Wednesday, February 27, 2019

Cracking Down on Dissenting Versions of History

“Beware of getting brainwashed by historical nihilism,” a cartoon on the nationalist website A man dressed in imperial Japanese army uniform is depicted enslaving a “hanjian,” a pejorative term used to describe Chinese national traitors.
The term “historical nihilism” has come into vogue among Chinese government officials following Xi Jinping’s rise to power in 2012. “Historical nihilism” refers to the questioning of the official Chinese Communist Party’s version of Chinese history. A communiqué circulated in 2013 within the party known as Document No.9 calls historical nihilism one of the seven perils that threatens party rule. Under the guise of “re-evaluation,” historical nihilism “discredits revolution under the party’s leadership” and “denies the historical necessity of China’s choice of embarking on the socialist path.” In September 2015, party magazine Qiushi warned that historical nihilism would lead to a Soviet-style collapse should it be left unchecked. In February 2018, official news media outlets widely circulated Xi’s remark that historical nihilists “distort history” and “deny their own ancestry.” Historical nihilists are condemned as traitors to the Han people, “self-abased,” and as having lost their ethnic pride due to Western influence.

Official historical narratives about the party are crafted to instill nationalism and political loyalty. The narratives stress the party’s contributions to liberating China from century-long foreign imperialism, oppressed farmers from landlords, and ethnic minorities from feudalism – in stark contrast with Chinese history written in the west that calls the first three decades following 1949 a period of catastrophe caused by Mao Zedong. Those who share similar criticisms about the party’s past put their jobs, livelihood, and even personal liberty at risk. In some cases, delving into or writing about dissenting versions of history can land researchers or publishers in jail, with charges ranging from stealing state secrets, illegal business activity, and endangering state security.

Jailed Historians & “State Secrets”

A well-known case involving the criminalization of historians in China involved U.S.-based librarian and historian Song Yongyi (宋永毅) in 1999. In that year, Song was on a research trip to China to construct a database that would document the atrocities committed during the Cultural Revolution. Song collected tabloid newspapers published by the Red Guards and procured state-approved books from the China National Publications Import & Export Corporation at the Dickinson College Library in Pennsylvania. Although Song had obtained these materials through public channels, he was detained for “stealing state secrets” for six months, during which he was interrogated about whether his research project was supported by the Central Intelligence Agency. Song was not yet an American citizen at the time, but his detention sparked outrage in the American academic and diplomatic community. His release came as a result of Beijing’s wish to improve its image prior to the annual debate on renewal of China’s “Most Favored Nation” trading status.

A similar case that did not garner as much attention as Song’s involved historian Xu Zerong (徐泽荣) who was sentenced to 13 years’ imprisonment for illegally trafficking in state secrets for foreign entities and illegal business activity in Shenzhen in December 2001. Xu was an Associate Research Professor of Southeast Asian Studies at Zhongshan University in Guangzhou, well-known for his work on China’s role in the Korean War. The charges stemmed from his photocopying of books published in the 1950s about China’s involvement in the Korean War: unbeknownst to Xu the books were classified as “top-secret.” Xu allegedly received $2,500 for sending research materials to a South Korean scholar.

Some observers believed that Xu was imprisoned for reasons not mentioned in the court documents. Prior to his detention, Xu wrote an article for Hong Kong-based Asia Weekly, exposing clandestine support by the Chinese Communist Party to a Malaysian Communist insurgency from the 1950s to 1970s. Xu claimed that Chinese forces helped the insurgency group set up a radio station in Hunan during that period. His research suggested a double standard when it came to the Chinese government’s approach to foreign diplomacy – they had supported a revolution abroad and interfered in the internal affairs of another country, a line of argument the government frequently uses to criticize foreign counterparts that raise human rights issues with China.

Banned Books

Dui Hua has previously reported on the use of the crime “illegal business activity” to prosecute Christian booksellers and publishers. The same charge is also used to curb the distribution of history books that challenge the official historical narrative. In December 2015, Fu Zhibin (付志彬) was sentenced to 20 months’ imprisonment in Jiangxi for his book titled Historie der Mentalen Manipulation. In his book, Fu argues that the CCP used the concept of “Red Terror” to instill fear in people thus culminating in the Cultural Revolution. Fu accuses Mao of using this tactic to materialize his “emperor dream” – a term Fu borrowed from Lenin.

Published in Taiwan in 2014, the Jiangxi public security bureau accused Fu of “smearing and distorting the history of the Chinese Communist Party and denying the party’s legitimacy in the founding of the People’s Republic of China.” In the same year, Fu used a mainland publisher to print 3,000 copies of his book for domestic distribution. Of the books, 1,200 were sold online via social networking apps including WeChat and QQ.

In a separate case in February 2017, Dai Xuelin (戴学林) and Zhang Xiaoxiong (张晓雄) were sentenced in Zhejiang to five years and three years and six months, respectively, also for illegal business activity. The duo acquired books from Hong Kong’s Causeway Bay Bookstore and distributed them to online buyers in the mainland. One of the “illegal” titles was How the Red Sun Rose, a monograph written by a well-known historian who examined how Mao ascended to power by aggressive intra-party purges and coercion and the legacy of Mao on China’s political structure today. The book was published by The Chinese University Press in Hong Kong in 2001. Both Dai and Zhang remain imprisoned today. Dai is scheduled for release in May 2021 and Zhang is set for release in January 2020.

“Inalienable Part of China”

Photo credit: The Economist
China’s territorial dispute with Russia in the 2000s remains a thorn in the side of patriotic writers and historians. In the mid-19th century, the Qing Empire signed several “unequal treaties” with Russia, ceding over 600,000 square kilometers north of today’s Heilongjiang province and parts of Outer Manchuria, the majority of which is in Russia today. Shortly before the dissolution of the Soviet Union in 1991, border demarcation negotiations were held to resolve the longstanding Sino-Russian border disputes in Heilongjiang. The issues were eventually settled in an accord, signed by both countries in 2004, in which Russia recognized China’s ownership of Yinlong Island (Tarabarov Island) and over half of the Heixiazi Island (Bolshoy Ussuriysky Island) – both islands had been occupied by the Soviet Union since 1929. In 2008, China Daily lauded the formal territorial agreement signed by then Foreign Minister Yang Jiechi as a “hard-won” result after more than 40 years of negotiations.

The signing of the border agreement also signified China’s recognition of Russian sovereignty over territories that once belonged to China, a blow to many nationalists who regard the land as an “inalienable part of China” – a claim frequently used to justify sovereignty over Taiwan, Hong Kong, Xinjiang, Tibet, and other disputed islands and maritime claims in the South China Sea.

Some observers speculated that Hong Kong journalist Ching Cheong (程翔) was imprisoned for penning articles in 1998 for Hong Kong and Singaporean media that expressed his sentiments about the territorial losses, “equivalent to the size of forty Taiwans.” Ching criticized Jiang Zemin for signing a clandestine agreement with Boris Yeltsin in 1999 that delineated today’s Sino-Russian border. In signing the agreement, Jiang in turn recognized China's loss of sovereignty over the territories “plundered” by Russia following the “unequal treaties” China was forced to sign in the 19th century. Ching was detained in Shenzhen in April 2005 and was sentenced in Beijing to five years’ imprisonment for “espionage” in 2006. He was released on parole in 2008 following an international campaign calling for his release.

Amateur historian Lü Jiaping (吕加平) was imprisoned for similar reasons. In 2011, Lü was sentenced to ten years’ imprisonment for inciting subversion in Beijing. Allegations against him included articles he published which called Jiang a “traitor” for “ceding vast Chinese territories” to Russia. Lü, now aged 77, reportedly suffers from heart disease among other ailments. He was released on medical parole in 2015.

“Historical Nihilism”

The “Five Heroes of Langya Mountain” are Communist soldiers portrayed in official narratives as having jumped off a cliff to avoid being captured by Japanese forces during World War II. Those who publicly question the authenticity of the official narrative not only face civil, but also criminal, consequences. Image credit: Baidu.

In 2015, the term historical nihilism began appearing in court documents following a civil case lodged by family members of “Communist heroes” to safeguard their ancestors' “reputation” and “heroic spirit.” A Beijing court found columnists Hong Zhenkuai (洪振快) and Huang Zhong (黄钟) guilty of libel for an article that questioned the authenticity of the “Five Heroes of Langya Mountain,” communist lore that praised the valiant effort of five Communist soldiers during World War II. According to official narratives, the five men had jumped off a cliff to avoid being captured by Japanese forces. Hong argued that the men had in fact slipped off the cliff and that they did not kill any Japanese soldiers during their service. The court ruled that Hong and Huang had damaged the “heroic image” and “challenged social and public values that are both traditional and mainstream,” and “hurt the ethnic and historical feelings of the people.” Hong and Huang were ordered to make a public apology to the heroes on Weibo and in several major newspapers, including Global Times and Southern Metropolitan Daily.

Hong and Huang’s case demonstrates how publicly questioning the historical accuracy of Communist folklore can incur civil penalties. Effective April 27, 2018, the Heroes and Martyrs Protection Law obliges Chinese citizens to “revere and honor the memory of the sacrifices and contributions that heroes and martyrs made for the nation…” and subjects anyone who “defames” heroes and martyrs to criminal punishments and civil liabilities. At the time of writing, it remains to be seen what criminal punishments will be meted out to individuals who challenge the party’s narratives of heroes and martyrs.

Historians in and outside of China have long cast doubt on the authenticity of the “good deeds” of many Communist heroes and martyrs, including notably Lei Feng, a well-known propaganda icon who espoused values of selflessness and patriotism. Since his rise to power, Xi has further tightened the leash on historical discussions beyond the scholarly realm. Many online platforms have reportedly been investigated, fined, and ordered to shut down by the Internet Information Office for insulting heroes and martyrs. The Wall Street Journal reported that the Chinese government maintains a database of more than two million heroes and martyrs. It is doubtful whether the public knows who these two million heroes and martyrs are and therefore what kinds of criticisms might land them in legal trouble.

In China, history is heavily censored – not only are criticisms of government and former leaders censored, but narratives are also heavily redacted to shield the party from public skepticism about its legitimacy. The cases explored in this article demonstrate how those who dig into the party’s history have faced arrest, detention, and lengthy prison sentences for a wide range of offenses.

Most recently, two ethnic minority researchers have been taken into custody for writing histories of their own ethnic groups that are critical of the official narrative. Ethnic Mongolian historian Lhamjab A. Borigin faces prosecution for the crime of “separatism” and “sabotaging national unity” for his book written in Mongolian about the Cultural Revolution. Published in 2006 by an underground press and subsequently translated into Mandarin, the book discloses survivor testimonies and details torture techniques used during genocidal campaigns. Askar Yunus, an ethnic Kyrgyz historian, was incarcerated for an “undecided” offense due to his work that documented the history of Central Asia. Prior to his incarceration, Yunus published dozens of articles and books that examined the golden era of the history of the Kyrgyz people. An exiled Uyghur activist in the U.S. claimed that Askar Yunus might have been accused of being “two-faced” – an accusation frequently used by authorities to allegedly place more than a million of China’s Muslim minorities in re-education camps.

Thursday, February 7, 2019

Jailhouse Informants and Wrongful Convictions

Zhang Hui (right) and his uncle Zhang Gaoping (left) were acquitted in March 2013 after spending a decade in jail due to false testimony given by a jailhouse informant. Photo credit:

A controversial issue facing criminal justice reformers around the world is the use of jailhouse informant testimony, which has been discredited as being unreliable and a leading cause of wrongful convictions. Jailhouse informants are detained or incarcerated individuals tasked with obtaining inculpatory information about criminal suspects. Informants are often pressured into becoming informants in exchange for financial rewards and sentence reductions.

Authorities in China acknowledge the practice of using jailhouse informants to gather information for investigations. Detention centers receive funding from the Ministry of Public Security (MPS) to help deploy a network of informants. The MPS Working Rules of 1986 classify informants into two groups: one group collects intelligence about criminal suspects to maintain jailhouse security and the other group assists police in the investigation of difficult cases.

Prisoners with at least three months remaining on their terms typically serve their sentences in prisons, however an exemption is made for long-serving prisoners to be placed in detention centers where they can act as the prison guards’ watchful eyes and ears. While the exact figures are unknown, a study revealed that of the 480 detainees in Xinjiang’s Yining Detention Center in 1990, 14 were informants. In the early 2000s, Xinjiang’s Yopurga County Detention Center used a total of 18 informants – 14 security informants and 4 “special case” informants. A recent estimate indicated that three to five percent of the entire prison population in China are informants in detention centers.

There has been widespread public criticism over the use of jailhouse informant testimonies in cases resulting in wrongful convictions. Below are three examples of cases where informant testimony was used to push forward on investigations when evidence against the accused was weak or non-existent.

Yuan Lianfang - “The Jailhouse Snitch”

Ma Tingxin

Yuan Lianfang (袁连芳) is a former jailhouse informant known to have produced false testimonies leading to two wrongful conviction cases involving three victims. In February 2003, Yuan was transferred to the Hebei Detention Center to collect information for a homicide case, which the county public security bureau had pledged to solve within three months. Ma Tingxin (马廷新) was mistakenly identified as a criminal suspect after failing a polygraph test. Investigators were unable to find sufficient evidence to use against Ma and ended up coercing six witnesses into providing false testimony. It was later discovered that Yuan was assigned to be the informant responsible for extracting Ma’s confession.

In an interview, Yuan admitted that he would take any opportunity to complete his six-year sentence early. At the time of Ma’s detention, his wife and father had been taken into custody for investigation. Using his position as a “cellblock boss,” Yuan did not allow Ma to sleep if he failed to memorize the confession script Yuan had composed for him. Yuan later threatened the safety of Ma’s family, prompting Ma to write a five-page long statement in which he admitted to committing the murder. After Ma’s “confession,” Yuan was transferred back to Hangzhou’s Gongshu District Detention Center on April 8, and one month later, he earned a sentence reduction of 18 months.

In July 2004, Ma was acquitted in the trial of first instance, but the prosecution appealed the judgment insisting that evidence for conviction was sufficient. The appeal was not withdrawn until April 2008. Ma spent five years in a detention center for a crime he did not commit.

Two Zhangs

Yuan Lianfang’s name did not garner media attention until a case involving a rape and murder conviction overturned by the Zhejiang High People’s Court in March 2013 came to light. Zhang Hui (张辉) and his uncle Zhang Gaoping (张高平) were sentenced to death with reprieve and 15 years’ imprisonment, respectively, in the appellate trial in October 2004.

Initial investigations against the duo produced no substantive evidence of their guilt. The victim was last known to have hitchhiked by truck from Anhui to Hangzhou before her corpse was found in a ditch. The DNA found on the victim belonged to neither of the Zhangs, but to another individual who could not be identified by police at the time. As the investigation dragged on, Yuan was transferred to Gongshu District Detention Center where he collected testimony from Zhang Hui. Yuan alleged that Zhang Hui had voluntarily confessed to strangling the victim to death after raping her. Zhang did not appear in court to testify. As in Ma’s case, Yuan used his position as the “cellblock boss” to coerce Zhang into writing a confession letter. The court ignored accusations against Yuan and convicted the two Zhangs for rape and murder.

In the appellate trial, the Zhejiang High People’s Court held that the facts in the two Zhang’s case were “clearly established.” In the judgment, the court only mentioned in passing that Zhang Hui “is not a criminal who requires immediate execution due to the special circumstances of the case” without explaining what constituted the “special circumstances.” In the absence of admissible circumstantial evidence, their conviction was yet another violation of the presumption of innocence – a principle established in the Criminal Procedure Law.

Both Zhangs were released in 2013 after they had been in prison for almost a decade. While serving his sentence in a Xinjiang prison in March 2008, Zhang Hui read about Ma Tingxin’s acquittal in a newspaper and learned that Yuan had given false testimony leading to Ma’s wrongful conviction. The prosecution accepted Zhangs’ request to re-examine the admissibility of Yuan’s testimony. Yuan admitted to perjury in both Ma and Zhangs’ cases. It was later found that the DNA on the victim belonged to another criminal who had been executed. An interview with Yuan in 2013 revealed that he had suffered a stroke while in prison, leaving him with permanent health issues. At the time of the interview Yuan was living in a small rented apartment in Hangzhou with limited means and fearful for his safety due to the reputation he had garnered as a jailhouse informant.

Jailhouse Bullies

In May 2018, Caixin Media's coverage of the case of Wang Baiyu (王柏玉) brought much discredit to both law enforcement and jailhouse informants in China. Wang, a native in Jilin province, was sentenced to death with reprieve in 2004 after “confessing” to the murder of his fiancée. The investigation failed to uncover sufficient evidence that Wang was to blame for the murder and basic facts of the case were not disclosed to the defence, such as the victim’s time of death. Wang might have been able to provide a credible alibi had these details been disclosed. There was no witness testimony or forensic evidence linking Wang to the murder scene. The only evidence used to substantiate the conviction was Wang’s confession, which had been extracted by jailhouse informants.

Wang’s confession was full of inconsistencies. He gave three different accounts detailing how he committed the murder. It was later discovered that Wang’s confession was coerced in the detention center by investigating officers who also instructed several informants to inflict torture on Wang, including “banging Wang’s head against the wall, kicking him in his chest, suffocating him with plastic bags, depriving him of water, food, and sleep for consecutive days.” On May 31, 2002, Wang delivered his first written confession to his informants. In mid-August, the informants tortured Wang again, leaving him with a nasal fracture and bruises all over his body. Wang signed another fabricated confession statement. One of the informants received a sentence reduction of two years in January 2005 as a reward for his “meritorious service” in eliciting Wang’s confession.

In the appeal statement published in February 2017, Wang stated that at least four detainees witnessed the abuse and torture he suffered and that he knew of at least one other detainee, surnamed Song, who also fell victim to the same informants in June 2002. For the past 15 years, Wang has been lodging a post-conviction appeal. On August 26, 2016, the Jilin People’s Procuratorate refused to re-examine the admissibility of Wang’s testimony and determined that there were insufficient grounds to lodge an appeal. At the time of writing, Wang has 12 years left on his sentence.

Reform in United States

In the U.S., there is ongoing legislative debate concerning the use of jailhouse informant testimony. In response to Texas legislation that would end the use of incentivized jailhouse informants in death penalty cases, a Washington Post op-ed in May 2015 criticized that “[M]ost jailhouse snitches are lying. Informant testimony has become such a critical tool for prosecutors precisely because it allows them to put on testimony that is a) damning, b) easy to manufacture and c) allows b) to happen while giving them plausible deniability.” The Texas bill that was later passed in 2017 has been widely applauded. In California, Florida, Washington, New York, and Pennsylvania, legislatures have also sought to restrict the use of informant testimony. In November 2018, Illinois passed a bill making it mandatory for prosecutors to disclose their use of jailhouse informant testimony at least 30 days before trial. The bill gives defence attorneys time to examine informant testimony and forces prosecutors to prove that informant testimony is admissible and to disclose what rewards will be given to informants in exchange for testimony.

In China, reformers widely agree that the use of jailhouse informant testimony is problematic. Informants are deployed by police in detention centers administered by the Ministry of Public Security. Police play both a custodial role and an investigatory role and they routinely use informants to boost crime clearance rates for their own career advancement. In 2015, Secretary of the Central Political and Legal Affairs Commission Meng Jianzhu announced the removal of crime clearance rates as a performance indicator for police officers. The arbitrary power of police could be more easily restrained if the Ministry of Justice (MOJ) administered detention centers, since it has little direct interest in the outcome of criminal investigations.

Wrongful convictions reduce public confidence in the criminal justice system. The consequences are severe when miscarriages of justice result from the use of forced testimony obtained by torture. Legislative restrictions are needed to curb the arbitrary use of testimony. China can draw on the U.S. experience by improving transparency in how informant testimony is collected, and by restricting and banning its use in certain cases such as cases involving the death penalty.