Thursday, January 20, 2011

Xinjiang Court Offers First Indicator of State Security Stats for 2010

One of the ways we gauge the human rights situation in China is to look at the numbers of arrests and prosecutions for “endangering state security” (ESS) during the previous year. To this end, we pay close attention to statistics typically included by the heads of the Supreme People’s Court and Supreme People’s Procuratorate during the annual meeting of the National People’s Congress in March. Close analysis of these figures over many years give us a perspective from which we can identify trends and make judgments about whether things are getting more or less restrictive in China.

An early indication of which direction those trends might be heading comes from statements made by the president of the Xinjiang Uyghur Autonomous Region (XUAR) Higher People’s Court, Rozi Ismail. According to the Xinhua News Agency, on January 16 Mr. Ismail announced that courts in the XUAR concluded 376 trials for ESS in 2010. This reflects a 16 percent drop compared to the 437 cases concluded in 2009 but remains more than 30 percent above the number reported in 2008. It is assumed that a crackdown against “splittism” following the deadly riots in Urumqi on July 5, 2009, is primarily responsible for the increase in ESS cases over the past two years.

In its coverage of the speech, the Reuters news agency erroneously announced that 376 defendants had been tried on ESS charges in 2010. In fact, the number of defendants is likely to be much higher. Court figures from the XUAR in the period from 1998 to 2003 show that there were more than three defendants, on average, in ESS cases. So, it is very likely that XUAR courts tried more than 1,000 defendants for ESS in 2010—and it is safe to conclude that the overwhelming majority were convicted.

Since the XUAR has historically accounted for around half of all ESS trials nationwide, the drop reported last weekend suggests that we can expect that 2010 continued to show a modest decline in the total number of ESS trials in China after reaching historic highs in 2008. To get a sense of just how much of a decline, though, we shall have to await the release of fuller statistics in March.

Tuesday, January 4, 2011

Translation: "Escaping the Stability Quagmire Starts with Desensitization"

On January 3, the International Herald Leader, a publication of the Xinhua News Agency typically focused on international issues, published an interview with two leading experts on social problems in China, Professor Yu Jianrong, director of the Center for Studies on Social Conflicts at the Chinese Academy of Social Sciences’ Institute of Rural Development, and Wang Yukai, a political scientist who serves as secretary general of the China Society for Administration Reform.

In this interview (translated in full below) the two experts discuss the negative effect that the Chinese government’s current focus on “maintaining stability” is having on Chinese society. They suggest that the time is right to rethink reliance on “stability above all else” and open up alternative channels to resolve conflicts in society. In so doing, they make a strong case for the universality of individual rights and the importance of creating space for autonomous civil society organizations in China.

(Thanks to the China Media Project for first bringing this article to our attention.)

Escaping the Stability Quagmire Starts with Desensitization
Reported by Liang Yifei & Gao Li
International Herald Leader
January 3, 2010

Interview Preface

In 2010, “maintaining stability” became a keyword of Chinese governance. For each major event or important period, governments at all levels become highly tense. For example, during the Shanghai Expo or the Asian Games in Guangzhou, ensuring social stability was the first priority of local government. It is hard to estimate the amount of money being spent on maintaining stability.

The subtext of all of this emphasis on maintaining stability is that society is unstable. But is Chinese society really at the point of extreme instability? Many researchers say that it is, but they target their criticism at the government’s efforts to maintain stability. There are even scholars who say that the source of the social instability is the government’s [efforts to] maintain stability.

In the eyes of many, stability maintenance has become a fig leaf for some local governments, even acting as a protective shield behind which some local officials hide abuse of power and bend the rules for personal interest. The facts are right in front of our eyes. In August [2010], when high levels of carcinogens were found in Jin Hao tea oil, local government departments in Hunan hid test results on the grounds of social stability. In September, a tick-borne disease led to 18 deaths in Shangcheng County, Henan, but the local government there refused to release a list of the dead, again on grounds of stability maintenance. Some localities even call violent property demolition and relocation “maintaining stability.”

Clearly, these current methods of maintaining stability cannot continue. The idea of “stability above all else” must be updated.

Excessive Use of Methods to Maintain Stability Counterproductive

International Herald Leader [IHL]: Recently, central and local governments alike have been emphasizing maintaining stability. What’s the special social background for this?

Yu Jianrong [YJR]: Since the 1990s, as reform has progressed, social problems such as the gap between rich and poor, the urban-rural divide, poverty and inequality, and vulnerable groups have become increasingly prominent. There has been a sudden increase in mass incidents, especially exceptionally large-scale mass incidents.

Wang Yukai [WYK]: This is because sources of instability in society are increasing and tensions within society are coming to the surface at what appears to be an intensifying pace. The number of mass incidents increases each year, and a clear evolution is emerging. Before, most people used legal methods to protect their rights and pursue their interests; lately, this has turned into social dissatisfaction, which at its most extreme erupts into mass rioting.

In other words, in the past the public used more moderate methods to pursue their interests; now, their methods are more radical. This social background is the reason why the government is placing such emphasis on stability maintenance.

IHL: Lately, the government has been putting a great deal of effort into stability maintenance work. Why, then, is society becoming increasingly unstable?

YJR: In response to these risks [to society], governments often employ various methods to maintain systemic stability, which ends up forming a rigid stability structure. The departure point for maintaining stability at present is maintaining a rigid stability in society.

Rigid stability is when, taking absolute social peace and stability as the goal of control, [authorities] treat all protest as disorder and chaos that need to be suppressed and controlled by any means. Under rigid stability, the methods of social control are always simplified and absolute.

In many instances, local government can even hold the central government for ransom in the name of “maintaining stability.” Sometimes, in the name of “maintaining stability,” even if the actions of lower-level government are illegal, higher levels of government are forced to forgive it. One can say that [the extent to which] local governments use “maintaining stability” as an excuse to violate people’s lawful rights and undermine the most fundamental social rules has reached an extremely serious level in China, and the threats to society this has produced are very great.

WYK: The biggest mistake governments make in the course of maintaining stability is over-reliance on police force and external measures. I believe we shouldn’t be thinking this way about maintaining stability, but this is currently the dominant way of thinking about stability within the government. [The number of] public security and armed police officers is increasing extremely fast, and the cost of maintaining stability is rising sharply.

Actually, the root of many mass incidents in society is the unfairness and injustice of policies. If new policies increasingly benefit the rich and monopolies, then there will be less benefit in policies for disadvantaged groups like workers, farmers, and laborers. If these disadvantaged groups, who make up the great majority of the population, don’t have the right to express themselves or channels to express their interests, how can our society be stable?

Don’t Treat Stability Maintenance and Rights Defense as Antagonistic

IHL: When so-called “mass incidents” occur overseas, such as the labor strikes in France [in 2010] or British students’ protests against rising education fees, those governments don’t talk about “maintaining stability.” How are these situations different from that of China?

WYK: In other countries, such incidents are seen as ordinary expressions of interests, [part of] people’s freedom. They’re not so-called mass incidents, nor is there any concept of “maintaining stability.” We have demonized mass incidents. Actually, many popular expressions of interest are normal, and we shouldn’t use the notion of stability maintenance to suppress people’s pursuit of their interests. I believe that the idea of maintaining normal social order is better than the idea of “maintaining stability.”

IHL: If the government wants to maintain stability and the public wants to defend their rights, aren’t the two in conflict with each other?
WYK: On the surface, the two are in conflict, but they are essentially consistent. This is because maintaining stability must proceed on the basis of protecting ordinary people’s individual rights, otherwise there is no foundation for maintaining stability. Ordinary people are the possessors of rights in society, the masters of the state. Government exists to serve those who are rightful subjects. Governance only has a legal foundation if it protects the rights of ordinary people. Only when we talk about harmony on the precondition of protecting individual rights can we have a truly harmonious society. Maintaining stability and preserving social order are aimed at attacking behavior that undermines the public interest, not [activities] that can undermine public interest as collateral damage. Therefore, rights defense is the foundation of maintaining stability and maintaining stability is the purpose of rights defense. The two complement each other and are essential to constructing a harmonious society.

YJR: In this transitional period in society, a great number of what would ordinarily be considered “normal” collective action in expression of popular goals gets deliberately twisted by local government into “illegal activity.” Governments could ordinarily take a very “detached” position, but influenced by the technical problem of handling contradictions and systemic pressure, they end up in a control dilemma. The consequence is that governments must directly face these “illegal incidents” and are left with no buffer or room to maneuver, not to mention any opportunity to make use of social intermediary organizations to mediate conflicts and resolve disputes.

IHL: Why does the government presently make more use of coercive methods of maintaining stability?

WYK: Yes, the government is too tough in the process of maintaining stability. It doesn’t seek to persuade with policy but rather uses repression and police, which creates confrontation between the public and the government. Not only is this not helpful to resolving the problem; it complicates the problem. Given the speed with which [information is] disseminated on the Internet, it’s easy for a small problem to become larger.

YJR: Rigid stability is based on a system of pressures. The central government demands that local [governments] maintain peace and stability. To this end, it uses all sorts of accountability systems and makes social stability the principal factor in determining the promotion or demotion of local officials. For this reason, whenever grassroots social protest becomes an “incident,” some local power-holders feel the pressure of these various accountability systems and, in the interest of their own political [futures], use violence or buy people off without principle in order to resolve the issue.

IHL: Is it necessary to rethink the government’s “stability above all else” concept of social control?

YJR: For a long time, our work has been guided by the idea of “stability above all else.” It is now time we rethink this notion. I’ve continually called for the ruling party to rethink the concept of “stability above all else.” This is an idea that Deng Xiaoping put forth at a particular period in our nation’s history. At the same time, Deng also said “reform above all else” and “development above all else.”

Now, we’re overlooking other problems because of “stability above all else.” In the name of stability, we’re willing to sacrifice people’s livelihood. In the name of stability, some places have even revived “Cultural Revolution”-era practices such as parading and public denunciations. In the name of stability, we’re willing to abuse police authority. “Stability above all else”—what, in the end, is the “else”? [Stability] takes priority over people’s livelihood, over human rights, over rule of law, over reform, but it hasn’t done away with corruption, with mining disasters, with illegal demolitions and relocations.

China Needs to “Desensitize”

IHL: How can we escape this dilemma of “maintaining stability”?

WYK: First, we must change our entire way of thinking about maintaining stability. We mustn’t treat expressions of interest by members of society as expressions of social instability.

Second, there may be gaps in our stability-maintenance policies themselves. The real way to reduce social contradictions and conflicts is to revise policies to integrate the structure of society’s interests and enable the expression of interests.

Finally, besides channels for expressing interests, [we need to] establish institutions to balance the structure of medical care and education between urban and rural areas—we cannot have dual-track policies. Policies concerning the requisition of land and demolition and relocation must protect farmers’ rights in order to protect the interests of the entire society.

YJR: Chinese society has too many “sensitive” things, “sensitive” people, “sensitive” topics, and “sensitive” periods. We even treat issues concerning national welfare and people’s livelihood as “sensitive” issues. Everyone avoids [these issues] and doesn’t dare face them squarely and discuss them. In fact, this is nothing but government overreaction and a serious display of lack of confidence. I believe that an important task for China at this moment is “desensitization.”

What’s more, we need to open the gates of the judicial system and resolve conflicts and disputes through the law. In theory, petitioning is only one of many administrative remedies, including administrative litigation and administrative review. Judicial remedies are the most important way for citizens to remedy [infringement of] their rights. We should note that one serious consequence of using administrative remedies to replace judicial remedies is the diminution of the authority of the state’s judicial institutions, the basis of social control in modern societies. Our courts find themselves in an embarrassing situation at present, where “the Party secretary controls posts, the mayor controls the purse, and the political and legal committee controls the cases.” The localization of the judicial system is an increasingly serious [problem].

At the same time, we can set up full-time people’s congress deputies and put petitions under people’s congresses at each level in order to have representatives of the people oversee the work of the government, the procuratorates, and the courts. And we should establish organizations for the expression of popular interests. I’ve discovered that people’s congress deputies have a particular trait: they dare to “curse your mother.” When they encounter “rascals” who deliberately stir up trouble, people’s congress deputies can give them a good scolding and the person being scolded won’t mind too much. This shows that a full-time people’s congress institution can act as a buffer between the government and society.

Reform can start at the county level. For example, we can select a few counties and experiment with reforms for a few years and see what happens. If the results are good,  expand to the provincial level and experiment for a few more years. In this way, we can at least trade “time” for “space.” If the reform fails, at least it won’t have much of an impact on the overall situation.

Monday, January 3, 2011

Translation and Commentary: Reducing Pre-trial Custodial Detention for Juvenile Suspects

In China, criminal suspects are frequently held in police custody for lengthy periods of time before facing trial. Promoting alternatives to custody, especially pre-trial detention, has become a priority for criminal justice reformers.

According to China’s Criminal Procedure Law, police have up to 30 days after detaining a suspect to request approval from the procuratorate for “formal arrest,” which allows them to keep the suspect in custody during continuing investigation in advance of trial. Under normal circumstances, the period between formal arrest and trial should be no more than three months, but if all extensions are exploited the length can stretch to more than 20 months. As trials can theoretically last six months or longer, it is possible for a suspect in a Chinese criminal trial to spend more than two years in detention before a court renders a judgment.

This reliance on pre-trial custody does not adequately protect the rights of criminal suspects. Article 9 of the International Covenant on Civil and Political Rights (which China signed in 1998 but has yet to ratify) establishes the right of a criminal suspect to be brought before a judge or judicial officer “promptly.” It also specifies that “it shall not be the general rule that persons awaiting trial shall be detained in custody,” setting up a preference for pre-trial release of suspects on bail or other form of guarantee. But bail is still not widely used in China, meaning that suspects often spend long periods of time behind bars, cut off from society and family while awaiting punishment.

The problem of pre-trial detention in China is particularly problematic for juvenile offenders. As a recent article from China Youth Daily (translated below) points out, most offenses committed in criminal cases involving juveniles are relatively minor first offenses, and most involve relatively light punishment—especially as Chinese juvenile courts focus more attention on things like rehabilitation and restorative justice for minors. Yet the rate of pre-trial detention for juveniles remains staggeringly high, exceeding 70 percent in Beijing’s Haidian District.

This is one reason why experts have been calling for a dedicated criminal procedure for use in cases involving minors in China. Measures to reduce pre-trial custodial detention are just one of many proposals raised by experts looking at how to implement such a system, a process that The Dui Hua Foundation has been seeking to facilitate in exchanges with Chinese counterparts.

With reform of the Criminal Procedure Law on the legislative agenda, there is hope in the near future that some of these proposals may go beyond limited experimentation and be promoted nationwide. As the article suggests, however, legislation is not the most significant factor determining extensive use of pre-trial custodial detention in China. Far more important is the way in which approval of arrest is used to measure police performance. If the law is changed but the incentive structure stays the same, in all likelihood law enforcement practices will continue to favor use of detention—even for juveniles.

Special Procedures Needed for Juvenile Criminal Cases, Experts Say
Reported by Li Li & Zhang Lei
China Youth Daily
December 30, 2010

During a recent conference held by the Haidian District People’s Procuratorate in Beijing on “reducing pre-trial custodial detention for juveniles,” this reporter learned that China currently treats juvenile and adult criminal suspects according to the same principle of “custody as the norm, release on bail as the exception.”

For example, during the three years from 2005 to 2007 the average arrest rate for cases handled by the Haidian District People’s Procuratorate was 71.1 percent. Moreover, once the decision has been made to [place a suspect under] formal arrest, the likelihood of release on bail pending further investigation is remote. Thus, the rate at which suspects are arrested is essentially the same as the rate of pre-trial custodial detention.

Procurator Cheng Xiaolu, of the Haidian District People’s Procuratorate “Project for Reducing Pre-Trial Custodial Detention,” says that the pre-trial custody rate for juvenile criminal suspects is lower than the average pre-trial custody rate [for all suspects], but since 80 percent of juvenile criminal cases involve minor offenses, a pre-trial custody rate of up to 70 percent for juvenile suspects is still significantly higher than the custody rate for most criminals in other countries.

According to the Criminal Procedure Law, custodial detention should also be subject to the principle of proportionality, meaning whether and for how long to detain a suspect should be considered in proportion to the seriousness of the suspected offense and the personal risk [faced by the suspect].

In the practice of law enforcement, the implementation of this [principle] has been less than satisfactory.

According to statistics from the Haidian District People’s Procuratorate, 18 percent of all individuals in cases accepted in 2005 involved juvenile suspects who were sentenced to suspended sentences or punishments other than imprisonment, were not subject to indictment, or had their cases withdrawn. In 2006, the proportion rose to 28.1 percent.

“This means that for those two years there were at least 209 individuals—around 23 percent of juvenile suspects—who should not have been held in custodial detention,” says Cheng Xiaolu. Of those juvenile suspects arrested who were then sentenced to fixed-term imprisonment of three years or less, the majority posed no risk to society and custody was unnecessary.

Reducing Custodial Detention is Law Enforcement Reform Trend

For a long time, public security organs have used the rate at which arrests are approved as an indicator of the quality of their work. This creates objective reasons for public security to request arrest in cases where arrest is unnecessary, and procuratorates often tend to approve arrest in order to [promote] harmony between police and prosecutors.

For juveniles, however, custodial detention is a separation from guardians, relatives, and friends and an interruption of their normal process of socialization before it has completed. This can damage juveniles’ physical and mental health and have an impact on their subsequent growth and development. At the same time, custodial detention can lead juvenile offenders to become habitual offenders or recidivists. Criminology research shows that the majority of adult habitual offenders and recidivists committed crimes as juveniles. Their inability to “grow out of” their criminal behavior as they get older is closely linked to their previous detentions.

“The goal of pre-trial custodial detention is to ensure that the judicial process proceeds smoothly,” says Prof. Wang Minyuan, director of the Procedural Law Research Institute at the Chinese Academy of Social Science Law School. “For the sake of promoting a civilized and scientifically-developed procedural system, as long as non-custodial measures do not affect the judicial process, it is better not to use detention.”

In 2007, the Haidian District People’s Procuratorate and Sweden’s Raoul Wallenberg Institute of Human Rights and Humanitarian Law signed a cooperative agreement for a program entitled “Reducing Pre-Trial Custodial Detention” in hopes of researching ways to reduce pre-trial custody within the framework of current legal provisions.

Starting with research on reducing pre-trial custodial detention for juvenile criminal suspects, this program attempts to safeguard the rights of criminal suspects by reducing the number of individuals subject to pre-trial custody and shortening the period of detention.

“The problem of custodial detention is difficult in terms of both the practice and theory of law enforcement. It’s closely linked to citizens’ rights as well as to trends and patterns in the whole criminal procedure [system],” says Prof. Chen Weidong, director of the Procedural System and Law Enforcement Reform Research Center at the Renmin University Law School, who added that reducing custodial detention is the trend in law enforcement reform.

Bail Should be Rule, Custody the Exception

Cheng Xiaolu says, “Actually, as many as 90 percent of juvenile defendants are sentenced to light punishments like suspended sentences, fixed-term sentences of three years or less, short-term detention of between six and 12 months, or fines. These juvenile suspects are generally first-time or casual offenders who would be subject to strict discipline if released on bail. So the personal risks they face and their threat to society are both small, as is the chance that they will escape after receiving education.” Reducing pre-trial custodial detention for this 90 percent of juvenile suspects is extremely feasible.

However, China currently lacks dedicated procedural legislation for use in juvenile criminal cases.

At present, provisions concerning investigation, prosecution, and sentencing in juvenile criminal cases are scattered among several laws, regulations, and judicial interpretations. No independent, full, and scientific legal system exists. Whether substantively or procedurally, the relevant legislation does not treat juveniles differently [from adult suspects]. Substantively, the law does not set out different conditions for the release on bail or arrest of juveniles compared to adults, something that is not conducive to the legislative spirit behind the protection of minors.

“In terms of the criteria for custodial detention,” says Cheng Xiaolu, “we ought to make release of juvenile suspects on bail the rule and detain only when there is no other alternative, having set out specific circumstances under which custody may be carried out.”

It is understood that reform of the criminal procedure law has already been placed on the agenda for the National People’s Congress. Many experts and scholars believe that it is imperative to establish a dedicated criminal procedure for juveniles.