Wednesday, December 17, 2008
Here's a piece from Caijing's English edition on recent developments in the tainted milk scandal. Although the central government has issued a directive saying that treatment for affected babies should be free, the directive has not been accompanied by any specific measures to make it effective. Thus, parents in many cases are still having to pay for treatment, and if they can't afford it, treatment won't be provided. At the same time that it has ineffectively promised aid, the central government seems to have effectively preented parents from seeking aid themselves through the legal system: no court anywhere in the country has yet accepted a lawsuit in this matter, with some saying they have been told to wait for instructions. No courts to my knowledge have indicated that they rejected the lawsuits because of some legal infirmity in the claims.
Tuesday, December 16, 2008
In October I posted here about an administrative lawsuit brought against the Ministry of Education Foreign Study Service Center (教育部留学服务中心), a body that for the last 17 years has been certifying foreign degrees and has been the only body recognized by government agencies to have the power to do so.
The Haidian (Beijing) Basic-Level People's Court has now (Nov. 28, 2008) ruled against the plaintiff on the grounds that the Center is not a government-authorized body and that its acts therefore do not constitute administrative acts. The plaintiff plans to appeal.
I wonder if it might have been, or might still be, possible for the plaintiff to bring an action at the same time against a government body that was giving preclusive effect to the Center's certification (or lack of it). If the Center is indeed an unofficial organization, perhaps an argument can be made that government authorities cannot delegate their decision-making power to it in this way. And if both the Center and another government body are in the suit together, the court's decision in favor of one will necessarily be a decision against the other. Or perhaps the plaintiff should simply have brought a suit against the government agency that was giving preclusive effect to the Center's findings (in this case, the agency that refused to let him take the public service examination). This is the agency that is really making the decision that counts. That they are relying on the Center need be no more legally relevant than if they were relying on an astrologer; in either case, they have to defend the integrity of the decision-making process upon which they rely, wherever it is located, and can't defend simply by saying that somebody else made the decision.
Sunday, December 14, 2008
The Chinese government has submitted its state-party report to the UN Human Rights Council in preparation for the upcoming review of China before the Council. This is part of the Universal Periodic Review system under which every state is reviewed.
HT: Nicholas Bequelin.
Friday, December 12, 2008
Liu Xiaobo, one of the signatories of Charter 08, has been in detention since Dec. 8, probably in connection with that document. Here's a brief overview of some of the relevant legal issues, courtesy of Joshua Rosenzweig (Dui Hua Foundation) and Nicholas Bequelin (Human Rights Watch). Comments and corrections welcome.
I. Coercive measures:
Under the provisions of China's law on criminal procedure (and associated regulations), the following types of "coercive measures" (强制措施) are at police disposal in the investigation of a case:
Coercive summons (据传): Police can hold suspect for up to 12 hours, after which point they must either release or formally change status. Suspect must be shown the summons and is required to sign or otherwise acknowledge its delivery. Police cannot use series of coercive summons to detain someone indefinitely. Zhang Zuhua was apparently given coercive summons and then subsequently released on bail pending further investigation (see below).
Release on bail pending investigation (取保候审): Decision issued from the public security bureau (PSB, not local police station), read to suspect, suspect required to sign or otherwise ackowledge. Under this status, suspect cannot leave local area without permission, is required to appear when summoned for questioning, and is prohibited from tampering with witnesses or destroying evidence. Local police station takes responsibility for enforcement and can require suspect to make periodic reports. Bail period cannot exceed 12 months. No formal notification to family is required.
"Residential surveillance" (监视居住): Decision issued from PSB (not police station), read to suspect, suspect required to sign or otherwise acknowledge. Under this status, suspect cannot leave residence or designated dwelling without permission, meet with anyone other than his lawyer, is required to appear when summoned for questioning, and is prohibited from tampering with witnesses or destroying evidence. Surveillance period cannot exceed six months. No formal notification to family is required.
In theory, "residential surveillance" should take place at one's residence (thus meaning there is little need for family to be notified). However, in practice police have often stretched the provisions of the law and applicable regulations and held suspects in guest houses or other locations. (This is illegal when the suspect has a residence that could otherwise be used for this purpose.) According to a SPC interpretation, "residential surveillance" under such circumstances constitutes "deprivation of liberty" and, therefore, the length of time spent under such surveillance must be counted as "time served" in any eventual sentence. However, the lack of requirement for notification appears to be a major loophole.
Criminal detention (刑事拘留): Police must notify family within 24 hours of placing suspect under criminal detention, unless PSB approval on one of following grounds: other suspect in the case may abscond or destroy or tamper with evidence; suspect does not give true name, address, identity; or other factors that could hinder investigation. Under normal circumstances, decision to request formal arrest should be made within three days, but this can be extended to up to one week with approval of PSB. Detention of up to 30 days can be approved in cases involving criminal acts in different jurisdictions, more than three criminal acts, or cases involving two or more individuals. In most political cases, detention for 30 days is the norm.
II. Access to a lawyer:
Access to a lawyer and access by a lawyer to his/her client is a notoriously sore point in China's criminal system.
A criminal suspect can retain a lawyer after his first interrogation by the investigative organs, or from the day the detention starts [Criminal Procedure Law (CPL), art. 96]. Liu's lawyer, Mo Shaoping, has already indicated that he estimates that police has exceeded the time limits. ["The police must notify the family of the reasons for detention within 24 hours," lawyer Mo Shaoping told AFP. "It has been nearly three days since they arrested him so (the police) are violating the law." (AFP, Dec. 12, 2008)]
However, one important exception concerns cases "involving state secrets," for which the hiring of a lawyer is conditioned on approval by the investigating organs. In those cases, the time limits and procedures to gain access are set by specific regulations (the "Joint Regulations" from the SPC). The Joint Regulations provide that law enforcement agencies must comply with a valid visit request from a retained lawyer within 48 hours in "ordinary cases" and within five days if the case involves organized crime or is "especially complicated." In cases "involving state secrets" the right to visit is conditioned on the approval of the investigation organs.
The revised Law on Lawyers, who took effect on June 1st this year, has removed all exceptions to the right to meet with a suspect in detention, including for cases "involving state secrets." There is a bit of a tussle to know what should have precedence: the Law on Lawyers or the Criminal Procedure Law, with contradictory statements from various officials. In practice the PSB and the Procuracy continue to deny access to clients on the basis that the case involves state secrets. The authorities justified denying access to Hu Jia on this basis earlier this year, and it is hard to see why the police could not invoke this in Liu Xiabo's case.
III. Liu Xiaobo's detention history
It must be stressed that as far as we know, and despite his long history of harassment, by the authorities, Liu Xiaobo has never been formally arrested or convicted of a criminal offense:
- He spent two years in prison following the crushing of the democracy spring movement (June 6, 1989 to January 1991) without being tried.
- He was detained for eight months, between May 1995 and January 1996, for his involvement in a petition campaign.
- He spent three years of reeducation-through-labor (from October 8, 1996 to October 7, 1999) for having "repeatedly stirred up trouble and disrupted public order." The UN Working Group on Arbitrary Detention issued a decision saying that the government had not given "any supporting evidence to back up these charges" and declared his detention to be arbitrary (September 15, 1999).
- Since his release in 1999, Liu Xiabo has been subjected to ruanjin (软禁), a form of police surveillance and house arrest with no legal basis.
In view of the above it is clear that a formal criminal detention would be an escalation, and we have no doubt that the authorities are well aware of this.
IV. Criminal penalties for "inciting subversion"
The crime of "inciting subversion" is defined by Article 105(2) of China's criminal code as "inciting others by spreading rumors or use of slanders or any other means to subvert state power or overthrow the socialist system." Under normal circumstances, the maximum penalty for inciting subversion is five years' imprisonment. For "ringleaders" or in "major cases" (a standard for which there is no real criteria), five years' imprisonment is the minimum sentence. If a defendant is found to have committed this crime "in collusion with any organ, organization or individual outside the territory of China," Article 106 of the criminal code provides for heavier punishment. (In addition, those previously convicted of criminal charges who re-offend within five years of completing their sentence are also subject to heavier penalties, but this provision is irrelevant in Liu's case.)
Thursday, December 11, 2008
[SLIGHTLY CORRECTED VERSION OF EARLIER POST; HT TO ANONYMOUS COMMENTER]
A large group of intellectuals and others has issued a document entitled "Charter 08" (零八宪章). The document's name is a deliberate reference to "Charter 77", an association dedicated to human rights whose founding was announced in a January, 1977 manifesto signed by Czechoslovakian dissidents such as Vaclav Havel and Pavel Kohout. Here are the first two paragraphs of the story in Time Magazine:
A group of prominent Chinese scholars, lawyers and former officials issued a manifesto this week calling on the Communist Party to back wide-ranging political reforms including direct elections, a separation of powers and the rehabilitation of people persecuted under authoritarian rule.
"The Chinese people, who have endured human-rights disasters and uncountable struggles across these same years, now include many who see clearly that freedom, equality and human rights are universal values of humankind and that democracy and constitutional government are the fundamental framework for protecting these values," states Charter 08, a 4,000-word document that was posted on a U.S.-based, Chinese-language website on Dec. 9.
Here are some other links:
- Text of Charter 08 and list of original signers (Chinese)
- Introduction, text of Charter 08 (Perry Link's translation), and list of original signers (English)
- List of additional 440 signers (Boxun site) (Chinese)
- Text of Charter 08 (Perry Link's translation) (New York Review of Books site) (English)
- Text of Charter 08 (Human Rights in China translation) (English)
- Post on The China Beat blog, with links to information on Charter 77 (English)
Tuesday, December 9, 2008
I have been asked to post the following announcement:
The Role of Experiential Education in Chinese Law Schools
January 17-18, 2009
The University of Pacific, McGeorge School of Law, in conjunction with the China University of Political Science and Law, invites you to a two-day conference of legal educators from China and the United States, examining the role of experiential education in Chinese law schools.
This conference is part of a U.S. Agency for International Development sponsored partnership between the University of the Pacific, McGeorge School of Law and American University, Washington College of Law, China University of Political Science and Law, South China University of Technology, Zhejiang Gongshang University, and Committee of Chinese Clinical Legal Educators, for training Chinese law professors in experiential education techniques.
This two-day conference will take place at the Haidian Campus of China University of Political Science and Law, in Beijing, China. It will describe the program to date, demonstrate techniques that Chinese law professors have adopted, provide curricular material, and discuss the future of experiential education in Chinese law schools. Exciting featured presentations from our Chinese partners will be presented about how they have incorporated experiential education into their curricula, as well as reflections by American participants in the program.
For additional information or to rsvp, please email firstname.lastname@example.org
Saturday, December 6, 2008
Here’s an interesting story reporting what seems to be a serious commitment by the Party to implement centralized funding of all courts. The commitment comes in a document adopted on Nov. 28 by the Politburo entitled “Opinion of the Central Political-Legal Commission on Several Issues in the Deepening of Reform in the Judicial System and the Work Mechanism” (中央政法委员会关于深化司法体制和工作机制改革若干问题的意见).
Local judicial protectionism—the phenomenon of local courts favoring local parties because local political power appoints their judges and controls their finances—has long been decried by Chinese commentators, and centralized funding of courts has been one important element of proposed solutions. If this proposal is actually realized, it’s reasonable to think that it will certainly help. But it won’t completely solve the problem of court susceptibility to pressures from local politicians.
First, local political power (I use this vague term because formal and actual power exist in different institutions) will still control personnel appointments and dismissals.
Second, courts and their personnel need more than money from local governments: they need building permits, schooling for children, jobs for relatives, and cooperation in enforcement of judgments, to name just a few things. (My favorite story involves a judge in Fujian who executed a judgment against a local enterprise and the next day found that his daughter had been transferred by her employer, the county, to an isolated post on a small island.)
Third, courts will still want local government financial support because it’s very unlikely that any formula worked out by the central government will in fact distribute to each court just what it needs, no more and no less. This is in part because “need” is not an absolute concept; courts would always rather have more than less. And it’s in part because the workload of courts in different areas is vastly different (the judges in one court in Dongguan have a caseload 14 times heavier than the national average), and probably no formula, let alone a formula subject to political pressures, can get it exactly right. As a result, courts at least in richer areas will be going to local government to ask for supplemental funding, and local governments may well want to give it to them for various reasons. This will recreate a certain level of financial dependency, although perhaps of a less extreme form than before. In other words, perhaps local government will no longer be able to threaten courts with the loss of all their cars. But they could still decline to upgrade old, small, domestic cars to big, new, imported ones. The refusal to bribe can be similar in effect to extortion.
The article contains some interesting numbers, by the way. The writer estimates the average annual cost of operating a court at (very roughly and subject to great variations across the country) 10 million yuan. Multiply this by China’s 3631 courts (3000+ basic-level courts, 330 intermediate-level courts, and 31 higher-level courts; the Supreme People’s Court is already centrally funded), and you get 36.3 billion yuan. Further add in the 3 or 4 billion annually that the central government currently puts into funding of local courts in China’s poorer provinces, and you get an annual funding need of about 40 billion yuan. How does that look as part of the national budget? China’s central government spent 3.06 trillion yuan in 2007; this was projected to rise by 12.2% in 2008, making 3.43 trillion yuan. The cost of funding all courts below the Supreme People’s Court would thus be about 1.17% of central government expenditures.
This might seem like a small amount: wouldn’t it be easy for the state to come up with this money if it thought court funding was important? But assuming people fight as hard in China as they do in the US for a slice of the national budget, 1.17% is a lot of money. The US federal courts are constantly having to fight for what they think they need; they requested a budget of $6.51 billion for 2008, and got $6.246 billion. The amount requested is a paltry 0.22% of the federal budget (even less if you don't count the substantial rent payments the courts make back to the federal government for the use of court buildings), but even that was apparently too much. (Note that the cost of operating the US court system is of course much higher than that, since the federal budget doesn’t pay for the state court system.)
My conclusion is that this proposal is very far from a done deal. So far it’s a policy proposal from the Central Political-Legal Commission that has been endorsed by the Politburo. But it’s going to require a lot of money relative to the size of the national budget (a lot not in terms of percentages, but in terms of what I expect will be the political muscle needed to get it through), and it will by no means solve all the problems it’s meant to address.
Reader comments welcome.
Here's a report of plans by a Beijing lawyer to sue Baidu (an internet search company) on the grounds that it violated the AML by abusing its dominant position in the search market through its policy of blocking web sites that don't pay to be listed. (Baidu denies blocking, but it seems clear that web sites that pay get higher rankings in search results, something that has led to a great deal of negative publicity for Baidu recently.)
It will be interesting to see if this lawsuit goes anywhere. Can the AML be used to dictate a company's business model in this way? If Baidu had not bothered to hide its practice of selling rankings, could there possibly be an AML claim? And if not, how does the concealment change the argument?