Monday, December 31, 2018

The Resurgence of Yi Guan Dao

"A Reactionary Secret Society", a communist propaganda film produced in 1952 that depicts the harmful acts committed by Yi Guan Dao members prior to the founding of the People’s Republic of China in 1949. Image credit:

At the end of China’s civil war nearly seven decades ago, Yi Guan Dao (一贯道) was proscribed by the Chinese government as an “illegal secret society” and a “heretical sect.” Yi Guan Dao (YGD), which translates to “the Way of Pervading Unity” in English, is a religious group that combines elements of Daoism, Buddhism, and folklore. It first gained popularity in northeast China during World War II – at one point the group had more than ten million followers in the Japanese-occupied regions. While its apocalyptic teachings appealed to those living under Japanese occupation, YGD has long been at odds with the Chinese government.

As with many Qigong, Buddhist, and Christian groups labelled as “cults” by the Chinese government, YGD is banned largely due to the government’s fear of the popularity of a mass spiritual movement. As such YGD continues to be stigmatized in official narratives as “anti-science, anti-humanity, anti-society.” YGD followers are active in Taiwan, Hong Kong, and among diaspora Chinese communities in Southeast Asia, Australia, North America, and Europe. In Taiwan, YGD had more than 1.2 million followers by a 2010 estimate and the group has been lauded by the Executive Yuan for its charity work on behalf of disadvantaged communities.

Crackdown in 1950

In December 1950, a nationwide crackdown on YGD began after a People’s Daily editorial branded YGD as a “counterrevolutionary tool… utilized by the bandit gangs of imperialism and Kuomintang” and a “retroactive, feudalistic and superstitious” organization deceiving the masses who “do not know the truth.” The editorial labelled YGD followers as “traitors” and accused them of serving as secret agents of Japanese forces. In 1951, tens of thousands of YGD leaders were either executed or imprisoned and an even greater number of followers were forced to undergo intense thought reform in carceral facilities.

YGD has largely been driven underground since the crackdown in 1950, with some branches operating clandestinely under different names including Tian Dao (i.e. Way of Heaven). The sect attempted to re-establish itself in the late 1970s towards the end of the Cultural Revolution, but it quickly became a target of China’s first strike hard campaign in 1983. Many followers were sentenced to death for “organizing/using a sect or feudal superstition to carry out counterrevolutionary activities” in Yunnan and the northern provinces of Gansu, Shaanxi, and Shanxi. Dui Hua’s Political Prisoner Database has information on over 300 YGD followers. Of them, over 80 percent are known or believed to have been incarcerated in the 1980s.

Testimony gathered from former YGD prisoners in the 1990s exposed the harsh prison conditions, the abuse YGD prisoners faced by guards and other inmates, and the fact that several hundred YGD members imprisoned in the 1950s remained locked up in Shaanxi’s Fuping Prison or have perished due to old age or ill-treatment.

Underground Reestablishment - Signs of Tolerance?

Taiwanese President Tsai Ing-wen delivers a speech at a YGD prayer ceremony joined by 15,000 followers at the National Chiang Kai-shek Memorial Hall, Taipei, on March 5, 2017, expressing gratitude to the sect and commending religion for stabilizing society. Image credit:

Although YGD has been dubbed a “universal villain” in official media and is often cited by human rights groups and governments concerned about religious freedom in China, the lack of recent reporting on YGD in China has led some experts to believe that the religion has gained tacit acceptance by authorities. Some are skeptical about the extent of the group’s persecution or even its existence in China today, claiming that “it is unlikely that [the sect] still exist[s].” Others speculate that even if YGD still has followers in China they are likely concentrated in Guangdong and Fujian where there are more practicing Taiwanese YGD members, following the religion’s legalization in Taiwan in 1987.

In May 2009, an official from China’s State Administration for Religious Affairs visited a YGD monastery in Taipei. The Chinese Religious Studies Yearbook also stated that China Academy of Social Sciences (CASS) researchers have attended academic conferences organized by Taiwanese YGD groups beginning in 2009. In 2017, CASS researchers joined overseas YGD leaders on a visit to the Zu Lai Temple in Brazil.

Recent Crackdown

A district government in Shantou, Guangdong, issued a public notice concerning the ban on YGD activities on May 30, 2018.Image credit:
Dui Hua continues to find evidence of a crackdown on YGD activities as recently as 2018. On February 9, 2018, a couple from Jiangsu was given suspended sentences for printing illegal religious books, including over 3,000 copies used by YGD adherents at a private gathering. A year earlier, police had detained the couple for printing nearly 8,000 copies of unlicensed Buddhist titles. The couple was convicted of illegal business activity, a charge frequently used against religious groups and private individuals operating outside the state’s control.

More recently, the Chenghai District government in Shantou, Guangdong, issued a notice on May 30, 2018, concerning the ban of YGD. Labelling it a “superstitious secret society”, the ban states that YGD carries out “infiltration and sabotage” in the name of “prostrating to Buddha” and “doing good deeds” when in fact they are “seriously and adversely affecting the socialist construction of spiritual civilization… and normal life of the people.” YGD followers were called to register with local police, write a statement of repentance, and vow not to re-join YGD.

Dui Hua has found instances of cracking down on YGD followers in local government gazettes and annals.

  • In 1994, six Taiwanese YGD members were interrogated and “educated” by police in Quanzhou for setting up pulpits, delivering sermons and recruiting more than 400 followers “under the cover of making investments and running factories.”

  • In June 1998, Dehong Prefecture, Yunnan, authorities carried out a local strike hard initiative against YGD. Over 70 policemen were deployed to raid two gatherings, detaining seven core leaders and investigating 38 members.

  • In September 2000, Yunnan police clamped down on a YGD gathering in Weishan County, Dali. Three key members were detained, and 304 volumes of “reactionary” scriptures, 148 cassette tapes, 218 hanging portraits, 66 draperies and other items were confiscated. Also in Dali, about 10 YGD members were given administrative detention in 2005 in two townships in Midu County.

  • In May 2004, Tieling police sent key leaders to re-education through labor camps after raiding a YGD meeting in Longhua Temple in Changtu County, Liaoning. The Buddhist Association of China subsequently sent religious personnel to Tieling to “purify” their practice of Buddhism.

  • In 2006, Changsha Public Security started “Project 308” to curb YGD infiltration from Taiwan. After a year of investigation, guobao discovered 29 YGD altars in Hunan led by a couple who had previously traveled to Taiwan. The couple recruited several hundred followers from Hunan, Beijing, Shanghai, Jiangxi, and Anhui. On November 25, six places of worship in Ningxiang were raided. Five members were placed in administrative detention and two members were deported a few days later.

  • In most cases, it is unclear whether YGD members were criminally charged. Dui Hua has discovered a case in 2000 in Hongta District, Yunnan where two leaders were sentenced to three years’ imprisonment for “organizing a cult to undermine implementation of the law.” Miao Huimin (缪惠民) and Zhang Laixian (张来仙) shared the teachings of YGD at Zhang’s home with around twenty villagers. At the time of sentencing, Miao was aged 75. The same government record revealed that two public sentencing rallies were held in October in Hongta District to condemn followers of YGD and the Full Scope Church, a Christian sect. Three people were given fixed-term sentences, four were sent to re-education through labor camps and twenty received administrative punishments.

    Asylum Seekers

    Since 2000, both the Canadian and Australian governments have reported receiving asylum applications from Chinese nationals on the grounds of religious persecution of YGD. In 2003, an applicant surnamed Li from Fujian sought asylum based on fear of persecution for his perceived affiliation with YGD. Li left China for Toronto with the help of smugglers. Although not a YGD follower himself, he was perceived as one because his fishing farm had been used for YGD religious purposes by two of his business partners, who were each sentenced to five years’ imprisonment.

    In Australia, the Refugee Review Tribunal determined that two Chinese nationals had well-founded fear of persecution for returning to China due to their affiliation with YGD. The first applicant was a business owner in China and learned about YGD through a neighbour. He was converted to YGD and believed the religion could save China from the prevalence of corruption. He distributed leaflets and provided a secret place of worship for YGD followers. After escaping a police raid on YGD followers, he left China for Australia using a fake passport. He was initially denied a protection visa by the Australian immigration authorities but in November 2007, the Tribunal declared itself satisfied that he would be at risk if he returned to China.

    The second applicant was also from Fujian. He converted to YGD two years after he arrived in Australia. In 2012, his brother-in-law invited a Taiwanese YGD preacher to the family shrine in Fujian to deliver lectures. The shrine hosted exchanges and visitors from YGD organizations based in Taiwan, Hong Kong, and Macau on a regular basis. Chinese authorities in the applicant’s hometown began to take an interest as the family shrine grew. The applicant obtained a video showing a violent clash in September 2013 between police officers and YGD followers, including the applicant’s wife and two children. The applicant’s mother, wife, and son suffered injuries by police and the son eventually went into hiding. The applicant’s brother-in-law, sister-in-law, and other YGD followers were all charged, with some receiving suspended sentences. The police continued to harass the applicant’s wife in order to coerce her husband to return to China. In August 2015, the Tribunal held that despite a “distinct lack of information regarding the Chinese authorities’ current attitude towards YGD practice,” there were substantial grounds for believing that the applicant faced a real risk of significant harm if he was to return to China.

    Overseas Yi Guan Dao Groups

    Official narratives have labelled Myanmar and Hong Kong YGD groups as “overseas hostile forces” and accused them of “infiltrating” and “sabotaging.” In 2016, Hangzhou police lauded the success of “preventing infiltration in a timely manner” from a Hong Kong YGD group, which had set up a Buddhist shrine in Beixin Village, Puyang Township. In 2007, another YGD crackdown connected to Myanmar took place. Sichuan’s Binchuan County public security stopped a group of YGD members from attending a training course in Burma, destroying 475 volumes of publications and 159 items.

    A government record Dui Hua uncovered provided a detailed account about the government crackdown in 1992 against YGD in multiple border townships in Yunnan’s Dehong Prefecture. A YGD elder who resided in Myanmar after escaping persecution in the 1950s was accused of inciting members in the prefecture to take up “reactionary” tasks and “spying” missions in China. They were invited to attend a religious ceremony in the newly built Wangfo Palace (i.e. Palace of Ten Thousand Buddha) in the Myanmar township of Namhkan as well as the elder’s birthday celebration. In order to halt the more than one hundred Chinese nationals from traveling to Myanmar, a two-day military blockade was imposed at the immigration port requiring nearly two hundred police officers' presence. Anti-YGD materials were broadcasted and distributed in the neighbouring Ruli City to expose the “evil deeds” of YGD members.

    YGD continues to face suppression by the government and police. The cases Dui Hua has uncovered show continuity in the official narratives about YGD and the tactics used by authorities to suppress the group’s activities. With the increasing restrictions placed on religious groups in China today, followers of YGD and their family members will continue to face restrictions and persecution.

    Monday, December 10, 2018

    Will Revisions to the Lay Assessors Law Help Limit the Number of Executions in China?

    Lay assessors sitting in court alongside judges in China. Image Credit: China Daily.

    In April, the National People’s Congress (NPC), China's national legislature, passed a revised Lay People’s Assessor’s Law (renmin peishenyuan fa), substantially affecting the role that ordinary citizens play on adjudicatory panels in criminal cases in China. Revisions to the law had been contemplated since at least 2015, when a series of pilot projects were launched to determine the feasibility of enacting nationwide reforms. Whether the law’s revisions will affect criminal trials and sentences involving the death penalty is a major question especially in light of China’s efforts in recent decades to limit the number of executions.

    Though some might see an expansion of the role of lay assessors in Chinese courts as an imported legal idea, a robust role for lay assessors is arguably a revival of practices from China’s own not-so-distant past. Traces of China’s lay assessor system can be found as early as the 19th century in the late Qing Era, and in Communist-controlled territories before and after the founding of the PRC, lay assessors were granted authority in adjudication practice rivaling that of judges. It was not until the more radical periods following the Great Leap Forward and Cultural Revolution that the lay assessor system was discontinued as part of the larger dismantling of legal institutions countrywide.

    The lay assessors’ system was revived along with other aspects of the legal system at the conclusion of the Cultural Revolution, first as part of the 1978 Constitution and subsequently in several pieces of relevant legislation including the Law on Organization of Courts and the Criminal Procedure Law. In 2004, The NPC Standing Committee decided to reform the lay assessor system, and the effort to revamp the adjudicatory function of lay assessors eventually led to a pilot program in 10 provincial-level regions starting in 2015.

    The Role of Lay Assessors Expands to Include Death Penalty Cases

    In April, a second draft of a law on lay assessors was passed by the NPC, which expanded the role of lay assessors in participating in judgments in many types of disputes, including sentencing in criminal cases that involve the death penalty. A draft law on lay assessors was initially submitted to the NPC Standing Committee in December 2017, and recognized that the lay assessors “‘have equal rights’ as professional judges in trials, unless the law specifically provides otherwise.” According to the law, high-school educated citizens of the PRC who are 28 years of age or older can serve as lay assessors, with some exceptions; once in court, an assessor can exercise power equivalent to that of a judge but cannot hear cases independently or serve as chief judge of a collegial panel (heyi ting). In a report on lay assessors’ pilot projects conducted across China since 2015, Supreme People’s Court President Zhou Qiang reported that a total of 13,740 assessors in the ten pilot locations participated in 30,659 criminal cases, 178,749 civil cases and 11,846 administrative cases.

    More specifically, when the Lay Assessors’ Law came into effect in April, assessors were granted authority to serve on seven-person judicial panels that pass judgment on death penalty cases. Although observers, researchers, and human rights advocates will need a much longer period of time to examine whether the expanded role of assessors can help continue the decrease in the number of executions in China, developments in the early days after the passing of the revised law indicate that the law is being followed in local courts even in potentially sensitive, high-profile cases. In April, Zhao Zewei killed nine classmates and injured several others in a school in Mizhi County, Shaanxi province in one of the most violent mass murders in China in recent times. In the trial presiding over Zhao’s eventual conviction and death sentence, media outlets reported that four lay assessors and three judges sat on the seven-member panel ruling on Zhao's guilt and death sentence, indicating that plans to include lay assessors on judicial panels even in high profile death penalty cases with potentially “severe social impact” continues to move forward.

    Lessons from Reforms in a Neighboring Country

    Allowing lay assessors to participate more actively in death penalty cases would mark an important opportunity for human rights advocates and researchers to examine whether changes to the lay assessor system will continue to influence efforts to limit the number of executions. According to the new law, lay assessors who serve on seven-person benches will have more weight when questioning lawyers and defendants and examining physical evidence.

    Based on research from other legal systems, China’s reforms of its criminal legal system toward incorporating greater input from lay actors – away from the unquestioning authority and deference given to the criminal judges – is a step in the right direction. As noted, a robust role for lay assessors is consistent with legal practice at various periods in China’s Communist and non-Communist past. Expansions of the role of jurors in the neighboring country of South Korea also indicates that concerns that expansions in the authority of assessors, and even the adoption of a full jury system, were overblown. Although many in Korea criticized the implementation of a jury system as being against cultural norms, the recent jury reforms in Korea beginning in 2007 have shown that culture is not a deterrent to the effectiveness of a jury system; in fact, the adoption of jurors seems to have raised the quality of the legal profession, a shared goal of the Korean and Chinese governments. The need to persuade a jury has been cited as a factor in raising the quality of oral advocacy of criminal lawyers and improving the quality of evidentiary rules and discovery processes.

    An expanded role for lay assessors in China appears to be a positive step in the careful adjudication of serious criminal cases, and for human rights in China more broadly. The next step is to ensure that assessors are given more than simply a passive role in the criminal justice system, and strong enforcement of elements of the law on lay assessors designed to guard against retaliation for criminal verdicts is critical in this regard.

    Friday, November 30, 2018

    United States and Chinese National Security Policies Raise Memories of World War II

    Photo by Crystal K. Huie, Courtesy of the Fred T. Korematsu Institute.

    In 2018 the international community rebuked both China and the United States (U.S.) for controversial policies affecting Muslim populations. This summer it was reported that China has detained more than a million of its own citizens — Uyghurs in the Xinjiang Autonomous Region suspected of dissident sentiments — in re-education camps. Meanwhile, the U.S. instituted a travel restriction on citizens from eight Muslim majority countries in what was widely viewed as an attempt to prevent Muslims from entering the country. Despite the many differences in these two policies, China and the U.S. offer strikingly similar justifications for their actions. Both countries point to overriding national security concerns and insist that these extreme practices are permissible by law. Although extremist violence is portrayed as a new threat that requires new responses, the legal battle over the U.S. travel ban and the outcry over detention of Muslims in China resurface discussion of a similar policy from a bygone era: the internment of Japanese citizens in the U.S. during World War II.

    This summer the U.S. Supreme Court ruled that the Trump administration’s travel ban is constitutional. In the same decision, the court finally overturned its ruling in United States v. Korematsu, a 1944 case holding it permissible for the military to detain Japanese Americans in internment camps as a preventative safety measure. Although the internment camps were widely condemned in the decades since that decision, the practice officially remained “good law” until this year. The fact that such a flagrant human rights abuse could be found legally permissible—and remain so for so long—offers an important lesson: Although a policy that directly or indirectly targets an ethnic group may be judged lawful in a contemporary court, it may still be overruled in the court of history.

    The Internment of Japanese Americans and the Korematsu Decision

    More than a half-century ago the U.S. and China united in war against a common enemy: Japan. After years of imperial expansion in Asia, Japan’s incursion into Manchuria led to the formal declaration of war with China in 1937. In 1941 Japan attacked Pearl Harbor, prompting the U.S. to enter the conflict as well. The next year President Roosevelt signed Executive Order 9066, which authorized the military to exclude people from geographic areas in the U.S. at their discretion.

    Following the executive order, more than 112,000 people in the U.S., primarily people of Japanese ancestry living on the west coast, were relocated from their homes and interned in concentration camps. At least 70,000 of these people were American citizens. Despite a lack of empirical evidence that Japanese-Americans posed a threat to national security, citizens were held against their will for years because of their ethnic background.

    Fred Korematsu, an American of Japanese descent who was born in Oakland, California, refused to obey the exclusion order. He was arrested, convicted of violating the order, and sent to a camp in Utah. Korematsu appealed the conviction, arguing that the exclusion order was discriminatory and violated his constitutional rights.

    In 1944 the U.S. Supreme Court considered Korematsu’s case. A divided court ultimately upheld the exclusion order and Korematsu’s conviction. Justice Hugo Black, writing for the majority, argued that while restrictions on the civil rights of a racial group are legally suspect, Roosevelt was justified in his order for reasons of national security. Black opined that “exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group.”

    Even at the time of the ruling, some members of the Court condemned the exclusion. In a published dissent, Justice Frank Murphy called the order a “legalization of racism.” In the decades following the end of World War II, the U.S. reached a similar national consensus that the internment was a mistake and an injustice. In 1976 President Gerald Ford issued a formal apology, stating that "[w]e now know what we should have known then—not only was that evacuation wrong but Japanese-Americans were and are loyal Americans.” President Jimmy Carter established a commission that debunked the argument that the internment was necessary for national security. Following the recommendations of the commission, the U.S. government subsequently made reparation payments to people who had been interned.

    But, despite the widespread recognition by both the public and the U.S. government that the internment was unjust, the Supreme Court’s 1944 Korematsu decision remained the unchallenged law of the land for more than 70 years.

    Supreme Court Decision Invokes America’s Past Missteps in Travel Ban Decision

    The Supreme Court reconsidered Korematsu this year in light of a contemporary presidential directive. Immediately after assuming office in 2017 President Donald Trump issued an executive order temporarily restricting entry to the U.S. for citizens from seven Muslim-majority countries. Although the Trump administration insisted that the restrictions were intended to prevent terrorist attacks, critics of the proposal pointed to numerous campaign statements by the president that seemed to indicate the order was intended to bar Muslims from entering the country.

    The travel restriction order immediately came under judicial scrutiny. Following a series of legal actions and modifications to the order, in April 2018 the U.S. Supreme Court heard opinions in the question of whether the ban violated the establishment clause of the First Amendment, which forms the basis of the constitutional right to freedom of religion. In June the court issued its decision. Justice John Roberts, writing for a narrow majority, upheld the constitutionality of the Trump order, finding that the president has broad authority over issues of national security.

    In two dissents, four of the Supreme Court’s nine justices disagreed with the majority opinion upholding the travel ban. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote that the majority “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

    The ghost of the court’s previous decision in Korematsu haunts both the majority decision and the dissent response to the travel restrictions. In the majority opinion Justice Roberts seemed to finally overturn the 1944 decision, stating that the contemporary debate “affords this Court the opportunity to express what is already obvious: Korematsu was gravely wrong on the day it was decided, has been overruled in the court of history, and—to be clear— ‘has no place in law under the constitution’.” Meanwhile, Justice Sotomayor wrote that while “[i]n the intervening since Korematsu, our Nation has done much to leave its sordid legacy behind,” in upholding the executive order and sanctioning a discriminatory policy in the name of national security, “the court replaces one ‘gravely wrong decision’ with another.”

    The debate over Korematsu shows that even in a country such as the U.S. with a hearty tradition of strong and independent courts, when it comes to questions of national security and minority groups, what is lawful is not always what is right.

    Korematsu and Lessons for China

    China ought to take note of the legacy of the Korematsu decision. International news outlets reported this year that China has detained as many as a million Chinese Muslims—particularly ethnic minority Uyghurs and Kazakhs in the western autonomous region of Xinjiang—out of national security concerns. In August the United Nations Committee on the Elimination of Racial Discrimination issued a report expressing concern that these Muslims were being “held incommunicado and often for long periods, without being charged or tried, under the pretext of countering terrorism and religious extremism” and are “forced to spend varying periods in political ‘re-education camps’ for even nonthreatening expressions of Muslim ethno-religious culture like daily greetings.” In November numerous nations raised concerns about China’s treatment of Muslims at the Universal Periodic Review of China’s human rights record at the United Nations. Dui Hua’s submission to the Review highlights the Foundation’s research uncovering discrimination against Muslims in Xinjiang.

    China disputes reports on its policies towards Muslims in Xinjiang. At the same time, the government passed a series of laws and regulations purportedly providing a legal basis for targeting Muslims in response to national security concerns. These new legal measures include a 2015 Counterterrorism Law that criminalized a broad range of conduct and expression, including clothes and symbols. And Xinjiang introduced regulations authorizing re-education facilities to combat “religious extremism.” Dui Hua found the first judgment involving the use of “educational placement,” a new coercive measure imposed on prisoners who are considered a danger to society even after completing their sentences for terrorism or extremism offenses. The Foundation also discovered judgments involving violators of the Islamic clothing ban in force throughout Xinjiang. Individuals can be sentenced for “illegal business activity” for selling clothing with the Islamic star and crescent symbol. In one case, a Muslim man, Gong Xiaojun, was sentenced to two years' imprisonment for “disrupting official business” after arguing with cadres over his “abnormal” beard and a black robe his wife was wearing at home. The case indicates that Xinjiang authorities have extended the reach of the ban to peoples’ homes. Across the board, China appears to be using the veil of national security law to justify openly discriminatory practice.

    The Korematsu decision reminds us that while a discriminatory policy may enjoy a veneer of legality, that legality is ultimately no match for the judgment of history. The internment of Japanese Americans was wrong during WWII, despite Supreme Court reasoning to the contrary. China’s efforts to criminalize Muslim expressions of faith today are no less abhorrent, whether or not they find basis in statute. As Justice Murphy wrote in his dissent in Korematsu in 1944, “[s]uch exclusion goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism.”

    Monday, October 15, 2018

    Xinjiang Production and Construction Corps: Safeguarding or Endangering Security?

    The XPCC 12th Division State-Owned Assets Management Company vows to crack down on terrorism during a training on July 4, 2017.

    The Xinjiang Production and Construction Corps (XPCC), known as Bingtuan (兵团) in Chinese, is a quasi-military and business conglomerate located in Xinjiang that governs a population of 2.6 million people of whom more than 200,000 are Uyghurs and other predominantly Muslim ethnic minority groups. Founded in 1954 as a conglomerate of state-owned agricultural and stock-raising farms, the original XPCC settlers were comprised of decommissioned soldiers, captive Nationalist armed forces, and “rusticated youth,” who were inspired by Mao’s revolutionary dream of converting the Westernmost desert areas into arable land. In the last six decades, XPCC has grown from a population of 170,000 to a population of 2.6 million. The conglomerate now controls an area close to the size of Taiwan within the restive province of Xinjiang.

    Photo credit: The Economist

    From its onset, XPCC was tasked with the mission of “safeguarding the frontier, maintaining stability and promoting ethnic unity.” Its official goal of safeguarding state security remains unchanged today. As a distinct administrative unit with its own educational, healthcare, and residence registration system, XPCC also operates as a separate jurisdiction with its own police force, procuratorates, courts, and prisons independent of the Xinjiang provincial government. In March 2012, XPCC established its own state security bureau with the aim of investigating and cracking down on endangering state security (ESS) activities. Xinjiang is believed to account for the majority of ESS cases in China; ESS crimes include splittism, subversion, and incitement. Dui Hua has previously reported that Xinjiang concluded 1,542 ESS trials during 2010-2014. The number of defendants in such cases is unknown. Dui Hua believes that the reported figures on crime in Xinjiang does not cover XPCC-controlled areas.

    Has XPCC lived up to its duty to safeguard state security? Dui Hua’s research into government annals has uncovered over a decade of ESS arrests and indictments in XPCC from 2003-2015. When compared with the numbers available from other Chinese provinces and municipalities, it is clear that XPCC accounts for a disproportional amount of the arrests and indictments for ESS crimes.

    Arrests and Indictments for Endangering State Security Cases in Xinjiang Production and Construction Corps, Chongqing Municipality and Nationwide

    Sources: XPCC Statistical Yearbook, Chongqing Statistical Yearbook, China Law Yearbook.

    The table above shows that 237 individuals were arrested in 80 cases and 209 indicted in 60 cases in the last 13 years in XPCC. When compared with other Chinese provinces and municipalities and given its population size, XPCC makes a staggering number of ESS arrests and indictments. For example, in Chongqing, home to 30.17 million people in 2015, 35 individuals were arrested in 25 cases and 29 individuals were indicted in 23 cases from 2002-2016. Dui Hua’s research into government gazettes in Shandong, Jiangsu, and Henan indicated that the number of individuals arrested or indicted in each year from 2014-2016 for ESS crimes ranged from one to a little over a dozen. The three provinces have a population of 98.5 m, 79.8 m, and 107 m, respectively.

    ESS arrests in XPCC stagnated for many years until 2008. In 2008, the number of arrested individuals surged to 38. In 2011, one person was indicted in XPCC for ESS for every 24 individuals indicted nationwide; in 2014, XPCC arrested one person for every 16 individuals arrested for ESS nationwide. The surge in 2008 occurred just one year before the Urumqi riots of July 2009 and coincided with the nationwide increase of ESS arrests and indictments in 2008. Official news media reported that 1,295 individuals were arrested, and 1,154 individuals were indicted in Xinjiang in the first eleven months of 2008, accounting for 75.6 percent and 82 percent of the nationwide ESS arrests and indictments.

    Religious Persecution in Endangering State Security Cases

    ESS cases involving Uyghurs are linked to the crackdown on religious freedom in Xinjiang. From June to July 2009, the 4th Agricultural Division Intermediate People’s Court sentenced a group of 17 Uyghurs to three-five years’ imprisonment for inciting splittism and inciting racial hatred. According to Ili Evening News, the group organized underground religious activities to celebrate the holy holiday of Ramadan and to teach the Quran. Hazreteli Abbas, one of the 17 imprisoned, was additionally sentenced for “harboring criminals” after allegedly providing financial aid to members seeking to leave China, despite knowing that they were wanted by police.

    The 2015 census indicated that there were 229,100 Uyghur residents in XPCC, accounting for less than 10 percent of the entire XPCC population. However, the majority of the ESS cases in XPCC known to Dui Hua involve Uyghurs accused of splittism or inciting splittism. In XPCC, a single ESS case can often involve over a dozen Uyghur individuals, who tend to receive substantially harsher treatment and prison terms than their Han counterparts. On July 23, 1999, the 4th Agricultural Division Intermediate People’s Court sentenced 18 Uyghurs to 10-15 years’ imprisonment for splittism at a public sentencing rally. The rally was held in an open-air theater, with an audience of more than 1,300 individuals from the 64th Brigade of the Fourth Agricultural Division. Only three of the individuals sentenced names are known: Abdurazaq Abdureshit, Ekrem Qurbantay and Shirmemet Abdureshit. All defendants in the case were likely released in the early 2010s.

    Dui Hua’s PPDB has information on four other Uyghurs incarcerated for ESS (see table below), three of whom were sentenced alongside five to fifteen other defendants. Available sources do not provide details on the case specifics.

    Name Court Sentence Date Crime(s) Sentence Clemency Remarks
    Abdurusul Ehsan 1st Agricultural Division IntermediatePeople's Court 2011 Splittism, illegally manufacturing of weapons/ ammunition/ explosives Death with reprieve Sentence commuted to life imprisonment in 2015 Case specifics unclear
    Mehmet Imin 1st Agricultural Division Intermediate People’s Court 2011 Inciting splittism Unknown Unknown Sentenced alongside 14 other defendants
    Enwer Obul 3rd Agricultural Division Intermediate People's Court 2013 Inciting splittism Unknown Unknown Part of the 10 defendants tried for inciting splittism in XPCC
    Muhyibla Niz An intermediate court in XPCC 2014 Inciting splittism Unknown Unknown Sentenced alongside 5 other defendants

    Han Incitement

    In My West China; Your East Turkestan《我的西域,你的东土》, dissident writer Wang Lixiong calls XPCC a “Han autonomous province within Xinjiang Autonomous Region.” While Han Chinese account for 86 percent of XPCC’s population, only a handful are known to be involved in ESS cases. Liu Weifang (刘卫方) is one such individual. Liu was sentenced to three years’ imprisonment by the 9th Brigade Intermediate Court for inciting subversion. He posted dozens of articles on multiple Internet forums, “viciously attacking the party, national leaders, the socialist system and party principles and policies.” Liu is believed to have completed his sentence before 2004. In a rare disclosure, the XPCC procuratorate website stated that its 4th Division Branch arrested an individual surnamed Yang for inciting subversion in September 2017. Like Liu, Yang was accused of using social networking apps to disseminate information and spread “rumors” about the party and socialism.

    The charge of incitement is also used against Falun Gong practitioners who distribute publications critical of the party. One such case took place in XPCC. In November 2014, Wang Xiaoying (王晓莺) was criminally detained for two weeks for inciting subversion. Although the charge was eventually dropped, Wang was later arrested and sentenced to three years and six months’ imprisonment for using/organizing a cult to undermine implementation of the law. She is currently being held in Urumqi Women’s Prison and is due for release in 2019.

    From Endangering State Security to Terrorism

    Dui Hua has previously reported on the growing trend of authorities charging individuals with “picking quarrels and provoking troubles” for acts that would have previously resulted in charges for inciting subversion. Both Xinjiang and XPCC appear to have followed suit, applying a similar switching tactic of criminalization to obscure cases of a political nature. As such the drop in ESS arrests and indictments in 2015 by no means indicates a relaxation of suppression. Moreover, Uyghurs are now more likely to face prosecution for terrorism than splittism or inciting splittism.

    Dui Hua’s research into online judgments discovered a case, involving four Uyghurs in their early twenties, who were initially detained and arrested for inciting splittism but subsequently sentenced in 2013 for organizing/leading/actively participating in a terrorist organization. The XPCC 14th Division Intermediate People’s Court sentenced the men to two to ten years’ imprisonment.

    Receiving the lengthiest sentence of the four, Abdusalam Abulat was accused of watching videos and listening to audio materials about “jihad” and “hegira” with his uncle Ababaikerim Mahmut, who was previously sentenced in Hotan to two years’ imprisonment for inciting splittism in 2010. According to the judgment, the uncle spoke about his resentment towards Han Chinese in Xinjiang. “In our hometown Xinjiang today, we are not allowed to have more than three children; otherwise we will be forced to undergo abortions. Women are forced to put on contraceptive devices… We cannot worship outside of mosques. Men cannot keep beards. Not only are students forbidden to wear Islamic clothes, but also headscarves…” The uncle said Muslims should “migrate” to other Islamic nations to strengthen their religious faith before they conduct “jihad” upon their return to Xinjiang and that the first step of “hegira” was to apply for passports to study abroad in Malaysia or Indonesia and eventually Afghanistan.

    Abdusalam Abulat shared his uncle's interpretations of “jihad” and “hegira” with his co-workers at a textile factory in Shihezi and started learning Arabic with them. The court alleged that they had discussed plans to leave for Afghanistan via Kashgar. Even though the four had not committed any violent acts, the court held that the physical and shooting training they received with replica guns in the factory yard of their dormitory constituted acts of terrorism.

    Court judgments involving incitement, splittism, and terrorism frequently conflate the terms “jihad” and “hegira” with violence. Despite its common mistranslation as “holy war”, jihad embraces a much wider religious meaning of a non-violent struggle that prompts one to be a good Islamic believer, according to The Islamic Supreme Council of America. A Diplomat article titled “Uyghur Terrorism: A Misnomer”states that "some governments are prone to label as terrorism all violent acts committed by their political opponents... and "[G]overnments may be tempted by a ready-made narrative to back up the claim that domestic unrest derives from outside influences rather than from authentic local concerns.” Overseas observers have criticized China’s terrorism laws as being overly vague. The laws do not require actual action or violence to have taken place for authorities to initiate prosecution and other restrictions, allowing for the conflation of dissenters with terrorists.

    A Bulwark of State Security?

    Since its founding, XPCC has justified its raison d'être by citing the threat of ethnic unrest, social instability, and splittist activities. Severely damaged during the Cultural Revolution, XPCC was reinstated in 1981 by Deng Xiaoping as “the key force of maintaining stability in Xinjiang.” Hu Jintao has praised XPCC as a “mighty construction army” for the quelling of the 2009 Urumqi Riots. Xi Jinping has described wanting the XPCC to combat terrorism in Xinjiang with its “walls made of copper and steel” and “nets spread from the earth to sky.”

    Delegated as a bulwark against “the three evil forces of terrorism, extremism, and separatism,” XPCC has extended its reach to southern Xinjiang, where a number of attacks have reportedly occurred. In January 2016, the State Council approved the establishment of Kunyu City in Hotan, a prefecture largely dominated by Uyghurs. The new county-level city is administered by XPCC’s 14th Agricultural Division. In 2017, an official news media article recommended that XPCC create a Special Economic Zone in southern Xinjiang modelled on Shenzhen to create opportunities for the many ethnic minorities who cannot speak Mandarin, have few educational opportunities, and are “extremely religious” and “dissatisfied with the status quo.” Beijing is seen to have turned a deaf ear to complaints that XPCC is taking away valuable resources from its Uyghur population, including vast amounts of arable land and abundant water resources.

    Observers and scholars have described the government’s attempts to control the Uyghur population as a self-fulfilling prophecy. The perceived threats to state security and social stability provided the initial justification for the creation of XPCC. As the conglomerate expanded, the area saw an influx of Han migration drawn in by business opportunities; efforts to secularize the region routinely deny Uyghurs access to economic and political opportunities. Consequently, the already conspicuous ethnic tensions continue to mount. Contrary to its alleged mission to “safeguard the frontier, maintain stability and promote ethnic unity,” XPCC is giving its Uyghur residents even more reason to flee or seek greater autonomy.

    Wednesday, August 29, 2018

    “All Criminal Defendants to Have Lawyers”: Is Access to Defense Lawyers Enough in a System Designed Against Defendants? Part II

    Dr. Tan Qindong, detained for three months in Guangdong, found himself at the center of a major conflict of interest story in Chinese media. Image source: Caixin.
    In “‘All Criminal Defendants to Have Lawyers:’ Is Access to Defense Lawyers Enough in a System Designed Against Defendants? Part I,” Dui Hua analyzed shortcomings in the pilot projects including their failure to address the role of defense counsel in pre-trial contexts and the overemphasis on measuring success by coverage rather than quality of defense. In Part II, Dui Hua looks at a how a failure to embrace principles such as conflict of interest and clear commitment to public resources and accountability mechanisms are barriers that reformers must also consider.

    Conflict of Interest

    The presence of lawyers who are free from conflict of interest is key to a well-functioning criminal justice system. Recent cases illustrate that this principle has yet to be fully embraced in China’s criminal justice system. In January 2018, Guangzhou doctor Tan Qindong was arrested for writing online that in “his scientific opinion” the popular Chinese tonic liquor made by the Hongmao Liquor Company “appeared to be quack medicine, and a potential ‘poison’ for many retirees who drink it every day.” Hongmao is considered the backbone of the economy in Liangcheng County in Inner Mongolia, where the liquor is produced. Inner Mongolia police officers traveled more than 1,700 miles to arrest Tan in Guangzhou for his statements made online. The police later recommended that Tan’s wife, hire an attorney. Unbeknownst to her, the lawyer had previously served as Hongmao’s in-house legal counsel (falü guwen). The attorney advised Tan to admit guilt and to refrain from speaking to the media. Following heavy media attention and public outcry, Tan was released in April 2018. Professor Wang Yong of China University of Political Science and Law described the case as an overreach of power reflecting the influence of the Hongmao Liquor Company on the Inner Mongolia legal authorities.

    Yin Chuji was investigated in 2016 for handling cases as a defense attorney while also serving as a Hunan Taojiang Party official. Source: ifeng.
    In Hunan, Yin Chuji, was investigated in 2016 for simultaneously serving as a defense attorney at a Changsha law firm as well as a deputy party secretary of the Hunan Taojiang Political-Legal Commission. Yin reportedly handled more than eighty cases over a six-year period while holding both positions. In Beijing, Wang Hongguang, a former presiding Supreme People’s Court judge of the second civil division, was imprisoned in a case suggesting serious conflict of interest. The case was reported on WeChat. Wang allegedly accepted payments to influence the outcome of cases. In 2017, Beijing Dongcheng People’s Court found Wang guilty of accepting bribes. Wang’s appeal was rejected in 2018. As reformers seek to create a more robust system of defense counsels in China, efforts must also be made to address corruption and bias in the court room.

    Funding for Defense Counsels

    Another shortcoming of the pilot projects is adequate funding - critical for defense counsels who are expected to perform an array of functions. As a Congressional Executive Commission on China report points out, legal aid centers have “insufficient funding and eligibility restrictions continue to seriously limit accessibility to legal aid.” Local officials in Bao’an and Henan have acknowledged the varying duties defense counsels must perform, from obtaining case files and drafting briefs to applying for bail and other changes to coercive measures. However, the national regulations on the criminal defense pilot projects do not specify which government actors or units are responsible for ensuring the project’s funding.

    Media outlets have stated that in some cases subsidies are provided for defendants who cannot afford to hire their own attorneys. The pilot project regulations on funding are complex, leaving a series of bureaucratic loopholes for local officials looking to cut funding for criminal defense counsel. For example, Article 9 states that defendants should bear the costs of a publicly funded defense lawyer and that any cost sharing can be determined by provincial level judicial-administrative branches based on the regions local economic development, average residents’ income, and case-handling subsidy allowance standards. Article 7 and 8 states that the responsibility for providing funding for defense attorneys in criminal cases is shared among local jurisdictions, with unspecified “areas with means” (you tiaojian de difang) relied upon to voluntarily shoulder the cost burden in different ways, including establishing a criminal defense lawyer pool to develop the criminal defense counsel pilot projects and launching government procurement of legal aid services. A clear commitment to public resources would bolster the capacity of defense counsels to perform these specialized tasks.

    Sources of Accountability

    Another troubling pattern has emerged in the implementation of the pilot projects – it is unclear which bodies of government are responsible for the projects. Different municipalities and provinces seem to have their own opinion on which bodies are responsible for project implementation. In some projects, party units are entrusted with carrying out the projects, even though the national regulations on the pilot projects were launched by the Ministry of Justice. In some projects, the implementation is carried out by government offices or by provincial justice bureaus and courts. In Hebei province, which was not among the pilot project jurisdictions initially selected, neither the courts nor justice bureau has been involved in the project implementation. Instead it is the party or the government office that is overseeing the implementation. In Henan province, among the first to launch its pilot project in 2016, the provincial justice ministry is the project implementer “throughout the province and in selected areas,” with plans to expand the project to 91 county-level localities.

    The presence of a justice ministry bureau as the project implementer does not automatically mean the projects are better informed. For example, in the E’zhou prefecture of Hubei province, the pilot project was subsumed under a larger project of combating organized crime, with only a cursory mention of the criminal defense counsel pilot project.

    Meetings on “Full Coverage” of Defense Counsel for All Criminal Defendants in China
    Jurisdiction Body Managing Pilot Projects Reported Date Official Pilot Project location Under Article 26 Regulations? Status of Defense Counsel Pilot Projects
    Bao’an District, Shenzhen, Guangdong Bao’an courts and Bao’an Justice Bureau June 2018 Yes Achievement of “complete criminal defense coverage” in Bao’an District
    Guangzhou, Guangdong Guangzhou courts and Guangzhou Justice Bureau May 2018 Yes Implementation of local regulations
    Henan province Henan Justice Bureau June 2018 Yes Implementation of local regulations
    Wujin District, Changzhou Jiangsu Wujin Court and Wujin Justice Bureau May 2018 No Complete criminal defense coverage underway
    Hebei province Henan Party General Office and Henan Government General Office June 2018 No Criminal defense reform is part of a broader anti-crime agenda
    E'zhou, Hubei province E'zhou Justice Bureau May 2018 No City Ministry of Justice unit advances criminal defense reform as part of a broader anti-crime agenda

    As these defense counsel pilot projects take shape across the country, precise guidelines on funding and identifying responsible actors are crucial. To understand the future implications of not doing so, the Chinese government’s needs to look no further than what has happened in the last fifty years in the U.S. In the 1963 U.S. Supreme Court decision Gideon v. Wainwright, the court unanimously announced that the Sixth Amendment of the Constitution “guarantees to every criminal defendant in a felony trial the right to a lawyer.” As Justice Hugo Black wrote, “any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him.”

    Fifty years later, much of Gideon’s promise remains a myth. The resources necessary to maintain high standards for the pro bono defense bar have been largely gutted; states are incentivized to cut funding and have many tools at their disposal to do so. Remuneration for public defenders has been capped in some states; in others, defendants must jump through various bureaucratic hoops to see a lawyer. In many jurisdictions, unqualified defense attorneys are the norm. To avoid the pitfalls of Gideon’s promise, Chinese authorities would benefit from making a long-term investment in their defense counsels.

    The defense counsel pilot projects are a step towards enhancing the protection of human rights in China. It is encouraging to see that provinces beyond the eight localities originally selected are also carrying out their own versions of the pilot projects, including in Jiangsu, Hubei, and Hebei provinces. However, there are obstacles that still need to be addressed, including providing better pre-trial defense, ensuring defense lawyers are free from conflicts of interest, and clarifying the funding sources and accountability mechanisms for defense counsels. As localities move ahead with expanding defense counsel appointments in criminal cases, courts and local units of the Justice Ministry should take the lead in implementing these reforms as the state institutions responsible for processing criminal cases. Limiting the role of party officials in the pilot project would safeguard defendants and minimize bias in court.

    “All Criminal Defendants to Have Lawyers”: Is Access to Defense Lawyers Enough in a System Designed Against Defendants? Part I

    Guangdong Department of Justice Notice given to defense lawyer Sui Muqing, claiming Sui was in violation of court rules; Sui's license to practice was revoked by Guangdong authorities. Image credit: HKFP.
    In January 2018, the Supreme People’s Court (SPC) announced that “all criminal defendants are to have defense lawyers.” Pilot projects in various provinces across China have since launched with this goal in mind. Official media reports boast 100% defense counsels assigned to criminal cases in certain pilot project localities. At first glance, these results are impressive considering public defenders have historically been provided in only 30% of criminal cases in China. Increased access to defense lawyers should ensure the rights of defendants are upheld, however the relationship is not always automatic. Access to defense is effective so long as lawyers have the right tools at their disposal to represent their clients. Dui Hua analyzes shortcomings in the pilot projects including their failure to address the role of defense counsel in pre-trial contexts and the overemphasis on measuring success by coverage rather than quality of defense. Additionally, basic principles such as conflict of interest and identifying clear sources of funding and accountability mechanisms are obstacles that reformers have yet to address in their attempts to institutionalize a more robust defense counsel.

    “All Criminal Defendants to Have Lawyers”

    The eight provinces and municipalities selected to participate in the pilot projects are Beijing, Shanghai, Zhejiang, Anhui, Henan, Guangdong, Sichuan, and Shaanxi. Senior officials have praised the projects as “serving as a well of experience for further national expansion and as a vehicle to uphold human rights and to avoid miscarriages of justice.” The regulations on the pilot projects outline procedural guidelines for expanding access to defense counsel to all criminal cases, including setting three days as the maximum amount of time that courts can take to inform defendants that they have the right to retain a lawyer and the right to receive legal assistance. The regulations also call on courts to directly provide legal aid centers with information regarding the defendant’s case.

    Defense lawyers are not new to China’s criminal justice system. China’s Criminal Procedure Law mandates compulsory defense counsel for mentally ill persons and juveniles and provides guidance on scenarios in which courts should request legal aid centers to appoint a defense lawyer. Legal aid centers were nationalized in 2003 under State Council regulations and in 2017 the “Regulations on Legal Aid” fine-tuned the provisions for criminal cases stipulating defense lawyers for those incompetent to stand trial and those facing the death penalty.

    Pretrial Defense

    In Shenzhen, the Bao'an District Court and the Bao'an Justice Bureau announced that they had achieved their goal of assigning defense lawyers to every criminal defendant in April 2018. Bao'an officials applauded the establishment of a “green channel” (lüse tongdao) to streamline “delivery to defendant of the indictment, the court’s issuing notice to the defense, and the legal aid center assigning counsel to defendant.” In Jiangsu Province, the Wujin District of Changzhou applauded the pilot projects installation of a legal help window and a legal aid center inside its Litigation Service Hall. While focusing heavily on increased courtroom defense representation, these pilot projects fail to address questions of pretrial legal assistance. It is common for defendants to encounter difficulty meeting their lawyers once coercive measures are placed on them. In cases involving endangering state security, lawyers face obstacles in accessing evidence and escaping pressure from authorities to drop cases.

    One of the lawyers implicated in the “709” crackdown in 2015, Wang Quanzhang (王全璋), was barred from seeing his family and the lawyers hired by his family during his three years in custody. On the afternoon of July 12, 2018, Wang’s lawyer was finally able to meet with him at the Tianjin No.1 Detention Center. Wang’s trial date has yet to be announced. Activist Zhang Liumao (张六毛), was detained for picking quarrels and provoking troubles on August 15, 2015 and later arrested for subversion. He died in Guangzhou No.3 Detention Centre on November 4, 2015. Police restricted Zhang’s lawyer from meeting with him because the case was considered “anti-Party” and “anti-China.” Two weeks after Zhang’s death, his family and lawyer discovered bruises on his corpse, prompting suspicion that Zhang had been tortured to death. Wang and Zhang’s cases exemplify the injustice that can result when criminal suspects are restricted from meeting their lawyers before trial.

    Following the “709” crackdown, administrative penalties such as suspension or revocation of legal licenses have become commonplace tactics to retaliate against lawyers and law firms that take on sensitive cases. For example, Wang Quanzhang has so far had seven different lawyers assigned to his case. One of Wang’s lawyers was disbarred in 2017 during an annual review overseen by the party-controlled local lawyers' associations and justice bureaus. In the spring of 2018, another lawyer, who had served as Wang's counsel for two years, was barred from renewing his practicing license. In the case of Huang Qi (黄琦), the webmaster of the legal rights website 64 Tianwang, authorities in Guangdong revoked his defense lawyer Sui Muqing’s license to practice. During an interview with Hong Kong Free Press, Sui claimed that “I'm afraid the reason is that I've represented clients in too many human rights cases – the things I've said about my cases cannot be tolerated by the party.”

    In cases deemed to threaten “social stability,” defense lawyers are often handpicked by authorities seeking to control the outcome of the case. This practice raises questions about whether the rights of the accused can be fairly represented by lawyers who are not of their client’s choosing. In November 2016, after being detained for 16 months, Xie Yang (谢阳), another disappeared lawyer, was finally granted access to two lawyers he had appointed. However, after exposing the torture Xie endured while in detention, both lawyers were dismissed from the case in April 2017. Xie allegedly voluntarily appointed He Xiaodian to take over the case before it was heard in May 2017, however Xie’s family argues that he was coerced into appointing He. In the same month, Xie appeared on state television where he denied torture claims and confessed to being “brainwashed” by overseas groups. On December 26, 2017, Xie was convicted of inciting subversion but was exempted from criminal punishment.

    Liu Zhengqing and Huang Qi’s mother outside the Mianyang Detention Center. Image credit: Radio Free Asia.
    In a healthy criminal justice system, lawyers are given adequate time to examine evidence before a case is tried. Although Article 38 of the Criminal Procedure Law grants defense counsels the right to access evidence, in practice defense lawyers face a myriad of obstacles, particularly in cases involving “state secrets.” In February 2018, lawyer Liu Zhengqing, who took over Huang Qi's case from disbarred defense lawyer Sui Muiqing, said that his request to photocopy evidence was turned down by the Mianyang Intermediate People's Court because it contained “top secret” state secrets. The so-called state secrets reportedly concerned a document issued by a local neighborhood committee about the handling of a petitioner’s complaint. Li Jinglin, another one of Huang’s defense lawyers, also claimed that his appointment to examine evidence on October 12, 2017, was cancelled because the prosecutors were allegedly busy reporting the endangering state security case to authorities in Chengdu. In February 2018, Li's request to examine evidence was again rejected, this time because the judge claimed he “had no time” to deal with the matter.

    Procedural Violations During Trial

    Increased courtroom representation does not necessarily guarantee the right to a fair trial. In cases concerning social stability, the role of defense lawyers is often for show – as presiding judges routinely side with prosecutors and frequently interrupt the arguments of defense counsels. In his defense of prominent activist Yang Maodong (杨茂东), also known as Guo Feixiong (郭飞雄), Zhang Lei reported that he had been repeatedly interrupted after questioning the court’s jurisdiction over the case. Yang was charged with “gathering a crowd to disrupt order in a public place” in Guangzhou’s Yuexiu District after leading a demonstration in support of the newspaper The Southern Weekend. To no avail, Zhang argued that the case should not have been investigated and tried in Tianhe District. Defending Sun Desheng (孙德胜), who was tried in the same case as Yang, Chen Jinxue also claimed that the presiding judge lacked impartiality and repeatedly interrupted the defense’s statements.

    Zhang Lei also spoke about the difficulty of summoning witnesses to Yang’s trial. The court refused to issue subpoenas to witnesses and the day before trial, three key witnesses were either coerced into “traveling” or kidnapped by authorities. In a case involving a Three-Self Church pastor sentenced to 12 years’ imprisonment for fraud and a public order offense, the Nan Le County People’s Court refused the defense lawyer’s request to summon witnesses to testify in defense of Pastor Zhang Shaojie (张少杰). One of the witnesses was taken to a “black jail,” an extra-judicial detention facility.
    Rights lawyer Wang Yu outside the San He City Court. Image credit: Radio Free Asia.
    Rights lawyers who criticize violations of procedural justice in court also face the risk of being expelled or disbarred. In July 2015, rights lawyer Wang Yu (王宇) was representing a Falun Gong practitioner in Hebei when he was expelled and forcibly removed from court after pointing out procedural violations. The court neglected to send Wang a notice of appearance as a defense attorney before the case was heard and the court turned down Wang’s request to adjourn the trial after her client suffered a heart attack in the courtroom. The presiding judge continued to hear the multi-defendant case involving other Falun Gong practitioners and decided to only reschedule the trial for Wang’s client. Wang objected to the judge’s decision, insisting that all the defendants should be heard together in an adjourned trial. The court subsequently issued an order to expel Wang from the courtroom; court guards violently removed Wang.

    Not only has the offense of “disrupting courtroom order” been used as an excuse to expel lawyers from trial and to disbar them from practicing, but the offense also has the potential to imprison lawyers who challenge procedural violations during trial. Deriving from the ninth amendment to the Criminal Law in 2015, the offence has a maximum sentence of three years in prison. The offence conspicuously targets lawyers who complain about procedural violations in cases involving social stability. Xie Yang was one of the first ones indicted for this offence in December 2016. The indictment states that Xie “slapped the table, insulted the judge and instigated claimants” in the courtroom to protest the judge’s decision to expel two other lawyers entrusted in the same eviction compensation lawsuit against a local government. Although Xie was eventually not found guilty of “disrupting courtroom order,” the offence continues to discourage lawyers from speaking out against procedural violations in court.

    Read Part II to learn about the barriers to reform.

    Thursday, August 16, 2018

    The Arbitrary Classification of State Secrets

    China’s national broadcasting station CCTV airs Gao Yu’s confession of “illegally procuring/trafficking in state secrets for foreign entities,” blurring out her face but disclosing her full name.

    In China, transparency on endangering state security (ESS) cases is low in many respects. China Law Yearbook, an official judicial compendium that publishes judicial statistics, states that 4,818 individuals were indicted for ESS crimes during the four-year period from 2011-2014. In recent years, China Law Yearbook has obscured this information by counting ESS cases under the category of “others.” Dui Hua estimates that more than 1,000 individuals have been indicted every year for ESS crimes since 2015.

    There are 12 offences categorized under ESS. China has never disclosed a breakdown showing how many cases or individuals were arrested, indicted, tried or sentenced under each of these 12 offences, which include subversion, splittism, incitement, espionage, and illegally procuring/trafficking in state secrets for foreign entities. Dui Hua’s Political Prisoner Database (PPDB) has information on 779 individuals incarcerated for ESS crimes during 2011-2017.

    Dui Hua has found that a substantial portion of ESS judgments disclosed online by courts concern the crime of illegally procuring/trafficking in state secrets for foreign entities, a charge that carries a maximum sentence of death. These judgments generally provide little information about the background of defendants or the nature of the illegally acquired secrets. Only a few judgments provide specifics about the cases. Some defendants were sentenced for taking photos of troops, vessels, and air force equipment. Some judgments concern individuals who allegedly provided state secrets to Taiwanese, U.S. or other foreign agents in exchange for financial compensation.

    Every country has its reasons for guarding state secrets, but in China the offence has been frequently applied to regulate academic research, curb free speech, and suppress criticisms about party policy in the name of state security. Article 10 of the Law on Guarding State Secrets classifies state secrets into three levels: top secret (绝密), secret (机密), and confidential (秘密). What counts as a state secret and who is considered a foreign entity? The cases below illustrate that the classification system can be highly problematic, and the application of the offence can run counter to international norms, trumping individual rights of expression under the guise of safeguarding state security.

    “Top Secret” State Secrets

    The Law on Guarding State Secrets defines “top secret” as the highest level of state secrets; divulging such information is said to cause “extremely serious harm to state security and national interests.” In Dui Hua’s PPDB there are two cases involving the June Fourth protests and top secrets. Sympathetic to the protests, Fan Baolin (范宝琳) obtained six top secret documents in 1999 in his capacity as a state security cadre in Shaanxi. The documents revealed Beijing’s refusal to let exiled Chinese democracy activists return to China. Fan sent the documents to the Federation for a Democratic China, a group founded in Paris following the crackdown in 1989, which advocates for the democratization of China. In February 2001, Fan was sentenced to life imprisonment for illegally procuring state secrets for foreign entities. His imprisonment was not known by any human rights groups until 2007, when Zhao Changqing (赵常青) disclosed Fan’s case after completing his five years’ sentence in the same Weinan Prison for inciting subversion. Fan was imprisoned for a total of 17 years and was released on November 2, 2016, following multiple sentence reductions.

    The case of Shi Tao (师涛) received extensive international media coverage when the journalist was sentenced to 10 years’ imprisonment for using a Yahoo! Mail account to send top secrets to a New York-based, Chinese language website. In April 2004, Shi attended a staff meeting where a memo issued by the Central Propaganda Department about stability maintenance ahead of the 15th anniversary of the June Fourth protests was discussed. The memo covered restrictions on media coverage about June Fourth, Falun Gong, and mass protests. Prosecutors accused Shi of taking detailed notes about the memo and sending them to “overseas hostile forces” under the name of “198964”, despite him “knowing full well that recording and dissemination were strictly prohibited.”

    Prominent dissident Huang Qi (黄琦) is currently incarcerated for allegedly sharing a top secret report issued by a local neighborhood committee in Mianyang, Sichuan, on his 64 Tianwang website. With the help of like-minded volunteers, Huang founded the website to provide legal assistance and information to vulnerable groups. According to several volunteers, police investigating the case claimed 64 Tianwang was a “hostile foreign website” created to “spread negative news about China.” The so-called top secrets concerned a report covering the government’s handling of petitions lodged by Chen Tianmao (陈天茂), also a 64 Tianwang volunteer, who photographed the report for Huang. Pu Wenqing, Huang Qi's mother, questioned why a petitioner report would be classified as top secret and claimed the offence was trumped up since the report did not even bear a “secrets” stamp or an official seal.

    “Secret” State Secrets

    "Secret" information refers to important state secrets, the leakage of which is said to cause "serious harm to the state." Rights lawyer Zheng Enchong (郑恩宠) was sentenced to three years’ imprisonment for sending two documents by fax to the New York-based organization Human Rights in China (HRIC). The Shanghai Secrecy Bureau found that one of the documents contained "secrets" while the other was considered “confidential.” The secret information referred to a manuscript Zheng had compiled about police handling of a protest that broke out at a food factory in Shanghai in May 2003. Zheng was found guilty even though neither of the two faxes were actually received by HRIC due to technical errors; nor had HRIC sought to disclose information about the documents.

    In a relatively recent case, journalist Gao Yu (高瑜) was sentenced on November 26, 2015 to five years’ imprisonment for illegally providing secrets to Mirror Media Group, a Chinese news outlet based in the U.S. The charge stemmed from her acquisition of "Document No.9," a warning to Chinese Communist Party members about the “seven perils.” The seven perils included the promotion of historical nihilism and Western values such as democracy, free press, and judicial independence. The full text of Document No.9 was shared online, garnering a total of 26,197 views as of April 28, 2014, according to the judgment handed down by the Beijing No.3 People’s Court. Due in part to her poor health and international outcry, Gao was allowed to serve her sentence outside prison. Her sentence will expire on April 23, 2019.

    “Confidential” State Secrets

    Although “confidential” is the lowest level of state secrets, individuals providing more than three “confidential secrets” to foreign entities can still face lengthy sentences of up to 10 years’ imprisonment. U.S. citizen Xue Feng (薛锋) was sentenced to eight years’ imprisonment in July 2010 for obtaining 15 geological reports classified as “intelligence” and acquiring an oil industry database classified as “confidential” on behalf of his employer, a U.S. consultancy company. The database contained information about the coordinates of more than 30,000 oil wells, each of which was “confidential” even though oil well coordinates are research data generally made public in countries other than China. Of the oil wells, 2,000 of them were either located outside of China or were already widely known. Dui Hua raised Xue's case with Chinese officials and urged the U.S. government to step up efforts to secure Xue's better treatment and early release. In November 2012, Xue was granted a 10-month sentence reduction. He was deported on the day he was released, April 3, 2015.

    While the case of Xue Feng casts a spotlight on the danger of doing business in China, academics also face similar risks. Dui Hua has previously reported on the case of Xu Zerong (徐泽荣), a historian sentenced to 13 years’ imprisonment for sending photocopies of books about the Korean War, published in the 1950s, to a South Korean scholar. Unbeknownst to Xu, the books remained classified as “top secret,” even though their secrecy status should have been declassified upon the expiry of the 30-year secrecy period as stipulated by Article 15 of the Law on Guarding State Secrets.

    An early case Dui Hua uncovered involved two individuals in Fujian who were sentenced to 5-10 years’ imprisonment for mailing “secret,” “confidential,” and “neibu” (i.e. internal) books to a university library in Hong Kong. The prosecutors claimed the duo illegally procured library materials in China starting in 1995 in exchange for financial compensation from the Hong Kong library. The “confidential” books covered statistical materials on broadcasting and civil administration in Hebei, which are now widely available in both Hong Kong and mainland libraries. The “secret” information referred to books published in the 1960s about the Sino-Soviet and Mongolian borders and books published in the early 2000s about Chongqing’s public security bureau and its anti-gang campaigns. The first defendant was released in September 2010 following two sentence reductions totaling 32 months; the second defendant completed his full five years’ sentence in May 2008.

    Arbitrary Application

    State secrets are matters that have a vital bearing on state security and national interests and are entrusted to only a limited number of people for a given period of time in accordance with proper legal procedures. The regulations governing the handling of state secrets in Chinese courts are not well understood. Dui Hua has previously reported that entire criminal cases may be classified as secret from the police investigation stage onward, based solely on the politically sensitive nature of the alleged criminal activities at play, and that this classification holds over when the case is tried in court. In the aforementioned cases, it is questionable how the defendants’ actions put China’s state security at risk. Zheng Enchong's defense lawyers claim the offence was misapplied because Zheng only recorded ordinary social news – ranging from a small peaceful protest by factory workers to a demolition jointly carried out by government officials and business corporations. Zheng’s accounts have no obvious connection to state security.

    Similarly, it is hard to imagine why a document issued by a local neighborhood committee concerning a petitioner’s complaint could be classed as “top secret,” as in the case of Huang Qi. In an interview with Radio Free Asia, Huang's mother stated that “if it were really a top secret document, the staff members [allowing Chen Tianmao to photograph] should have been detained too... They have set a trap for Huang Qi...” Huang’s defense lawyer, Li Jinglin, remarked that Huang would very likely be sentenced even though the state secret charge against him had no basis.

    Several Chinese legal scholars and practitioners have cast doubt on the labeling of Document No. 9 as a “secret.” Scholar Zhang Xuezhong argued that to avoid arbitrary application, courts should be required to identify and quantify the harm inflicted on state security and national interest. He remarked that a party document should not be seen as a state secret since the ruling party is obliged to make its policies and governing philosophy public so that party members can monitor and evaluate their performance. Even if a document discloses party secrets, party members only receive disciplinary, not criminal, punishment. Gao should not have received any form of punishment because she has never been a party member.

    Scholar He Bing argued that Gao is innocent on the basis that the information in Document No. 9 was already disclosed by official news media outlets that warned party members to remain vigilant about the infiltration of aspects of Western ideology, dubbed the “seven perils.” These reports came out months before Document No. 9 was circulated online in August 2013. Prominent dissident Bao Tong called it “ridiculous” to treat Document No. 9 as a state secret – as it relates neither to military affairs nor commerce, but an instruction of “ideological control” given by a political party.

    The two cases relating to Fujian and Guangdong academics illustrate the question of the expiration periods imposed on state secrets. In finding the scholars guilty, the courts’ decision ran counter to the Law on Guarding State Secrets, which provides that a state secret shall be automatically declassified upon the expiration of the period guarding it. The secrecy period of “top secrets” shall not exceed 30 years, whereas the time limit for “secrets” and “confidential” secrets is 20 years and 10 years, respectively. Nonetheless, Xu Zerong and the duo in Fujian were found guilty although the acquired materials had technically been “declassified” at the time of their detention.

    In January 2018, Swedish national Gui Minhai (桂民海) made international headlines again after he was snatched by Chinese agents on board a train to Beijing while accompanied by two Swedish diplomats. Gui was reportedly detained for the problematic offence of illegally procuring state secrets for foreign entities. The level of state secrets involved in the case remains unclear. In a televised confession in February, Gui claimed he had been manipulated by Sweden as a “chess piece” to cause trouble for China. Given Gui’s past involvement in Causeway Bay Books, a Hong Kong bookstore which sold titles about Chinese leaders, there are reasons to believe the charge is political and Gui’s statement at the government-arranged interview was coerced.

    The cases above reveal the problematic nature of the offence of “illegally procuring/trafficking in state secrets for foreign entities.” Not only is there a lack of transparency in the classification system of state secrets, there is also a great deal of evidence that the offence is being used to curb individual rights of expression under the guise of safeguarding state security. The offence has been arbitrarily used to silence dissidents, rights lawyers, journalists, and academics and to cover up events like June Fourth protests.