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George Washington University Law School

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Thursday, September 6, 2012

Can Wang Lijun get off on a technicality?

Sure—when pigs fly. That was just to get your attention. But there is indeed an interesting technical flaw in one of the charges against him. (If you can’t wait, see my third point below.)

Xinhua has reported [Chinese | English] that Wang Lijun, the ex-Chongqing police chief and former ally of Bo Xilai until their spectacular split led to Wang’s flight to the US consulate in Chengdu, will be charged with perversion of the law for private purposes (徇私枉法), defection (叛逃), abuse of power (滥用职权) (presumably Article 391 of the Criminal Law, although there are other possibilities), and taking bribes (受贿).

The crime of defection is set forth in Article 109 of the Criminal Law:

国家机关工作人员在履行公务期间,擅离岗位,叛逃境外或者在境外叛逃的,危害中华人民共和国国家安全的,处五年以下有期徒刑、拘役、管制或者剥夺政治权利;情节严重的,处五年以上十年以下有期徒刑。When personnel of state organs, during the period when they are performing public duties, leave their post without permission and defect to beyond the border or defect while beyond the border, thereby endangering the state security of the People’s Republic of China, they shall be punished by fixed-term imprisonment, detention, control, or the deprivation of political rights. Where the circumstances are serious, the punishment shall be from five to ten years of fixed-term imprisonment.

掌握国家秘密的国家工作人员叛逃境外或者在境外叛逃的,依照前款的规定从重处罚。When personnel of state organs who are in possession of state secrets defect to beyond the border or defect while beyond the border, they shall be given a relatively heavy punishment under the terms of the preceding paragraph.

There are a number of interesting points to make about this rule. First, remarkably enough, defection is not defined either here or, as far as a quick bit of research reveals, anywhere else in the Chinese legal system. It apparently involves going abroad or staying abroad without permission, and is a crime that can be committed only by state personnel while they are performing public duties. I’m not sure how the latter restrictive condition works – does it mean simply during the period of their employment? What if it happens while they are on vacation? What the actual prohibited act is, though, remains unclear. Is it simply going or staying abroad without permission? We can’t bring our understanding of the word “defect” to bear here, because of course that’s just a handy translation people use for the Chinese term pantao 叛逃. Whether it’s a correct translation should be the conclusion of an analysis, not its starting point.

Second, the prescribed punishment for defection is surprisingly (to me, anyway) light: up to five years in most cases, and not more than ten years even in serious cases where you possess state secrets. Note, however, that revealing state secrets is separately punishable by up to fifteen years’ imprisonment in especially serious cases (Article 111). On the other hand—and this is very interesting—Wang has not been charged with revealing state secrets. In a more transparent system, you might chalk this up to the government’s reluctance to produce evidence about those secrets, but I’m not sure that’s the answer in China. There can hardly be any question that if Wang opened his mouth in the US consulate, he probably is guilty of this crime. After all, the ambit of “state secrets” in China is extremely broad; Zheng Enchong was found guilty of transmitting state secrets abroad when the item in question was a publicly available Chinese newspaper article.

The crimes of perversion of the law, abuse of power, and bribe-taking are respectively punishable by a maximum of 15 years in especially serious cases, 7 years in especially serious cases, and death in especially serious cases. In each case, however, substantially lower punishments of at most a few years’ imprisonment are also possible. What will be interesting to see is whether fleeing to a foreign consulate and revealing at best highly embarrassing and at worst highly damaging secrets is deemed to be less threatening to the state than, say, drafting a political manifesto, for which Liu Xiaobo received an 11-year sentence.

Third—and here’s the interesting technicality—Wang Lijun did not violate the statute on defection as written. Whatever “defection” might mean, there’s no question that it must involve the element of “beyond the border”. (The particular term used, 境外 jingwai, refers to areas beyond the borders of mainland China, that is, all foreign countries plus Hong Kong, Macao, and Taiwan.) Wang Lijun never went beyond the borders of mainland China; contrary to what is commonly supposed, the area occupied by foreign diplomatic missions is not foreign soil but remains Chinese territory. I have no doubt that this is simply a legislative oversight, and that the legislators would have included foreign diplomatic missions had they thought about it. And I would not label as unreasonable an intent-oriented interpretation of the statute as including foreign diplomatic missions. But it’s important to note that this problem exists, even if it’s by no means insoluble. I wonder whether the prosecuting authorities will notice it and, if so, how they will deal with it.

http://lawprofessors.typepad.com/china_law_prof_blog/2012/09/can-wang-lijun-get-off-on-a-technicality.html

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