Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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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)

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)

Wednesday, August 21, 2013

The Bo Xilai Trial and the Rule of Law

Here's a piece I just published on The Atlantic's web site.

August 21, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Monday, August 12, 2013

Pictures at an execution

Here’s what purports to be a video of an execution shot by one of a group of local spectators (clearly told in advance and expecting it) on a nearby hilltop.

Given Xinhua's recent unhappy experience with posting pictures of an execution that turned out to be from a fetish porn site, let me make clear that I can’t vouch for its authenticity; the procedure does seem shockingly casual (as is the reaction of the spectators, who don't seem to be seeing this kind of thing for the first time), but who knows? China is a big country and just about anything can happen at least once in at least one place. Can anyone identify the spectators’ dialect? It sounds vaguely Cantonese but not completely so.

 

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

Thursday, August 8, 2013

Jailhouse statement of Xu Zhiyong

A day or two ago, former Singapore Prime Minister and glorified mayor Lee Kuan Yew made the amazing statement that Xi Jinping could be compared to Nelson Mandela. Personally, I'm afraid that the qualities needed to become capo di tutti capi in the Chinese Communist Party are not quite the same qualities needed to be a Mandela. I thought of that statement today when I came across this video of a jailhouse statement from Xu Zhiyong, the recently detained rights activist. This is a man who does seem to have those qualities.

Perhaps one day we will find that he has feet of clay. Well, so did Mandela and Martin Luther King. Xu is a pretty remarkable guy and his continued detention should not be forgotten. Of course he is not the first and won't be the last, and he is far from the worst treated. (Ni Yulan and Chen Guangcheng, for example, as well as their families, have all suffered atrociously.) But we can't always pick our symbols with perfect logical consistency. For some reason, Xu's detention seems to shout particularly loudly: What kind of government cannot tolerate even a person like this?

Here's the video; the text of his statement in Chinese and English (my translation) is below it.

倡导大家做公民,堂堂正正做公民,践行宪法规定的公民权利,履行公民责任;推动教育平权,随迁子女就地高考;呼吁官员财产公示。在这荒诞的时代,这就是我的三大罪状。 社会进步总得有人付出代价,我愿意为自由、公义、爱的信仰承担一切代价。无论这个社会怎么样,溃败,荒诞,这个国家需要一群勇敢的公民站出来,坚守信仰,把权利,责任,和梦想当真。 我很骄傲在自己的姓名面前署上“公民”两个字,希望大家也这样,在自己的名字前署上“公民”两个字。只要我们大家团结起来,共同努力,把公民的权利当真,把公民的身份当真,共同推动国家的民主,法治,公平,正义。我们一定能够建设一个自由、公义、爱的美好中国。

I encouraged everyone to be a citizen, to proudly and forthrightly be a citizen, to practice their rights as citizens set forth in the constitution and to undertake their responsibilities as citizens; I promoted equal rights in education and allowing children to take the university examination where they have followed their parents to live; I called for officials to disclose their assets. In these absurd times, those are my three crimes. Social progress always requires some people to pay a price. I am willing to pay any price for my belief in freedom, justice, and love. No matter how collapsed or absurd this society is, this country needs a group of brave citizens who will stand forth and hold fast to their beliefs, and will make a reality of their rights, responsibilities, and dreams. I’m proud to put the word ‘citizen’ before my name, and I hope everyone will likewise put the word ‘citizen’ before their name. As long as we unite and work together to make citizens’ rights a reality, and together promote democracy, rule of law, fairness and justice in our country, surely we can build a beautiful China of freedom, justice, and love.

August 8, 2013 in Commentary, News - Chinese Law | Permalink | Comments (6)

Friday, July 19, 2013

The constitutionalism debate in China

Check out this blog post by Rogier Creemers, who's been following it.

July 19, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Xu Zhiyong: intolerable and undiscussable

I guess to the Chinese leadership, Xu Zhiyong is like that girl who broke your heart: not only do you not want to see her, you don't even want to hear people talking about her. Here's William Farris's excellent blog post on all the censorship steps undertaken to prevent discussion of Xu's detention. He includes a screenshot of the detention order.

July 19, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Thursday, July 18, 2013

Xu Zhiyong's detention and its significance for Chinese political reform

The following is a very slightly modified version of my contribution to the ChinaFile conversation on this subject:

When I heard that Xu Zhiyong had just been detained, my first thought was, “Again?” This seems to be something the authorities do every time they get nervous, a kind of political Alka Seltzer to settle an upset constitution. I searched the New York Times web site to confirm my intuition. Although my hopes were briefly raised by a pop-up ad that optimistically proclaimed, “We know where Xu Zhiyong is” and offered me his address, telephone number, and credit history, the stories in the results list were depressingly as expected: “A leading human rights advocate is detained in Beijing” (July 13, 2013); Xu Zhiyong “in the company of security agents and unable to talk” (Feb. 20, 2011); “Just before dawn on Wednesday, the founder of Gongmeng, Xu Zhiyong, was taken into police custody, and he has not been heard from since” (July 31, 2009). Two other detentions, on June 7, 2012 and in June 2011, didn’t show up. There may be more I’ve missed. In any case, this is clearly a man who knows his way around the back seat of a Black Maria.

Today’s topic is what, if anything, this detention means for the broader question of political reform in China. Let’s be clear: Xu Zhiyong is an extremist in his moderation. As Jeffrey Prescott, then at Yale’s China Law Center, said in 2009, “He is someone of rare idealism, judgment, commitment to law, selfless dedication, and fundamental decency. So that makes his detention very hard to understand.” Unfortunately, it is hard to understand only if we think that those responsible for detaining him share his values. Xu Zhiyong does not throw bombs. Unlike, say, Wei Jingsheng, he does not say insulting things that hurt the tender feelings of the leaders. He is the soul of reason and respectful discourse with all, including his police tormentors. Yet even this man is apparently intolerable.

Xu’s offense this time seems to have been his advocacy of asset disclosure by officials. (The charge, “assembling a crowd to disrupt order in a public place,” is the same laughably implausible one brought against Chen Guangcheng – both were under informal house arrest and constantly guarded at the time of their alleged offense.) The move against him is of a piece with recent detentions and harassment of citizen anti-corruption campaigners.

For some reason new leaders in socialist dictatorships are always thought to be reformers – even KGB boss Yuri Andropov upon his ascension to the Soviet leadership was hoped to be a closet liberal because he liked jazz and spoke English. The same expectations, with about the same justification, have greeted Xi Jinping. So far, he has not had time to do much. What he has done – for example, the anti-corruption campaign – he may well be quite sincere about; I see no reason to write it off as a show designed just to keep the masses distracted while the looting continues. But what he has not done is to show any sign of plans to make the Party accountable to the people. This does not mean that he and other leaders don’t want real reform in certain areas, or that they can’t accomplish it. But it does mean that reform will not involve outside accountability. We’ll handle it ourselves, thank you very much. Sorry, citizens: it’s really none of your business.

UPDATE: Now his lawyer has been detained as well - same absurd charge. Guys, can't you show a little creativity?

 

 

July 18, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Tsinghua Law prof Yi Yanyou in hot water over rape comments

The Li Tianyi rape case has been in the news lately. Li is the son of a famous singer with the rank of general in the People's Liberation Army, and I think it's fair to say he is not the kind of nice boy you'd want your daughter to be dating. Back in September 2011 he was sentenced to a year in detention (at age 15) for having assaulted a couple in a fit of road rage:

The teenage boy, who is too young to drive legally, was behind the wheel of a BMW car with no licence plates when he found a middle-aged couple in another vehicle blocking his way in Beijing.

Li Tianyi and a second teenager, who was driving an Audi, leapt from their vehicles and, it is reported, assaulted the couple while shouting at shocked bystanders: "Don't you dare call police".

Half a year after getting out, he was allegedly involved in a gang rape at a Beijing hotel; formal charges were brought earlier this month

Apparently things have not been going well with the defense; two attorneys have resigned. His new attorneys have taken their case to the media, arguing that the complainant was a bar hostess. Apparently they plan to plead not guilty, presumably on the grounds that she consented, or perhaps that in the case of bar hostesses the law should presume consent. Obviously I have no inside information on what actually happened on the night in question, but the general tenor of netizen opinion is that this is a typical case of a spoiled rich kid who thinks he can get away with anything. He's become the Joffrey Baratheon of Chinese pop culture.

Into this mess stepped Yi Yanyou (易延友), a professor at Tsinghua Law School and the head of its Evidence Law Center. Yi declared on his microblog that "raping a bar hostess is less harmful than raping a woman of good family" (强奸陪酒女也比强奸良家妇女危害性要小). This led to an outpouring of harsh criticism among netizens. Ignoring the first rule of holes - when you're in one, stop digging - Prof. Yi then clarified his remarks by revising the above sentence to read, "It does more harm to rape a woman of good family than to rape a bargirl, a dancing girl, an escort or a prostitute" (强奸良家妇女比强奸陪酒女、陪舞女、三陪女、妓女危害性要大). Somehow the critics were not mollified. By last Wednesday Prof. Yi had had enough - he deleted his post and apologized.

Prof. Yi's remarks don't come out of nowhere - he is in fact channelling a distinction well known in traditional Chinese law (it is codified in the Qing Code) between woman of good family (良家妇女) and licentious women (犯奸妇女). If, for example, a man saw a women engaging in illicit sexual intercourse with another and then raped her afterward, then because she was a licentious woman it could not be called rape but should instead be classified as illicit intercourse by trickery ("又如见妇人与人通奸,见者因而用强奸之,已系犯奸之妇,难以强论,依刁奸律"). (I'm relying for my translation on the Grand Ricci dictionary, which translates 刁奸 as "seduire une femme par la ruse"; that may not be correct as a translation of the legal term.) For more on this, see Vivien Ng, "Ideology and Sexuality: Rape Laws in Qing China," Journal of Asian Studies, vol. 46, no. 1 (Feb. 1987), pp. 57-70. Although the distinction finds no formal expression in modern Chinese law (not to my knowledge, anyway), here we see it alive and well in legal culture, so to speak, and expressed in exactly the same words as it was centuries ago.

July 18, 2013 in Commentary, News - Chinese Law | Permalink | Comments (1)

Thursday, July 4, 2013

Another shoe drops in the Chinese arbitration mess

Some readers may know that the Chinese international arbitration system is in a confused mess following the declarations of independence from CIETAC of its Shanghai and Shenzhen branches. (The whole thing is admirably summarized in this May 2013 post from the China Law Blog.) The basic problem is whether courts will recognize and enforce awards from the now independent Shanghai and Shenzhen entities. A Suzhou court has said no - but on the grounds that Shanghai entity that conducted the arbitration, having declared independence from CIETAC, wasn't the arbitration body the parties had agreed to. There still remains an unanswered question: since China doesn't recognize ad hoc arbitration, it's still not clear whether an unambiguous agreement on arbitration at one of the new entities will be uniformly enforced. Will courts recognize them as properly authorized arbitration organs? A Shenzhen court has said yes (see the linked report above), but other courts don't have to follow suit.

July 4, 2013 in Commentary, News - Chinese Law | Permalink | Comments (1)

Saturday, June 29, 2013

U.S. businessman taken hostage by workers released after paying ransom

Here's a follow-up to my previous blog post on this subject.

June 29, 2013 in Commentary, News - Chinese Law | Permalink | Comments (2)

Tuesday, June 25, 2013

Workers taking bosses hostage in China

The Wall Street Journal's China Real Time Report has an article entitled, "Why Chinese Workers Sometimes Hold Foreign Execs Hostage." The report begins:

Beset by stories of runaway bosses, Chinese workers are adopting increasingly drastic methods in negotiating with their employers – including caging them in their own offices.

 As The Wall Street Journal reported on Tuesday, an American medical supplies executive in Beijing has been trapped inside his office since Friday — held hostage, he says, by about 80 employees who believe he is shutting down the factory and who are demanding he pay them severance.

It's important to remember a few things, among them that it is the company, not its executives, that is liable for unpaid wages. The workers are not caging their employers; they are caging senior employees of the employer. As to why they are doing it, the answer is simple: it apparently works. Certainly there seems to be little downside: according to the article, the trapped executive "said local police were bringing him three hot meals a day to him, but had declined to free him from his captivity." In other words, there is an ongoing crime of unlawful detention, possibly kidnapping, going on right in front of their noses, but the police are simply standing by with arms folded. It is hard to imagine a similarly casual attitude were local Party officials to be trapped by a group of Falungong adherents.

It's a little absurd that this kind of official toleration of self-help remedies that violate the criminal law should be going on in the year 2013, in the world's second-largest economy, on the territory of a permanent member of the UN Security Council. Bananas, anyone?

June 25, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Thursday, June 20, 2013

More documents in the case of SEC vs. Deloitte Touche Tohmatsu CPA Ltd.

Last January I posted some expert witness reports, including one by me, in the continuing proceedings of SEC vs. Deloitte Touche Tohmatsu CPA Ltd. (District of Columbia District Court). In these proceedings, the SEC is seeking to compel a Chinese accounting firm to produce documents. Here are two declarations (publicly available, of course) filed in May that may be of interest to those following the case.

As before, I am providing these with no comment.

 

 

 

June 20, 2013 in News - Chinese Law, News - Miscellaneous, People and Institutions | Permalink | Comments (0)

Wednesday, June 19, 2013

More materials on the Chen Guangcheng/NYU affair

Here's a report from the Wall Street Journal's China RealTime Report about a statement from Chen Guangcheng's former adviser, Mattie Bekink. Ms. Bekink's full statement is below. One has to wonder who has Chen's ear and what advice they are giving him. Is he even aware of the shitstorm his statement has kicked up? As many have noted, it's a sad situation all around. And let's not forget who's really to blame here: not Chen, not NYU, not his current or former advisors, but the Linyi authorities who made it necessary for him to leave China in the first place by their inhumanly cruel persecution of him for perfectly lawful activities, and the central government that enabled them and consistently looked the other way.

NYU has been Generous to Chen Guangcheng

Cheng Guangcheng is not being forced out of NYU. Neither the Chinese government nor the university is pushing him out. His time at the university is simply coming to its conclusion, a conclusion that was determined long ago and that Mr. Chen has been aware of since shortly after his arrival in the United States. NYU's campus in Shanghai had nothing to do with it then, and has nothing to do with now. And to suggest China's Communist Party is somehow involved or is putting pressure on NYU is absurd.

I should know, since I am the one who told him about the length of his tenure at NYU.

I currently have no affiliation with NYU. But I was a consultant to the university in 2011 and 2012, first working in Shanghai for a year on establishing the campus there, and then coming to New York shortly after Mr. Chen's arrival at NYU to serve as his special advisor.

As a lawyer who had done rule of law work in China, I was glad to come to New York to assist the courageous Mr. Chen and his family. I believe he is a remarkable individual who has faced tremendous injustice, suffered greatly, and nonetheless continues to shine with a sense of purpose and optimism that is inspiring. His legal advocacy work was impressive and important for China. It was a great privilege to work with him and I look back at our time together fondly. I am very saddened to see him now distorting the facts about his time at NYU. It is for this reason that I wish to set the record straight.

NYU has consistently been generous to and supportive of Mr. Chen and his family. The university, with no advance warning, no budget, and no chance to prepare, embraced Mr. Chen and provided him with an unprecedented level of support. Professor Jerry Cohen's comment that "no political refugee, not even Albert Einstein, has received better treatment," couldn't be more apt. Professor Cohen's personal generosity similarly cannot be overstated.

NYU’s support for the Chens was extensive and comprehensive. It was thoughtful and deeply personal, specifically designed to meet their needs and adapted as those needs changed. When Mr. Chen arrived in New York, he was recovering from injuries sustained from his dramatic escape. NYU provided physical therapists to work with him along with an interpreter. When the children faced an unplanned summer, NYU found them a bilingual Mandarin summer camp and provided daily transportation. My clear instructions from the university were to do whatever was necessary to support this family. Never once did NYU deny a request I made on behalf of the Chens, regardless of expense. The university always put the Chens’ needs first.

Professor Cohen and others at the university tried to help the Chens make the difficult transition from rural China to the heart of Manhattan. He and other colleagues invited them to their homes, organized dinners with people they thought the Chens might like to meet, and arranged outings and activities for the children. We wanted to see them thrive. We cared. NYU cared. And, as far as I can tell, still cares. This is why I was so mystified to see his claims.

Mr. Chen's advocacy was also in no way curtailed or limited by NYU. In fact, the university enabled him to continue his advocacy by providing him with interpreters, helping him to write and get op-ed pieces placed, facilitating meetings with relevant stakeholders in the human rights and disability rights communities, government, academia, and media, and supporting his work. Professor Cohen, himself an outspoken critic of China, worked tirelessly to ensure that Mr. Chen's voice was heard and especially to draw attention to the ongoing suffering of his family members still in China.

NYU's unflinching support for Mr. Chen clearly demonstrates that it was not influenced by the Chinese government. As the university has pointed out, approval for the NYU Shanghai campus came only after Mr. Chen was already comfortably settled in his Greenwich Village apartment. If the university had put its own interests in China ahead of its commitment to academic integrity and principles of academic freedom, it never would have extended the invitation to Mr. Chen in the first place. NYU also did not accept Mr. Chen under duress. It was public knowledge as Mr. Chen's departure from China was being negotiated that he had offers from other institutions, such as the University of Washington. NYU could easily have side-stepped this matter, so its welcoming of him and its continuous support make plain the university's values have not been compromised.

NYU provided Mr. Chen with a soft landing as a fellow in the Law School and helped him adjust to life in the United States. The plan was to support him and his family for a year and then assist them in making more permanent arrangements. That was always the understanding, and Mr. Chen was informed of this and was very grateful. NYU never committed to supporting the family indefinitely. The only thing that has changed is the passage of time.

It is a great shame that as his time at NYU comes to a close Mr. Chen chooses to malign his friends and supporters at the university with false statements. But his comments suggest that he is having a hard time accepting the reality of his new life. It is not the Chinese communist authorities who "want to make [him] so busy trying to earn a living that [he doesn't] have time for human rights advocacy". Rather it is life in capitalist America that requires individuals to support themselves. NYU's extreme generosity has perhaps protected him from confronting this reality until now, but that level of largesse was never intended to continue indefinitely.

I wish Mr. Chen and his lovely family nothing but the very best during their continued stay in the United States. My time helping him continue his advocacy work and helping his wonderful wife and children adjust to their new home was deeply meaningful and rewarding. I respect the many real challenges Mr. Chen has overcome. But any alleged challenges coming from NYU's being under pressure from China are entirely fictional.

Mattie J. Bekink was formerly affiliated with NYU's US-Asia Law Institute as Special Advisor to Chen Guangcheng. She is a lawyer and independent consultant currently based in Milan, Italy.

 

 

 

June 19, 2013 in News - Chinese Law, News - Miscellaneous, People and Institutions | Permalink | Comments (2)

Tuesday, June 18, 2013

The Chen Guangheng/NYU affair

The circumstances of Chen Guangcheng's leaving New York University have been in the news lately and the subject of dispute. Essentially, Chen says he is being pushed out due to pressure on NYU from the Chinese government. (Here's his statement (web version here).) NYU says that the original arrangement was that he would come and be supported for a year, and the year is up. (Here's an interview with Jerome Cohen, and here's a good post from China Digital Times that puts the whole story together with links to all these souces.)

My impression is that NYU is more sinned against than sinning here; the one-year deal squares with my recollection, and I think it's beyond question that NYU has been quite generous to Chen during the time he's been there. If you believe that NYU has an obligation to look after Chen indefinitely, then of course you'll see him as being booted out, but I note that neither Chen nor anyone else has offered actual evidence, or even specific (as opposed to general) allegations, of Chinese pressure on NYU to get rid of him. Activist Bob Fu, for example, declines to identify any direct pressure from China, but still manages to imply that NYU did something discreditable: "There is also self-censorship, particularly if a college president believes their China campus or the future enrollment of Chinese students will be sabotaged." In other words, there are absolutely no facts that could prove Fu wrong. He just knows.

Prof. James Feinerman of Georgetown Law School has kindly permitted me to quote his post to the Chinalaw list on this subject:

I'm taking this in from London, where there's little to no interest in this development. However, I have several reactions to the news and to how it's become public. First of all, a little history - Months ago my colleagues and I at Georgetown were approached by Chen's "people" (yes, he has them), sounding us out about a move to Georgetown (and presumably, more importantly, DC). This set off certain "alarm bells" - why was he leaving or interested in leaving NYU? The pretext for his departure to the US less than a year earlier was the fellowship he received to study at NYU; would moving elsewhere upset that? We were assured that, No, he was just "reviewing his options," probably because the term of his stay was coming to an end after one year. Obviously, he's been checking elsewhere, if rumors of his departure for Fordham are true. That's just one reason not to buy his story that PRC interference has caused his "ouster" from NYU. Secondly, he's waited until the very end of his stay at NYU - the term of which was well known all along - to voice his first complaints about the mistreatment he's suffered. If this were an ongoing problem, why not previously? Third, along with others (such as both Don Clarke and I), Jerry Cohen and a host of China scholars in the US regularly write, speak and even testify before committees of the US Congress and other governmental bodies about China's human rights abuses, flawed rule of law and other shortcomings - rarely pulling our punches - and have faced no retaliation for doing so. We still get visas to visit the PRC, have regular interchange with Chinese colleagues and (to my knowledge, at least) have caused no undue problems for our home institutions with our activities. Notwithstanding this, I take [another contributor]'s point that a few Western academics have been targetted - Perry Link and Andy Nathan come immediately to mind. Old habits die hard among the Communist diehards.
We may have to remember back to the era of the Tiananmen dissidents - Wu'er Kaixi, Chai Ling and others - to find a good analog for Chen. They came to the US after the massacre, were lionized for a while as the heroes of the "Democracy Movement," and then faded from public attention in fairly short order. As that happened, they became vocal and bitter, complaining just like Chen, that they were betrayed, that the cushy welcome they received was evaporating as memories faded. In short, they learned (as Jerry Cohen liked to quip at East Asian Legal Studies lunches to the invited speakers) that "there is no free lunch." After a reasonable transition, they were supposed to find something to do, on their own. In Chen's case, he's had a pretty sweet deal - a year of housing in Washington Square, financial support, translators, educational opportunities if he chose. Understandably, he's unhappy. But biting the hand that fed you - well, for a year - makes Chen seem like an ingrate.
Finally, Chen mistakes what he knows (and what he knows works) in China for the way things work in the US. He assumes that the PRC government - or government in general - can make academics fall in line. How little he knows us. Nothing rankles the academy more than a heavy governmental hand - especially that of one viewed by most as a vile totalitarian autocracy - trying to wield influence. It's more likely to cause academics - even academic administrators - to react in opposition. We prize our freedom more than that. It's a shame he's failed to learn at least that much about the institution that has sheltered him and his family for the past 16 months or the country of his exile. This latest screed, however, is likely to backfire. Remember Solzhenitsyn? Despite his heroism, his Nobel prize, and his writerly brilliance, he was remembered more as a reactionary scold, ranting about the West while enjoying its perks. From various accounts, Chen also risks becoming a captive and a mouthpiece for the religious right, anti-abortion, and China-threat factions here in the US. His current story will resonate with them, but in the longer run it promises he will receive even less attention from influential mainstream opinion makers in this country.

 

June 18, 2013 in Commentary, News - Chinese Law, People and Institutions | Permalink | Comments (2)

Wednesday, May 15, 2013

Compulsory "legal education" as a substitute for Re-education Through Labor?

The Dui Hua Foundation has an interesting article on its web site about local authorities' newfound enthusiasm for legal education - this time, of the compulsory kind, where petitioners are forced against their will to stay for days or even months at a facility where they are ostensibly to be educated to understand and obey the law. This is apparently being done in response to the declining utility of re-education through labor (RETL) as a measure against petitioners - petitioning per se may soon no longer be subject to RETL, and RETL itself may be on the way out.

I just want to add a couple of comments. First, it bears repeating that petitioning of the kind that typically gets petitioners locked up does not in fact violate any law. It's the local authorities that need the education in that respect.

Second, and more importantly, the Dui Hua Foundation article says only that this kind of compulsory "legal education" violates the Chinese constitution and international human rights norms. This is an unnecessarily weak argument; neither of those two norms are robust sources of law in the Chinese legal system. We can actually say something much stronger. Since compulsory legal education does not have any foundation in statutory law - that is, legislation passed by the National People's Congress or its Standing Committee - then it cannot serve as a basis for the deprivation of personal liberty. This is spelled out clearly in Article 8 of the Law on Legislation, and it's the same argument that has been made against RETL. If a deprivation of personal liberty has no legal basis, then it's either kidnapping or unlawful detention, both of which violate the Criminal Law, which is a robust source of law in the Chinese legal system. So let's call this what it is.

May 15, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Thursday, May 9, 2013

Kong Qingdong ordered to apologize and pay damages for insulting (anonymous!) commentator online

Here's a story that goes straight to the ridiculous without passing the sublime. Self-styled direct descendant of Confucius, Peking University professor (shame on you, PKU!), and all-around blowhard Kong Qingdong (孔庆东) was ordered on Wednesday by the Haidian Basic-Level People's Court to apologize and pay 200 yuan to Guan Kaiyuan, a 22-year-old law student at the China Institute of Industrial Relations. After Guan had criticized a poem by Kong as not following proper composition rules, Kong responded on Sina Weibo (Chinese Twitter), "You haven't even read the poem, you dog and traitor," and added some salty references to Guan's mother.

Guan, who is obviously one of those Chinese people we keep hearing about from the government whose delicate feelings are easily hurt, sued. It's not clear from news reports what the exact claim was - presumably defamation. Anyway, Guan still isn't satisfied - he wants Kong to be required to apologize on his Weibo account, not just in some national newspaper.

While one hates to be in the position of defending someone like Kong, this is ridiculous. Guan posted his critique, and received the insult, under a pseudonym. In other words, even if we decided that ordinary insults like "dog" and "traitor" should be actionable as defamation - something that would already severely crimp ordinary speech - in this case nobody knew the insult was directed against Guan until he outed himself. Do the courts really want to overload themselves with cases from every anonymous troll who managed to provoke a rude response?

Some relevant references:

May 9, 2013 in Commentary, News - Chinese Law | Permalink | Comments (1)

Friday, March 29, 2013

Hotel Loses Case in Breaching Contract for “Stability Maintenance”

Here's a fascinating case that makes for an interesting data point in what we think we know about the Chinese legal system. An anti-discrimination NGO reserved rooms at a hotel in Suzhou for a conference. The police got wind of it and instructed the hotel to cancel the reservations in the name of stability maintenance. The hotel, needless to say, did as it was told. Yawn. Dog bites man.

Now it gets interesting. The NGO sued the hotel for damages in a Suzhou. What would we expect? That no court would accept the suit, and that if it did, the plaintiffs certainly would not win. But what happened is that the court not only accepted the suit, but found for the plaintiffs. It rejected the hotel's argument that the police order to close was a kind of force majeure and that the state had expropriated the rooms ("政府临时征用客房开会"). But apparently the government did not in fact take the rooms in question for some other purpose, and the court rejected the force majeure argument, stating that it wasn't one of the events of force majeure spelled out in the contract.

Astonishingly, the vice-chief of the local police station, Mr. Pan, appeared in court and testified that they had indeed orally ordered the hotel not to allow the meeting to go forward:

    (潘):2012年4月29日左右,我们派出所接到上级相关部门的口头通知,五一期间维稳工作需要,对辖区内酒店宾馆要求不允许接待从事会议的集会活动……为此,我们口头要求莫泰公司停止接待活动。这一次主要目的是不允许大型的会议举行。

        Pan: Around April 29, 2012, our station received an oral notice from the relevant superior departments saying that during the period of May 1st, because of the needs of stability maintenance work, hotels within our jurisdiction were requested not to permit the hosting of meetings. . . . Because of this, we orally requested the Motai Company [i.e., the hotel] to discontinue their hosting activities. The main objective at that time was not to permit large-scale meetings to go ahead.

  (法院)问:关于公安的此次举措有无书面的材料? 

        Court: Are there any written materials pertaining to this measure by the police?

  (潘)答:没有的,都是自上到下口头传达的。当时的平江公安分局治安大队和我们所的民警一起到被告莫泰酒店向他们的店长封晓军做工作的。

        Pan: No. Everything was orally transmitted from above to below. At the time, officers from the Security Brigade of the Pingjiang Public Security Branch Bureau went with policemen from our station to the defendant Motai Hotel and worked on the hotel manager Feng Xiaojun. [I have translated "做工作" as "worked on"; the basic idea of the term is to try to persuade someone, but one can imagine it was done in a pretty coercive atmosphere.]

It's hard not to have some sympathy for the hotel here. It's unrealistic to suppose that they could just have blown the police off; I would have thought there was indeed a good case to be made for force majeure. What message is the court sending to hotels in cases like this? That they should not listen to police instructions? It seems extraordinary that a court, especially on in the same city as the police in question, should have come up with a judgment like this. Does this mean that courts are not as subservient to local powerholders as we thought? Or is there some fascinating behind-the-scenes story that explains this apparent anomaly? My inclination is to suspect the latter, but if enough data points like this accumulate then the former will start looking more plausible.

It's the old question of whether you make the observations fit the theory ("My theory tells me that this stuff doesn't happen, so there must be something fishy about the observation") or the theory fit the observations ("Time to reassess what we think we know about Chinese courts"). Although many people think the first method is obviously wrong - of COURSE we should adjust our theory to fit the facts, right? - in practice we constantly, and often correctly, question the validity of our observations precisely because they seem so out of whack with a theory in which we have confidence. Remember the Italian scientists who thought they might have found neutrinos that traveled faster than light? Even they doubted their own findings.

Here are two news reports:

March 29, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Wednesday, March 27, 2013

MOFCOM solicits comments on draft regulation on merger remedies

The headline says it all. Here's the link to the draft regulation. The deadline for comments is April 26, 2013. The ABA's International Law section and its Antitrust section are assembling a group to draft comments; the group's work needs to be done by April 12 in order to allow sufficient time for internal review. If interested in participating, contact Ms. Yee Wah Chin (ywchin at ywc-antitrust.com), the Deputy Policy Officer of the Section of International Law.

March 27, 2013 in News - Chinese Law | Permalink | Comments (0)