Friday, May 31, 2019

Hurry Up and Wait: The Robert Schellenberg Case

Hurry Up and Wait: The Robert Schellenberg Case
Robert Schellenberg, Dalian Intermediate Court, Jan 14, 2019. Image Credit: cdn.hk01.com

As US-China relations sink ever lower, the list of urgent criminal cases involving Western citizens in China has increased. In just the last few weeks Canadians Michael Kovrig and Michael Spavor were formally arrested on espionage charges and American Mark Swidan was given a suspended death sentence for drug trafficking.

Amid so many arrests and sentences, a May 9 appeal hearing in the case of Robert Schellenberg, a Canadian sentenced to death for drug trafficking, went largely unnoticed. Although Schellenberg’s appeal hearing concluded without pronouncement of a sentence, the timing of the hearing—the day after a hearing in Vancouver for Huawei CFO Meng Wanzhou—points to the continuing role of international politics in the outcome of his case.

Schellenberg’s case is part of a larger emerging dynamic of tit-for-tat detention diplomacy, but it is also unique because it is both overtly political and carries a death sentence. No other case is so inextricably bound up with that of a Chinese national being held in the West. Schellenberg’s fate has unfolded in parallel to that of Meng, a Chinese citizen who is currently detained in Canada pending extradition to the United States. After her detention Chinese state media representatives ominously warned there would be retaliation. Schellenberg’s sudden, unusual retrial and capital sentence followed shortly thereafter, leading many to conclude that it is Canada, as well as Schellenberg, that is being punished in this case. The fact that Schellenberg’s most recent hearing in Dalian took place the day after Meng appeared in court in Vancouver suggests that the two cases remain linked. As Huawei has moved to the center of a global struggle over China’s role in technology markets in the last few weeks, the political stakes in the two cases have increased as well.

Mark Swidan with his mother, Katherine Swidan, in 1991.
Image Credit: Katherine Swidan
Schellenberg’s case stands out not just because it is one of a prominent set of political cases involving foreigners, but also because it is the only overtly political verdict carrying a sentence likely to result in death. (Swidan, an American detained on drug charges in 2012, received a suspended death sentence on April 30, which, in accordance with Article 50 of the Criminal Law, will be reduced to a prison sentence so long as he does not commit a new crime in the next two years). Western citizens have been executed in China before, but such cases typically become international causes of concern because of China’s use of capital punishment in general, rather than doubts about the intention behind the ruling. For example, another Canadian citizen, Fan Wei, was also recently sentenced to death for drug trafficking, but so far there have been no accusations that his sentence was intended to punish Canada; in Schellenberg’s case, by contrast, it seems that the death sentence is politically motivated. While Chinese authorities insist that the punishment conforms to the rule of law, state spokespeople have also provided not-so-subtle indications that the death sentence should be understood as retaliation for Meng’s detention. Canadian Prime Minister Justin Trudeau has accused China of “arbitrarily” applying the death penalty in the case. For better or worse, Schellenberg stands out as the capital test case in a new dynamic that one legal commentator has dubbed “death-threat diplomacy.”

What has happened in the case to date, and what might we expect in the future? So far, the case has unfolded in two phases. In the first phase, which stretched from arrest in 2014 to an initial sentence of 15 years in November 2018, the case was not overtly political, and the judicial process was slow and low-profile, perhaps because the evidence against Schellenberg was weak and central authorities were called in to deliberate. In the second phase of the case, which began with an appeal court remand for retrial immediately following Meng’s detention in December 2018, the case took on a new political valence. The judicial process was fast and well-publicized. The court operated with perverse procedural formalism, meeting legal deadlines and adhering to the letter, if not the spirit, of the Criminal Procedure Law.

Following the hearing this month it is likely that the pace of proceedings will again slow to a crawl. Formal deadlines for the next legal phases of the case are minimal. The Liaoning High People’s Court may draw out announcement of the sentence. If the appeals court does come down with a death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There are no procedural deadlines in that process; the judiciary can hold up the case indefinitely, or wait until an opportune political moment in the Meng case to announce a decision.

The Background of the Schellenberg Case

Robert Schellenberg, a Canadian citizen, was arrested in the city of Dalian in 2014. (According to Canadian officials, nearly 200 Canadians are currently detained or imprisoned in China.) He stood accused of participating in a scheme to smuggle about 500 pounds of methamphetamine from China to Australia inside car tires. He was tried in 2016. In November 2018, two years after his trial, Schellenberg and his co-defendants were sentenced by the Dalian Intermediate People’s Court. He was found guilty of drug smuggling and sentenced to 15 years in prison, along with a hefty fine and expulsion from China following completion of the prison term. No one involved in the case was initially sentenced to execution, though two of Schellenberg’s co-defendants—both Chinese nationals—were given stiffer sentences: a suspended death sentence and an indeterminate life sentence (wuqi tuxing 无期徒刑). (In contrast to the U.S. parole system, China’s sentence reduction policy entails the reduction of sentences based on a system of points for good behavior, and generally means that prisoners with indeterminate life sentences are not usually imprisoned until death). The harsher punishments for the co-defendants reflect the court’s initial judgment that Schellenberg did not carry principal culpability in the case.

Dalian Intermediate People's Court. Image Credit: chinaplus.cri.com

Following the initial verdict Schellenberg appealed his sentence, indicating he considered the punishment too severe. If a defendant appeals a verdict, a second-instance court may not increase the sentence on review. The prosecution may also choose to appeal a sentence in order to increase the punishment, but they did not do so, suggesting they considered the penalty appropriate at the time.

Typically defendants face no risk in filing an appeal, but the Liaoning High People’s Court took an unusual approach to the case: rather than rule on it, the high court returned the case to the lower court for retrial. The retrial gave prosecutors the power to amend the charges and seek a harsher sentence, something the appeal court could not do. Prosecutors quickly amended the charges, ostensibly introducing new evidence that increased Schellenberg’s culpability. (Schellenberg’s lawyer claims no new evidence was introduced.) The lower court retried the case in January 2019 and sentenced Schellenberg to death, a significant increase in punishment from the previous trial verdict. Schellenberg appealed his verdict to the Liaoning People’s High Court a second time. On May 9, 2019—days before the four month procedural deadline for a hearing—the appeal court heard the case. However, the court declined to issue a judgment, indicating it would do so at an unspecified later date.

Liaoning Province High People’s Court. Image Credit: Zhonglan Xinwen

A Tale of Two Cases

What sentence should Schellenberg receive? A defendant’s criminal culpability and punishment ought to be determined in light of his or her own crimes. But whatever chance Robert Schellenberg may have once had of having his case interpreted in isolation ended last year. Today his case is indelibly wedded to another defendant: Meng Wanzhou, the CFO of Huawei, the world’s second largest cellphone manufacturer and one of China’s flagship companies.

Meng Wanzhou, Huawei CFO. Image Credit: Mingbao
In December 2018 Meng was arrested in Vancouver during a layover flight between Hong Kong and Mexico. Canadian officials arrested Meng based on a warrant issued by the United States Eastern District of New York, which named Meng as part of an alleged conspiracy violating sanctions with Iran. Meng is currently free on bail in Vancouver. The United States has requested that Meng be extradited to the U.S.

Meng’s arrest precipitated a diplomatic crisis in China-Canada relations. China has demanded Meng’s immediate release, alleging that the arrest is part of a Western effort to obstruct Huawei’s entry into Western markets. A representative of China’s Ministry of Foreign Affairs stated that Canada would face “grave consequences” over Meng’s continued detention. Immediately after Meng’s arrest in December, China detained two Canadians, Michael Spavor and Michael Kovrig, on accusations of endangering state security. Shortly thereafter the editor in chief of state media outlet the Global Times made a statement in English that “if Canada extradites Meng to the U.S., China's revenge will be far worse than detaining a Canadian.”

It is in this context that Chinese and Western commentators interpret Schellenberg’s situation. When Schellenberg appealed his 15-year sentence in November 2018—just before Meng’s arrest—he had every reason to think that the re-consideration of his case at a trial of the second instance could only work in his favor. A defendant who appeals a verdict is not supposed to face a more severe sentence on retrial. And the prosecution did not file an appeal raising concerns about the severity of the sentence.

But circumstances changed between Schellenberg’s appeal in November 2018 and the Liaoning High People’s Court review in December. Meng’s case became an international flashpoint and China vowed to respond. The Liaoning High People’s Court took the unusual step of inviting foreign media to the second-instance trial. Western journalists who were present noted the ways in which the event appeared staged to send signals to the audience. Rather than reach a verdict on the case, the court took the unorthodox step of sending the case back to the lower court.

The remand to the lower court allowed the prosecution to amend the charges against Schellenberg, claiming new evidence in the case. This procedural move provided the trial court with a legal justification for resentencing Schellenberg to death. Numerous Chinese legal experts have noted irregularities in these proceedings. It is striking, for example, that although it took four years to initially sentence Schellenberg to a 15-year sentence, the justice system managed to re-sentence him to death in less than a month. His lawyers also contend the amended indictment in fact does not provide any new evidence of Schellenberg’s culpability.

What Are We Waiting For?

What comes next? Schellenberg’s case has so far proceeded in two phases with very different timelines. In the first phase, which ran from arrest in 2014 through Schellenberg’s initial sentence of 15 years in November 2018, there were no public announcements indicating the case carried political significance. The court moved extremely slowly, taking four years to deliver the initial sentence. Four years is an unusually long stretch for a criminal case in China. In waiting so long to produce a verdict, the Dalian trial court surely consulted higher authorities on the appropriate course of action. Why did this process take so long? The protracted wait might be the result of weak evidence in the case. Since China’s trials virtually never produce acquittals (as Dui Hua has recently noted), cases with shaky facts are likely to be sent to an adjudication committee for deliberation on appropriate sentencing. When a case involves a foreigner, the considerations may take even longer.

The second phase of the Schellenberg proceedings began after Schellenberg appealed his 15-year sentence in November 2018. In contrast to the first phase of the case, the second phase was fast, high-profile, and politically fraught. Following Meng’s arrest on December 1, 2018, Schellenberg’s case went through second instance trial and retrial of the first instance in six weeks. The second instance trial court announced its decision the day of the trial, rather than deliberating on the evidence, as usually takes place. And after the high court remanded the case for retrial, prosecutors amended the complaint with new evidence in a mere four days. The lightning speed of proceedings and state media comments about retaliation for Meng send signals about how Schellenberg’s death sentence should be interpreted. And yet Chinese authorities and media figures also strenuously insist that the court’s judgment was “beyond reproach” and rooted in the rule of law. China’s insistence on adherence to criminal procedure in the case fits with a general trend towards legal formalism in China, despite a larger turn away from rule of law. (China’s recent Supervision Law, for example, introduces a formal legal basis for the longstanding unaccountable, extrajudicial detention powers of the National Supervisory Committee, the Chinese Communist Party watchdog.).

The second phase of the began after Schellenberg appealed his 15-year sentence in November 2018. In contrast to the first phase of the case, the second phase was fast, high-profile, and politically fraught. Following Meng’s arrest on December 1, 2018, Schellenberg’s case went through second instance trial and retrial of the first instance in six weeks. The second instance trial court announced its decision the day of the trial, rather than deliberating on the evidence, as usually takes place. And after the high court remanded the case for retrial, prosecutors amended the complaint with new evidence in a mere four days. The lightning speed of proceedings and state media comments about retaliation for Meng send signals about how Schellenberg’s death sentence should be interpreted. And yet Chinese authorities and media figures also strenuously insist that the court’s judgment was “beyond reproach” and rooted in the rule of law. China’s insistence on adherence to criminal procedure in the case fits with a general trend towards legal formalism in China, despite a larger turn away from rule of law. (China’s recent Supervision Law, for example, introduces a formal legal basis for the longstanding unaccountable, extrajudicial detention powers of the National Supervisory Committee, the Chinese Communist Party watchdog.).

We are now entering a third phase in the Schellenberg case, one in which Schellenberg’s fate hangs like a sword of Damocles over Canada. A cynical reading of the situation suggests that Schellenberg must continue to dangle there until Meng has either been extradited to the U.S. or returned to China. Meng’s most recent hearing took place on May 8. Schellenberg’s appeal hearing notably took place the following day. The timing of Schellenberg’s hearing carried a two-fold significance. The court heard the case within four months of accepting it, as required by law. But in doing so the day after Meng’s hearing, the court also pointed to the ongoing connection between the two defendants (a signal that did not, however, get much Western media coverage).

When will the Liaoning High People’s Court issue a sentence for Schellenberg? The Criminal Procedure Law indicates that the court may announce the sentence at a set time after the hearing, but does not stipulate any procedural constraints on that announcement (Articles 202 and 242). Indeed, Mark Swidan waited more than half a decade for announcement of a verdict following conclusion of his trial.

Although the court may delay indefinitely, Schellenberg’s procedural experience suggests that a verdict may be announced as a response to a development in Meng’s case. She is scheduled to next appear in court for an extradition hearing on September 23, so a sentence may be forthcoming at that time. If the high court upholds Schellenberg’s death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There is no fixed statutory period for completion of this review. Although limited data suggests that many death penalty reviews are completed in a matter of months, anecdotal evidence also indicates that some cases are under review for years. Overall, however, the outcome is extremely consistent: the SPC eventually affirms the overwhelming majority of death sentences, although precise data on this is lacking. In 2007, around 15% of death sentences were not approved, but the percentage is believed to be lower now.

Once the SPC affirms the verdict, an execution order is issued and the execution usually takes place as soon as within a week, although there are exceptions: Li Yan, a woman from Sichuan, was sentenced to death for killing her husband in 2010 in self-defense, after enduring years of horrific domestic abuse at his hands, by each court that heard the case (local city/intermediate, provincial Sichuan High People’s Court, and finally, in January 2013, the SPC.) The case provoked broad condemnation and expressions of concern both inside and outside China, including by the Dui Hua Foundation. China’s 2016 anti-domestic violence law was invoked in wide-spread calls to take seriously the situation of domestically abused Chinese women who receive harsh sentences ranging from ten years to death sentences when they act in self-defense. On April 24, 2015, Li Yan’s death sentence was commuted to death with two years reprieve, and on September 8, 2017, the intermediate court commuted the 2015 sentence and sentenced Li Yan to life in prison.

Post settings Labels Criminal Justice, Law Enforcement Published on 5/30/19, 12:13 PM Pacific Daylight Time Permalink Location Options

Wednesday, May 8, 2019

Complaints with Retribution: China’s Muffling of Gaoyangzhuang

Hong Kong-based pro-Beijing newspaper Wen Wei Po accuses democratic legislators and organizers of Occupy Central, including Joshua Wong, of making complaints overseas about internal affairs of China and Hong Kong. Photo credit: Wen Wei Po
China celebrates National Youth Day every year on May 4th, a holiday commemorating the patriotic May Fourth Movement in 1919. On this day exactly a century ago, thousands of university students assembled at Beijing’s Tiananmen Square, urging the Chinese delegation at the Paris Peace Conference not to sign the Versailles Treaty because the Allied Powers had conceded to Japan’s demand to take over the German concessions in Shandong. The procession proceeded to foreign embassies in the Legation Quarter to demand nullification of special foreign privileges, such as extraterritoriality. This was a privilege by which China was forced to yield control of sovereign powers, one of many losses as part of a series of “unequal treaties” in force since the First Opium War. Student protesters hoped that the United States would side with China over the “Shandong question,” because the U.S. was a key proponent of national self-determination and the U.S. embassy was the only foreign embassy willing to meet with their representatives and accept their petition.

A century later, the patriotic act of petitioning westerners known as gaoyangzhuang (告洋状) carries a negative connotation. Petitioning refers to the administrative system for receiving complaints from people with grievances, mostly concerning corrupt officials. While China guarantees the right to complain so long as petitioners do not bypass local authorities, the government does not tolerate the act of complaining to foreigners, in part due to the traditional notion of “not exposing family scandals.” Recent usage of gaoyangzhuang is often associated with Taiwanese president, Tsai Ing-wen, when she speaks to foreign diplomats and journalists about her rejection of Xi’s offer of the “one country, two systems” framework for reunification with the mainland. Li Jing-yu, wife of imprisoned Taiwanese activist Lee Ming-che (李明哲), has also been accused of gaoyangzhuang for criticizing China from overseas because she was prevented from visiting her husband, who is serving a five-year sentence in Hunan for subversion. The term is no less frequently used against Hong Kong democratic legislators, supporters and localists if they tell foreigners about Beijing’s tightening control over the former British colony.

In Taiwan and Hong Kong, complaining about the Chinese government does not land individuals in legal trouble because both regions are independent jurisdictions. By contrast, critics on the mainland face imminent threat of loss of personal liberty. In August 2013, Global Times stated that petitioners, alongside exiled democracy activists and “splittist forces overseas” headed by the Dalai Lama and Rebiya Kadeer, were the major users of gaoyangzhuang. Petitioners were accused of taking part in a number of “illegal behaviours” such as wearing clothing traditionally associated with petitioning. These included, for example, signs hanging both down the petitioner’s front and back, waving banners, and chanting slogans at Beijing-based international organizations, such as offices of the United Nations and foreign embassies, with the intention to “create international influence” (zaocheng guoji yingxiang 造成 国际 影响). Unlike those in Hong Kong and Taiwan, petitioners on the mainland with assorted grievances, from forced demolitions to land disputes, are most likely to face reprisals for complaining to foreigners.

Hu-Wen Era

It is unclear when the term of gaoyangzhuang entered the official lexicon. An article originally published by Phoenix Weekly in January 2009 stated that the term began to come into vogue during the Hu Jintao and Wen Jiabao administration. China’s effort to improve its global image prior to the Beijing 2008 Olympics incentivized provincial governments to track gaoyangzhuang petitioners in Beijing. In 2005, a total of 37 people from Hubei were reported to have travelled to Beijing to make complaints to foreigners, compared to 77 people from Liaoning, which was ranked as the top fourth province nationwide. In the 19 months since July 2004, over 540 people in 50 different groups had filed complaints to the Beijing offices of UNHCR and UN Development Programme, according to statistics from the Sanlitun police station. A Liaoning official was quoted as saying that gaoyangzhuang “seriously damages the country’s reputation and external image” and “creates pressure on the capital’s social security and stability.” Another Shanghai official called gaoyangzhuang “despicable,” an act tantamount to “blackmailing the Chinese people.”

A Hebei government directive in 2007 states that gaoyangzhuang petitioners adversely affect Beijing’s social stability and vilify the national image. Underlining added by Dui Hua Foundation. Photo credit: Boxun
Public censure achieved little to deter petitioners from complaining about local governments to foreigners. In view of this, provincial public security, procuratorial offices, and courts started to jointly push for punitive measures. Anhui was among the first to release an opinion in 2006, listing foreign embassies and international organizations as “key areas” for stability maintenance alongside the central organs of the Chinese Communist Party, and subjecting anyone who disturbed social order to punishment in accordance to the Public Security Administration Punishments Law.

Government officials are keen to suppress gaoyangzhuang because they use low rates of gaoyangzhuang as an indicator of good governance. A performance appraisal document in Shihu Township, Jiangsu, in 2011 categorized the prevention of gaoyangzhuang under the section appraising “critical stability control” (zhongdien weiwen 重点维稳) during “sensitive days" (such as certain national holidays and anniversaries of events that are likely to inspire protests and other forms of public political expression); the section carries two evaluation points. Each occurrence of gaoyangzhuang leads to a deduction of half a point. Similar assessment mechanisms likely existed before 2011, since the 2009 Phoenix Weekly article mentions that local public security bureaus in Henan, Shanghai and Liaoning had publicized cases of petitioners apprehended or detained for gaoyangzhuang.

In the run-up to the 2008 Olympics, both official usage of the term gaoyangzhuang and punitive measures proliferated. In June 2007, an official in Heilongjiang’s Datong District called for “detaining or giving re-education through labor (RTL)” to gaoyangzhuang petitioners before resolving their problems. Petitioners would have to pay for all expenses the government incurred for handling their petitions if deemed “unreasonable.” In January 2008, an opinion from Hebei called gaoyangzhuang an “irregular form of petitioning to Beijing” (feizhengchang jinjing shangfang非正常进京上访) and a “serious breach” of the petition regulations. The opinion recommended that public security directly detain or give RTL to gaoyangzhuang petitioners without the need to give prior admonishment or warning. In March, Liaoning followed suit and issued a similar opinion to crack down on gaoyangzhuang petitioners.

Nor did the crackdown on gaoyangzhuang relax in the wake of the Beijing Olympics. A local government directive issued in 2009 continued to blame gaoyangzhuang petitioners for “complicating simple issues, internationalizing and politicizing domestic problems” by means of “creating international influence.” Throughout the year, a total of 2,862 gaoyangzhuang petitioners were caught in Chaoyang District, Beijing, and, of these petitioners, 1,118 were detained. In February of that year, then-Secretary of State Hillary Clinton visited China. Zhao Chunhong (赵春红) led a group of petitioners to put up a banner welcoming Clinton and called on Nancy Pelosi (scheduled for a separate visit in May of 2009) to put pressure on China over its human rights records. Zhang was subsequently sentenced to three years’ imprisonment for “picking quarrels and provoking troubles.”

About half a year before Xi’s rise to power in 2012, blind activist Chen Guangcheng (陈光诚) made a daring escape from house arrest to the U.S. embassy. In May, Chen and his family left China for New York. Some mainland observers opined that the episode had emboldened petitioners to make complaints to foreigners in the belief that the Chinese government would ultimately address their problems. On May 8, 2012, elderly petitioner Nie Muni (聂木妮) and his wife attempted to “barge into” the U.S. embassy, but were intercepted by the embassy guards and taken to the Jiujingzhuang Reception Center in Beijing, an unofficial detention center where petitioners are held. In an interview with Voice of America (VOA), the couple said they wanted to “beat drums and cry injustice” (jigu mingyuan击鼓鸣冤) at the U.S. embassy because the U.S. “gives people a sense of trust and respect for human rights and dignity.” They claimed to have been inspired by Chen, who received medical treatment from the Chinese government after he escaped to the U.S. embassy.

Xi’s Regime

Despite the abolition of RTL in 2013, many gaoyangzhuang petitioners have not fared any better. They are now more likely to be convicted of “picking quarrels and provoking troubles,” which carries a maximum sentence of ten years. In 2013, over a dozen petitioners from Fuzhou, Fujian, started a series of gaoyangzhuang petitions in the hope that then-U.S. Ambassador Gary Locke would respond to their plight. In April of that year, they even planned to intercept John Kerry’s vehicle during his Beijing visit on the 13th. Upon learning that the Fuzhou government had dispatched large numbers of interceptors to Beijing, the group proceeded instead to Ambassador Locke’s residence, where they threw stacks of leaflets and some of them chained themselves to the front gate. The group of petitioners grew to over two dozen in July, but many were removed and collectively charged with “picking quarrels and provoking troubles.” Some of them were released on bail after several months in custody.


Some of the Fuzhou gaoyangzhuang petitioners who attempted to complain about corruption and rights abuses in China to then-U.S. Ambassador Gary Locke in 2013. Photo credit: RFA
Lin Yingqiang (林应强) continued his effort to petition Locke alongside a dozen of the Fuzhou petitioners into early November. After 15 months in criminal detention, Lin was sentenced to three years’ imprisonment in February 2015. The judgment stated that Lin circulated 68 blog posts about the “Fuzhou victims” to satisfy his greed in the name of “anti-corruption” and “whistleblowing.” Among these posts, two recounted his stories of “barging into” the American embassy, which were viewed over 9,000 times in 2013. A day after his November petition, he and other Fuzhou petitioners put up another blog post, entitled “Please Follow Fuzhou Petitioners Who Complained to Foreigners,” which was viewed 51,159 times within one month of posting. At least four other individuals surnamed Tang, Chen, Shi and He were sentenced to two and a half years for the same offense of “picking quarrels and provoking troubles.” According to a Fuzhou activist, the above-mentioned five Fuzhou petitioners were sentenced at three different locations on purpose, because putting all of them on the same trial would have attracted unwanted publicity to this significant gaoyangzhuang case.

In February 2016, unofficial news media reported that the Ministry of Public Security would establish a “national petitioner database” as a preventive measure of stability maintenance. The database would not only track mainland petitioners, but also those who petitioned in Hong Kong, Macao, and Taiwan. An exit ban might be placed on the mainland petitioners, who also faced restrictions from entering various municipalities and cities. Public security would liaise with Chinese embassies to track and monitor petitioners who made complaints overseas.

The petitioner database was created with the intention of curbing the rising number of petitioners who traveled abroad to voice complaints about the Chinese government, according to Bowen Press, citing an informed source. On September 25, 2015, dozens of petitioners attempted to intercept Xi’s motorcade at the end of the Obama-Xi meeting in Washington, D.C. One of them, a petitioner from Jilin, managed to stop Xi’s wife Peng Lijuan’s vehicle. Bowen reported that the incident had “frightened” Peng and made Xi “lose face.” The petitioner was taken away by police and his petition materials were subsequently received by officials from the Chinese embassy. In March 2016, another group of 50 gaoyangzhuang petitioners from 10 different provinces and municipalities were accused of “creating a nuisance” when Xi attended the Fourth Nuclear Security Summit, again in Washington, D.C. At the time of writing, Dui Hua is not aware whether the petitioner database has come into operation.

Communicating with Foreign Media

While petitioning is not the only channel for Chinese citizens seeking to publicize or change policies that they deem unfair, anyone who makes negative remarks about China to foreign media can face accusations of gaoyangzhuang. In May 2014, journalist Xiang Nanfu (向南夫) was detained for the offense of picking quarrels and provoking trouble, a charge stemming from his use of Boxun, a U.S.-based Chinese language news website, to “fabricate" news about organ harvesting and violent land grabs in China in exchange for article fees. It is worth noting that although Xiang was not a petitioner, Xinhua News called his act of “smearing” China in front of foreigners gaoyangzhuang.

Lawyers, too, have been affected by Chinese government responses to communicating with foreign sources. There has been a growing trend of using administrative penalties against lawyers following the nationwide crackdown on Chinese lawyers and human rights activists that began on July 9, 2015. During the “Two Meetings” in March 2018, the Ministry of Justice (MOJ) warned lawyers not to give dissenting views on China’s constitutional amendment that removed Xi’s presidential term limit. A notice issued by a local justice bureau indicated that violators would have his/her license to practice revoked and be barred from resuming work for five years. The MOJ also explicitly warned lawyers not to give interviews to foreign media, including BBC, Voice of Russia, and American media outlets such as NBC, CBS, VOA, and Radio Free Asia (RFA). When asked by RFA about the health condition of his client Huang Qi, the webmaster of the legal rights website 64 Tianwang, in August 2018, defence attorney Liu Zhengqing apologized for not being able to give an interview because he was under a lot of pressure with regard to talking to foreign media. On December 25, 2018, Liu’s license to practice law was revoked.

Critics in- and outside of academia frequently face harassment for speaking out to foreign media. On August 2, 2018, Shandong police broke into the home of retired professor Sun Wenguang (孙文广) while he was giving a phone interview to VOA. In the interview, Sun criticized Xi’s One Belt One Road initiative, urging Xi to spend more money in China instead of wasting money overseas on aid, loans and investments. Sun was put under house arrest for over 10 days.

A recent case involving prison sentences for who spoke out to foreign media involved Tibetan language activist Tashi Wangchuk, who was sentenced to five years’ imprisonment for inciting splittism in May 2018. In 2015, Tashi Wangchuk gave interviews to The New York Times, in which he expressed worries about the disappearance of the Tibetan language, as the Chinese authorities have been prohibiting the use of Tibetan in spheres ranging from schools to commerce even on the Tibetan plateau. Tashi Wangchuk described China’s ethnic policy as a “systematic slaughter” of Tibetan culture. Speaking to foreign media was his last resort, because government bureaus had refused to lodge a petition for him. He had also been turned down by domestic media, nor could he bring a lawsuit against the language policy. Knowing full well of the risk of speaking to foreign media, Tashi Wangchuk stressed that he was not advocating for independence. He insisted that language rights are human rights protected by China’s constitution. However, the nine-minute film made by The New York Times was cited as evidence that landed Tashi in jail. Tashi is scheduled for release from a prison in Qinghai in January 2021.

The frustration of those who apparently feel driven to complain to foreigners is succinctly described by a Caixin columnist who witnessed a gaoyangzhuang incident at the U.S. embassy in March 2014: a middle-aged petitioner holding two crutches, along with three people who appeared to have come from the countryside, were intercepted by a plainclothes officer after they ignored the warning that they would be arrested. Speaking from his own petitioning experience, the columnist wrote that the only response he received from the petition bureau was a receipt acknowledgement of his complaint, and despite an indefinite wait, his petition was never addressed. He guessed that gaoyangzhuang petitioners did not genuinely think they could succeed in obtaining redress from foreigners; they were simply trying their luck because they believed they had nothing more to lose by “speaking out against injustice” in front of foreigners.

Many gaoyangzhuang petitioners who made this or similar assumptions, however, have been mistaken. The cases explored in this article demonstrate how those who complain about China to foreigners, including foreign embassies, visiting diplomats and leaders, and journalists, could very well face several forms of retribution. Not only are they stigmatized for “badmouthing” China, but they also face the risk of imprisonment for picking quarrels and provoking troubles, and even for the very serious crime of endangering state security in cases involving ethnic minorities.

For more on petitioning in China, see also Dui Hua’s earlier reporting on the Beijing city government’s efforts to prohibit the use of “black security firms” and “black jails” to prevent petitioners from outside Beijing from coming to the capital to petition the central government, and, potentially, foreign actors.