Saturday, January 23, 2010
I recently posted about Li Zhuang, the Beijing lawyer convicted in Chongqing of fabricating evidence. Here's a commentary from PRC-based writer Liang Jing (a pseudonym), translated by David Kelly, Professor of China Studies at the China Research Centre, University of Technology Sydney.
Liang Jing, Implications of the Li Zhuang case*
The implications of last week’s sentencing of Li Zhuang were quite profound. In terms of intellectual-led public opinion, Bo Xilai won the case but in moral terms lost. He clearly manipulated the case, unscrupulously framing Li, and his contempt for the concept of the rule of law in particular outraged many legal and otherwise knowledgeable people, damaging his liberal image, and doing his political future no good.
But there is a deeper question: what made him dare to do so? It seems clear now that from the first day he resolved to strike hard at crime in Chongqing, Bo paid no heed to the past three decades of progress in legal procedures, reverting instead to the Cultural Revolution tradition of “handling cases with campaigns.” This decision of Bo Xilai’s reflects his values, and incorporates one of his grand conclusions: namely that the reforms based on fooling oneself in order to fool others can no longer be kept going, and only politicians who “look as if they mean it” stand a chance of coming out on top.
Even prior to the Li Zhuang case, Feng Xiang, a jurist who has lived in America, could see that Bo Xilai’s “singing red while striking at crime” posed an ethical dilemma for professional “legal persons.” Feng Xiang profoundly criticises those “intellectuals” who can have it both ways in China’s “phoney reforms.” He points out that the rule of law and education failed to achieve substantive progress in China for over three decades and have in fact gone backwards, and the intellectuals believe in and promote freedom are to blame. He points out that China’s “pseudo-reforms” have created an overall environment in which “you indicate left while turning right, speech and action are inconsistent, and the apparent slogans are not the actual rules that are in operation.” “Those who are at home in such an environment are people with split personalities,” they “talk a lot about freedom, democracy, constitutionalism, human rights, etc., behind closed doors,” but in life cannot get along without the privileges granted by dictatorship, and hence become its slaves and tools both voluntarily and involuntarily. 
Li Zhuang is a typical example of such an intellectual; according to the latest issue of Nanfeng chuang [Southern Window], in recent years, the “Beijing lawyers” with “background” whom he represents “have become an eye-catching ‘brand.’ On the one hand, they come forward to uphold the rule of law in a lot of sensitive cases, striving to promote judicial progress in China, while on the other hand, they are seen as residents of the capital, where they are inextricably linked to the highest judicial authorities, interfering with the judiciary by aggregating expert and media resources.” 
Li Zhuang’ being set up for a prison sentence by Bo Xilai was tragic not only for himself, but also his legal colleagues who were ordered to find him guilty. The case confirms in the most dramatic way the plight of China’s jurists and scholars pointed out by Feng Xiang. The greater tragedy for these people lies in the fact that many people have no understanding and less sympathy for what happened to them. In other words, while Bo Xilai was considered by liberal intellectuals to be morally the loser, in the eyes of more people lower lower down in society, he is likely to be morally the winner.
The implications of Li Zhuang case for China's future are very serious if this is so, because it means the emergence of a totally fascist China in the 21st century is indeed possible. The real danger in China's future does not in fact, come from any political ambitions of the likes of Bo Xilai, but from the lack of a sufficient number of intellectuals devoted to the rule of law and justice, who are as resolved as he is to take action to win popular support. 
China does have a number of intellectuals and jurists who are committed to principle and to justice. Xu Zhiyong, mentioned in the Southern Window commentary, is representative of a group of public interest lawyers who threw themselves whole-heartedly into safeguarding the rights of vulnerable groups, and who, low-key but persistent, offered legal services to the most vulnerable groups. There are as well brave souls like Ai Weiwei who make high-profile challenges to the authorities of injustice and at the risk of being “disappeared” “pick fights” with the public security organs. However, having seen Ma’s Hooves produced by Ai Weiwei, I can only sincerely admire his character and courage, but likewise can only worry how, in the face of such a powerful and irrational authoritarian regime, such heroic “hopeless battles” can mobilise countervailing power against it?
Not long ago I read a report by Fan Yafeng, whome the authorities recently removed from his public employment [as a research fellow of the Institute of Law, Chinese Academy of Social Science], and found a representative free intellectual of equally firm resolve, as well as ideological influence. Fan argues that China’s “society has entered a stage of collision between the biggest tectonic plate (Christian Family Church) and the party-state”, “if the family church plate can not be controlled by the party-state, it can be said without exaggeration that it will amount to a breakthrough in China’s democratic transition, which will have a great impact on the whole pattern of Chinese society and the world.”
The Li Zhuang case shows that the game of institutions determining China’s future is being played at different levels. The likes of Bo Xilai use the power resources they control, to set about building an “equitable society” in which there is no rule of law. more intellectuals and jurists with true faith in the rule of law may win a truly bright future for China only in throwing their lot in with society and resorting to action. 
 “Feng Xiang: Chang hong da hei zheshe chude zhiye lunli kunjing” [The plight of the professional ethics reflected by singing red and hitting black], Gongshi wang, 2 December 2009 [： “冯象：唱红打黑折射出的职业伦理困境”， 共识网， ，2009年12月 2日 (here).].
 Tian Lei, “Li Zhuang an de shenceng jiazhi” [the deeper value of the Li Zhuang Case], Nan fengchuang, 17 January 2010 [田磊： “李庄案的深层价值”， 南风窗，2010年1月 17日 (here).].
 He Weifang, “Lüshi bei nan ri, guomin zaoyang shi—da ‘xingzhe’ jun wen” [When lawyers are oppressed, the people suffer - reply to ‘Walker’s’ question], He Weifang de bo laodao, 5 January 2010 [贺卫方： “律师被难日 国民遭殃时——答“行者”君问”， 贺卫方的博唠阁，2010年1月 5日 (here).].
 Fan Yafeng, “Fazhi yu gongmin shehui—dang yu shehui de hudong (shang)” [Rule of law and civil society—Intereaction between party and society], Gongshi wang, 17 January 2010 [范亚峰： “法治与公民社会——党国与社会的互动（上）”， 共识网，2010年1月 17日 (here).].
 Chen Lei, “Li Zhuang an youyin shi Zhao Changqing chenggong bianhu shajihaihou” [Li Zhuang case prompted by Zhao Changqing’s successful defence, killing chicken to scare monkeys], Boxun, 10 January 2010 [陈磊： “李庄案诱因是赵长青成功辩护后杀鸡骇猴”， 博讯，2010年1月 10日 (here).].
Friday, January 22, 2010
I just posted here a statement from Liu Xiaobo entitled "My Self-Defense." Here's another one purporting to be from him. It's from the Radio Free Asia web site and is entitled, "Final Statement that Liu Xiaobo Was Not Permitted to Read at His Trial."
I last blogged about Liu Xiaobo here, providing a text of the verdict against him. Here is a statement that purports to be from him entitled "My Defense". It addresses the charges against him. In the next post I provide another statement that has just appeared.
Thursday, January 21, 2010
Wednesday, January 20, 2010
On January 8th I posted some comments on a very interesting article by Prof. Ofer Raban of the University of Oregon School of Law. I thought he might like to respond and invited him to do so; here are his remarks, for which I thank him. I have a response to this, which I will post in due course.
I was graciously invited to comment on Professor Clarke entry, so here goes.
First, my paper not only claims that vague legal standards may produce more certainty and predictability than bright-line rules, but also that in many areas of the law they are bound to do so (and the article goes to explain why).
Although the proper application of vague standards is, by definition, less predictable than the proper application of bright-line rules, the article argues that the predictability that actually matters – which pertains to the ability of real-life actors to predict the consequences of their actions – may still be enhanced by the use of vague standards rather than by clear rules. The full explanation can be found in the paper (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1419683).
Now the paper recognizes, as it must, that this proposition depends on the proper application of these standards. In other words, if lawyers and judges habitually misapplied the concept of “negligence” to perfectly prudent and cautious actions, predictability may certainly suffer. But that is true, of course, about the predictability of bright-line rules as well.
This short clarification places Professor Clarke’s claims in the context of the paper’s thesis. Professor Clarke does not dispute the thesis (which I was happy to learn…); but he does say that adopting vague legal standards in China would not produce more predictability even in those areas where I claim it would, because Chinese courts, unlike, say, American courts, are more likely to misapply (indeed, not to apply at all) vague standards. And he thinks that my paper pays insufficient attention to this important caveat (that in many countries courts are likely to misapply vague legal standards).
That claim, however, would hold true only if Chinese courts not only misapplied (or refused to apply altogether) vague standards, but also if they properly applied bright-line rules. Otherwise there is no basis for the claim that bright-line rules would do better than standards. Now why would that be the case???
The reluctance of Chinese courts to protect certain individual rights, or their willingness to subject their judgments to the Party’s will, or their rampant corruption, stand neither here nor there on this matter. If a court refuses to apply a standard of “fairness” because this would result in a politically unpalatable ruling, that very court, it seems to me, would similarly refuse to apply a perfectly clear rule that produces the same result. And vice-versa: just as Chinese courts may be willing to properly apply bright-line rules that lead to their desired results, they should be similarly willing to apply such vague standards (as in fact they do when convicting dissidents under exceedingly vague and indeterminate definitions of crimes.)
So, to repeat: if Chinese courts are more likely to misapply vague legal standards, they are also more likely to misapply bright-line rules. (Indeed our own law reports contain innumerable examples of how that is done.) Either way, the thesis on the predictability of vague legal standards in comparison to bright-line rules remains untouched.
University of Oregon School of Law
When I last posted about Huang Songyou earlier this month, I quoted a report in the Chinese press saying he was expected to be put on trial in March. Surprise! He was put on trial a short while ago, convicted, and sentenced to life imprisonment.
Sunday, January 17, 2010
In response to a request from my friend Tom Ginsburg of the Comparative Constitutions blog, here's a list and a few sentences about the top ten events that I blogged about yesterday (at least, in the view of the Procuratorial Daily):
1. The person in Chengdu who committed suicide by self-immolation to protest the forcible tearing-down of her home. This crystallized a lot of discontent of land requisitioning for redevelopment. I won't say "takings of property" because in many cases it's not clear how exactly we should characterize the interests that are being taken. In this case, for example, it may be that the structure in question was built without proper permission, and that knocking it down was no more than would have happened in any jurisdiction that enforces its urban planning laws. But as with the Deng Yujiao case, what actually happened is of less interest to a lot of people than the symbolic use to which an event can be put. The constitutional-type issues associated with this case are those of takings, proper compensation and procedure, etc., even though they may not actually have had much relevance to this particular case.
2. The Yunnan hide-and-seek case. A prisoner was beaten to death in jail; the police explained his head injuries by saying he had accidentally run into a wall while playing a Chinese version of hide-and-seek (it involves being blindfolded). When this explanation came out, it was appropriately ridiculed and popular pressure led to a second investigation. The constitutional-type issues are those of transparency, accountability, etc.
3. The Shanxi coal mine nationalization case. The Shanxi provincial government required privately operated mines to be taken over by state-owned firms. Ostensibly this was in response to bad practices in the privately operated mines. Maybe. Commentators have suggested that these problems could be dealt with through regulation. Again, maybe. The mine owners are fighting for compensation. The matter is still unsettled and politically very sensitive; hence its removal from the "top ten" list after publication.
4.The Shanghai "law enforcement by fishing" case. This case involved entrapment - in fact, outright framing - by Shanghai law enforcement authorities. In one example of what was apparently a pattern, a driver was flagged down by someone who appeared to be injured and wanted to be driven somewhere (I forget the exact details). The man offered money, but the driver didn't take it. A few minutes later, the car was surrounded by other cars with officials from the bureau in charge of overseeing taxis, who charged him with operating an illegal taxi service. He was forced to pay a fine of 10,000 yuan. Outraged at his treatment and unable to get justice, the driver ultimately cut off one little finger to show his innocence. That got attention, and a subsequent investigation brought the malpractice to light. The case is a bit reminiscent of the Beijing Traffic Police practice of maximizing fines that I blogged about in 2005 (here and here), but of course vastly more egregious.
5.The Hebei "political test-gate" affair. A young woman in Hebei applied for admission to a military college. Part of the process involves getting the local police station to stamp a form indicating that you don' have political problems. The local police refused to do this for her, stating that it was because her parents had been detained for 15 days in 2007 for getting involved in a fight. The police later changed their story to say it was because they had never received the proper documents. I'm not sure what this case is supposed to show, and the commentary in the article doesn't really make it clear. I don't think anyone is suggesting the political tests for people in the organs of state coercion should be abolished.
6. The Chongqing student who faked his ethnicity. A top scorer in the university entrance exam from Chongqing was rejected (after initial admission) by Beijing University on the grounds that he wasn't really of minority nationality (for which he would have been given extra points). Thirty-one test-takers were found to have done the same thing, and fifteen officials involved in the fraud were disciplined. The constitutional significance lies in the questions this case raised about equal treatment, affirmative action, etc.
7.Cession to Macau of mainland territory. Here's the story that I find most amazing. China has carved out one square kilometer of Hengqin Island (contiguous to Macau) and leased it to Macau until 2049 for use as a campus of the University of Macau. The remarkable thing is that this territory will be under the legal jurisdiction of Macau; in other words, PRC law - the Criminal Law, the State Secrets Law, etc. - will not apply there any more than it applies in Macau. You would think that declaring PRC law inapplicable over any part of PRC territory would be a pretty big deal - the kind of thing reserved constitutionally for the National People's Congress. But no - this was authorized by the NPC's Standing Committee. I may blog more about this later; to me, it's one more piece of evidence of the essentially advisory nature of the Constitution and its insignificance as a legal document (unless "legal" is defined very broadly).
8.Crackdown by the State Administration of Radio, Film, and Television on audio-visual web sites and web sites providing quick downloads of AV material (bit-torrent sites). The ostensible reason was to crack down on piracy and pornography. The issue seems to be that there was no individualized determination of violations. I haven't looked closely at this matter (and don't have time to do so right now), so don't take my word for it.
9. Jiangsu woman rejected for civil service post because she was an unwed mother. Because she had had a child out of wedlock, a woman failed to pass her test of political reliability and was not allowed to take a civil service post for which she otherwise qualified. She brought an administrative lawsuit against the local county Party organizational department that made the decision and against the local population/family planning bureau. Predictably, the court rejected the suit against the Party body because it's not a proper defendant in administrative litigation. It advised her to sue the government body in a different court. The commentary suggests that the decision to reject her was improper because it took into account moral views about her private life. It's not clear to me that this objection stands up legally, though. Rightly or wrongly, the political test takes into account lots of things that people have a lawful right to do in their private lives, and yet are considered inappropriate if in public office. Short of abolishing the political test, it's hard to argue that the testers can't impose their views about proper morals. Perhaps underlying the objections is something else: the idea that having a baby out of wedlock should not be considered evidence of bad morals.
10. Sichuan peasant deprived of villager status by village vote. A man in Sichuan was a factory worker but apparently had rural roots. In 1993, in line with policy, he gave up his factory job to his daughter and went back to his village. In 1998, he began receiving his pension (from the factory). In 2003, village land was requisitioned with compensation, and it came time to share out the spoils among the villagers. Saying, "Since when do villagers get pensions?" (which are reserved for urban workers), the other villagers voted in effect to deprive him of his villager status and therefore his entitlement to part of the compensation. He sued and won in the first instance and lost on appeal. After a protest by the procuracy, the provincial high court sent the case back for re-trial. It's now being heard by the Intermediate Court in Leshan; no result as yet. This is a case worth watching; it implicates very interesting issues.