Wednesday, June 27, 2018

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.

Wednesday, June 6, 2018

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.