Sunday, July 21, 2013
I just had an interesting lunch with one of China’s few openly gay lawyers, who also engages in activism on behalf of the LGBT community. Here are some interesting points from our conversation:
- We discussed the differences between antigay prejudice in the United States and in China. I asked whether he would agree with the idea that while in the United States one tended to have wide variation between two extremes – increasing toleration for same-sex marriage on the one hand and murderous hatred by some people on the other – in China there was a more widespread but much shallower kind of antigay prejudice. (Here and elsewhere I’m going to use “gay” and “LGBT” pretty much interchangeably, and the former should not be understood to exclude the latter.) He agreed that this was generally true, but noted that this was very possibly because gay people were simply not highly visible in China, and that once gays became more visible there might be a strong reaction from people who felt threatened. A fair point; let’s hope this does not come to pass. Still, I think that we can see extreme homophobia in many eras of European history when open homosexuality was virtually unthinkable (and therefore not plausible as a cause for extreme homophobia), but not in Chinese history. Come to think of it, it’s hard to find ideological extremism of any kind in traditional Chinese culture. When was the last time Chinese killed each other over religious differences?
- The LGBT community’s interactions with government are mostly with health departments. This is unfortunate, since that encourages thinking about homosexuality as a health problem, not (say) a civil rights issue. Officials are generally not hostile, but don’t see a need for laws protecting LGBTs from discrimination or violence on the grounds that they’re not seeing a lot of discrimination or violence going on. If my interlocutor is right, though, that may well be only because LGBTs are not (yet) highly visible.
- One discouraging part of our conversation: he noted that in general it was the house churches that were the most visible and outspoken homophobes in China. Generally Christian parents in the house churches, for example, have a much harder time accepting gay children than non-Christian Chinese parents (and you can imagine how hard it must be for them, in a culture that places such importance on transmission of the family name). This is truly unfortunate, because there doesn't seem to be anything about Christianity that requires homophobia of its adherents; many Christians manage to be so without obsessing over people's private sex lives. Unlike homosexuality, homophobia is a choice. I observed that many weiquan lawyers had converted to Christianity and wondered whether they had adopted the antigay views of the house churches as well. Unfortunately, it appears that some of them have. Take Wang Yi (王怡), for example – a constitutional law scholar and distinguished weiquan lawyer who’s now a pastor in a house church in Chengdu. He and his weibo followers are not, shall we say, sympathetic to equal rights for LGBTs. (See, for example, this post, which predicts that allowing gay marriage will lead to the destruction of marriage as an institution, or this one, which says that homosexuality is a form of idolatry, or this one, which says that homosexuals are sinners who will be judged - one presumes unfavorably - if they are not saved.) With China having so many human rights problems and the weiquan community facing so many difficulties, it seems unfathomably boneheaded to waste time and energy, and alienate potential allies, by worrying about what people want to do with their private parts. This kind of obsessive homophobia has no roots in traditional Chinese culture; it’s imported. But when shopping for values to import from the West, why on earth would one want to line up first at the hate counter?
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.
Wednesday, July 10, 2013
Sunday, July 7, 2013
I've been asked to post the following announcement:
The Int'l Environmental Moot Court Competition has long welcomed teams from China and East Asia, but in previous years, teams from East Asia had no local regional rounds to practice their skills prior to flying to Florida. In a partnership between Stetson University's and Soongsil University's Colleges of Law, there will be an East Asia Regional Round (EARR) held in Seoul, South Korea this year.
The EARR will be an all-English language moot contest held on November 19 - 23, 2013. The most successful teams at the EARR will be promoted to the International Finals at Stetson University to be held in April 2014. The EARR is designed to support teams from China, including Hong Kong, Macau, and Taiwan, as well as teams from Japan, South Korea, Mongolia, and other countries nearby who would like to participate in English-language moot competition.
The full set of competition materials are posted on Stetson's IEMCC website: http://www.law.stetson.edu/international/iemcc/
Any teams wishing to compete may should contact Roy Andrew Partain with their registration questions: email@example.com
Friday, July 5, 2013
My friend and colleague Carl Minzner has asked me to post the following announcement. He adds, "In an unsolicited advertisement on their behalf, I will say that I had a very good experience working with them in publishing my recent article on Chinese legal education, and they were quite capable of handling all of my Chinese-language footnotes."
Call for Submissions: Fordham International Law Journal, Asia-Pacific Issue
In the 2013-2014 academic year, the Fordham International Law Journal will publish its first issue devoted exclusively to legal and policy topics related to the Asia-Pacific region. Similar to the Journal’s annual European Union issue, in which many distinguished scholars, practitioners, and officials have been published, the annual Asia-Pacific issue aims to be a preeminent resource for legal and policy scholarship on the Asia-Pacific region. The Fordham International Law Journal has consistently published a diverse array of notable authors, including Madeleine Albright, Kofi Annan, Boutros Boutros-Ghali, and Philippe Kirsch, and is seeking to provide support and opportunity for authors focusing on this critical region.
The Journal thus invites all scholars, commentators, practitioners, and officials interested in being published in the Journal’s first annual Asia-Pacific issue to submit relevant articles, essays, comments, notes, or reviews for consideration. If selected for publication, submissions will be edited by the Journal’s staff and Editorial Board throughout the summer and fall, with publication planned for the spring.
Draft submissions should be emailed as Word document attachments to ILJarticles@law.fordham.edu, along with the author’s curriculum vitae (CV) and “Fordham ILJ Asia-Pacific Issue Submission” written in the subject line. Generally, submissions should range between 5,000 and 25,000 words (approximately 10 to 50 pages), though the Journal recognizes that different topics demand various lengths and will not reject submissions solely because they fall above or below this range. To the extent possible, footnotes should follow standard Bluebook formatting rules.
Submissions will be reviewed on a rolling basis, though should be sent as soon as possible for best consideration. All submissions will be reviewed by the Journal’s Executive Board, which will consider, among other things, the quality of the writing, the timeliness of the topic, and the importance of the issue.
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?
Thursday, June 20, 2013
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.
- First Declaration of Alberto Arevalo, Assistant Director, Office of International Affairs, SEC (filed May 1, 2013)
- Second Declaration of Alberto Arevalo, Assistant Director, Office of International Affairs, SEC (filed May 1, 2013)
As before, I am providing these with no comment.
Wednesday, June 19, 2013
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.
Tuesday, June 18, 2013
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.
Saturday, June 1, 2013
I have received the following announcement:
Wednesday, May 22, 2013
Most people who study Chinese law learn early on about Judge Dee, "a semi-fictional character based on the historical figure Di Renjie, magistrate and statesman of the Tang court. The character first appeared in the 18th century Chinese detective novel Di Gong An. After Robert van Gulik came across it in a second-hand book store in Tokyo, he translated the novel into English and then used the style and characters to write his original Judge Dee stories." (The quoted text is from the Wikipedia entry.)
Now in addition to van Gulik's great stories, we have the Judge Dee computer game. I have no idea if it's any good, and they've written the wrong character for Dee on the main page (蒂 instead of 狄), but hey, anything as amazing as a computer game about Chinese legal history is worth a mention. If anyone tries it out, please let me know what you think in the comments.
Wednesday, May 15, 2013
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.
Friday, May 10, 2013
Thursday, May 9, 2013
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:
- South China Morning Post report
- Shanghaiist report
- Beijing News report (in Chinese)
- Language Log post showing that everyone in China and probably many outside are descended from Confucius, too