Sunday, February 21, 2010
From a recent article celebrating the 12-hour sweep against prostitution in Beijing in 1949:
"Before closing the brothels, the Beijing municipal [Party] committee and municipal government did a great deal of investigation and research. Peng Zhen, who at the time was secretary of the municipal Party committee, personally led responsible comrades from the municipal Party committee and the municipal government to go deeply into the areas of south Beijing and the "Eight Major Hutongs" outside of Qian Men in order to understand the situation." (在封闭妓院之前，北京市委市政府也做了大量的调查研究工作。时任中共北京市委书记彭真曾亲自率领市委市政府负责同志深入前门外“八大胡同”、南城一带了解情况。)
As we heard from Party organization department head Li Yuanchao last fall, Party officials have apparently been carrying on this fine tradition enthusiastically. It's a tough job, but somebody's got to do it.
Thanks to Glenn Tiffert for the reference.
Monday, February 15, 2010
Sunday, February 14, 2010
As for the "ling-ch'ih," otherwise called the "slow and painful," or "slicing process," my friend said it was "really not so bad as people thought ...."
Sir Henry Evan Murchison James, The Long White Mountain: A Journey in Manchuria (1888), p. 158.
Saturday, February 13, 2010
John Garnaut has a fascinating piece in the Sydney Morning Herald on the Li Zhuang case and its relation to the princeling community. The factual background behind the article is quoted below; click here for the rest of the story.
The man who must have authorised Li's arrest is Bo Xilai, the only Politburo member who can comfortably wear epithets such as colourful, mercurial or maverick. The Communist Party boss of the central-west city of Chongqing has captivated the nation with a brave but risky war against the city's organised crime.
Bo got to where he is partly because he is the son of Bo Yibo, one of China's "eight immortals" - the tag for an exalted club of revolutionaries who lived long enough to stamp their marks on China's reform era history.
The China Youth Daily hinted at the equally impressive power behind the lawyer that Bo arrested: "As Li Zhuang arrived at Chongqing, he began to play the peacock, saying many times 'do you know my background? Do you know who my boss is?"
What the censors won't let local media spell out is that Li's law firm is headed by Fu Yang, who is the son of Peng Zhen, also one of the eight immortals and more powerful than Bo Yibo. Li's lawyer from the same Kangda law firm, Gao Zicheng, said he could not talk about the background politics: "I can't go there …''
Wednesday, February 10, 2010
Sida Liu is a professor of sociology at the University of Wisconsin - Madison and an expert on the Chinese legal profession. He's written four essays (in Chinese) over the last few weeks on the Li Zhuang case. Here they are:
The No. 1 branch of the Shanghai People's Procuratorate has decided to prosecute Australian citizen Stern Hu, former head of Rio Tinto's Shanghai office, and three local employees, Wang Yong, Ge Minqiang and Liu Caikui.
The Shanghai No. 1 Intermediate People's Court has accepted the case.
The statement by the court said prosecutors accused the four of "taking advantage of their position to seek profit for others, and asking for, or illegally accepting, huge amounts of money from Chinese steel enterprises."
They are also charged with trade secret infringement, but I want to comment here mainly on the bribery charges. As can be seen, they are charged not with giving bribes, which seems to have been the original charge, but with soliciting and taking bribes. The Xinhua report then puzzlingly goes on to say that “they lured the Chinese enterprises' heads with promises, or through other illegal means, to obtain the steel companies' commercial secrets on multiple occasions, causing ‘extremely serious consequence’ for the companies.” If obtaining the commercial secrets is linked with the bribery, this doesn’t make sense. You offer bribes to people to get their secrets; people don’t give you secrets and money. The money and the secrets are supposed to go in opposite directions.
It’s possible, of course, that the charges of illicitly obtaining commercial secrets are quite distinct from the charges of taking bribes. In that case, one wonders how the commercial secrets were obtained, if not through bribery (or if through bribery, why there was no charge of giving bribes). We will have to see what specific facts are alleged in the course of the trial.
Back to the charge of receiving bribes. Commercial bribery has not, at least until recently, been widely criminalized in various countries. (There may be some recent movement in that direction, but I don’t have the details. For a recent book-length study, see Gunter Heine et al. (ed.), Private Commercial Bribery (2003); for a recent academic paper on the subject, see Antonio Argandoña, Private-to-Private Corruption.) Traditionally, it’s been viewed as a private problem for private companies to handle. It’s a breach of trust and an act of disloyalty when an employee takes a bribe to do something he shouldn’t do – for example, when a purchasing manager takes a bribe and causes the company to pay more to a supplier than it could have – but many jurisdictions leave it up to the injured employer to decide how to act. The employer might be able to dismiss the employee, or to bring a civil suit to recover damages. Criminal prosecutions seem to be quite rare. (In the United States, it would be a matter of state law; my brief research didn’t turn up any studies of how the states handle this.) And my guess is that they would be rarer still when, as in the Rio Tinto case, the employer, who is supposed to be the injured party, is not complaining and on the contrary actively supports the accused employee.
In China, commercial bribery is covered under Articles 163 and 164 of the Criminal Law. Article 163 criminalizes the receipt of bribes, whereas Article 164 criminalizes giving them.
Article 163. Company and enterprise work personnel who make use of their job opportunity to demand property from others, or illegally receive others property in exchange for benefits, shall, in cases involving relatively large amounts, be punished with imprisonment or criminal detention for less than five years; for cases involving a huge amount, with imprisonment of over five years, and may be subject to forfeiture of property.
Company and enterprise work personnel, who, in the course of economic contacts, receive personal kick backs and commissions in various forms in violation of state rules, shall be punished according to provisions under the preceding paragraph.
Personnel performing public duties in state owned companies and enterprises, and personnel assigned by state owned companies and enterprises to non state owned companies and enterprises for performance of public duties found to be committing the acts mentioned in the two preceding paragraphs, shall be convicted and punished according to provisions under Articles 385 and 386 of this law.
Article 164. Offering property to company and enterprise work personnel for improper benefits shall in cases involving relatively large amounts be punished with imprisonment or criminal detention for less than three years, for cases involving a huge amount, with imprisonment of over three years but less than 10 years, and with a fine.
Units committing offenses under the preceding paragraph shall be punished with a fine, with personnel directly in charge and other directly responsible personnel being punished according to provisions of the preceding paragraph.
A briber who confesses his bribery act before prosecution may receive a lighter sentence or a waiver for punishment.
Therefore, this case presents several questions.
First, should receiving bribes in a commercial context be a crime at all? That is of course a broad policy question and different jurisdictions will have different rules. I will just repeat my educated guess (given the apparent rarity of such prosecutions in any circumstances) that it would be very unusual in other countries for a criminal charge of receiving bribes to stick where the employer, the supposedly injured party, denied any injury and supported the employee.
Second, what is the standard for “relatively large amount” and “huge amount” in Article 163 that makes the receipt of the bribe criminal? These terms are explained in the Provisions on Standards for Prosecution in Cases of Economic Crime (关于经济犯罪案件追诉标准的规定) passed jointly by the Supreme People's Procuratorate and the Ministry of Public Security in 2001. Article 8 puts the floor for prosecution for receipt of bribes at 5,000 yuan, while Article 9 puts the floor for prosecution for giving bribes at 10,000 yuan for individuals and 20,000 for units (e.g., companies). Thus, it seems that the threshold for “relatively large” will probably be easily met. I am not aware of another public document defining “huge”, but there may be one out there (I haven’t searched carefully).
Third, and finally, if the defendants received criminally large bribes in violation of Article 163, then somebody must have offered them criminally large bribes in violation of Article 164. Where is the prosecution against the bribers?
There's been a lot of discussion on the Chinese internet over whether Li Zhuang planted a hidden message in the six-point confession he delivered orally during his appeal. There is unfortunately no authoritative text of this confession, so the alleged message might in part be the creativity of people who have changed a character here or there to get it. The idea is to take the first character of each sentence to make one phrase, and then take the last character of each sentence to make another. (In the text I have, you have to skip the last character of the 5th sentence and take the last two characters of the 6th sentence.) OK. let's try it out:
I've translated the content of some of this in an earlier post. If you take the first characters of each sentence and then the last characters (with the adjustment mentioned above), this gives you "被比（逼）认罪缓刑，础（出）去坚决上诉" (forced to confess to get a suspended sentence, will insistently appeal after release).
Is this plausible? I'm not the conspiracy-theorist type, but it looks plausible to me. The Chinese is a little odd in places; for example, one commonly says 立场不稳, not 立场不坚. And why should the fourth sentence start with "罪行法定，这是基本原则"? That principle of criminal law has nothing to do with the case in question. I guess we will find out when he's free to speak his mind. Not that it really matters.
Here's a story in English about it from Caixin.
Tuesday, February 9, 2010
Here's a short take on that from Gady Epstein of Forbes.
For some background on the debate, here's the article that got the discussion started, by James ("One Billion Customers") McGregor. He writes, "In my more than two decades in China, I have seldom seen the foreign business community more angry and disillusioned than it is today. . . .Visiting CEOs' banquet-table chatter is now dominated by swapping tales of arrogant and insolent Chinese bureaucrats and business partners. The litany includes purposefully inconsistent and nontransparent enforcement of regulations, rampant intellectual-property theft, state penetration of multinationals through union and Communist Party organizations, blatant market impediments through rigged product standards and testing, politicized courts and agencies that almost always favor local companies, creative and selective enforcement of WTO requirements ... The list goes on."
On the other hand, last summer the US-China Business Council did a survey of its members (who all do business in China); the responses there indicate what the survey report called "cautious optimism" and don't seem to reflect a lot of anger and disillusionment. Perhaps things have gone downhill a lot in the last half year, or perhaps everyone is seeing a different part of the elephant. (See "Survey Reveals Cautious Optimism," China Business Review, Nov.-Dec. 2009, pp. 60-64.)
This is not surprising - as I noted in an earlier post on this case, the "confession" sounded fake all along, indeed so fake that one suspects Li was signalling its insincerity. The language he used in his "confession" sounded entirely scripted and cliched. (“在各级组织各级领导的耐心教育下”，逐渐认识到“自己的所作所为玷污了律师的职责，缺失了一名法律工作者应有的职业道德基础”，并称“刑事辩护人更应该顾大局、识大体，与党中央保持一致。”) According to the report, this confession was delivered haltingly and with certain language mistakes.
Here's the story from Caixin: http://policy.caing.com/2010-02-09/100116950.html
Monday, February 8, 2010
Here's a very interesting commentary on recent developments in the Li Zhuang case by Xujun Eberlein. She notes that although Li Zhuang has, on the surface, admitted guilt, he is maintaining his appeal and planting hints that he is not in fact admitting guilt. In other words, he has been forced to say this in an effort to get his sentence reduced. This seems plausible to me. Consider the language he is said to have used in his courtroom admission of guilt: "在庭审最后阶段，李庄称自己的行为玷污了律师的职责，缺乏作为一名法律工作者的道德基础，在大是大非上执迷不决。而他对未来的期望是：彻底诀别过去" (At the last stage of the hearing, Li Zhuang said that his acts had been a stain on the legal profession, that he lacked the moral foundation of a legal worker, and that he had vacillated in the face of great issues of right and wrong. His hope for the future was to make a thorough break with the past). It sounds as though he is reading from a script written out for him; we have heard this kind of cliched language many times before.
Here is more detail on the appeal hearing from the EastSouthWestNorth blog (in English).
I have received the following announcement:
SUMMER 2010 INTERNSHIP ANNOUNCEMENT
Congressional-Executive Commission on China
Deadline: March 1, 2010
The Congressional-Executive Commission on China (www.cecc.gov) is offering paid internships to qualified undergraduates, graduate students, or recent graduates this coming summer in Washington, D.C. Interns must be U.S. citizens. The application deadline is March 1, 2010 for the Summer 2010 internship that runs from June to August 2010. Summer internships are full-time; interns are expected to work from 32 to 40 hours per week. See application instructions below.
CECC internships provide significant educational and professional experience for undergraduates, graduate students, or recent graduates with a background in Chinese politics, law, and society, and strong Chinese language skills.
Interns work closely with the Commission and its staff on the full array of issues concerning human rights, the rule of law, and governance in China (including criminal justice, democratic governance institutions, environmental problems, religious freedom, freedom of expression, ethnic minority rights, women's rights, etc.).
Interns perform important research support tasks (often in Chinese), attend seminars, meet Members of Congress and experts from the United States and abroad, and draft Commission analyses. Click here for CECC analysis of recent developments in the rule of law and human rights in China. Interns may also be trained to work with the Commission's Political Prisoner Database, which has been accessible by the public since its launch in November 2004 (click here to begin a search).
The CECC staff is committed to interns’ professional development, and holds regular roundtables for interns on important China-related issues.
Summer 2010 interns will be paid $10/hour. Those unable to apply for Summer 2010 internships may apply for the Spring (February-May) or Fall (September-December). Further details are available on the Commission's Web site at http://www.cecc.gov/pages/general/employ.php.
Interns must be U.S. citizens.
Interns should have completed at least some China-related coursework. It is also desirable that they have some background in one or more of the specific human rights and rule of law issues in the CECC legislative mandate.
Interns should be able to read Chinese well enough to assist with research in newspapers, journals, and on Web sites. More advanced Chinese language capability would be a plus.
The successful candidate for an internship often will have lived or studied in mainland China, Hong Kong, or Taiwan.
Although our interns are generally undergraduates, graduate students, or recent graduates, others are also welcome to apply.
Application Instructions for Summer 2010:
Interested applicants should send a cover letter, resume, and the names and contact information for two references, to the CECC via e-mail to Judy Wright, Director of Administration at email@example.com by March 1, 2010. Applications must be received by our office no later than 11:59 P.M. Eastern Time on March 1. Please discuss in your cover letter how your professional goals, interests, and background relate to the Commission's legislative mandate regarding human rights and the rule of law in China.
Saturday, February 6, 2010
Here's a statement from Liu Xiaobo dated Dec. 23, 2009; translation courtesy of Prof. David Kelly of the China Research Centre, University of Technology Sydney. English text below; Chinese text here. It may not be an original observation, but I think it's worth noting that in China, at any rate, the values and beliefs for which people are willing to jeopardize their careers or go peacefully to jail are not, as those people express them, hedged about with qualifying adjectives such as "socialist" or "with Chinese characteristics". It is not, in general, the prisoners who talk about the need to respect Chinese cultural values; it is their jailers (who also claim the right to define them). The prisoners almost invariably speak in the language of universal values. Contrary to what is sometimes said by their critics, this does not mean that they claim that certain values are in fact held universally. Very obviously they are not. It means simply that they believe such values should be realized universally, and this is what inspires them.
I have no enemies: my final statement
June 1989 was the major turning point in my 50 years on life’s road. Before that, I was a member of the first group of students after restoration of the college entrance examination after the Cultural Revolution (1977); my career was a smooth ride, from undergraduate to grad student and through to PhD. After graduation I stayed on as a lecturer at Beijing Normal University. On the podium, I was a popular teacher, well received by students. I was also a public intellectual: in the 1980s I published articles and books that created an impact. I was frequently invited to speak in different places, and invited to go abroad to Europe and the US as a visiting scholar. What I required of myself was: to live with honesty, responsibility and dignity both as a person and in my writing.. Subsequently, because I had returned from the US to take part in the 1989 movement, I was imprisoned for “counter-revolutionary propaganda and incitement to crime”, losing the platform I loved; I was never again allowed publish or speak in public in China. Simply for expressing divergent political views and taking part in a peaceful and democratic movement, a teacher lost his podium, a writer lost the right to publish, and a public intellectual lost the chance to speak publicly. This was a sad thing, both for myself as an individual, and, after three decades of reform and opening, for China.
Thinking about it, my most dramatic experiences after June Fourth have all been linked with the courts; the two opportunities I had to speak in public have been provided by trials held in the People’s Intermediate Court in Beijing, one in January 1991 and one now. Although the charges on each occasion were different, they were in essence the same, both being crimes of expression.
Twenty years on, the innocent souls of June Fourth are yet to rest in peace, and I, who had been drawn into the path of dissidence by the passions of June Fourth, after leaving the Qincheng Prison in 1991 lost the right to speak openly in my own country, and could only do so through overseas media, and hence was monitored for many years; placed under surveillance (May 1995 – January 1996); educated through labour (October 1996 – October 1999s), and now once again am thrust into the dock by enemies in the regime. But I still want to tell the regime that deprives me of my freedom, I stand by the belief I expressed twenty years ago in my “June Second hunger strike declaration"— I have no enemies, and no hatred. None of the police who monitored, arrested and interrogated me, the prosecutors who prosecuted me, or the judges who sentence me, are my enemies. While I’m unable to accept your surveillance, arrest, prosecution or sentencing, I respect your professions and personalities. This includes Zhang Rongge and Pan Xueqing who act for the prosecution at present: I was aware of your respect and sincerity in your interrogation of me on 3 December.
For hatred is corrosive of a person’s wisdom and conscience; the mentality of enmity can poison a nation's spirit, instigate brutal life and death struggles, destroy a society’s tolerance and humanity, and block a nation’s progress to freedom and democracy. I hope therefore to be able to transcend my personal vicissitudes in understanding the development of the state and changes in society, to counter the hostility of the regime with the best of intentions, and defuse hate with love.
As we all know, reform and opening brought about development of the state and change in society. In my view, it began with abandoning “taking class struggle as the key link,” which had been the ruling principle of the Mao era. We committed ourselves instead to economic development and social harmony. The process of abandoning the “philosophy of struggle” was one of gradually diluting the mentality of enmity, eliminating the psychology of hatred, and pressing out the “wolf's milk” in which our humanity had been steeped. It was this process that provided a relaxed environment for reform and opening at home and abroad, for the restoration of mutual love between people, and soft humane soil for the peaceful coexistence of different values and different interests. It provided the explosion of popular creativity and the rehabilitation of warm heartedness with incentives consistent with human nature. Externally abandoning “anti-imperialism and anti-revisionism”, and internally abandoning “class struggle” may be called the basic premise of the continuance of China's reform and opening to this day. The market orientation of the economy; the cultural trend toward diversity; and the gradual change of order to the rule of law, all benefited from the dilution of this mentality. Even in the political field, where progress is slowest, dilution of the mentality of enmity also made political power ever more tolerant of diversity in society, the intensity persecution of dissidents has declined substantially, and characterization of the 1989 movement has changed from an “instigated rebellion” to a “political upheaval.”
The dilution of the mentality of enmity made the political powers gradually accept the universality of human rights. In 1998, the Chinese government promised the world it would sign the two international human rights conventions of the UN, marking China’s recognition of universal human rights standards; in 2004, the National People's Congress for the first time inscribed into the constitution that “the state respects and safeguards human rights”, signalling that human rights had become one of the fundamental principles of the rule of law. In the meantime, the present regime also proposed “putting people first” and “creating a harmonious society”, which signalled progress in the Party’s concept of rule.
This macro-level progress was discernible as well in my own experiences since being arrested.
While I insist on my innocence, and hold the accusations against me to be unconstitutional, in the year and more since I lost my freedom, I’ve experienced two places of detention, four pre-trial police officers, three prosecutors and two judges. In their handling of the case, there has been no lack of respect, no time overruns and no forced confessions. Their calm and rational attitude has over and again demonstrated goodwill. I was transferred on 23 June from the residential surveillance to Beijing Municipal Public Security Bureau Detention Center No. 1, known as “Beikan.” I saw progress in surveillance in the six months I spent there.
I spent time in the old Beikan (Banbuqiao) in 1996, and compared with the Beikan of a decade ago, there has been great improvement in the hardware of facilities and software of management.
In particular, Beikan’s innovative humane management applies more flexible management of what the discipliners say and do, on the basis of respecting the rights and dignity of detainees. This management, embodied in the journals Warm Broadcast and Repentance, music played before meals and when waking up and going to sleep, gave detainees feelings of dignity and warmth, stimulating their consciousness of keeping order in their cells and countering the warders’ sense of themselves as lords of the jail. It not only provides detainees with a humanized living environment, but greatly improves the environment and mindset for their litigation. I had close contact with Liu Zhen, in charge of my cell. People feel warmed by his respect and care for detainees, reflected in the management of every detail, and permeating his every word and deed. Getting to know the sincere, honest, responsible, good-hearted Liu, really was a piece of good luck for me in Beikan.
Political beliefs are based on such convictions and personal experiences; I firmly believe that China’s political progress will never stop, and I’m full of optimistic expectations of freedom coming to China in the future, because no force can block the human desire for freedom. China will eventually become a country of the rule of law in which human rights are supreme. I’m also looking forward to such progress being reflected in the trial of this case, and look forward to the full court’s just verdict ——one that can stand the test of history.
Ask me what has been my most fortunate experience of the past two decades, and I’d say it was gaining the selfless love of my wife, Liu Xia. She cannot be present in the courtroom today, but I still want to tell you, my sweetheart, that I'm confident that your love for me will be as always. Over the years, in my non-free life, our love has contained bitterness imposed by the external environment, but is boundless in afterthought. I am sentenced to a visible prison while you are waiting in an invisible one. Your love is sunlight that transcends prison walls and bars, stroking every inch of my skin, warming my every cell, letting me maintain my inner calm, magnanimous and bright, so that every minute in prison is full of meaning. But my love for you is full of guilt and regret, sometimes heavy enough hobble my steps. I am a hard stone in the wilderness, putting up with the pummeling of raging storms, and too cold for anyone to dare touch. But my love is hard, sharp, and can penetrate any obstacles. Even if I am crushed into powder, I will embrace you with the ashes.
Given your love, my sweetheart, I would face my forthcoming trial calmly, with no regrets about my choice and looking forward to tomorrow optimistically. I look forward to my country being a land of free expression, where all citizens’ speeches are treated the same; where, different values, ideas, beliefs, political views... both compete with each other and coexist peacefully; where, majority and minority opinions will be given equal guarantees, in particular, political views different from those in power will be fully respected and protected; where, all political views will be spread in the sunlight for the people to choose; all citizens will be able to express their political views without fear, and will never be politically persecuted for voicing dissent; I hope to be the last victim of China’s endless literary inquisition, and that after this no one else will ever be jailed for their speech.
Freedom of expression is the basis of human rights, the source of humanity and the mother of truth. To block freedom of speech is to trample on human rights, to strangle humanity and to suppress the truth.
I do not feel guilty for following my constitutional right to freedom of expression, for fulfilling my social responsibility as a Chinese citizen. Even if accused of it, I would have no complaints. Thank you!
Liu Xiaobo (December 23, 2009)
I just received this announcement. Please note that it is essentially aimed at recent college graduates.
The China Law Center of Yale Law School is seeking candidates for a one-year Research Associate position based in Beijing beginning this summer. The Research Associate will support Center projects in China by conducting research and writing on issues related to legal reform, interacting with scholars, officials, and lawyers in China, and performing administrative and logistical tasks.
1) Bachelor's Degree or equivalent;
2) Proficiency in written and spoken Mandarin Chinese;
3) Fluent English;
4) Strong research, writing, analytical, and communication skills;
5) Strong organizational skills, attention to detail and an ability to work independently;
6) Interest in law and legal reform and a commitment to public-interest work;
7) Post-college work experience preferred; and
8) Experience in China preferred.
Interested applicants should send a cover letter, resume and list of references with their contact e-mails and telephone numbers to The China Law Center at firstname.lastname@example.org.
Applications will be reviewed on a rolling basis. Only applicants who are invited for an interview will be contacted. The Research Associate will receive a competitive one-year fellowship stipend for the 2010-2011 year.
The China Law Center
The China Law Center of Yale Law School is a unique institution devoted to supporting law and policy reform within China and increasing understanding of China in the United States. The core of the Center's work is designing and carrying out sustained, in-depth cooperative projects between U.S. and Chinese experts on key issues in Chinese law and policy reform. Our projects focus on areas that are critical to China's ongoing reform process, particularly judicial reform, criminal justice reform, administrative and regulatory reform, and constitutional law.
Since its start in 1999, the Center has opened offices at Yale University and in Beijing, with a small staff of lawyers and scholars with decades of collective experience working on law and policy reform issues in China. The Center's Director is Professor Paul Gewirtz. A full list of Center staff, and further information, may be found on our Website: http://www.yale.edu/chinalaw.
Yale Law School is an affirmative action, equal opportunity, Title IX employer.
Wednesday, February 3, 2010
Tuesday, February 2, 2010
Here's a good op-ed by Jerome Cohen and Oliver Zhong on the complex issue of how public opinion can influence court decisions. It's not a simple story, and I think they have got it exactly right here. One point they don't make is that the government's occasional extraordinary vulnerability to public opinion (which may be completely uninformed and even wrong) may stem from a deficit in other sources of legitimacy. George Bush could say, "I was elected; I'm the decider"; the lines, "We won the civil war and liberated China in 1949" or "We're better than any currently existing alternative" aren't nearly as good in justifying the exercise of political power.
The people's will
Public sentiment can play a dangerous role in mainland justice
Jerome A. Cohen and Oliver Zhong
South China Morning Post, Feb 03, 2010
Interaction among courts, the media and public opinion is complex in every free country. The internet magnifies the complexity. Even mainland China, despite strict government controls, cannot escape it, as last summer's famous Deng Yujiao case demonstrated. Months after she fatally stabbed a government official, and a trial that roiled the nation, this young cause celebre now lives an anonymous life far from home. Once seen by a wildly supportive public as a hapless folk heroine who resisted outrageous abuse, Deng now hopes to be forgotten.
Yet, for the mainland's legal reform, it is too soon to turn the page. Recently revealed details of the case illuminate how justice was meted out.
On the night of May 10, in a hotel massage parlour in Badong county, Hubei province, two officials scuffled with Deng, who worked there. She stabbed both men with a fruit knife, killing one.
The case initially seemed to be an ordinary local tragedy. Within days, however, it turned into a nationwide phenomenon, once internet reports suggested that the men had demanded "special services" from Deng, hit her face with wads of cash and pinned her down on a sofa. An area TV station broadcast incendiary video footage of Deng claiming to have been beaten. By the time Deng's publicity minded Beijing lawyer made teary-eyed public appeals for justice, most Chinese internet users seemed convinced she had acted in self-defence and should not be prosecuted.
Seeking to prevent this media-driven scandal from stimulating mass protests, the authorities cut off all road and water travel to Badong and scoured hotels in the area for out-of-town journalists. Top Hubei officials took over all public communications and, after official pressure, Deng's mother dismissed her bold, media-savvy lawyer. The case had become what the all-powerful Communist Party Central Political-Legal Committee later called a "pan-political incident".
Amid continuing popular outrage against Deng's abusers, any thought of treating the matter as intentional homicide had long since vanished. Yet the idea of a not-guilty verdict on the grounds of self-defence, in a case where an official had been killed, was apparently intolerable to party leaders, who found it difficult enough to persuade the deceased's family to withdraw its claim for damages against the defendant. Traditional sympathy for a woman protecting her virtue had to be vindicated, but killing of an official had to be condemned.
The party soon engineered a typical mainland judicial compromise. Deng was convicted for excessive self-defence constituting aggravated assault resulting in death. But the court spared her from any punishment, even a suspended sentence. It attributed its leniency to three mitigating factors. Deng had "voluntarily" surrendered, she had been provoked by the victims' misconduct, and she was suffering from psychiatrically verified mental illness.
The online community hailed the decision as a victory for "the people's will". Yet, late last month, in a detailed investigative report, Guangzhou's reformist Southern Metropolitan Daily raised serious questions about whether public opinion had been misled and allowed to distort handling of this case. Hadn't the victims only demanded a "bath", rather than sexual intercourse, and wasn't the "sofa" actually a seat too small for pinning Deng down? Weren't the alleged mitigating factors insufficient to justify her freedom? How could her use of deadly force go unpunished?
When asked about these doubts, a local judge reportedly confided that the decision was made at a very high level and the court was merely there to "read it out". Not surprisingly, this confirmed not only the lack of independence of mainland judges in non-routine cases but also the readiness of party leaders to base their instructions, at least in part, on their perception of public opinion.
Yet, in high-profile cases that reach the trial stage, these factors usually operate against the defendant. In the recent Akmal Shaikh drug-smuggling case and in the notorious Yang Jia cop-killer case, for example, popular demands for execution overwhelmed voices opposing official refusals to give obviously disturbed defendants the thorough psychiatric examination Deng received. In the infamous Liu Yong case, the Shenyang gang leader was sent to his death by popular demand even though his conviction was, importantly, based on a confession admittedly extracted through torture.
In Deng's case, by contrast, popular outcry forced the hand of a leadership obsessed with "stability" to free someone, illustrating that, as a social safety valve, the party must also respond to public pressures for leniency.
Ad hoc political responsiveness to mass demands for justice is a dangerous game, and surely inconsistent with the rule of law. In criminal cases, democratic countries - most recently Japan - reconcile popular views with the rule of law through juries and other forms of citizen participation in an independent judicial process.
In mainland courts, restrictions on both the long-standing use of "people's assessors" and recent efforts to consult informal "juries" inhibit popular trust in criminal justice. Moreover, manipulation of the media and internet, whether by the government or the defence, often makes it difficult even to identify the authentic will of the people.
Professor Jerome A. Cohen is co-director of NYU School of Law's US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. Oliver Zhong is research fellow of the institute. See also www.usasialaw.org.