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| A search for "inciting subversion of state power" yields no results as of July 23, 2021. Image credit: CJO |
In a blow to judicial transparency, all judgments and judicial decisions for endangering state security (ESS) cases, including those for sentence reduction, have been purged from the Supreme People's Court (SPC) online judgment website China Judgements Online (CJO, 中国裁判文书网).
The SPC has selectively removed judgments on CJO for some time, but the mass purge of a full chapter of the criminal law is unprecedented. In early 2021, the built-in crimes filter on CJO yielded over 640 ESS judgments and rulings, but the whole category of ESS judgments covering Articles 102-113 of the Criminal Law disappeared in mid-July. At the time of this posting, using the CJO’s search feature to look for ESS cases, such as inciting subversion of state power, returns not a single result even though the category has returned to the filters.
The removal of all ESS judgments is the culmination of a process whereby politically sensitive judgments – including for pocket crimes like picking quarrels and provoking troubles, which is often used against peaceful dissidents and petitioners – have become harder to come by. The Los Angeles Times recently told the story of Dong Zehua (董泽华), a protester who was sentenced to seven months in prison for picking quarrels and provoking troubles. Yuan Shaui (原帅), another young man who protested alongside of Dong, received six months for the same crime. Their judgment was erased from CJO.
The posting of judgments of sensitive cases has always been arbitrary. One of the most prominent cases to come out of the “709” crackdown on rights lawyers was the trial of veteran political dissident Hu Shigen (胡石根). Bucking the usual secretive practice, China widely publicized the trial for this subversion case. Tianjin Number Two Intermediate Court posted the court hearing and sentencing live on Weibo. The trial was hailed in Chinese official media as proof that China’s legal system secures convictions using evidence – not just witness testimony and confessions – and can withstand outside scrutiny. However, the full judgment was never posted on CJO.
The number of trials for ESS cases is a closely guarded secret. In the annual work reports delivered by the SPC and Supreme People’s Procuratorate to the National People’s Congress, the number of ESS prosecutions and trials has been lumped together under the category of “Others” with crimes such as violation of duty by military personnel. In provincial court reports, ESS is one of the most serious organized crimes together with organized gangs, yet information is rarely given.
Judgments for splittism and inciting splittism, crimes used almost exclusively against ethnic minorities, have always been selectively posted. Over the past four years, Dui Hua has been unable to find ESS cases in Xinjiang from
CJO, despite the region making up the majority of the ESS cases nationwide. That said, intermediate people’s courts in Sichuan published
no fewer than 13 inciting splittism judgments between August and December 2020. All the defendants were Tibetans.
CJO from time to time reveals the humane side of China’s legal system. Discovery of a sentence reduction decision of a long-forgotten prisoner can provide comfort to the family and renew supporters’ hopes. Dui Hua’s research with CJO found that Tibetan monk Tsultrim Gyatso received a six-month sentence reduction in April 2021, just before judgments of a sensitive nature like these were removed from the website. Tsultrim was convicted of splittism in 2009, and very little had been known about him after his life sentence was commuted to 19.5 years in 2014. Now, his sentence reduction decision is nowhere to be found. The lack of transparency now leaves prisoners’ families and supporters in the dark and can lead to misinterpretations, speculation, and undue suffering.
In addition to ESS, judgments involving other politically motivated criminal offenses have also disappeared. Among them are Article 300 cases, punishing those found to be “organizing/using a cult to undermine implementation of the Law.” Only a few dozen judgments can still be found, down from 4,000 judgments in early June of this year. The contents of these remaining judgments are not disclosed; they are all deemed “unsuitable for disclosure.”
Besides cases that are of a political nature,
death penalty cases, another example of closely guarded “state secrets” in China, have for the most part disappeared from
CJO. Death penalty judgments, especially review decisions issued by the SPC, offer a rare window into the legal procedures governing death penalty reviews, including the investigation process, evidence gathering and review, and, most importantly, the appeals process. It is valuable to learn, although very rare, the legal basis on which the SPC chooses to reject a death penalty sentence. Along with judgments on ESS and cult cases, all SPC death penalty review decisions have been removed as well. At the time of writing, only 1,968 documents issued by SPC remain on the site, most of which are notices of rejecting petitions for retrial.
Paradoxically, references of counterrevolution can still be found under the judgments and decisions issued for crimes abolished under the 1997 Criminal Law revision. The remaining decisions principally relate to sentence reductions. There are 25 results found for counterrevolution listed under the “pre-1997 crimes” category. Most documents suffer from the same lack of content as those noted above. Although the majority of cases are former counterrevolutionaries’ petitions for rehabilitation, the courts usually deemed these case details too “sensitive for online posting.” The box at the end of this article, however, recounts a striking case of a counterrevolutionary, still in prison, found by Dui Hua on CJO.
Dui Hua, in its submission to
China's 2018 Universal Periodic Review (UPR) at the United Nations, hailed advances in judicial transparency. It was only in 2016 that the SPC issued the
regulation about releasing judgments online. The Court has since issued numerous statements about the importance of judicial transparency and the need to “place justice under the sun.” Even with some issues along the way, the
CJO enjoyed a brief boom in both the quantity and quality of the documents released in its infancy. In September 2020, China announced that
CJO had reached a milestone of 100 million published cases while also implementing measures to
restrict access to judgment sites. However, posting of sensitive cases such as ESS became less frequent in the past two years before stopping fully in mid-2021 and the complete removal of such cases now. The removal of sensitive judgments from
CJO is a significant setback which will be brought to the attention of the United Nations Office of the High Commissioner for Human Rights.
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| (Left) On November 9, 2018, Assistant Minister of Foreign Affairs of the People's Republic of China Zhang Jun delivers final remarks during the adoption of recommendations for China’s UPR. (Right) The hall as adoption session ends. Image credit: UN Web TV |
A popular phrase among young patriotic Chinese netizens is “don’t hand knives to foreign hostile forces” – a self-imposed censorship reminder that no one should volunteer information that could be used by Western media to draw attention to problems in China. In a 2015 Central Political and Legal Affairs Commission work meeting, the Party Secretary Xi Jinping remarked that the Party must firmly grip the “knife handle” – control of the political and legal system. China now sees the outside world gaining an understanding of – and reporting on – its legal system as problematic: a questioning of the fairness of its judicial system and, thus, a direct challenge to the legitimacy of Party rule.
Although the purging of judgments on ESS, cults, and death penalty reviews considerably diminishes the value of CJO for human rights groups like Dui Hua, that is not to say the CJO is without value. It is not unusual for political and religious prisoners to be tried for economic crimes like operating an illegal business or fraud. US citizen and pastor David Lin (林大卫) was sentenced to life in prison for fraud in December 2009. Dui Hua learned of his subsequent commutation and multiple sentence reductions in CJO. He is due to be released in 2029. News of clemency for David Lin was met with great relief by his family who feared they would never see him again.
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Lost and Found: the Case of He Shuichang
Among the counterrevolution cases still listed without
details, Dui Hua was able to identify a man – He Shuichang (何水长) – who is quite
possibly one of China's last remaining prisoners still serving a sentence for counterrevolution, a crime that
was abolished in the 1997 revision.
He, a 66-year-old man from Sichuan’s Meichan
Municipality, was first convicted in 1977 – not long after the downfall of
the Gang of Four – by the Pengshan County Court for counterrevolution. He was
22 years old in 1977 and was one of 22,218 individuals sentenced for
counterrevolution that year (624 of whom were between 18 and 25 years old).
All but 243 of 23,797 tried were convicted.
Details of He Shuichang’s offense are not known. His
original sentence would have expired in 1989 had He not escaped from prison.
After his recapture, the Muchuan County Court in 1981 gave him a combined
15-year prison sentence for his escape and his previous remaining sentence.
This sentence would have expired in 1995 had He not escaped again two years
later, in 1983. He evaded the law for almost 15 years. In 2018, He was sent
to Jiazhou Prison to serve out his remaining 12-year imprisonment. The
sentence was set to expire in 2030.
According to a decision found by Dui Hua on CJO,
He recently received his first act of clemency: a seven-month sentence
reduction granted by Leshan Intermediate People’s Court in 2020. With this
reduction, the counterrevolutionary will leave prison in September 2029, when
he will be more than 75 years old.
China’s continued punishment of crimes abolished in its
own legal code contravenes international legal norms, notably Article 15 paragraph One of the International Covenant on Civil and Political Rights. Dui Hua noted the
importance of “retroactive application of ameliorative law,” citing a report by the Human Rights in Criminal Sentencing project that found that 129 of 193
countries surveyed – 67 percent – have some provision requiring the
retroactive implementation of a lesser penalty in their criminal law.
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