Tuesday, August 25, 2015

Xinjiang’s State Security Prisoners: Failing to Reform (Part 1 of 2)

Twelve men accused of ESS are publicly sentenced in Yili (Ili) Kazakh Autonomous Prefecture, Xinjiang, September 18, 2008. Photo credit: iyaxin.com

In 2008 the Xinjiang Rule of Law Leading Small Group published a policy document examining a number of challenges faced by prison authorities in managing the region’s prisoners serving sentences for endangering state security (ESS). The first two sections of the document are translated below. They discuss the climate surrounding Xinjiang prison work and the psychological profiles of ESS prisoners. The last two sections of the document, focusing on how to better reform ESS prisoners, will be translated in an upcoming post.

The document focuses on external factors, like increasing US attention to the “Xinjiang question” and the “three forces” of ethnic separatism, Islamic extremism, and terrorism. Also mentioned are internal factors, such as an insufficient number of prison police, a shortage of funds, and outdated facilities.

Over the years, Dui Hua has drawn on evidence from a variety of open-source documents to conclude that Xinjiang accounts for a considerable proportion of the nation’s ESS arrests, indictments, and trials. In 2008, Xinjiang accounted for more than 75 percent of ESS arrests and 82 percent of ESS indictments nationwide. In the first 11 months of that year, Xinjiang’s procuratorate reported that 1,295 individuals were arrested and 1,154 were indicted for ESS crimes in the region. Between 2008 and 2010, Xinjiang, which accounts for less than two percent of China’s population, accounted for 50 percent of the nation’s first-instance ESS trials. In 2013 and 2014, Xinjiang conducted about 300 ESS trials of first instance each year.

The large number of ESS cases in Xinjiang is connected to the region’s complex history; diverse population; and geo-strategic importance, bordering Russia and Central Asia on China’s northwest. The emergence of independent Central Asian states after the collapse of the Soviet Union and the spread of Islamic ideologies have heightened Chinese authorities’ concerns about stability in the region. Authorities in Xinjiang see themselves as engaging in an ongoing battle against the “three forces.” In their view, what hangs in the balance is the stability of Xinjiang and the allegiance of the region’s 10 million Uyghurs—an ethnically Turkic, culturally distinct, and predominantly Muslim people who have been the main inhabitants of the region for more than 1,000 years.

The document describes the “American Factor” as a “constant threat” to Xinjiang’s social and political stability. It mentions US support for nonviolent resistance movements, or color revolutions, in Central Asia and notes that religious extremism has flourished in countries where color revolutions occurred. US interest in human rights in Xinjiang, particularly its criticism of controversial ESS cases like that of Ilham Tohti, remains a point of contention in US-China relations. China continues to see such attention as interference in its domestic affairs, and accuses the United States of a “double standard” in combatting terrorism for its penchant to draw attention to Chinese policies that marginalize and criminalize Uyghur culture in its response to ethnic clashes in Xinjiang.

Tensions between Han Chinese and Uyghurs flare up periodically as protest. Some of the protests turn violent, as in the deadly riots that erupted in Ürümqi in July 2009. In recent years official media have reported an increasing number of violent incidents in the region. Xinjiang police counted over 190 “terrorist” attacks in 2012. Authorities have also implicated Uyghurs in incidents outside the remote western region, including Beijing’s Tiananmen car crash in October 2013 and knife attacks at Kunming and Guangzhou train stations in 2014 and 2015, respectively. Law enforcement has responded by tightening controls on religious and cultural activities and cracking down on “infiltration” by trans-national radical groups.

One of the radical groups named in the paper is Hizb ut-Tahrir, or Party of Liberation. Many countries have banned the group. Chinese government records show that a substantial proportion of ESS cases are attributed to Hizb ut-Tahrir. For example, in 2010, police in Kashgar identified 522 people for their involvement with Hizb ut-Tahrir, compared with just 47 people involved with the East Turkestan Islamic Party. That said, independent media reports documenting Hizb ut-Tahrir activity in Xinjiang are scarce.

Moving to psychological profiles, the document distinguishes different segments of Xinjiang’s ESS prisoner population by factors such as age, level of education, and exposure to religious ideas. The profiles suggest the need for differentiated strategies of “education and reform.” Prison authorities put considerable emphasis on the need to “convert” ESS offenders and replace their “bigoted” and “reactionary” ideas about ethnicity, religion, and history with proper Marxist understandings that reduce antagonism towards the party-state.

Tuesday, August 18, 2015

Draft Criminal Law Amendment Takes Aim at Defense Lawyers in China

China's National People's Congress in session in Beijing. Credit: Xinhua

One of the more controversial parts of the current proposal to amend China’s Criminal Law concerns the possible expansion of Article 309, covering the offense of “disrupting courtroom order.” Lawmakers have argued that new measures are necessary to “ensure the ability of the people’s courts to implement their adjudicatory powers in an independent and impartial manner” by punishing those who might try to use courtroom disruptions to influence judicial decision-making. They are responding to worries about a worsening atmosphere inside China’s courtrooms—particularly the sense that growing antagonism between judges and defense lawyers is helping to undermine the dignity and credibility of the courts in the public eye. Critics, on the other hand, argue that the proposal unfairly targets lawyers and will have a chilling effect on their ability to pursue vigorous defense on behalf of clients.

Few would challenge the value to society of preserving a substantial degree of courtroom order. A courtroom should be a forum in which opposing sides of a contentious issue may argue in a reasonable, if sometimes heated, manner over important matters of truth and justice. It is thus reasonable to demand that all sides adhere to a set of fair and impartial rules and standards of decorum because respect for the outcome of the judicial process is linked to the respect that all participants demonstrate toward the process itself. If disorder in China’s courts is in fact contributing to a public crisis of confidence, then addressing the problem at its root is an essential step toward furthering the development of rule of law.

At the heart of the debate over the proposed amendment to Article 309 is disagreement over the root causes of tension in the courtroom. Who is to blame when conflict erupts between the various parties at trial, especially between lawyers and judges? Are unscrupulous lawyers showing brazen contempt for the law and the courts, or are judicial bias and procedural violations forcing some lawyers to adopt more confrontational tactics as a form of protest? Regulating lawyer behavior through the threat of criminal sanctions might lead to a more orderly courtroom, but if defense lawyers become meek participants in judicial proceedings that remain arbitrary and biased, then this is likely to do little to enhance the courts’ reputation for delivering justice. On the contrary, imposing further limits on the fragile rights of lawyers may actually erode public confidence in the Chinese judicial system even further.

Letter of the Law

The existing offense under Article 309 imposes a maximum sentence of three years in prison for “gathering people to stir up trouble or attack a courtroom” or “assaulting a judicial officer (sifa gongzuo renyuan),” when those acts “seriously disrupt courtroom order.” The draft amendment proposes to expand the assault clause to include “those participating in the proceedings.” It also adds two new offense categories: “insulting, defaming, or threatening a judicial officer or participant in the proceedings after being told by the court to stop” and “engaging in other acts that seriously disrupt the order of the court.”

The first of these changes is relatively unproblematic. Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences, has in fact been quick to point out that expanding the scope of protection against courtroom assaults is aimed at protecting the rights of lawyers. In particular, he believes that the change will help address attacks by victims’ family members against defense lawyers or defendants’ relatives. Such attacks are unfortunately frequent in China, particularly in cases involving the death penalty.

There is much less support for the two other proposed amendments to Article 309. Critics contend that “insulting,” “defaming,” and “threatening” are acts that can each be defined quite broadly. Professor Qu Xinjiu of China University of Political Science and Law notes that “insult” can include ordinary name-calling, damage to reputation that might be eligible for civil litigation, and a relatively rare degree of offense that might qualify for criminal prosecution. The proposed expansion of Article 309 does not make clear what degree of insult would qualify for criminal prosecution, or why the existing criminal statute covering insult and defamation is insufficient to handle the acts being targeted. Observers similarly note the ambiguous and subjective nature of the word “threaten” (weixie), which has no corresponding criminal offense. To remedy these problems, Professor Chen Xingliang of Peking University Law School has recommended scrapping the “insulting, defaming, or threatening” clause entirely and expanding the assault clause to cover the more menacing act of “intimidating” (konghe) judicial officers and other parties.

The prospect of sanctions against insult and defamation at trial is particularly troubling to lawyers, who feel unfairly singled out given the way the offense is written to presume the court’s authority. Many have argued that China should in fact adopt measures to give lawyers civil and penal immunity for statements made in connection to a case—a recommendation based on Article 20 of the UN Basic Principles on the Role of Lawyers. Otherwise, it is feared, lawyers who dread the consequences of their speech may become “obsequious and servile” and reluctant to express their defense opinions fully, thereby potentially harming the interests of the defendants they represent.

It is the final clause, known as the “pocket clause” for its ability to contain almost anything, which has generated the most opposition. Lawyers and legal scholars are frequently critical of such legal formulations, considering them to be sloppy, “unscientific,” and open to arbitrary and abusive interpretations. In this instance, critics argue, the inclusion of such a clause is particularly detrimental to lawyers. This is because, as Chen Xingliang explains, both the Supreme People’s Court and Supreme People’s Procuratorate have the power to issue legal interpretations that can shape how provisions like these are applied. In other words, of the three main participants in courtroom proceedings, only lawyers have no say over what “other acts” might be construed as serious disruptions to courtroom behavior—potentially putting them at a serious disadvantage.

Critics and Crackdowns

Stepping back from the issue of how the proposed offense would be worded, critics of the amendment also doubt whether an expanded criminal offense is even necessary. In addition to existing offenses covering insult and defamation, Article 194 of the Criminal Procedure Law empowers a presiding judge to forcibly remove a trial participant or spectator for continuing to violate courtroom order after being warned to stop. In serious cases, the judge may also impose a fine of up to 1000 yuan or a jail term of up to 15 days. With respect to lawyers, other disciplinary sanctions—such as formal warnings or suspensions from practice—can be applied to deal with the most serious cases.

Despite all of these arguments, which were amply presented to lawmakers when the first draft of the Criminal Law amendments was made public in late 2014, the proposed expansion of Article 309 remained essentially unchanged in the second draft presented to the National People’s Congress Standing Committee (NPSC) in late June. Drafters are expected to submit one final proposal for passage later this year.

Will lawmakers once again ignore the opposition of lawyers and legal scholars?

They may very well do so, if the recent crackdown on Chinese rights lawyers is any indication. Liang Jianbing, a law professor at Liaoning Normal University in Dalian, believes that there is a clear link between public opposition to the proposed changes to Article 309 and the sweeping detention of lawyers initiated on July 10. He suspects that many members of the NPCSC were swayed by the outpouring of criticism directed at the first draft by lawyers and legal scholars, putting the future of the proposed amendments in jeopardy. In response, law-enforcement institutions and others who want to see this legislation passed have carried out a highly public campaign against a group of rights lawyers, some of whom have been engaged in courtroom confrontations in the past. The media exposure of these lawyers as “criminals,” Liang argues, is a tactical move intended to overcome remaining skepticism and resistance and secure enough support to ensure that the amendment passes.

Even if the campaign against lawyers is not directly aimed at ensuring passage of an amended Article 309, both threaten to contribute to fragmentation and passivity among lawyers and accentuate divisions between lawyers and other legal professionals. Han Jiayi of the All-China Lawyers Association has warned of lawyers choosing to “stay away from the courts” and instead focusing their practice on matters that do not involve litigation. Those in power might not mind if more lawyers opt to stay out of the courtroom, or if the ones who go to trial are less willing to challenge authority. Nevertheless, these outcomes would create a version of “rule of law” unlikely to satisfy many Chinese citizens.

Thursday, August 6, 2015

China Mulls Harsher Penalties for Protesters, “Cults”; Fewer Capital Crimes

Director Li Shishi of the Legislative Affairs Commission of the NPCSC explains proposed Criminal Law amendments to the NPC on October 27, 2014. Credit: infzm.com

In July, members of the National People’s Congress Standing Committee (NPCSC) published and opened for a one-month period of public consultation a set of proposals for amending China’s Criminal Law for the ninth time since it was overhauled in 1997. The proposals are a revision of an earlier draft first introduced in October 2014, and the NPCSC is likely to review a third (and probably final) draft of the proposed amendments at a bi-monthly meeting later this year.

The Chinese media has highlighted a number of overarching themes and new features in the proposed amendments. The draft introduces stronger provisions to combat terrorism and “religious extremism,” strengthens provisions connected to cyber-security, and imposes stricter anti-corruption measures.

Despite strong opposition from many in the legal community, the current draft also restricts lawyers from revealing certain types of case information and introduces harsher penalties for Article 309, “disrupting court order.” The sweeping crackdown on lawyers that Chinese authorities have carried out since July 10 places the significance of these provisions in a new light. (This topic will be covered in a subsequent post.)

This article focuses on provisions related to death penalty reform and the redefinition of punishments for protesters and “cult” members once commonly subjected to the now defunct system of reeducation through labor (RTL).

Death Penalty Reform

The current draft amendment proposes to remove the death penalty from nine criminal offenses (see below), which would bring the total number of capital crimes in China to 46. The removal of the death penalty from these nine offenses would not put much of a dent in China’s world-leading use of capital punishment, which largely focuses on homicide, rape, robbery, and drug offenses. It would, however, show the government continuing to make good on its pledge to work towards gradual abolition of the death penalty. The current proposal starts chipping away at the death penalty for offenses that involve a certain degree of violence, but since many of the 46 offenses that would remain eligible for capital punishment are non-violent in nature, China still has some way to go before it joins the growing ranks of abolitionist countries.

Crimes Slated to Remove Death Penalty
Article No. Offenses
151(1) Smuggling weapons or ammunition
Smuggling nuclear material
Smuggling counterfeit currency
170 Manufacturing counterfeit currency
192 Fraudulent fundraising
358(1) Organizing prostitution
Coercing into prostitution
426 Obstructing the performance of military duties
433 Spreading rumors and disinformation during wartime
Source: Dui Hua

At least two of the crimes, fraudulent fundraising and coercing into prostitution, recently stirred public controversies in connection with capital punishment. Wu Ying narrowly escaped execution when the Supreme People’s Court overturned the death penalty against her in May 2012. The decision followed several years of highly public campaigning on behalf of the young entrepreneur who was convicted of deliberately defrauding investors of 770 million yuan (approximately $100 million). Tang Hui—the “petitioning mother” who earned widespread public support after being sent to RTL in 2012—doggedly protested the unwillingness of the courts to sentence to death those convicted of forcing her 11-year-old daughter to work as a prostitute.

Though it is common to justify slower progress toward abolition with the presence of strong public support for the death penalty in China, there is resistance within China’s party and government institutions as well. According to reports, earlier drafts of the current amendments that circulated internally had proposed adding language to the Criminal Law’s general provisions specifying that the death penalty be limited only to the “most serious crimes.” This would have meant adopting the standard set in Article 6(2) of the International Covenant on Civil and Political Rights, which China has signed but not yet ratified. The language was ultimately dropped because of unspecified opposition.

Goodbye RTL, Hello Prison


Another aspect of the current amendments is changes made in response to the 2013 decision to eliminate RTL, a system of administrative custodial punishment used for decades to incarcerate individuals for up to three years for unlawful acts deemed too minor to pursue criminal punishment. With this tool of maintaining stability no longer available, the Criminal Law is being adapted to handle many of the kinds of cases that were previously dealt with through RTL.

One controversial example is the proposed amendment to Article 290(1), which covers “gathering a crowd to disrupt public order.” Citing the problem of individuals who engage in “persistent and disruptive petitioning” that disrupts work at government offices, drafters propose to expand this article to target those who fail to “correct” (gaizheng) their behavior after being given administrative penalties for “disrupting the work order of state organs on multiple occasions” and those who “disrupt social order by organizing or giving financial support to people for the purpose of gathering illegally on multiple occasions.” If the proposed amendment passes, these types of behavior—both of which might have been dealt with through RTL in the past—will be subject to criminal punishment of up to three years’ in prison.

Such changes amount to a complete redefinition of the offense currently covered by Article 290(1), given that it would apply to individual protesters regardless of whether they gather together with others. In the case of “organizing or providing financial support,” it is not even necessary for an individual to take part directly in any protest. Critics argue that it is potentially counterproductive to target individual protesters—many of whom are petitioners forced to resort to disruptive behaviors in order to draw attention to legitimate claims of injustice. As Tsinghua University law Professor Zhou Guangquan recently noted, “Criminalizing such acts will make it harder to carry out supervision and check that local party and government bodies are governing in accordance with the law.”

But the authorities have already signaled an intention to strike against those who engage in acts of public protest—whether as individuals or in groups—because of the perceived threat these disruptions pose to the stability upon which the political order supposedly rests. Together with the crime of “provoking a serious disturbance,” Article 290(1) has become a favored charge against activists who organize and demonstrate on behalf of social justice and legal reform, such as Xu Zhiyong or Guo Feixiong. In 2013, the Supreme People’s Procuratorate noted that illegal assembly and gathering crowds to disrupt social order were being carried out “with the goal of subverting state power.”

“Cult” members

Receiving less attention have been the changes proposed to Article 300, which covers the offense of “using a secret society, cult, or superstition to undermine implementation of the law.” Since 1997 this offense has primarily been used to target members of spiritual and religious organizations (like Falun Gong, Shouters, or Almighty God) that authorities have outlawed as “cults.”

There are presently two penalty ranges under Article 300 based on the severity of the offense as determined by a court. Ordinarily, “cult” activity carries a penalty of between three and seven years in prison, though certain mitigating factors or grounds for leniency can sometimes lead to sentences of less than three years. When there is a finding of “especially grave circumstances,” however, the court may impose a sentence of as high as 15 years.

Until recently, many of those accused of engaging in unlawful “cult” activities were not subject to criminal punishment. Instead, they were sent to RTL camps for up to three years—often multiple times. Though RTL camps were in many respects indistinguishable from prisons (and sometimes arguably worse), the punishment was still considered to be much more lenient than a prison sentence.

Since the elimination of RTL at the end of 2013, the only way for the authorities to punish those accused of “relatively minor” offenses related to “cult” activity beyond 10- or 15-day administrative detentions is through unlawful detention in “legal education centers.” In response, drafters have proposed an additional clause for Article 300 that would cover acts deemed to be “relatively minor” and make offenders subject to imprisonment of up to three years, short-term detention (lasting up to one year), “public surveillance,” or “deprivation of political rights.” Courts have also been empowered to impose monetary fines.

Perhaps in the spirit of the penal policy of “combining lenience with severity” (kuan-yan xiangji), the latest draft of the proposed amendment to Article 300 also proposes to raise the maximum penalty for “especially grave circumstances” to life imprisonment. According to the 1999 judicial interpretation covering Article 300, aggravating factors that can be considered “especially grave” include organizing groups or recruiting members across provincial boundaries, colluding with overseas organizations or persons, and printing or distributing very large quantities of propaganda. Also included in this category is a catchall of “inciting, deceiving, or organizing members or others to undermine the implementation of state law or administrative regulations that results in grave consequences.”

Drafters have not publicly offered any justification for this significant increase in the maximum penalty for Article 300 nor have they given any indication of what sort of activity might necessitate a life sentence. Considering that Article 300 relies on arbitrary determinations of when particular belief systems qualify as “cults,” the possibility of life imprisonment for violating this provision poses a particularly grave threat to religious freedom that is excessive given the kinds of acts that presently qualify for the most serious punishment under that statute.