preserve it. On the other hand, they are being exhorted to pay increased attention to rule of law.

Until the balance of these messages begins to tip more unambiguously in the direction of rule of law—and institutions are developed to place real checks on abuse of power—it is doubtful that either the grievances or the outrageous responses to them will disappear anytime soon.

Related links:

Tuesday, November 9, 2010

Injuring the Injured: The Case of Zhao Lianhai

Shouts and wails erupted outside a suburban Beijing courtroom this morning as 38-year-old Zhao Lianhai was sentenced to 2-1/2 years’ imprisonment on charges of “causing a serious disturbance.”

After the court’s verdict was announced, Zhao angrily tore off his detainee uniform and resisted police efforts to drag him away. He announced his intention to appeal the verdict and indicated he would protest by starting an immediate hunger strike. Outside the courtroom, tearful family members and angry supporters shouted “Zhao Lianhai is innocent!” and “The court is shameless!”

Prosecutors charged Zhao with “using controversial social issues to gather and incite others to shout slogans in public places and illegally gather to stir up trouble.” The main “controversial social issues” in question was a major food-safety scandal that first came to light in 2008 in which the industrial chemical melamine was found to have been added to Chinese milk products, causing at least six deaths and serious kidney damage for hundreds of thousands of children.

As the father of a child who had developed kidney stones as a result of drinking tainted milk, Zhao led other parents in a quest to seek better compensation and treatment for victims and their families. They rejected a highly publicized compensation plan put forth by the government and attempted (unsuccessfully) to file a class-action suit against more than 20 companies involved in the scandal.

Zhao set up a website to build public support and collect information about the poisonings, suggesting that the victim count could be much higher than official figures. He gave interviews to foreign media and became involved in other cases involving people seeking justice for grievances.

The crime of “causing a serious disturbance,” which was added to the Criminal Law in 1997, was originally known as “hooliganism.” Literally the crime of “picking quarrels and provoking trouble,” Article 293 provides for a maximum five-year sentence for a variety of offenses,  leading some to refer to it in Chinese as a “pocket crime”—anything can be stuffed into it.

In April, shortly after the initial hearing, Hong Kong-based media personality Leung Man-tao used Zhao’s trial as inspiration for a passionate defense of citizens’ rights in a commentary entitled “Rights Defense and Maintaining Stability,” published in the weekly Guangzhou newspaper Southern Weekend. He started by describing the scene outside the courtroom:
They said the court arranged to hold the trial in one of the smaller courtrooms that couldn’t seat many people, so the guy’s wife and kid couldn’t get in to attend. When the trial was over, he was convicted as expected and then immediately bundled into the prisoner transport vehicle by police. At that moment, his wife picked up the child and chased after [the vehicle] in the rain, crying and shouting, until her way was blocked by row after row of guards. She watched as the husband she hadn’t seen in months was driven off in the distance, while her son kept repeating, “Papa! Papa!” They said the reporters on the scene couldn’t look at the woman, and some even couldn’t bear it and were brought to tears.

What crime did this man commit? The prosecution charged him with “creating a serious disturbance,” saying that he maliciously stirred up trouble online over an incident and “incited a gathering” of people to go to a public place and “seriously disrupt social order by shouting slogans and carrying out an illegal demonstration.” What was the big deal that led this guy to “maliciously stir up trouble” to the point where it landed him behind bars? It was all because of a child; his young child drank some bad milk formula and developed kidney stones, so he hardened his heart and summoned all his strength, both visible and invisible, and fought to the end to defend his rights.
After criticizing the authorities for treating rights defenders as a threat to social stability, Leung concludes his essay thusly:
If you misuse the framework of stability protection to deal with rights defense activity, that shows you haven’t heard at all what the other party has been saying. They haven’t come to look for trouble, and even less to rebel. On the contrary, what they want is to be seen, to be heard, and to be recognized. If they were really enemies, why would they demand your recognition? Responding harshly to rights defense in the name of “preserving stability” is to give a negative response to a positive demand.

Think about it: the vast majority of rights defenders are already victims. Even if they occasionally say and do things that are a bit extreme, can’t we sympathize with their feelings? It makes sense that any citizen whose rights have been infringed should obtain compensation, not be looked upon as not being a citizen. But in reality, we find time and again that those who have suffered injury often get injured again.

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Friday, November 5, 2010

Dui Hua’s Observations from Universal Periodic Review of US Human Rights Record

On November 5, 2010, the United States underwent its first Universal Periodic Review at the United Nations in Geneva. Dui Hua Program Officer Tobias Smith attended the review, and wrote this dispatch following the event:

Even for those who doubt the United States’ commitment to the United Nations Human Rights Council, it’s difficult to dismiss the American government’s preparation for the first Universal Periodic Review (UPR) of the US human rights record. In anticipation of the National Report submitted to the Office of the High Commissioner in August, the US government consulted with over 1,000 civil society participants at eleven locations throughout the country. For the UPR itself, the government dispatched more than 30 US delegates, including three assistant secretaries of state, representatives from the Department of Justice, the Department of Homeland Security, and the Department of the Interior, and state and local agents.

While the high-profile representation was a welcome indicator of this administration’s willingness to engage in international human rights dialogue, it was also a natural response to the array of interests that lined up (literally) to be heard at the UPR. Countries sign up for two-minute slots to voice recommendations, and the queue to join the list can be competitive. Cuba, Venezuela, Iran, Nicaragua, and others reportedly worked together to make sure they were at the head of the pack. This strategy led Germany’s representative to quip that he hoped “those states will apply the same commitment to their own human rights at home [as they did to getting on the list].”  Despite the push to be heard first, these countries’ recommendations were for the most part moderate, and they overlapped heavily with comments voiced by many of the 56 countries that spoke.

The most often raised recommendations included: encouraging the United States to ratify international treaties such as the Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination Against Women; ending racial profiling and racial disparities; closing the detention facility in Guantánamo Bay; creating a human rights commission in line with the Paris Principles; and placing a moratorium on the death penalty. The call for a moratorium was particularly pervasive, and was raised by 20 countries, virtually all of them Western democracies.

At intervals throughout the UPR session, the US delegation had opportunities to respond. Assistant Secretary of State for Democracy, Human Rights and Labor Michael Posner took on the question of why the United States has not ratified many commitments, saying that while some countries ratify treaties before complying, “The US follows a different path. We attempt to comply before ratifying.” He said that the Obama administration is committed to ratifying the Convention on Elimination of All Forms of Discrimination against Women, and that there is a vigorous domestic debate on creating a human rights commission in accordance with the Paris Principles, but he did not provide a time frame for either. Harold Koh, the State Department’s Legal Advisor, took on the question of the closure of Guantánamo Bay. He said that President Obama has expressed his desire to do so but that he faces legal hurdles as members of Congress have opposed the transfer of many of these prisoners to other facilities. Koh also tersely addressed the possibility of a moratorium on the death penalty, stating that while “this is a subject of vigorous debate and litigation in the United States…Many Americans who are personally opposed to the death penalty, including myself, nonetheless recognize that the death penalty is nowhere prohibited by international law.”

Although the United States did not comment at China’s Universal Periodic Review in February of 2009, China did offer comments to the United States. China’s representative noted some progress in health care and education, but also pointed out with concern gaps in protections in human rights, including excessive use of force by law enforcement, discrimination against Muslims and African-Americans, and inhumane detention of immigrants. The Chinese representative recommended that the United States ratify core treaties, end excessive use of force by law enforcement, close the prison at Guantánamo Bay, and bring the United States in line with the International Convention on the Elimination of All Forms of Racial Discrimination.

The US UPR concluded in the morning. In the afternoon, the US delegation hosted a town hall-style forum for NGO representatives. This was a savvy move, as NGOs attended the event in record numbers, with many holding side events throughout the week leading up to the review. In fact, NGO presence was so strong that access to the UPR itself was limited to two representatives per NGO. Notably, the concerns raised at the forum differed from those brought up by countries during the UPR. The death penalty, for instance, was not mentioned once, and international treaties received less attention. Questions were specific and wide-ranging, though the topic of repatriation of indigenous peoples’ lands probably received the most discussion.

On Tuesday, November 9, the Human Rights Council will adopt the summary on the UPR, and the US government will have until March of 2010 to formally respond. Overall, the United States appeared to make a good faith effort to engage in this UPR—and hopefully this will translate into a commitment to address many of the legitimate concerns raised during the process.