Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

A Member of the Law Professor Blogs Network

Saturday, February 6, 2010

Liu Xiaobo: "I have no enemies: my final statement"

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)

February 6, 2010 in Commentary, News - Chinese Law, People and Institutions | Permalink | Comments (1) | TrackBack (0)

Job opening: Yale's China Law Center seeks one-year research associate (Beijing)

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.

Qualifications:

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 yalechinalaw@gmail.com.

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.

February 6, 2010 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 3, 2010

Job opportunity: CLD Consultants seeks program officer for Beijing office

CLD Consultants (Beijing) is a company I've worked with that supports social development projects and international cooperation programs in China, largely in the field of law and legal institutions. They are a serious and dedicated group. They now have an opening for a program officer - please see the attached announcement here. Please note that this opening is for Chinese nationals only.

February 3, 2010 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 2, 2010

Jerome Cohen and Oliver Zhong on the influence of public opinion on court decisions

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.

February 2, 2010 in Commentary | Permalink | Comments (0) | TrackBack (0)