April 17, 2011
He Weifang addresses open letter to Chongqing legal community
Pretty strong stuff. Available in English and Chinese at the China Media Project web site here. He has some good rhetorical touches. Among other things, he notes the irony that the judge in Li Zhuang's first trial, who excused all seven prosecution witnesses (all of whom were in custody) from appearing and being cross-examined because they "were unwilling" (grounds that have no basis in the Criminal Procedure Law), had written his master's thesis in law school on the necessity of witnesses appearing in court.
January 11, 2011
Trying to visit Chen Guangcheng
Here's an interesting account of an attempt by Chen Yunfei, a Chengdu-based rights activist, to visit Chen Guangcheng, the blind rights activist who is supposedly out of jail and a free man. Pretty brave, considering that the most recent person to try to visit Chen, He Peirong, seems to have disappeared (same source). Thanks to blogger Siweiluozi for the translation.
November 23, 2010
Cai Dingjian (蔡定剑), 1956-2010
I am sorry to report that Professor CAI Dingjian (蔡定剑教授), Director of the Institute for Study on Constitutionalism at China University of Political Science and Law, passed away early in the morning of November 22nd. Prof. Cai was a widely respected figure both among his colleagues in China and among the foreign community of Chinese law scholars. He was also a very fine human being.
There's a web site dedicated to his life and work here: http://www.chinaelections.org/specialtopic/SpecialTopicc.aspx?sortid=1278
Below is an obituary from the South China Morning Post, and below that, a remembrance from a friend published in 新京报.
Well-respected reformist, rights advocate dies
Nov 23, 2010
China lost a heavyweight fighter for legal and political reform yesterday when constitutional law professor Cai Dingjian died at the age of 54.
A gentle but firm advocate of "constitutional democracy", Cai's death stirred an outpouring of condolences from lawyers, academics, students and rights groups.
He had been battling cancer for nearly two years, during which time he continued to write and speak out passionately on a range of legal and rights issues.
Cai switched to academia in 2004 after years of serving the government and was one of the few reformists to command respect both within and outside the government.
A soldier with the People's Liberation Army during the Cultural Revolution, he joined the China University of Political Science and Law in 1979, where he began his legal studies. He continued working in the politics department upon graduation, but switched in 1986 to the National People's Congress Standing Committee, the country's highest legislative body, where he stayed for the next 17 years. He was vice-bureau-chief of the NPC Standing Committee secretariat when he left at the end of 2003.
Saying he wanted more freedom to do research, Cai returned to the university and taught administrative law. He also advocated constitutional democracy - striving to realise democracy through implementing the constitution and strengthening the law. He was director of the university's Institute for Study on Constitutionalism while also serving as a dedicated member of the Centre for People's Congress and Foreign Legislative Study at Peking University.
A model scholar, he pursued his goals through "a combination of field experience and academic rigour", many of his contemporaries said.
He wrote more than 200 research papers and often made comments in the media, with emphasis on the election and People's Congress systems, raising governance and state budget transparency, and, more recently, fighting discrimination.
Even when he worked for the NPC, he advanced rational arguments on why and how democracy should be realised in China. In 2003 he published a research paper arguing against the contention that electoral democracy would not work because most of the citizens were not educated enough.
Many believe that paper landed him in trouble and prompted his move into academia. His last book, Democracy is a Modern Lifestyle, was published in January.
Online postings and rights advocates mourned his passing. "We have lost an inspiring teacher, a respected scholar in law, a good friend for the civil community, and a public intellectual who fights for the rights of the less privileged in Chinese society," the Yirenping Centre, an anti-discrimination legal aid group, said.
November 01, 2010
Pu Zhiqiang takes on his police interrogator, and tweets it
October 22, 2010
Wu Lihong back on the job
Here's the story from the Wall Street Journal. Some people never learn, I guess. I wish him good luck.
October 15, 2010
Chinese rights supporters issue open letter in support of Liu Xiaobo
The following letter has been issued by the signatories in support of Nobel Peace Prize winner Liu Xiaobo. English and French versions follow the Chinese version.
唯色 （ 西藏，作家）
丘延亮 (台北，副研究员 中央研究院民族学研究所)
萨冲 （意大利， 工程师）
郭小林（北京 ， 诗人）
On Liu Xiaobo and the Nobel Peace Prize
The awarding of the 2010 Nobel Peace Prize to Liu Xiaobo, a Chinese citizen, has drawn strong reactions both inside and outside China. This is a major event in modern Chinese history. It offers the prospect of a significant new advance for Chinese society in its peaceful transition toward democracy and constitutional government. In a spirit of responsibility toward China’s history and the promise in its future, we the undersigned wish to make these points:
1. The decision of the Nobel Committee to award this year’s prize to Liu Xiaobo is in full conformity with the principles of the prize and the criteria for its bestowal. In today’s world, peace is closely connected with human rights. Deprivation and devastation of life happens not only on battlefields in wars between nations; it also happens within single nations when tyrannical governments employ violence and abuse law. The praise that we have seen from around the world for the decision to award this year’s prize to a representative of China’s human rights movement shows what a wise and timely decision it was.
2. Liu Xiaobo is a splendid choice for the Nobel Peace Prize. He has consistently advocated non-violence in his quest to protect human rights and has confronted social injustice by arguing from reason. He has persevered in pursuing the goals of democracy and constitutional government and has set aside anger even toward those who persecute him. These virtues put his qualifications for the prize beyond doubt, and his actions and convictions can, in addition, serve as models for others in how to resolve political and social conflict.
3. In the days since the announcement of his prize, leaders in many nations, regions, and major world organizations have called upon the Chinese authorities to release Liu Xiaobo. We agree. At the same time we call upon the authorities to release all political prisoners and prisoners of conscience who are in detention for reasons such as their speech, their political views, or their religious beliefs. We ask that legal procedures aimed at freeing Liu Xiaobo be undertaken without delay, and that Liu and his wife be permitted to travel to Oslo to accept the Nobel Peace Prize.
4. Upon hearing the news of Liu Xiaobo’s prize, citizens at several locations in China gathered at restaurants to share their excitement over food and wine and to hold discussions, display banners, and distribute notices. Normal and healthy as these activities were, they met with harassment and repression from police. Some of the participants were interrogated, threatened, and escorted home; others were detained; still others, including Liu Xiaobo’s wife Liu Xia, have been placed under house arrest and held incommunicado. We call upon the police to cease these illegal actions forthwith and to immediately release the people who have been illegally detained.
5. We call upon the Chinese authorities to approach Liu Xiaobo’s Nobel Prize with realism and reason. They should take note of the responses to the prize inside and outside China and see in these responses the currents in world thinking as well as the underlying preferences of our fellow citizens. China should join the mainstream of civilized humanity by embracing universal values. Such is the only route to becoming a “great nation” that is capable of playing a positive and responsible role on the world stage. We are convinced that any signs of improvement or goodwill from the government and its leaders will be met with understanding and support from the Chinese people and will be effective in moving Chinese society in a peaceful direction.
6. We call upon the Chinese authorities to make good on their oft-repeated promise to reform the political system. In a recent series of speeches, Premier Wen Jiabao has intimated a strong desire to promote political reform. We are ready to engage actively in such an effort. We expect our government to uphold the constitution of The People’s Republic of China as well as the Charter of the United Nations and other international agreements to which it has subscribed. This will require it to guarantee the rights of Chinese citizens as they work to bring about peaceful transition toward a society that will be, in fact and not just in name, a democracy and a nation of laws.
Communiqué sur l’attribution du Prix Nobel de la paix à Liu Xiaobo
Le citoyen chinois Liu Xiaobo a obtenu le prix Nobel de la paix 2010. Cette nouvelle a eu un impact extraordinaire tant en Chine qu’à l’étranger. C’est un événement historique pour la Chine contemporaine, une nouvelle occasion pour elle d’effectuer une transition pacifique vers un gouvernement constitutionnel. Dans un esprit de responsabilité devant l’histoire, et devant le destin futur de la Chine, nous publions le communiqué suivant :
1)L’attribution par le comité Nobel du prix Nobel de la paix à Liu Xiaobo correspond aux objectifs et aux critères d’attribution de ce prix. Dans la société contemporaine, la paix est inséparable des droits de l’Homme, la privation de la vie et son piétinement ne se produisent pas seulement sur les champs de bataille, mais sont également causés par la mise en oeuvre de mauvaises lois et d’une politique de violence.Le concert de louange de la part de l’opinion internationale montre que l’attriution du Prix à une personnalité représentative du mouvement chinois des droits de l’homme est une décision correcte et opportune.。
2) Le choix de Liu Xiaobo pour ce prix est particulièrement juste, car il n’a cessé de défendre les droits de l’homme de manière non-violente, et a toujours adopté une position raisonnable dans sa résistance aux injustices sociales ; il a montré une grande ténacité dans son combat pour obtenir la mise en oeuvre d’un régime constitutionnel,et malgré les persécutions, il est dépourvu de toute haine, ce qui fait de lui un candidat idéal pour le Prix. Les idées et la pratique de Liu Xiaobo constitutent pour les Chinois de mode de résolution des conflits
3) Dès qu’il a obtenu le Prix, les gouvernements de tous les pays, les dirigeants de toutes les régions et de toutes sortes d’organisations n’ont cessé d’exiger des autorités chinoises qu’elles libèrent LXB, ;nous adoptons la même attitude. En même temps, nous appelons les autorités à libérer tous les prisonniers de conscience et les prisonniers politiques enfermé pour des raisons d’idéologie,d’expression ou de foi religieuse.Nous appelons à prendre au plus vite toutes les mesures pour que LXB regagne sa liberté, qu’il soit réuni à son épouse Liu Xia, et qu’il puisse se rendre en personne à Oslo recevoir le prix.
4) En apprenant la nouvelle, dans toute la Chine, des citoyens ravis ont organisé des banquets, des réunions, ont porté des banderolles, distribué des tracts pour célébrer ou discuter l’événement ; ces actions sont tout à fait légales et raisonnables. Mais les policiers ont ont réprimé ces activités, des citoyens ont été gardés à vue, interrogés, menacés, renvoyés dans leur lieu d’origine, voire détenus, placés en résidence surveillée, privés leur liberté d’action, privés de leur droit de communiquer avec l’extérieur, comme l’épouse de LXB Liu Xia. Nous exigeons que la police mette immédiatement un terme à ces actes illégaux et libère immédiatement les citoyens détenus.
5) Nous appelons les autorités chinoises à adopter une attitude raisonnable face à l’attribution du Prix à LXB, et en observant les réactions chaleureuses en chine et à l’étranger, à se mettre en accord avec le courant mondial ; la Chine doit entrer dans le courant principal des valeurs universelles et de la civilisation de l’humanité, et établir l’image d’un grand pays positiv et responsable. Nous sommes convaincus que toute amélioration et toute bonne intention du gouvernement chinois sera accueillie par la compréhension et le soutien de tous, et poussera la société chinoise dans une direction pacifique.
6) Nous appelons les autorités chinoises à tenir leur promesse de réforme du système politique. Le premier ministre Wen Jiabao, dans un ensemble de discours, a récemment manifesté son profond désir de faire avancer la réfome politique, et nous sommes prêts à participer à ce processus. Nous souhaitons que dans le cadre de la Constitution de la République populaire de Chine, de la Charte des Nations Unies qu’il reconnaît, et des traités internationaux qu’il a signés,le gouvernement puisse garantir réellement tous les droits des citoyens, qu’il mette en oeuvre une transition sociale pacifique afin de faire de la Chine un pays démocratique, doté d’un Etat de droit digne de ce nom.
September 02, 2010
Tax case against Xu Zhiyong/OCI dismissed
Just noticed this on Xu Zhiyong's blog:
On Aug. 21, 2010, in the afternoon, the Beijing Municipal Public Security Bureau decided to dismiss the case of suspected tax evasion against Gongmeng Company [i.e., Xu's organization, known in English as the Open Constitution Initiative] on the grounds that Gongmeng Company had paid the fine. The PSB returned the company account books as well as other confiscated materials. At the same time, the release on bail of Zhuang Lu and Xu Zhiyong was dissolved [i.e., they are free unconditionally and not just out awaiting trial].
To date, the court has not accepted Gongmeng Company's case over its disputed legal status. But whatever Gongmeng Company's legal status, we citizens will continue just as before to promote the establishment and growth of civil society.
Thanks to everyone for your constant concern and support! This is our incentive to keep going. No matter what problems we encounter, we will stubbornly maintain our ideal of a good society.
Background for those who don't know: Here's a news story from the L.A. Times about the case, which began last summer.
August 14, 2010
Robert van GulikHere, on the 100th anniversary of his birth, is a nice remembrance of Dutch sinologist Robert van Gulik (WSJ; subscription required), through whose Judge Dee stories many of us had our first introduction to Chinese legal history.
April 07, 2010
Gao Zhisheng reappears
It is often claimed by the Chinese government - as well as some foreign observers who ought to know better - that China never responds to external pressure and that such pressure is always counterproductive. This has always seemed like obvious nonsense to me: if Chinese leaders really did have this infantile mentality, foreign governments could manipulate them to do anything. The US would send officials to press China to persecute the Dalai Lama and point more missiles at Taiwan. In reality, it's more likely that Chinese leaders, like everyone else, respond to a range of incentives of both domestic and foreign origin. Sure, they have to worry about how RMB revaluation (for example) will play domestically and can't appear to be bending to foreign pressure, but of how many national leaders is that not true?
For what it's worth, Gao Zhisheng's reappearance is a data point in this debate. It's impossible (at least for me; perhaps not for others) to imagine that he would be chatting with an AP reporter, in at least passable health, were it not for foreign pressure. Of course, better treatment for one person in response to foreign pressure is not the same as a major change in policy in response to foreign pressure. And the fact that foreign pressure sometimes works does not mean it always works. Still, it's a data point to keep in mind whenever you hear the claim that "China will never act under foreign pressure."
April 06, 2010
Peking University gives the boot to Women's Law Center
Let me quote from the South China Morning Post report:
Peking University severed ties last week with a high-profile women's rights advocacy group [the Women's Legal Research and Services Center (妇女法律研究与服务中心)] under its auspices, sending further chills through the mainland's NGO community, which fears a new era of tightened government control.
In a public notice dated March 25 on the university's website, the social sciences faculty announced it was "cancelling" four research institutes set up under its name, and that any further actions carried out by them would have nothing to do with the university.
The four institutes include three from the law department - the Women's Legal Research and Services Centre, the Public Law Research Centre and the Constitution Research Centre - and one from the media department, the Finance News Research Centre.
(I've been holding off on blogging about this because I was hoping to get a linkable news report, but so far no newspapers in all of Westlaw's database has seen fit to report on this but the South China Morning Post, for which you have to have a subscription. Here's a synopsis of the SCMP report, which in fact contains almost every word.) As usual, the authorities have put on their "nothing to see here, folks; move along" face: according to the SCMP report, "The dean of social sciences, Cheng Yuzhui, told Beijing Youth Daily yesterday that the cancellations were just routine restructuring of the university's research institutes, removing 'some institutes that no longer suit the current trend'."
Here's a statement issued by Guo Jianmei, the Center's head, and her team in English and Chinese:
On 25 March, the Division of Social Sciences, Peking University, published a Notice of Cancellation of Organisations on the University’s official website. The Center for Women's Law & Legal Services was one of the four on the list. The days that followed were filled with calls of concern and support from the media, NGOs, partners, the relevant authorities, friends and persons whom we have helped. We are touched, and we are grateful!
To an entity that has been single-minded in purpose and enterprise for the last 15 years, expulsion from the Peking University family is a major and unexpected setback which affects more than just the entity itself. For the Center for Women's Law & Legal Services of Peking University is a symbol of deep significance. To the country, it is an industrious pair of hands that helps build social harmony. To the weak and the vulnerable, it is a ray of light that offers warmth and hope. To NGOs and our partners, it is a fellow comrade on the frontlines, enforcing the rule of law and advancing good for the civil society. To the people at large, it is a deliverer of social conscience and the spirit of law. And to every member of the Center, it is our common home.
As such, to those who have cared and still continue to care, I would like to say a few last words about this name that has become history:
I. In 15 years, we have lighted up more lives than the sun has.
Since the Center’s inception in 1995, our aim was to provide legal aid, protect women’s rights, and promote gender equality. Equity and justice were not only the Center’s tenets, but the belief and ideal espoused by every member. As the first public interest organisation in China that specialises in providing legal aid for women, we were one of the earliest private legal aid practice. While demand for legal aid among the vulnerable was high, State legal resources were scarce. The Center thus became an expedient complement that plugged gaps in the government’s legal aid services. It has since, helped more than 100,000 women victims obtain recourse to justice.
In 2004, to meet the increasingly diverse needs in women’s rights protection, the Center began providing public interest litigation services, and was soon to become an important force in public interest legal practice. Absent a public interest litigation framework, the Center set itself to legal and policy improvement and reform by working on typical cases, incorporating the protection of the individual rights of women into the overall rights of citizens, to ensure impact. The cases involved important and difficult issues as gender discrimination in the workplace, labour rights of women, sexual harassment in the workplace, violence against women, rights of female migrant workers, and rural women land rights. And by employing different approaches in legislative advocacy, the Center has expanded its beneficiary population.
Our efforts have rendered power to the law and to legal aid. A victim once told us, “the Center is like a lamp, glowing of equity and justice, exuding warmth in the cold, and shedding light on the darkness ahead. She spoke not only for the many weak and poor women, she spoke also for the meaning of our enterprise.
The Center has become a sphere of influence that motivated many later-comers. Consciously, it took on the responsibility of providing legal aid, conducting public interest litigation, organising public interest legal advocacy, and training public interest lawyers. In 2002, a legal aid collaboration group was established, so as to enable more organisations and institutions to participate in the delivery of legal aid. In 2007, the Center founded the Public Interest Lawyers’ Network for Women’s Rights, and in 2009, the name was changed to China Public Interest Lawyers’ Network. The Network currently comprises more than 300 brilliant lawyers from more than twenty provinces and cities, providing legal aid for thousands of poor and vulnerable people. I still remember the Network’s launch ceremony on 15 March 2009 at the Centennial Lecture Hall at Peking University, where leaders from authorities as the Ministry of Justice’s Department of Legal Aid, Center for Legal Assistance, All-China Lawyers’ Association and the Beijing Lawyers’ Association turned up to show their support. The speech given by Professor Zhu Suli, Dean of Peking University Law Department remains vivid in my mind.
In September 2009, Ms Guo Jianmei, public interest lawyer and head of the Center founded Qian Qian Law Firm. Specialising in public interest law and public interest legal activities, and comprising professional public interest lawyers, Qian Qian has expanded its scope to benefit a broader spectrum of vulnerable persons such as the disabled, migrant workers and the aged.
15 years of innovative approaches and effective outputs have not only profited the poor and vulnerable women; the Center has also grown to become an influential and credible NGO. It has earned praises and won awards. In February 2006, in their congratulatory note to the Center’s tenth anniversary, Professor Min Weifang, the Party Secretary of Peking University, and Professor Xu Zhihong, President of Peking University, said, “the Center for Women's Law & Legal Services of Peking University has observed Peking University’s glorious tradition of patriotism, progress, democracy and scientific approach. By seeking relentlessly, developing aggressively, and improving constantly, it has achieved commendable results, contributed to the progress and advancement of women’s rights protection and legal aid delivery, and served its role in fostering harmony. Its work has won interest, support and tribute of the society and its peers, recognition and respect from women at large, and glory for Peking University!”
As Premier Wen Jiabao said, “Equity and justice glow brighter than the sun.” Indeed, equity and justice are of supreme value and significance to every individual, every country, and every nation. The Center shall be a faithful and determined perpetuator of this worthy cause.
II. Hurdles deter us not, but spur us on.
Cancellation by Peking University was not our first setback. The Center was nearly closed down during its initial days, only to be followed by one challenge after another. Funding was a major problem, as those days, funding channels were few and funding systems unregulated. Fund shortage stymied NGO development, and was the major obstacle to the Center’s growth.
Talent is another problem, especially when the Center, as a professional organisation, was in need of well-qualified legal professionals. Attracting and retaining talent in a society of low public interest awareness and driven by utilitarianism was a huge difficulty. So were balancing ideals and the reality, dedication and compensation, and spiritual fulfilment and material satisfaction.
Our work is also hampered by a deficient legal environment, flawed enforcement systems, administrative interference, local protectionist policies, industry protectionism, even corruptive practices within the judicial system. Persistent overwork leading to physical and mental stress of the Center’s members is also a permanent problem.
Cancellation is also not the gravest difficulty we have faced. We were even threatened with physical harm. When angry villagers in that remote village let go of their tightly clasped sticks, convinced by our steady and determined gaze, we knew we could never be beaten. Because justice is what we pursue, and justice will always triumph.
Difficulty is only an excuse of the weak and the feeble. To go-getters with conviction, difficulty is impetus to move mountains. Difficulty is but snowfall before spring comes. And snow melts. Thereafter, a spring breeze will blow away, bringing forth myriad blossoms and an enchanting fragrance.
III. Farewell, Beida! But our pursuance of equity and justice shall endure, and our belief in the rule of law shall prevail.
We have several members on our team who are Peking University graduates. They were inculcated with knowledge and intellectual depth, and nurtured with democratic sensibilities and humanistic values––the motivation for their choice of a public interest career. Cancellation was saddening to Guo Jianmei. This is not the Beida that she once knew. Guo’s resolute embarkation on a public interest career was guided by her Beida predecessors and the Beida spirit. She hopes that many will understand her sense of desolation and feeling of betrayal.
But desolation is one thing, Guo Jianmei and her team are as eager and as passionate as ever. They are convinced that legal aid and public interest work is what the people need, and what a harmonious society must have. These needs are revealed by the Center’s work during the last 15 years, spoken by the sacks of millet and sweet potatoes, and the hundreds of thank-you banners from those poor and vulnerable clients, and proven by the numerous awards that the Center has won.
The Center may have become a chapter in history, Qian Qian is for now and the future.
The Center has devoted itself to serving women’s rights, giving legal aid, and growing as an NGO. The least it has done is to have sent this message: Private legal aid organisations must and will play an indispensable role in China. Given the national circumstances, charting new frontiers, will require dedicated and valiant fighters, and they should be recognised and encouraged.
The future will be bright, and we will stick to our goal and continue on. The road may be treacherous, and the view along the way may not be always pleasant. But the meaning of life is about keeping our feet on the ground, undeterred, and making our way toward our ideals.
We have no complaint, we have no regret.
We thank every entity and every friend who cares for and who supports us. We have you, who will walk with us.Former Center for Women's Law & Legal Services of Peking UniversityApril 1, 2010我们的话
March 30, 2010
Latest round in the Cohen birthday events: Hawaii, March 16Earlier this month the University of Hawaii Law School put on a program in honor of Jerome Cohen's upcoming 80th birthday. Here are links to a video recording and a program description.
March 02, 2010
Jiang Ping: "China's Rule of Law Is in Full Retreat"
China's Rule of Law is in Full Retreat
February 21, 2010
Attending today's lunch and hearing so much praise makes me feel very uneasy. I don't know how many times I have celebrated my birthday this year, and here comes Sun Guodong, hosting yet another event.
The first celebration was with fellow scholars and the second with my family, but I felt like something was missing. There was no event with lawyers, or rather we might say some lawyers wanted to have a birthday celebration for me but didn't have a chance. I think today's event might settle that. However, in listening to these words of praise my ears have pricked up, as I must say you have expressed aspirations I have definitely never fulfilled. Perhaps it was just the circumstances around me. Because today the situation for the rule of law in China is grim. So in these circumstances perhaps your expectations of me are even higher. But I think I have not been able to do enough.
Strictly speaking, in the 30 years of reform what I did was call for private rights. I chose civil law and private rights because those areas were weak in China, or rather in a China with such strong public powers, private rights were always in a weak position. Private rights include the rights of private enterprise, of private property, and perhaps even broader personal rights.
Today, I will just mention three issues, but these are not the same three you all just suggested. The first private right I will mention is the Shanxi coal mine problem [private coal miners were encouraged to invest then their mines were taken by the state at low or no compensation]. The Shanxi coal miners demonstrate a violation of the rights of private property and private enterprise, a brazen violation of constitutional guarantees.
The second is the Li Zhuang case [the defense lawyer convicted of inciting false testimony in the Chongqing mafia crackdown]. When Wu Xiaoji brought over Li's defense lawyer to talk to me, we chatted for a long time about what happened in court that day and the entire procedural history of the case. After hearing about it, I was furious. No matter what you think about it, from the most basic level, procedural justice was violated. The evidence was not brought out and many of the witnesses did not appear in court. From the perspective of evidence, that case had serious problems.
The third is the Liu Xiaobo case. When I heard about the Liu Xiaobo verdict, I felt it was a crime of speech -- a very dangerous thing. China has a long tradition of criminalizing speech, and if we let that tradition continue today, and if those with a sense of justice can't express their views, then our problems are just too serious. Or perhaps, for those of us engaged in the rule of law, if even we take a hands-off approach -- if there is not a single voice of justice among us -- then I think that is really dangerous.
So, looking at China's current situation, I think we are in a period where the rule of law is in retreat. Or perhaps, building the rule of law, judicial reform, and political reform are all moving backwards. This is my first thought.
My second thought: In the last two books I published, I used the term "cry out" in the title. The first book was called "What I can do is cry out." I recently published a book that I edited by hand, putting together some of my prior work in a careful compilation that I called "Private Rights Cry Out." This latest is part of a series of 100 works of top people in the humanities; in that series I am the only one from the legal field. Why did I choose the word "cry out," and why in the last two years? Of course, I have been enlightened by Lu Xun's example, but it is not only that. I think that choosing "cry out" is important because the situation has become more oppressive. That is to say the environment outside has become more and more difficult. In those circumstances, one must "cry out." No matter what words you choose, when the circumstances are urgent, you must call out with your voice.
I also use "cry out" to to be clear about another issue: we must both dare to fight and be good at fighting. Given the conditions for building the rule of law today, these two things need to be merged. This is something I have pondered a long time, and it is very difficult. Perhaps you are good at fighting but you don't dare stand up. Or you dare to fight, but lose your sense of proportion. Because the basic essence of the problem in China is problem of the Party's leadership, the foundation of the political system. If the political system does not reform, then nothing else can reform. If the political system does not reform, then your rule of law, your judicial reform, your anything-else will not be much of an achievement. In those circumstances, it is easy for you to "cross the line," to step into forbidden territory. So in China's circumstances how to put those two things together -- to both dare to fight and be good at fighting -- this is a formidable task.
I remember that Ji Weidong once wrote about this problem, and this has given me something to think about. He wrote: How is it that someone like Jiang Ping can exist in China's current political conditions, how is that he does not "cross the line" too far? Of course, the leadership values you, but they are also conscious that they need to be careful about you. I could be regarded as "inside the line" and also be regarded as "outside the line." That position is actually very difficult. I think that at this moment we should carefully position ourselves as in between of those "inside the line" and those "outside the line", this way everything will be a bit better.
My third thought is that overall I am still an optimist. In the past, I used to love to say that China's rule of law was two steps forward, one step back. I still haven't changed that view today. Because in terms of the protection of private rights, today's China is vastly improved over the past. Needless to say, this is the case in the last thirty years, or even more needless to say it is the case compared to the decade of the Cultural Revolution. In the 30 years of reform, with the "baptism" of the Property Law, rights consciousness about private rights protection has been enormously improved. The Chengdu self-immolation case, or other cases, already demonstrate that people's sense of private rights have woken up. Add the function of law to the awakening sense of rights consciousness and that is something that can be extremely powerful.
Twenty years ago, when we passed the Administrative Litigation Law, it was hard to imagine that such a law could help protect private rights. But today, whether by litigation or other methods, protecting your own rights is something we can say everyone understands. Everyone understands that their rights cannot be infringed. Perhaps in some places the projection of private rights is overlooked, or in some places it is abused. But no matter what, today when we stress protecting private rights, we want to stress two things: first, ordinary personal rights must be protected, but we also must pay attention to not abusing power. If we grasp this, everything will be fine.
So today I would like to thank everyone here. So many of you are still here. Some of the scholars have left, but you lawyers have persisted to the end. This also helps explain an important issue, as Pu Zhiqiang just put it as well. Like our lawyers today, more and more people are genuinely interested in the fate of China's rule of law. Lawyers definitely don't only want to make money; many lawyers have come to understand and think about our country's destiny, the future of the rule of law, and the protection of human rights. That way of thinking, and that theme, has already taken root in our heads.
I think this is very heartening phenomenon. I believe that China certainly has a bright future. The world trends are unmistakable: whether human rights, democracy, or freedom, these are irresistible trends. All the world's people are moving forward. That we are moving backward is only temporary. Or perhaps, for the time that some people reign, they can do as they please. But after he steps down, he has no status. I think this is the truth.
Some comments on the Li Zhuang case
I was recently invited to write some comments on the Li Zhuang case by a Chinese journal. But then they told me that the Central Propaganda Department had issued a circular forbidding publication of material on the case. Since I can't bear to have all that work go for nothing, here's the comment as it would have been published:
March 01, 2010
Chinese law events honoring Jerome Cohen
As Prof. Cohen, one of the founders of Chinese law studies in the United States, will be celebrating his 80th birthday this July 1st, the Chinese law community has been planning various events in his honor. Most recently, on Feb. 19th the George Washington University Law School and Georgetown University Law Center jointly put on an afternoon conference in Washington, DC. The program is here; videos of the proceedings will be available shortly.
Later this month, the William S. Richardson School of Law at the University of Hawaii will be holding a series of events from March 15th through 18th. Here are two informational flyers: an overview and a panel discussion program. The panel discussion will be recorded and made available on line.
February 15, 2010
Feng Zhenghu returns homeFeng Zhenghu, the Chinese human rights activist who camped out at Narita Airport in Tokyo for over three months to protest the refusal of Chinese authorities to allow him back to China, has returned to Shanghai. Here's the Washington Post story. In a moment of no doubt unintended irony, the mayor of Shanghai, Han Zheng, is said to have commented apropos of Feng's case that all those entering the country had to abide by Chinese laws and regulations. Apparently those guarding the entry gates, however, do not; no legal basis for refusing him entry was ever to my knowledge proffered by the government. If readers can think of any, please let me know in the comments.
February 13, 2010
The Li Zhuang case and the princelings
John Garnaut has a fascinating piece in the Sydney Morning Herald on the Li Zhuang case and its relation to the princeling community. The factual background behind the article is quoted below; click here for the rest of the story.
The man who must have authorised Li's arrest is Bo Xilai, the only Politburo member who can comfortably wear epithets such as colourful, mercurial or maverick. The Communist Party boss of the central-west city of Chongqing has captivated the nation with a brave but risky war against the city's organised crime.
Bo got to where he is partly because he is the son of Bo Yibo, one of China's "eight immortals" - the tag for an exalted club of revolutionaries who lived long enough to stamp their marks on China's reform era history.
The China Youth Daily hinted at the equally impressive power behind the lawyer that Bo arrested: "As Li Zhuang arrived at Chongqing, he began to play the peacock, saying many times 'do you know my background? Do you know who my boss is?"
What the censors won't let local media spell out is that Li's law firm is headed by Fu Yang, who is the son of Peng Zhen, also one of the eight immortals and more powerful than Bo Yibo. Li's lawyer from the same Kangda law firm, Gao Zicheng, said he could not talk about the background politics: "I can't go there …''
February 10, 2010
Prof. Sida Liu on the Li Zhuang case
Sida Liu is a professor of sociology at the University of Wisconsin - Madison and an expert on the Chinese legal profession. He's written four essays (in Chinese) over the last few weeks on the Li Zhuang case. Here they are:
Notes on the Stern Hu/Rio Tinto case
The No. 1 branch of the Shanghai People's Procuratorate has decided to prosecute Australian citizen Stern Hu, former head of Rio Tinto's Shanghai office, and three local employees, Wang Yong, Ge Minqiang and Liu Caikui.
The Shanghai No. 1 Intermediate People's Court has accepted the case.
The statement by the court said prosecutors accused the four of "taking advantage of their position to seek profit for others, and asking for, or illegally accepting, huge amounts of money from Chinese steel enterprises."
They are also charged with trade secret infringement, but I want to comment here mainly on the bribery charges. As can be seen, they are charged not with giving bribes, which seems to have been the original charge, but with soliciting and taking bribes. The Xinhua report then puzzlingly goes on to say that “they lured the Chinese enterprises' heads with promises, or through other illegal means, to obtain the steel companies' commercial secrets on multiple occasions, causing ‘extremely serious consequence’ for the companies.” If obtaining the commercial secrets is linked with the bribery, this doesn’t make sense. You offer bribes to people to get their secrets; people don’t give you secrets and money. The money and the secrets are supposed to go in opposite directions.
It’s possible, of course, that the charges of illicitly obtaining commercial secrets are quite distinct from the charges of taking bribes. In that case, one wonders how the commercial secrets were obtained, if not through bribery (or if through bribery, why there was no charge of giving bribes). We will have to see what specific facts are alleged in the course of the trial.
Back to the charge of receiving bribes. Commercial bribery has not, at least until recently, been widely criminalized in various countries. (There may be some recent movement in that direction, but I don’t have the details. For a recent book-length study, see Gunter Heine et al. (ed.), Private Commercial Bribery (2003); for a recent academic paper on the subject, see Antonio Argandoña, Private-to-Private Corruption.) Traditionally, it’s been viewed as a private problem for private companies to handle. It’s a breach of trust and an act of disloyalty when an employee takes a bribe to do something he shouldn’t do – for example, when a purchasing manager takes a bribe and causes the company to pay more to a supplier than it could have – but many jurisdictions leave it up to the injured employer to decide how to act. The employer might be able to dismiss the employee, or to bring a civil suit to recover damages. Criminal prosecutions seem to be quite rare. (In the United States, it would be a matter of state law; my brief research didn’t turn up any studies of how the states handle this.) And my guess is that they would be rarer still when, as in the Rio Tinto case, the employer, who is supposed to be the injured party, is not complaining and on the contrary actively supports the accused employee.
In China, commercial bribery is covered under Articles 163 and 164 of the Criminal Law. Article 163 criminalizes the receipt of bribes, whereas Article 164 criminalizes giving them.
Article 163. Company and enterprise work personnel who make use of their job opportunity to demand property from others, or illegally receive others property in exchange for benefits, shall, in cases involving relatively large amounts, be punished with imprisonment or criminal detention for less than five years; for cases involving a huge amount, with imprisonment of over five years, and may be subject to forfeiture of property.
Company and enterprise work personnel, who, in the course of economic contacts, receive personal kick backs and commissions in various forms in violation of state rules, shall be punished according to provisions under the preceding paragraph.
Personnel performing public duties in state owned companies and enterprises, and personnel assigned by state owned companies and enterprises to non state owned companies and enterprises for performance of public duties found to be committing the acts mentioned in the two preceding paragraphs, shall be convicted and punished according to provisions under Articles 385 and 386 of this law.
Article 164. Offering property to company and enterprise work personnel for improper benefits shall in cases involving relatively large amounts be punished with imprisonment or criminal detention for less than three years, for cases involving a huge amount, with imprisonment of over three years but less than 10 years, and with a fine.
Units committing offenses under the preceding paragraph shall be punished with a fine, with personnel directly in charge and other directly responsible personnel being punished according to provisions of the preceding paragraph.
A briber who confesses his bribery act before prosecution may receive a lighter sentence or a waiver for punishment.
Therefore, this case presents several questions.
First, should receiving bribes in a commercial context be a crime at all? That is of course a broad policy question and different jurisdictions will have different rules. I will just repeat my educated guess (given the apparent rarity of such prosecutions in any circumstances) that it would be very unusual in other countries for a criminal charge of receiving bribes to stick where the employer, the supposedly injured party, denied any injury and supported the employee.
Second, what is the standard for “relatively large amount” and “huge amount” in Article 163 that makes the receipt of the bribe criminal? These terms are explained in the Provisions on Standards for Prosecution in Cases of Economic Crime (关于经济犯罪案件追诉标准的规定) passed jointly by the Supreme People's Procuratorate and the Ministry of Public Security in 2001. Article 8 puts the floor for prosecution for receipt of bribes at 5,000 yuan, while Article 9 puts the floor for prosecution for giving bribes at 10,000 yuan for individuals and 20,000 for units (e.g., companies). Thus, it seems that the threshold for “relatively large” will probably be easily met. I am not aware of another public document defining “huge”, but there may be one out there (I haven’t searched carefully).
Third, and finally, if the defendants received criminally large bribes in violation of Article 163, then somebody must have offered them criminally large bribes in violation of Article 164. Where is the prosecution against the bribers?
Did Li Zhuang plant a hidden message in his confession?
There's been a lot of discussion on the Chinese internet over whether Li Zhuang planted a hidden message in the six-point confession he delivered orally during his appeal. There is unfortunately no authoritative text of this confession, so the alleged message might in part be the creativity of people who have changed a character here or there to get it. The idea is to take the first character of each sentence to make one phrase, and then take the last character of each sentence to make another. (In the text I have, you have to skip the last character of the 5th sentence and take the last two characters of the 6th sentence.) OK. let's try it out:
I've translated the content of some of this in an earlier post. If you take the first characters of each sentence and then the last characters (with the adjustment mentioned above), this gives you "被比（逼）认罪缓刑，础（出）去坚决上诉" (forced to confess to get a suspended sentence, will insistently appeal after release).
Is this plausible? I'm not the conspiracy-theorist type, but it looks plausible to me. The Chinese is a little odd in places; for example, one commonly says 立场不稳, not 立场不坚. And why should the fourth sentence start with "罪行法定，这是基本原则"? That principle of criminal law has nothing to do with the case in question. I guess we will find out when he's free to speak his mind. Not that it really matters.
Here's a story in English about it from Caixin.
February 09, 2010
Li Zhuang gets 18 months on appeal; disavows earlier "confession"The extraordinary story of Li Zhuang continues. On appeal, the 2nd-instance court reduced his sentence by one year: from two and a half years to eighteen months. Li Zhuang then announced that his earlier confession had been phony; that it had been elicited by a promise from the government (presumably a promise that he would not go to jail), which they had now gone back on.
This is not surprising - as I noted in an earlier post on this case, the "confession" sounded fake all along, indeed so fake that one suspects Li was signalling its insincerity. The language he used in his "confession" sounded entirely scripted and cliched. (“在各级组织各级领导的耐心教育下”，逐渐认识到“自己的所作所为玷污了律师的职责，缺失了一名法律工作者应有的职业道德基础”，并称“刑事辩护人更应该顾大局、识大体，与党中央保持一致。”) According to the report, this confession was delivered haltingly and with certain language mistakes.
Here's the story from Caixin: http://policy.caing.com/2010-02-09/100116950.html