January 9, 2010
Two interesting letters in the Liu Xiaobo case
Vaclav Havel, one of the original Czech dissidents behind Charter 77 (an inspiration for Charter 08), tried (with other co-signatories) to deliver a letter protesting Liu Xiaobo's sentence to the Chinese embassy in Prague. Since nobody would open the doors to them, they had to leave it in the mailbox.
January 8, 2010
Li Zhuang's conviction and the problem of witnesses
Yesterday I blogged about the trial of Li Zhuang, a lawyer accused of fabricating evidence in the course of defending his client in the Chongqing gangster crackdown. The trial has drawn attention because it involves the use of Article 306 of the Criminal Law, which Chinese lawyers have long complained has been abused by the authorities to persecute them. A source I should have included in yesterday's post (a 2006 report from Human Rights in China) has this to say:
Approximately 500 lawyers were detained between 1997 and 2002 for any reason, and more than 100 lawyers have specifically been accused of violating Article 306 by fabricating evidence. Of these Article 306 cases, more than 90 percent have been cleared. This statistic implies that the statute is often invoked improperly or misused by officials attempting to silence defense lawyers. This has resulted in both imprisonment and the revocation of lawyers' licenses to practice. For example, Ma Guangjun was convicted of fabricating evidence in 2003 and detained for 210 days because the witnesses he produced changed their testimony and admitted to fabricating evidence after being interrogated by the police. Article 306 unnecessarily singles out lawyers in light of other Criminal Law provisions regarding fabrication of evidence.
 Bill Savadove, "Justice Remains Shanghaied in City's Law Courts; Intimidation and Physical Violence Against Lawyers Is on the Rise, and Getting a Fair Trial is still Far from Guaranteed," South China Morning Post, February 7, 2006.
 "Chinese Article Claims That Research on the Difficulties Faced By Criminal Defense Lawyers Restricted After Revealing "Shocking" Initial Results," Congressional - Executive Commission on China Website, January 13, 2005, http://www.cecc.gov.
 Jian Fa, "Independence Called for Lawyers," Beijing Review 47, No. 42, October 21, 2004, http://www.bjreview.com.cn/200442/Cover-200442(B).htm; Congressional - Executive Commission on China, "Chinese Article Claims That Research on the Difficulties Faced By Criminal Defense Lawyers Restricted After Revealing 'Shocking' Initial Results," January 13, 2005, http://www.cecc.gov.
According to one report, not a single witness actually appeared at the trial - including the key witness, Li's client, who testified that Li had falsely claimed he (the client) was tortured. Instead, witness statements obtained out of court by the prosecutors were read into the record. Perhaps because it is too common to be considered news any more, none of the reports notes that this is a clear violation of China's Criminal Procedure Law. Art. 47 of that law says, "The testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, that is, the public prosecutor and victim as well as the defendant and defenders, and after the testimonies of the witnesses on all sides have been heard and verified." (Emphasis added.) China is not the only country that has exceptions to this seemingly absolute rule; the US has exceptions to the rule against hearsay. But it seems that witnesses are routinely absent in Chinese criminal prosecutions even when no applicable exception would seem to apply. For example, in Li's case, the prosecution could hardly claim that his client was unavailable to testify - they were holding him in detention as he was being tried himself.
I came across some interesting local statistics on this issue a while ago. In a study of a basic-level court covering the three years 1994 through 1996, the researcher found the following:
- Fully 85% of witnesses had their testimony simply read aloud in court, instead of actually appearing and being subject to cross-examination.
- Of 243 cases of absent witness testimony being read aloud in court, in 58 cases the name of the witness was not even revealed. (Source: 毕玉谦，《关于证人出庭作证问题之探析》，in 毕玉谦编，中国司法审判论坛 (vol. 1, 2001), pp. 144-145.)
Data from one court 15 years ago is not, of course, solid social-science evidence. But it's consistent with complaints we keep hearing to this day about the absence of witnesses, and the institutional factors that made this possible 15 years ago (i.e., the lack of any incentive for prosecutors to produce witnesses, since courts are still willing to use the evidence even when the witnesses don't appear) remain unchanged.
UPDATE (JAN. 9, 2010): Two Beijing lawyers have written an open letter on due process issues in the Chongqing gang cases and in the Li Zhuang case in particular, also noting that none of the eight witnesses testified in court. (They don't, however, point out that accepting their testimony violates the Criminal Procedure Law.) The letter is addressed to the (Party) Discipline Inspection Commission, the (Party) Central Political-Legal Committee, and the Supreme People's Procuracy.
Does China need bright-line rules?
I just read a very stimulating paper by Prof. Ofer Raban of the Univ. of Oregon School of Law entitled "The Fallacy of Legal Certainty: Why Vague Legal Standards May Be Better for Capitalism and Liberalism." As commentators both domestic and foreign - no doubt including me at times - often criticize Chinese legislation for its vagueness and ambiguity (that is, when it's vague or ambiguous; it's not always so), I thought it might offer a useful opposing view. Bottom line: the argument is certainly worth taking into consideration when thinking about China, but it doesn't map perfectly onto the Chinese context. (I should add that Prof. Raban does not purport to be writing about China, but he does purport to be writing about rules and standards in legal systems generally.)
Let's first clear away a couple of preliminary obstacles. The author accepts (perhaps just for the sake of argument) that predictability in the law is good for the economy and, I think it's fair to say, good in itself (which is not to deny the existence of any countervailing values). And let me go further and assume here, for the sake of argument, that predictability in the law would be a good thing for China. The interesting issue is what kind of laws best provide that kind of predictability: rules or standards?
The author's argument is that we have to distinguish predictability for lawyers and judges from predictability for parties, and that we should worry about the latter because that's why predictability is valuable in the first place. If we worry about predictability for parties, then often bright-line rules will serve to confound, not support, their expectations. It is standards, on the other hand, that authorize a court's inquiry into context, surrounding circumstances, etc. - precisely the things that will tell us (if the inquiry is properly conducted) what the parties really expected. (See the article for examples.) If we apply a bright-line rule, a lawyer or judge can predict the result, but it may not at all be what the parties expected would happen.
I don't think Raban anywhere denies that applying standards may cost more than applying bright-line rules, but that's another issue; he's out simply to deny what is commonly assumed, that there is a cost in certainty and predictability to applying standards. He argues that in fact certainty and predictability where it matters - in the actions of parties when they transact - can be enhanced by the use of standards.
So far so good. He raises some good examples, and the argument shows at least that we have to be careful about assuming that bright-line rules have the conventionally-assumed benefit of predictability. Can we take this insight to China?
I can think of two main problems with doing so. (This doesn't mean we should reject the insight; just that we have to apply it with more care than usual.) First, we need to compare the result of the use of standards in the substantive law of the US and China. In the US, the result is that more discretion is placed in the hands of the decision-maker. Pretty straightforward, right? But in China this is not always going to be the case. We often see that when vague standard-like language is used in Chinese legislation, the reaction of courts, at least, is to say, "This isn't enough for us to use in adjudication," and they refuse to accept cases (or arguments) predicated on that standard. The end result is that it's as if the standard had never been promulgated. Courts wait around until the Supreme People's Court issues a document making the standard much more concrete and specific.
The second problem is a little more obvious. Doesn't any discussion of the relative merits of rules versus standards have to take into account the people or institutions that will be administering them? And surely those people and institutions show a lot of variation over space and time. Standards might yield more predictable results than rules in the hands of judges of a certain type (the type Prof. Raban has in mind), but less predictable results in the hands of judges of another type. (I suppose this goes back to the issue I raised earlier of the costs of applying standards versus rules.) Prof. Raban does address this in the final paragraph of the paper, but only briefly and, to my mind, unsatisfactorily:
A final caveat: the extensive use of vague legal standards no doubt harbors dangers. Vague standards can easily mask arbitrariness, inconsistency, and injustice, and can also (of course) generate uncertainty. Their proper use requires good faith, professionalism, and intelligence, and therefore depends on a high caliber legal profession. But then again, it’s hard to imagine a form of law (and of legal interpretation) that doesn’t.
This seems to me far too flip a dismissal of a real problem. Since not all societies at all times have the kind of legal profession called for, we must think about whether the argument works when that kind of legal profession is not present. If it doesn't, then that means that we can't know whether the argument is correct or not as applied to a given society without undertaking an assessment of the legal profession of that society - unless, very improbably, we were to assume that as the quality of the legal profession declines, there is no relative change in its ability to administer rules versus standards predictably. Thus, even if Prof. Raban's argument is correct as applied to the United States (I should note that he frames his argument in universalist, not national, terms), we can't apply the argument to China (or any country) without thinking first about the capacity of the judiciary to administer standards versus rules.
Comment policySomething about anonymity seems to encourage nastiness and abusive sarcasm in comments that make them very unpleasant to read. (This is true for all blogs with comment functions, not just this one.) If there is some intellectual content to the comment I don't want to censor it, but please note that I am more likely to do so if you remain anonymous. Attaching your name to your comment has, I think, a civilizing influence. And why not take some responsibility for what you write, unless you have genuine grounds for believing it will get you arrested or something like that? In general, I would ask commenters to re-read their comment after finishing it and ask themselves, "Would I want to have this person at my dinner party?"
List of foreign law firms in ChinaI just came across this list (in Chinese) compiled by the Ministry of Justice and dated Dec. 24, 2009, so it's probably the most up-to-date list in existence. There are 188 of them.
January 7, 2010
Secrecy (and other matters) in executions
Here's a report from the BBC on the death penalty in China. The article is accompanied by a photo, the legend of which says, "Executions are usually carried out soon after sentencing." There isn't any support for this statement in the article; maybe the editors just made it up. In any case, under most interpretations of the word "soon", it's not accurate. My guess would be that most death sentences are appealed. That takes some time. Then all death sentences, whether appealed or not, are (once final) subject to a mandatory review by the Supreme People's Court. From the limited information we have, that review seems to take at least six months in most cases, and sometimes more than a year. (See this report.) The Yang Jia case was an indecently hasty exception.
It is true (as far as we know) that once the SPC confirms the sentence, execution follows quickly - usually within just a few days, and sometimes even the same day.For example, Chongqing gang boss Chen Ming was executed on Nov. 26, 2009 - the very day his death sentence was approved by the Supreme People's Court. The sentence itself was imposed, however, in July 2008. (News report here; it's not clear if they are referring to the first-instance trial or the second-instance trial, assuming there was an appeal.)
Freedom of assembly in ChinaHere's a report (in Chinese) dated Dec. 31, 2009 from China Human Rights Defenders.
Shaanxi to begin publishing court verdicts online
From the China Human Rights Briefing, Dec. 31, 2009-Jan. 4, 2010:
According to a December 31 Xinhua report, the Shaanxi Province courts will begin publishing verdicts and court rulings online beginning in January 2010. The regulations state that courts will have up to 10 working days in each month to complete the publishing of all of the previous month’s formal verdicts and adjudications online, where they must remain for at least six months. Rulings in cases which involve state or business secrets, minors, or were tried in private for other reasons, as well as rulings in a number of other private matters (including marriage or domestic disputes, medical disputes, etc) do not have to be publicized. Courts will be expected to determine whether or not to publish a given ruling in accordance with relevant provisions or at the requests of the parties to the lawsuits.
While this is an important step towards making the justice system more transparent, courts are given considerable leeway in deciding what should and should not be made public, and courts may make use of this freedom to avoid publicizing cases involving infringements on citizens' rights. In addition to formal verdicts, courts should also make publicly available lawyers’ statements made in a client's defense, so that citizens can have a more comprehensive understanding of the case.
Source: "Shaanxi: Provincial Courts Required to Publicize Rulings Online Beginning January 2010 (陕西：2010年1月起全省法院判决书上网公开)," December 31, 2009, http://news.xinhuanet.com/legal/2009-12/31/content_12735905.htm
Miscellaneous Chinese law news
Here's a random list of recent interesting stories:
- More news on the trial of Li Zhuang, the defense lawyer accused of fabricating evidence in the course of defending his client, an accused gangster in Chongqing. The case has drawn a great deal of attention because lawyers frequently complain of persecution by police and prosecutors under this charge. Authorities respond by noting that convictions are few. Lawyers counter by noting that detentions and investigations are many, and that that's where the intimidation and damage is done. Indeed, the low ratio of convictions to charges (relative to other crimes) does suggest that this provision of the Criminal Law is being abused. For more, see this paper by Hualing Fu of Hong Kong University's Faculty of Law.
- An op-ed in the Wall Street Journal arguing that Chinese censorship could constitute a form of protectionism that violates WTO rules. I'm not an expert in the WTO, but am in principle a little skeptical of this kind of argument (even though I am against censorship) simply because intention has to count for something in legal interpretation, and I'm pretty sure that a large number of governments would never have signed on to WTO obligations had they imagined it constrained their ability to censor domestically. But there may be good arguments the other way. This is not, incidentally, the first time this argument has been made. US groups have been trying to get the USTR to act for some time. See, for example, this Aug. 2008 report from the Financial Times, which begins: "Since the end of last year, the California First Amendment Coalition, a free speech group with ties to the US tech industry, has been pushing the Bush administration to launch a trade dispute against China on internet censorship."
- Law graduates having a tough time finding jobs, from the China Daily. Not a uniquely Chinese problem, unfortunately.
- Chinese government and computer makers sued by US software developer for piracy in Green Dam (internet filtering software) case. According to the plaintiff, the theft was so clumsy and brazen that some messages directing user's to the US developer's web site remained in Green Dam. Here's the story from the Financial Times.
- In-depth study of corruption in local government: Here's a journalist's summary; here's the academic paper, by someone who spent four years getting to know all the local officials in the county in question.
January 5, 2010
Melamine addiction in China's dairy industry
It just keeps happening. Last month I blogged about three people arrested for adding melamine to milk even after an offender in the Sanlu scandal had been executed for doing it, suggesting that deterrence wasn't operating very well. Then on Dec. 31st came an announcement from Xinhua News Agency that excessive melamine had been found in milk coming from Shanghai Panda dairy. Now James Areddy writes in the Wall Street Journal's China Realtime Report that apparently the Shanghai Panda melamine problem, like the Sanlu melamine problem, was known by officials as early as April 2008, well before it was announced and products recalled.
Not to worry. On Dec.25th, less than a week before announcing the Shanghai Panda affair, Xinhua assured its readers that "[a]fter melamine scandal, it is impossible to sell poor quality milk."
January 4, 2010
Rising trade tensions between China and the US (and the world)Last fall I had the pleasure of hosting Michael Pettis for a talk at the George Washington University Law School, in which he predicted a rise in trade tensions between the US and China as a result of China's continued reliance on an export-oriented growth model (as opposed to one driven by internal consumption). Here's an interesting article from the Washington Post that documents recent disputes.
Huang Songyou to be put on trialHuang Songyou, the Supreme People's Court judge most prominently associated with the Qi Yuling ruling, is to be put on trial by the first week in March, according to the Chongqing Evening News (as reported by AFP). Huang was put in shuanggui detention over a year ago, in Oct. 2008.
Chinese art law web site and newsletterFor those interested in Chinese art law - I know there's at least a few of you out there - there's a new web site and newsletter, China Art Law, set up by Nancy Murphy, an attorney in Beijing.
January 3, 2010
Unblocking undoneWell, that didn't take long. My correspondents in Beijing report that Youtube is blocked as usual.
Many foreign web sites unblocked in China
So says the Under the Jacaranda Tree blog:
As I am writing this blog post, millions of netizens in China are celebrating the unblocking of their favourite websites, including Youtube, Picasa, Bloggers, etc. Many of these sites have been blocked since late 2008 as a part of a Chinese government sanctioned anti-vulgarity campaign.
Messages posted on Twitters suggest that blockages to Internet access have been lifted in Dalian, Changchun, Wuhan, Chongqing, Xiamen, Shenzhen, Beijing and Guangzhou.
It's not clear why the blocks have been lifted. The general view in China, according to UTJT, seems to be that it's accidental and very temporary. Certainly it seems completely inconsistent with the general political tightening we've been seeing for a while.