Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Saturday, January 25, 2014

Xu Zhiyong gets four years

Here's the report (in Chinese) from the court's Weibo feed, and here's some pre-sentence commentary from the Global Times. The spin is that Xu Zhiyong is being punished not for the content of what he was seeking, but for the way in which he sought it. Of course, the article contains the usual tendentious claims that people like Xu demand legal immunity for whatever actions they might take in pursuit of their goals - claims that are not backed by any evidence and are too silly to bother refuting.

[Some text and links changed from original post.]

January 25, 2014 in Commentary, News - Chinese Law, People and Institutions | Permalink | Comments (2)

Friday, January 24, 2014

More on the Xu Zhiyong case

Here's an informative and well-documented backgrounder, with links to original sources, on the Xu Zhiyong case from the Congressional-Executive China Commission.

January 24, 2014 in Commentary, News - Chinese Law, People and Institutions | Permalink | Comments (0)

Thursday, January 23, 2014

Xu Zhiyong's defense statement

In a puzzlingly familiar pattern, the authorities in Xu Zhiyong's trial - who after all control the outcome - have gone out of their way to avoid even the appearance of fairness. According to the New York Times, the court told Xu and his lawyers that no prosecution witnesses would appear in court to be cross-examined, and Xu would not be allowed to present any witnesses of his own. The response of Xu was to remain silent and refuse to present a defense. Nevertheless, he did attempt to make a closing statement, which was stopped by the court after ten minutes. Here it is: Chinese | English.

On another listserv of which I'm a member, there's been some discussion of whether Xu can be called a "moderate" and whether his recent actions have been a strategic mistake. 

If you read anything Xu Zhiyong has written, including his closing statement above, or consider the actions he has taken, it’s hard to see why the word “moderate” should not apply. What is immoderate and extremist are the government’s actions against him and others like him. I cannot see any reason to call Xu immoderate unless anything that gets you persecuted is by definition immoderate. That logic would make it impossible to conclude that governments ever persecute moderates, and so doesn’t seem very helpful as a tool of social science analysis, in addition to its unacceptable moral privileging of governments over their opponents.

A discussion about whether Xu made some kind of strategic mistake seems to me to miss the point of what Xu is doing and why he is doing it. He is not engaging in some kind of Chicago-school cost-benefit analysis; who would be an activist and oppose this government on rational cost-benefit grounds? The collective action problems are insurmountable. I have met Xu only a few times and can’t claim intimate knowledge of what motivates him, but my own take is that he does what he does because he feels he must, and cannot do otherwise. This accounts for his calm and steadfastness in the face of intense pressure, and explains why he inspires such fear and loathing in the mighty state. I’m not suggesting he doesn’t have a healthy streak of pragmatism as well, but in many cases analyzing what people like him do in terms of tactical or strategic mistakes will miss the point, since they aren’t trying to avoid “mistakes.” We don’t analyze why people tip at restaurants they’ll never go back to by (a) assuming they believe it will somehow benefit them down the road, and then (b) asking whether that belief is mistaken. Same here.

January 23, 2014 in Commentary, News - Chinese Law, People and Institutions | Permalink | Comments (0)

SEC vs The Big Four in China: administrative decision issued

I've previously blogged about SEC proceedings in federal district court against Deloitte China; they have also been engaged in administrative proceedings against the Chinese affiliates of the Big Four, and a decision in that matter was issued on Jan. 21 (WSJ report here (paywalled)). That decision imposes a six-month bar on auditing US-listed companies. It can still be appealed to the full Commission and from there to the federal courts, so we probably haven't seen the end of it. As I've been involved as an expert witness, I won't comment further on the substance here. But it's quite important. For some high-quality commentary, see Paul Gillis's China Accounting Blog; he's been following these cases closely. Here's his take on the decision. His conclusion: "Ultimately, the only way this gets settled is if China agrees that companies that list in the U.S. are subject to all U.S. securities laws. For those companies that are too sensitive for that, like some large SOEs, China should pull their U.S. listings."

January 23, 2014 in Commentary, News - Chinese Law, News - Miscellaneous | Permalink | Comments (0)

Tuesday, January 21, 2014

Pirates of the Caribbean: The use of offshore havens by China's elite

Pirates-of-the-Caribbean4

The International Consortium of Investigative Journalists has completed its investigation of offshore holdings by China's elite and has published a story in English and Chinese. It will be naming and shaming on Jan. 23rd.

Needless to say, the Chinese government has publicly thanked the ICIJ blocked the ICIJ's web site for its contribution to Xi Jinping's anti-corruption drive, and has demonstrated its determination to go forward by releasing Xu Zhiyong putting Xu Zhiyong on trial today.

January 21, 2014 in Commentary, News - Chinese Law, News - Miscellaneous | Permalink | Comments (0)

The Xu Zhiyong trial: Why an intermediate court?

Here's Elizabeth Lynch's take on this and related issues over at the China Law and Policy blog.

January 21, 2014 in Commentary, People and Institutions | Permalink | Comments (0)

Sunday, January 19, 2014

Jerome Cohen on the upcoming trial of Xu Zhiyong

Here are some thoughts by Jerome Cohen on the upcoming trial of Xu Zhiyong:

This Wednesday's trial of Xu Zhiyong (and Wang Gongchuan) may make a public mockery of the recent efforts of China's Supreme People's Court to prevent further wrongful convictions by requiring investigation and verification of criminal evidence in an open court hearing.

 

The SPC and the country's leader, Xi Jinping, have been emphasizing greater transparency and openness in judicial conduct. Yet it is very difficult to learn what transpired at last Friday's pre-trial conference since official court sources have published nothing, and there seems to be a domestic news blackout on the case. Foreign and Hong Kong press reports based on contacts with Xu's counsel suggest that, while the trial will be "public" in principle, its openness will be highly restricted in practice, as is customary in sensitive criminal cases. despite the new verbal emphasis on openness of trials. For example, a very small courtroom has apparently been selected, and arrangements have reportedly been made for the admission of only two members of Xu's family, and no other supporters, to the courtroom. I assume foreign media have been excluded.

 

As my January 14 essay in World Politics Review pointed out, the SPC's November 21, 2013, major instructions newly emphasized the importance of the courts conducting "open trials" that "make courtroom hearings the center of the trial" so that "evidence is investigated in the courtroom, conviction and sentencing debated in the courtroom and the court's judgment shaped in the courtroom." I noted that "The forthcoming trials of Xu Zhiyong and other recently-persecuted human rights advocates, now the topic of fierce intra-Party debate, will provide an early test of how the new emphasis on open trials will be applied in practice."

 

Press reports of the pre-trial conference indicate that the court will not require prosecution witnesses to testify in the court hearing and that it will not permit defense witnesses to testify in the hearing. Nor will it permit those defendants who are to be separately tried for their involvement in the incidents for which Xu and Wang are being tried to appear and take part in the hearing of the Xu/Wang case. Xu's lawyers made a long argument about why, since these were allegedly joint offenses, the law requires all accused to be tried together, which would have allowed the defendants in the other cases to testify about Xu's participation, but the court apparently rejected the argument.

 

Thus Xu and his lawyers are being denied the right to cross-examine prosecution witnesses that has long been authorized by Chinese legislation but seldom permitted to be exercised, and the court also denies him the opportunity to demonstrate through the live, in-person demeanor evidence of his own witnesses and the defendants in the other cases the correctness of his version of the disputed facts.

 

This is not a case where the facts are not in dispute and the only issues will be the application and interpretation of the relevant legal standards for conviction. In this case there is a serious conflict in the evidence that calls for resolution through the open court hearing that is supposedly to be held. Even Bo Xilai and his lawyer had the opportunity to cross examine some of the witnesses against him. Yet Xu will not have that legally-required opportunity. The court apparently will "investigate and verify" the evidence against Xu in open court by simply having it read into the record, leaving the defense with no meaningful chance to demonstrate its falsity or inaccuracy. One can't cross examine a piece of paper. If this indeed proves to be the case, it will demonstrate how hollow the SPC's new emphasis on testing the evidence in open court hearings is in practice. In other words, no change from the previous practice, so that the SPC's new strictures would clearly be seen, as Shakespeare put it, to "keep the promise to the ear but break it to the hope."

 

Non-PRC newspaper reports indicate that, to protest this denial of a fair trial, Xu will remain silent during the court hearing. At least one report suggests that his lawyer may also remain silent. The precise extent of this silent protest is unclear. Will Xu refuse to answer relevant court questions put to him? Will he invoke a privilege against self-incrimination? While the new Criminal Procedure Law forbids the court to force the accused to answer, will the court take the refusal as an implicit admission of guilt? Will the defense lawyer and Xu challenge the prosecution evidence as best they can or remain silent on that score as well? Will they silently introduce written defense evidence? Will the accused and/or his lawyer refuse to make a closing statement? 

 

The stage appears to be set for another wrongful conviction.

January 19, 2014 in Commentary, People and Institutions | Permalink | Comments (0)

Saturday, January 18, 2014

Teng Biao on the politics of the death penalty in China

And indeed, it has been mostly politics - as opposed to, you know, law. Here's the link. Unsurprisingly, Mao does not come off too well. Here's a choice quotation from some instructions of his to Shanghai officials: “Shanghai is a large city of six million people; given that Shanghai has arrested more than 20,000 people and only killed over 200, I think that in 1951 you should kill at least 3,000 people who have committed major crimes such as bandit leaders, hardened bandits, standover merchants, spies and secret society bosses. And in the first half of the year at least 1,500 people should be killed.”

January 18, 2014 in Commentary | Permalink | Comments (0)

Monday, December 2, 2013

Use of Wikipedia in expert opinions - follow-up

I recently posted on a controversy involving the use of language from Wikipedia in expert opinions, and want to follow up on one point that makes the case for disqualifying Prof. Feinerman (or any expert in a similar situation) even weaker. The Bloomberg news report said that what was involved was a "report summarizing his proposed testimony" (emphasis added). I now understand the significance of this. The document Prof. Feinerman submitted was not his testimony; it was a disclosure submitted to the defense that summarized what he was going to say on direct examination during the trial. If I understand matters correctly, that document would not even be read by the fact-finder; it is solely to put the defense on notice as to what the expert intends to say. As such, the source of the words in that document is completely unimportant, and it is missing the point to apply academic standards to such a document. I have already explained in my previous post why it misses the point to apply academic standards to expert testimony, and now it appears we are talking about a document that is itself once removed from expert testimony. It is in effect notes for an oral presentation of expert testimony.

Look at it this way: suppose I am an expert astronomer called upon to present oral testimony about the structure of the solar system. I tend to ramble, so I want to make sure I cover all the important facts, but concisely. I read the Wikipedia entry on the solar system and think, "Hey, this is pretty good. No mistakes, and it says what I want to say quite well." I print out the Wikipedia entry and send a copy to the other side so they'll have advance notice of the content of my testimony. I also take it with me to my oral testimony. I might or might not look at it as I testify to remind me what needs to be said. My oral testimony does not, of course, duplicate the Wikipedia entry word for word, but nobody who had read the Wikipedia entry would be taken by surprise by anything I said. Can there possibly be anything improper about any of this? What unfairness is perpetrated by my failing to note that the source of the words in the document I sent to the other side was Wikipedia? Those words weren't even my actual testimony. The more I think about it, the more it all seems just a silly tempest in a teapot.

As with my first post, I have not discussed this matter with Prof. Feinerman; my view here is based on my understanding of the facts, which may be incorrect.

December 2, 2013 in Commentary | Permalink | Comments (5)

Thursday, November 28, 2013

Why Chinese needs a good word for "irony", and why it's too soon to bid farewell to re-education through labor

I'm not one of those people who says that people whose language doesn't have a word for X can't conceive of X - after all, somebody conceived of the smartphone before there was a word for it - but it's really too bad Chinese doesn't have good word for "irony". Most ways of expressing the idea of irony in Chinese involve using the same term that's used to express the idea of satire (讽刺); they are serviceable in context, but hey, so is a sparkling wine when you really need champagne. Some situations just cry out for the perfect mot juste and not a clumsy workaround.

I was moved to this thought upon seeing (H/T: David Cowhig) this notice issued to a petitioner, apparently just a few days ago (full Chinese text and English translation appended at the end of this post):

Detention notice

The notice is issued by a department of the Changre [CORRECTION: should be "Changshu"] municipal government in response to a complaint by someone named Hu Cheng that he was detained for two days under the rubric of "legal study class". The notice informs him that it's because he insisted on going to Beijing to petition during the 18th Party Congress, and that his detention under this rubric was justified under a document issued by the Jiangsu Province Department of Public Security. The notice helpfully adds that the document is secret.

The idea that the authorities behind this notice and document it refers to can teach Mr. Hu about legality offers, to use a seasonal metaphor, a whole cornucopia of irony. First, it is not illegal for Chinese citizens to go to Beijing to petition. Second, it is a bedrock principle of Chinese law that the liberty of the person may not be restricted - it doesn't matter whether you call it punishment, study class, whatever - except as authorized by a law passed by the National People's Congress or its Standing Committee. (Law on Legislation, Art. 8(v); that's one reason why re-education through labor, with its flimsy statutory basis, has been under attack.) Third, even if the Jiangsu Department of Public Security had the authority to issue regulations providing for the compulsory restriction of personal liberty (which it doesn't), it is another bedrock principle of Chinese law that administrative punishments of this kind must be justified by publicly available documents. You can't say, "Hey, we can lock you up, but we can't show you the basis for out authority - just trust us!" 

This has implications for the much-trumpeted imminent abolition of re-education through labor (RETL) that was announced in the Decision of the recent 3rd Plenum. The abolition of RETL, while advocated by many in the legal community for years, has been long delayed because it seems the public security folks are just too loathe to give it up. They like the informality and unaccountability it offers. When the Decision came out, many wondered: can this really be true? Will it not just re-appear in another form?

"Study class" may be that other form (although it is unlikely to last as long as RETL sentences, which can be up to three years plus an additional year in some circumstances). I was at a conference just a week or so ago at which one of the attendees recounted his conversation with a Supreme People's Court judge on this very subject, and the judge said that people freed from RETL might just go into legal study classes. One should never underestimate the ability of the public security bureaucracy to think of new names for holding people without statutory authority. The fault, though, does not really lie with the police. They're just doing what police do. The fault lies with the system that allows creative re-naming to become a successful strategy, and fails to enforce the simple rule that restriction of personal liberty requires a statute from the NPC or its Standing Committee.

* * * * *

Text of Notice and Translation

常热市处理信访突出问题及群体性事件联合会议办公室

胡诚同志:

               你反应“2012年11月1日至2012年11月3日对你办法制学习班”的问题。

               在党的十八大会议期间,你在江苏省高级人民法院裁定驳回再审申请的情况下,不听劝导,执意进京上访。根据苏公通[2008]120号《关于依法处理进京上访人员违法行为若干问题的意见》(秘密)的相关规定,可由户籍所在地或经常居住地党政组织给予法制教育,法制教育以举办学习班等形式进行。因此,对你举办法制学习班是符合上述文件规定的。

Changre City Office of the Joint Conference on Handling Mass Incidents and Prominent Problems in Petitioning

Comrade Hu Cheng:

               With regard to the issue you have reported of a legal study class being implemented upon you from Nov. 1, 2012 to Nov. 3, 2012:

               During the period of the Party’s 18th Congress, when the Jiangsu Higher-Level People’s Court rejected your application for a re-trial, you did not listen to persuasion but stubbornly insisted on going to Beijing to petition. According to the relevant provisions of the Jiangsu Province Department of Public Security Notice No. 120 (2008) entitled “Opinion on Several Issues Relating to Handling According to Law the Unlawful Behavior of Persons Who Go to Beijing to Petition” (Secret), legal education may be imposed by Party and government organizations of the petitioner’s domicile or place of usual residence. Legal education shall be carried out through the implementation of study classes and other means. Therefore, implementing a legal study class upon you is in accordance with the stipulations of the above document.

November 28, 2013 in Commentary, News - Chinese Law | Permalink | Comments (2)

Saturday, November 23, 2013

Use of Wikipedia in expert opinions

Defense attorneys in a criminal trial for economic espionage have moved to disqualify the prosecution’s expert witness, Prof. James Feinerman of Georgetown Law Center, because (they allege) large portions of his expert witness report (a document that summarizes his proposed testimony) contain verbatim extracts from Wikipedia entries on China’s technology, high-technology development plan, and Communist Party. (Here’s the news report.) I have not seen either Prof. Feinerman’s report or the motion to disqualify him, so what follows is based solely on the news report. I should also add that Prof. Feinerman is a personal friend and colleague, so weigh that as you will.

In thinking about the appropriateness of using Wikipedia, it’s important to keep a couple of things in mind: first, the difference between an expert witness report and an academic article, and second, what the language in Wikipedia is actually being used for.

In an academic article, nothing should rest on the authority or existing reputation of the author. The article should speak for itself and should present evidence and arguments in favor of its conclusion. An academic article should never say or imply, “Take my word for it because I’m an eminent professor in the field.” It would not count as a serious criticism of a paper by a junior scholar to point out that a position taken in her paper was contrary to the position taken in a paper by a senior scholar.

This is not wholly true in an expert witness report. Here we are generally not asking the witness to engage in original research; we are asking him to tell us what experts in the field think of a particular question. Instead of concluding from the content of the writing that the writer (whom we may never have heard of before) deserves to be called an expert – this is what we might do in the academic context – we start from the premise that the writer is an expert and then see what he has to say about the subject. That’s why it would be improper for an academic journal to publish articles only from senior professors at big-name universities, but is wholly proper for a court to inquire into the qualifications of those presented to it as experts. Of course, the expert can bolster his testimony and make it more powerful by alluding to specific evidence supporting his opinion and citing to other prominent experts in the field who agree with him, but that’s not required by the logic of expert witnessing. What is required by the logic of expert witnessing is for the expert to say something like, “I am an expert in this field, and here is my view of the issues based on my expertise.”

Now let’s go back to Wikipedia. Any given entry is written by anonymous people about whom we know nothing. Consequently, to cite Wikipedia as authority for some proposition is a bad idea, whether in an academic article or in an expert witness report. (Wikipedia can still be useful academically if the article’s claims are well documented in footnotes; you can just chase down the footnote references.) Note, however, that Prof. Feinerman is not accused of citing Wikipedia as authority for what he wrote; he did not say, “The Communist Party operates in the following way, and I know this is true because it says so in Wikipedia.”

What I think he has done – I cannot read his mind and have not discussed this matter with him – seems to me not in essence different from declaring in his report, “I have reviewed the Wikipedia entry on X, and in my expert opinion I believe it accurately states the relevant facts.” In other words, while Wikipedia is not reliable as an authority, that doesn’t mean it is always wrong. The entry might well be accurate, at least in the opinion of the person reading it. I don’t think any objection could be made to a declaration of this kind.

The next question is, if an expert believes that certain language in a Wikipedia entry accurately reflects his personal views on some matter, is there any reason he should not use it? The reason for using it is quite simple: the expert is probably getting paid by the hour, and like anyone getting paid by the hour, he has an ethical duty not to needlessly inflate the time required to perform a job. If a Wikipedia entry accurately sums up everything the expert might want to say, why should he take the time to engage in an artificial re-writing exercise that will just add to the bill? I don’t think it makes sense to disqualify an expert because he tried to do the job at lower cost.

Finally, there is the question of whether the verbatim quotations from Wikipedia should be properly footnoted. An expert witness report is not an academic paper for which the author seeks academic credit, so personally I don’t see an academic integrity issue in this case. The author is not asking you to admire his words or his thoughts. He is testifying about the content of the ideas expressed by the words, and he is doing so on the basis of his own pre-existing authority and reputation. In this sense, direct quotation is not different from indirect quotation or re-writing. At the same time, quoting a source directly without a footnote is bound to lead (and in this case has led) to the suspicion that something is being concealed. That's not good. Thus, my gut feeling (subject to change upon further reflection) is that despite the differences between academic articles and expert witness reports, it makes sense to follow the same citation rules in each instead of spending a lot of time trying to figure out when the different context justifies different rules.

In this particular case, I don’t think failure to cite should count as a reason for disqualification. As I understand it, experts may be disqualified on grounds such as (a) lack of expertise, or (b) evidence that they are saying something they don’t really believe (e.g., previous writings in which they take a completely different position on the same issue). Neither of those problems is (as I understand the story) alleged to exist here.

November 23, 2013 in Commentary, News - Miscellaneous, People and Institutions | Permalink | Comments (2)

Thursday, November 21, 2013

China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration

See this blog post by Julian Ku over at Opinio Juris.

November 21, 2013 in Commentary | Permalink | Comments (0)

Wednesday, November 13, 2013

Caixin on judicial reform over the last decade-plus

Here's a nice brief piece (in Chinese) by Caixin's legal affairs commentator reviewing judicial reform policies since the late 1990s through to today as a context for understanding what the Third Plenum's communique says about judicial reform (not much).

November 13, 2013 in Commentary | Permalink | Comments (0)

Tuesday, November 12, 2013

Third Plenum of 18th Central Committee releases communiqué

Here are the Chinese and English texts. Nothing terribly earth-shattering, either in the realm of law or anywhere else. Since Chris Buckley of the New York Times expressed an interest on Twitter in a plenum limerick, I herewith oblige:

One might ask of the Party’s 3rd Plenum:

All these slogans – do you really mean 'em?

We waited, all eager,

But their substance is meager,

And it’s not the first time that we’ve seen 'em.

 

 

November 12, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Wednesday, October 23, 2013

Perry Link on "How to Deal with the Chinese Police"

Here's my laoshi Perry Link on "How to Deal with the Chinese Police". It's a review of In the Shadow of the Rising Dragon: Stories of Repression in the New China, edited by Xu Youyu and Hua Ze, translated from the Chinese by Stacy Mosher. Very interesting and revealing.

October 23, 2013 in Commentary | Permalink | Comments (0)

Central Political-Legal Commission document on criminal procedure

The Dui Hua Foundation has a good report on a document recently issued by the Central Political-Legal Commission on avoiding injustices in criminal cases. The main thrust of the document is that investigators, prosecutors, and courts should pay more attention to the rights of defendants and to problems with evidence. Interestingly, the document also cites the need to keep the criminal process free of external influences such as "stability preservation" and public opinion. Whether that can actually happen is another matter, of course, since it is the government itself that has established a system whereby officials are punished for failure to meet "stability preservation" goals. Since there is little I can add to Dui Hua's commentary, I'll say no more and just recommend you read the report. It includes an English translation and a link to the original Chinese.

October 23, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Tuesday, October 22, 2013

China's courts and procuratorates to come under central leadership?

There's a general consensus among Chinese and foreign scholars of Chinese law that whatever advantages the current system of local leadership over courts and procuratorates may have, they are far outweighed by the disadvantages. Local political leadership controls personnel and finances of courts and procuratorates at the same administrative level, and this naturally makes courts and procuratorates tend to listen to local political leaders, even when their wishes go against what the law might require.

Proposals to centralize control over court personnel and finances have been around for what seems like decades now, but have never gotten anywhere. The principle of local control is quite strong in China, and as courts and procuratorates are viewed by local governments as just another bureaucracy, one can understand why they would not feel there was anything special about them justifying a special governance and accountability structure. Moreover, any centralization would require amendment not only of the Court Organization Law, but of the Constitution itself: Article 101 provides that local people's congresses at the county level and above have the power of appointment and dismissal over chief judges and chief procurators at the same level, although interestingly appointment and dismissal of a chief procurator requires the approval of the higher-level procuratorate and people's congress standing committee.

In any case, the Duowei news service (not always reliable) reports yet another initiative to centralize the power of personnel appointment and finances over courts. Whether this time it will go anywhere is anyone's guess.

October 22, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

China undergoes Universal Periodic Review at the UN's Human Rights Council

Here's a commentary by Sophie Richardson of Human Rights Watch.

October 22, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Sunday, October 13, 2013

Is a high-energy scanner a "like product" with a low-energy scanner? MOFCOM says yes, WTO panel says no.

I had a look today at the WTO panel decision in China - Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union. This was a complaint by the EU against China for its finding of dumping against Smiths Heimann GmbH ("Smiths"), a European exporter of x-ray security inspection equipment, i.e., scanning machines.

Smiths might have been justified in thinking it had not received an entirely fair hearing before the Ministry of Commerce ("MOFCOM"); the Chinese complainant, Nuctech, was closely associated with Chinese leader Hu Jintao's son, Hu Haifeng - he had been president of the company until 2008, when he was promoted to become the Party secretary of Tsinghua Holdings, a company that controls Nuctech and a number of other companies. In any case, the WTO panel seems to have agreed. It found pretty much across the board in favor of the EU.

An interesting aspect of the case was the question of whether the so-called "low energy scanners" exported by Smiths were a "like product" with high-energy scanners manufactured by Nuctech. It worked in Nuctech's favor to find that they were, and MOFCOM duly so found. The panel was not impressed. In fact, it even bolstered its finding by including in the report photographs of each kind of scanner. You be the judge:

High-energy scanner

Highenergy1 Highenergy2

 

 

 

 

 

 

 

Low-energy scanner

Lowenergy

 

 

 

 

 

Am I being too cynical to suspect that the fix was in?

October 13, 2013 in Commentary | Permalink | Comments (0)

Friday, August 23, 2013

Random thoughts from day 2 of the Bo Xilai trial

I've finally gone through the transcripts from day 2 of the Bo Xilai trial. Here are a few observations, in no particular order:

  • As in day 1, there's an awful lot of evidence about stuff Gu Kailai did and varions things Xu Ming did for the family, but almost nothing that suggests a quid pro quo delivered by Bo in exchange for all these goodies. At one point Bo (pretty much correctly) pointed out that 99% of what the prosecutor was saying was irrelevant to the question of his guilt. The only direct piece of evidence I can recall is Bo's own confession from his time in shuanggui (Party disciplinary) detention, in which he says that he did a lot for Xu Ming in return, including some quite unusual favors. He explicitly uses the word "trade" (交易). 
  • Using Bo's shuanggui confession against him is problematic. Evidence gathered in the shuanggui process isn't supposed to be admissible in court; the prosecution is supposed to re-gather the evidence. Even unencumbered by a "fruit of the poisonous tree" doctrine, however, it seems they couldn't get Bo to repeat his confession in the post-shuanggui stage - i.e., the formal, lawful investigative stage - and so had to fall back on this one. Bo has asserted the illegality of this evidence and asked that it be excluded.
  • Bo says at one point that when Gu Kailai spoke about her murdering of Neil Heywood, she said she felt like the famous assassin Jing Ke. Has Bo ever previously admitted to knowing (before she was accused, of course) that Gu Kailai murdered Heywood? He doesn't specify when she said this to him, but presumably the two wouldn't have had many chances to speak once she came under suspicion and was in detention.
  • As usual in criminal trials, most witnesses fail to appear in court, despite the rule of the Law on Criminal Procedure that they should ordinarily do so. Art. 59 of the CPL 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" (emphasis added). Pretty clear, right? Now, there are other rules in the CPL that contemplate admissible testimony from witnesses that do not show up in court (e.g., Art. 187 and 190), so clearly some exceptions are allowed. But it's hard to read the law as allowing exceptions to be so numerous as to become the rule, which is what we've ended up with.
  • The grossest twisting of the rules on witnesses appears in the debate over Gu Kailai's testimony. Her testimony has been delivered via a written statement and a videotaped statement. According to the transcripts posted by the Jinan court, both Bo and the prosecution requested that she appear in court to testify, and the court agreed with the request. But when they went to the prison to ask that she come along, she refused. The court then, incredibly, cited Art. 188(1) of the CPL, which states that while reluctant witnesses can be required to appear in court, this does not apply to the spouse, children, or parents of the defendant. Now, I'm pretty sure this provision was intended to protect the defendant and his close relatives; it expresses something like a spousal privilege. Here it's being used perversely to prevent the defendant from directly cross-examining a hostile witness.
  • Finally, what was the mysterious meat from a rare African animal that Guagua brought back from his African trip? It was in a wooden box and was supposed to be eaten raw. Bo refused (understandably, I must say - it couldn't have been too fresh by that time) so they cooked it. Gu Kailai says it lasted a month. Could this have been it?

UPDATE (Aug. 25, 2013): Yesterday I posted this text on my China-side blog (which I use as a mirror blog because this one is blocked in China); today I found that the post had been deleted by the blog host. I wonder which part of this analysis hit a nerve?

August 23, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)