Thursday, January 23, 2014
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.
At long last: an official English translation of the Report of the Third Plenum of the 18th Central Committee issued last November. I haven't checked it against the Chinese, but in my experience these official translation are usually of quite high quality. The on-line version is, as is annoyingly usual with Chinese government on-line publications, needlessly divided up into separate web pages, so I'm attaching a PDF version as well.
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."
Tuesday, January 21, 2014
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.
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):
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
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.
Tuesday, November 12, 2013
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.
Wednesday, October 23, 2013
Tuesday, October 22, 2013
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.
Friday, August 23, 2013
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?
Wednesday, August 21, 2013
Monday, August 12, 2013
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.
Thursday, August 8, 2013
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.
Friday, July 19, 2013
Thursday, July 18, 2013
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?
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.
Thursday, July 4, 2013
Saturday, June 29, 2013
Tuesday, June 25, 2013
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?