The Coming Wave of Unrest

I think this story warrants quite a bit more attention than it’s getting.

A few days ago, you may have read that the first-ever audit of China’s local governments determined that they had somehow amassed $1.6 trillion in debt. This is notable and important in and of itself, but in light of where China’s local governments get their money, I think it’s bound to lead to even more forced demolition and land seizures.

Back in January, we published a translation of a summary of a report from a team of Chinese lawyers on illegal demolition in 2010 (Part 1, Part 2). The report said that local government budgets are increasingly dependent on land sales, and with little land available for sale they often turn to seizure:

The total income from all land sales nationwide in 2009 was 1,423,970,000,000 RMB, up 43.2% from 2008. This amounts to about 46% of the total national income for local financial administrations during the same period.

But in 2009, the total spent on land acquisition was 1,232,710,000,000 RMB, up 28.9% from 2008. 498,576,000,000 RMB was spent on land takeovers and demolition compensation, or 40.4% of the total expenditures. 10.7% of total expenditures were spent on land development, 27% on city construction, 3.5% on rural infrastructure, 1.6% to subsidize farmers whose land was seized by the government, 0.7% on professional land sales, 1.5% on low income housing. Land arrangement and basic rural construction got 3.9%, development of farming land 0.9%, disaster relief/reconstruction and bankruptcy bailout 9.7%.

In 2010, land sales deals brought in over 2,700,000,000,000 RMB, an increase of 70.4%, and even more worrying, local finance has taken another step further in relying on land sales profits [to function]; the four major cities all relied on land sales for at least 50% of their funding this year. Before this, land sales income was only 25% of Beijing’s budget. According to statistics, in China’s ten largest cities, income from land sales hit 875,241,000,000 RMB, an increase of over 54% from 2009.

Because of this, local governments everywhere have pushed through “transform the city” and “transform the village” programs with overwhelming force, for the purposes of tearing down housing and selling the land, which makes the demolition of housing even more prevalent. This movement to increase the income of land finance administrations is currently apparently unconstrained by any restrictions or appropriate guidance. This has become the main new source of the intensification of demolition conflicts; we are very confident in this appraisal.

So, in addition to using land sales to maintain their budgets, local governments will now also have to use them to help pay off their apparently massive debts. The Business China article I linked above suggests land sales will likely be used to pay for 40% of the debt payback, or about 2.5 trillion RMB. I have no idea where that number comes from, but given that land sales account for more than 50% of most local government budgets already, it’s hard to imagine land sales won’t play a major role in attempts to pay down this debt.

And whatever rules the central government may have made about illegal demolitions, a rise in land sales means a rise in land seizures, and that means a rise in forced demolitions. Forced demolition is, of course, currently the biggest single cause of social unrest in China.

Keep an eye on this story. Despite efforts to cut down on demolitions through new laws — pause for laughter — I have a feeling that economic realities are going to force another wave of divisive demolitions and, as usual, the poor and weak will be forced to pay for the sins of the rich and powerful by giving up their homes so developers can build luxury apartments no one will ever actually live in.

Happy 90th birthday, CCP.

Related reading: The First Domino? Yunnan Highway Breaches its Financing Platform Contract (Caijing)

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Thoughts on Ai Weiwei’s Release: This is Not a “Victory”

ai weiwei is "free"So Ai Weiwei has been released, sort of. From early reports on Twitter, it seems as though at least some of his staff that had been detained have been released, too (is there any word on Wen, though?). Ai isn’t entirely off the hook, though, he’s out on bail. Or, more specifically:

The news that Ai Weiwei (艾未未) has been released on qubao houshen (取保候审,literally ‘obtaining a guarantee pending trial’, but commonly referred to in English as ‘bail’ despite substantial conceptual and procedural differences) , is excellent news and perhaps the very best outcome that could have been expected in the circumstances of this difficult case.

Qubao houshen (QBHS) is a technique that the public security authorities sometimes use as a face-saving device to end controversial cases that are unwise or unnecessary for them to prosecute. Often in such cases a compromise has been reached in negotiation with the suspect, as apparently it has been here. Of course, we will have to hear what Ai says upon release, recognizing that, as part of the agreement and as a consequence of long incommunicado detention, the released suspect is usually subdued in any public remarks made upon release (recall Xu Zhiyong, for example).

Concretely, QBHS usually means that the investigation can continue for up to one year while the suspect is allowed to have freedom of movement, if not freedom of speech, within his city of residence. His travel documents are usually kept by the police and he must seek their permission to travel elsewhere in China and certainly abroad. Often during the subsequent year in such cases, the investigation is quietly dropped so long as the suspect behaves himself in accordance with whatever deal was struck and nothing occurs to mar the agreement.

It is important to remember that, although the announcement claims Ai has “confessed his crimes”, no formal charge has ever been made against him; he was apparently not even formally arrested” (逮捕), not to mention indicted (起诉). Ai has thus not had to plead guilty to any crimes, although the term “renzui” (认罪), or admitting guilt, has been used in the press report. He can end the tax obligations by payment with interest, and perhaps a fine, as the press report says he is willing to do.

Interesting stuff. Before we move on to the inevitable question of why he was released (and why now), a few thoughts about the tax evasion charges. First of all, as far as I am aware, Ai has not told anyone other than the police that he’s admitting any sort of guilt, so I would take what Chinese media reports say about his confession with a huge grain of salt until he’s said something himself (which it sounds like he won’t, at least for the next year or so) or until some hard evidence is produced (don’t hold your breath).

As I said in a previous post, Ai was detained on April 3rd, and his studio was searched. Police didn’t return to search his accounting office until five days later, so it’s pretty clear that taxes didn’t have anything to do with the motivation for his arrest.

And while I have no idea whether or not Ai actually did evade taxes — just because they arrested him for obvious political reasons doesn’t mean he didn’t cheat on his taxes — you have to laugh at the idea of detaining someone for over two months for tax evasion in a country where only 2% of the population files income tax forms at all. Granted, a significant percentage of the country is too poor to be required to pay income taxes, but it’s undeniable that the vast majority of people who ought to pay taxes don’t. Without going into too much detail — and I’d like to note here that I do pay Chinese income taxes now — it’s perhaps worth noting that personally, I have had previous employers in high government positions who paid me (and all their other employees) in cash, under-the-table and tax-free. This is very common.

Still, who knows what taxes Ai evaded, or didn’t. He’s not yet saying — probably, he’s not allowed to say — and I highly doubt the government will ever produce any public evidence of anything, so it’s really not worth discussing in any detail. Let’s move on to the question of why Ai was detained.

There are already a number of theories about this in play. For example, there’s the official story:

The Beijing police department said Wednesday that Ai Weiwei has been released on bail because of his good attitude in confessing his crimes as well as a chronic disease he suffers from.

The decision comes also in consideration of the fact that Ai has repeatedly said he is willing to pay the taxes he evaded, police said.

The Beijing Fake Cultural Development Ltd., a company Ai controlled, was found to have evaded a huge amount of taxes and intentionally destroyed accounting documents, police said.

So there’s that. Then there’s the “Wen goes to Europe” theory, which says that Ai was released ahead of Premier Wen Jiabao’s upcoming trip to Europe, presumably to assure that Wen didn’t have to spend several hours in every country he visits hearing the same “Free Ai Weiwei” message over and over again. Still, for such a high profile arrest, this seems like a rather small reason to release him, no?

More popular — probably most popular right now, at least in the West — is the we-did-it self-congratulatory theory. The idea is that China caved to international pressure on Ai after deciding he wasn’t worth the loss of face and international trouble that Ai’s continued detention was causing. The most convincing example of this theory is Jerome Cohen’s explanation, which also factors in Ai’s own personal connections and his family’s status in China:

The decision to grant [“bail” to Ai Weiwei] has little to do with the rule of law, but everything to do with the untrammeled exercise of discretion enjoyed by Chinese authorities. This outcome makes clear that great international public pressure plus significant domestic and personal guanxi (关系, connections) can be a potent combination even in the case of someone who went further than anyone before him in openly thumbing his nose (and other body parts) at the Communist regime. Undoubtedly, Ai’s star talent, his family history and global support from the artistic community helped a lot.

Then, of course, there’s the self-important, batshit crazy version of the theory, as evidenced in this ridiculous press release from Change.org in which they take sole credit for Ai’s release. I’ll give you a second to read that, and then a few minutes to stop laughing. Are they sure the Chinese hackers attacked their site because of the Ai petition, and not just because they’re a bunch of pompous jackasses?

Seriously….”victory!”??? I know that’s a change.org thing, but Ai is out pending further investigation. He’s apparently not allowed to speak freely, and probably not allowed to travel freely. Dozens — probably hundreds — of other dissidents, including many from the wave of arrests that Ai caught the tail end of, are still in prison. And there’s no real reason to believe Change.org had anything to do with Ai’s release anyway. So yeah, maybe put that champagne away, guys.

All that aside, I think there’s another theory worth considering here that I haven’t seen espoused anywhere else. Ai’s release, coupled with restrictions that prevent him from giving interviews, talking about politics, or leaving the country, could actually be a fairly brilliant propaganda coup for China. Having Ai free but quiet takes the wind out of the sails of his domestic supporters, and will probably help disintegrate and fracture the dissident community that was essentially built around Ai’s twitter feed. Meanwhile, it also shuts up the international community, who will be too busy patting themselves on the backs (see above) to notice that (a) Ai isn’t allowed to speak or travel freely and (b) there are many, many other dissidents still in prison or being detained for political reasons.

Ai’s release might also be seen as an attempt by the government to gain some control over, or at least temporarily distract from, what seems to be a spiraling mass of stories with much more serious implications: slowing economic growth coupled with rising inflation, embarrassing reports of corruption and hamfisted suppression of everything from independent candidates for China’s eunich legislature to the shuttering of the newly-popularindependent corruption-reporting sites, power shortages, catastrophic flooding, protests, bombings, riots….yeah, I think it’s safe to say that “Fat artists kinda gets out of prison” is a preferable front-page story from the government’s perspective.

In actuality, it’s way too early to be sure how this will play out, or whether or not the restrictions placed on Mr. Ai will be as severe as I have suggested above. In the interim, let’s not forget that even if Ai is 100% free, he was only one of many, many imprisoned dissidents. There is no real victory here, not yet.

(That said, I am very happy to hear that he is safe and with his family, and I hope that things go better than I have suggested they might).

Pardon Our Ugliness

This is not a new design, but the old design may be out. You may have noticed we’ve had some downtime recently; this has been caused by our site using too much of our hosting server’s CPU resources. Long story short, we’ll be switching designs (at least), and possibly more (but I hope not). In any event, please bear with us, and feel free to comment on the latest China news in the comments. Once we get this server issue worked out, we’ll start work on a redesign (and by that we mean picking a new wordpress theme, because I am not good at coding).

ChinaGeeks Reader Survey

It’s been over a year since our last reader survey. Time for another! This year’s is more focused on demographics, and it’s probably patently clear from the questions that I’m pondering trying more seriously to support the site with advertisements. Please answer honestly and only once (you shouldn’t be able to answer more than once but with VPNs and multiple IPs you probably could).

You’ll note that we’ve got this lovely built-in survey now, rather than the horrible SurveyMonkey thing everyone had to put up with last year. It somewhat limits the kind of questions we can ask and it’s not going to make any pretty graphs, but it should be a much smoother experience for you. You won’t be able to see the results after you vote but I will publish them after we’ve collected enough surveys. Please take a minute to fill it out.

By the way, all this is ANONYMOUS, obviously. I will get a tally of the results, but not any information about who answered what. So rest easy and be honest!

[wp_surveys]

One final question: What else would you like to share with us? What do you like/dislike about the website? Any suggestions? This is your open ended question; please answer it (if you want) in the comments. (You can choose to use your regular username, or post anonymously by entering a fake email if you want, it doesn’t matter to us). Thanks!

In Brief: Independent Website Allows Netizens to Report Corruption

Check it out while you can, because I can’t imagine this is going to last long. “He took bribes” is a new, apparently independent website that allows users in China to report instances of bribery, corruption, and other official malfeasance.

The site is apparently based on a similar Indian site. On it, net users can report instances of corruption and search for reports of corruption by location. According to the site’s own description:

“‘He Took Bribes’ is a non-profit public interest site that opposes corruption and greed and provides users with a convenient platform for reporting cases. We will examine and verify reports that are submitted, weed out malicious and random reports, and then with other cases, in accordance with local procedures, we will submit them to local prosecutors in the most direct fashion possible. After local prosecution organs have confirmed the information, we will publicly publish the details of the story and the result of the report [on the site].”

This comes in the wake of several similar sites constructed by the government. I can recall at least two official government sites of this type, but both of them crashed almost immediately following their launch because they received far more traffic than the government was expecting and their servers simply couldn’t handle it.

I can’t imagine an independent site like this could last long. It’s designed far better than either of the official sites, and it’s gotten over 2 million hits already (it has only been online for a few days). Reportedly, it’s not currently blocked in China, but how long could an independent site like this last? Corruption, I suspect, is too explosive an issue for the the government to allow any kind of reporting mechanism that they can’t control.

Still, only time will tell. I’ll be keeping a close eye on this site, and will update when I can provide more detail. I’ve also reached out to the site’s creator for comment and will update if I can get a response.

Debating the Massacre

Modern China is a paradox. Economic prosperity coexists with political autocracy. As Jeffrey Wasserstrom has beautifully written in the Los Angeles Review of Books, Huxley’s Brave New World might be as good a guide or better to China as Orwell’s 1984. It is important to keep in mind that different modes of control are in place in China. It is easy to imagine China as the kind of ‘Big Brother’ state that Orwell imagined, with ubiquitous surveillance and harsh crackdown on political dissidents. But less obvious is how ‘vulgar materialism’ imagined by Huxley could serve as a kind of control.

Perhaps Chen Guanzhong’s science fiction The Fat Years: China, 2013 best explains it. There are obvious parallels between Chen’s novel and 1984. But the hidden message of the novel is that Chinese people ultimately opt for a Brave New World at the expense of living in 1984. In the novel, He Dongsheng, a Politburo member, confesses that there was a period of chaos between the start of global economic meltdown and the advent of China’s prosperous era. For a week, the Central Government takes little action to suppress the public disquiet, panic buying and looting, and China was on the brink of falling into anarchy.

In He Dongsheng’s words, it is a deliberate attempt by the government to instil fear among the people, a fear that the government would abandon them. As Thomas Hobbes wrote in the Leviathan, isolation, impoverishment and violence was the state of nature of human beings. Insecurity was the ultimate fear. In a country as big as China, people fear anarchy and chaos. Instead of pursuing freedom, people would bow in front of the unpleasant Leviathan, because only through it can the security and life of people be guaranteed.

As the novel’s plot unfolds, the Central Government enacts a nation-wide dramatic crackdown on alleged criminals over the next few weeks, with absolute state violence which kills the guilty and innocent alike. Paradoxically, the public welcomes the crackdown. After the crackdown, the government announces that China has officially entered the prosperous age. Everyone in China is happy and complacent, with the party’s rule ever more secure.

It is with this background that two recent opinion pieces in BBC Chinese are illuminating. One of them argues why the massacre in Tiananmen Square 22 years ago was necessary to avoid chaos, which was strongly rebutted by the other piece. One is a path down Brave New World, the other anti-1984. Chinese people know that they live in a politically repressed regime, but this regime has brought a lot of material benefits to most people. And people are inherently shortsighted, because they are wired to enjoy pleasures and convenience at present, not freedom and democracy in some distant future. As experience in other democratized countries show, the transition to democracy is never a smooth path, and sometimes accidental. The fear, then, is that the Chinese Communist Party could ultimately entrench its rule in a 1984-style Brave New World.

By the time, the June 4 massacre would have been forgotten in China, and the answer to the debate, translated below, would have seemed too obvious.

1. The massacre was necessary to prevent chaos

ZLR: The June 4 massacre helped China avoid turmoil. As everyone knows, Russia does not have a democratic tradition. It is only through Peter the Great’s blood and iron policy and Stalin’s authoritarian rule that Russia became a global superpower. The ‘new thinking’ of Gorbachev and Yeltsin converted Russia into a second rate power. Putin the ‘new tsar’ brings back the superpower dream to Russia. Obviously, Russia has paid a heavy price in its recent history. In a similar way, China does not have a democratic tradition. Under the absolute power of the Kingly Way, China had a glorious history and stood out among the nations of the East. In China’s history, there also emerged a wave of democratic and liberal thinking. Luckily, Deng Xiaoping decisively upheld the banner of ‘stability over everything’ and suppressed this liberal wave through blood and iron tactics. It is the June 4 massacre which helped China avoid further turmoil.

拓腾斋主人: From the conclusion, it can be seen that the author is not familiar with Russian history. True, Russia became stronger under Peter the Great. But his concentration of power led to the concentration of wealth among dictators and grievances among the people.

On the eve of the October Revolution, Pyotr Stolypin ruled with an iron fist to defend the Tsar and brutally suppressed liberalism and socialism. The nation’s economic resources were plundered by a group of oligarchs through predatory policy and land reform. At the time, the Russian economy grew rapidly (isn’t this familiar in today’s China?), but reforms enacted by the dictators were highly unfair. As the private interests of most people were hurt, social dissatisfaction rose, leading to the October Revolution and the overthrow of the Tsar. You said dictatorship was good for Russia. But why did the rule of the Tsar collapse?

Under Stalin’s iron fist rule, many people, including Communist Party members, were persecuted and massacred. Stalin’s Russia was indeed a superpower on a par with the US. But after his death, malpractices and problems not obvious under his rule surfaced. Bureaucratic planning led to a brittle economy. Tanks and warships were more numerous than bread and biscuits. The common people endured a harsh life.

By this time, institutional reform in Russia was inevitable, even with or without Gorbachev. The downfall of Russia was not due to Gorbachev’s reforms, but the accumulation of abuses since the Stalin era. As for Putin, you can say he ruled with an iron fist, but he was ‘democratically elected’. Only with over ten years of democratic rule since Yeltsin could Russia hope for a renaissance.

2. A stable China benefits the world

ZLR: The June 4 massacre sent a message to the world: China is a responsible country. Uncontrolled liberalization will only lead to chaos, and it will be a disaster for the world. As Deng Xiaoping said: ‘If it is chaotic to the extent that the Party and national administration cannot function, power over the army will be seized by different parties, leading to civil war. Civil war will lead to massive loss of lives, a break-up of China, decline of productivity, destruction of transportation, and millions of refugees. This will affect the Asia Pacific, the most economically vibrant region of the world. It’s a global disaster. Hence, China cannot afford chaos. It’s about being responsible to China and the world.’ (Selected Works of Deng Xiaoping, Volume 3, pp.360-361) Today, China is appraised for combating the global financial crisis and contributing to global economic growth. US Treasury Secretary Tim Geithner admitted in his Peking University speech that rapid and stable growth in China brings concrete benefits to the US and the world. In this context, the whole world benefits from the June 4 massacre.

拓腾斋主人: The aims of the student demonstrations 22 years ago were to commemorate Hu Yaobang and oppose corruption and official profiteering. It was an expression of the wish that China could be strong and its government clean. Expressions of opinion like this, involving tens of thousands of people, are very common in Taiwan, Europe and America. In the West, governments would at most dispatch police to maintain order. But in China, the government acts as if it faces a deadly enemy. The government threatens the public with the argument that chaos could lead to civil war in China, and uses the army to crush demonstrations. According to the author’s logic, challenging the Party’s authority is messing up with China. In the first half of the 20th century, the Chinese Communist Party organized countless demonstrations, protests and even militarized struggles to challenge the Nationalist Party. At the time, who is messing up with China? Who is pushing China to the brink of civil war?

3. China is different from the West

ZLR: The June 4 massacre proved to the world that there is no universal principle. Although God has created diverse species, there is no one species which can adapt to any environment […] Mao Zedong and Deng Xiaoping cannot use their talents to rule in Western countries; Washington and Churchill would neither be great rulers in the East. Beef and bread is the main course of the West; in China it is sesame bread. ‘Dad beating up the son’ will be viewed as violation of human rights in the West; in China it is a show of affection. Democracy can only bear fruits in the West; in China rulers have to rely on authoritarianism. If the June 4 massacre occurred in the West, the government will surely topple, society becomes chaotic and development stopped. But in China, it strengthens the rule of the Party, society becomes stable and development accelerated.

拓腾斋主人: I cannot but ask a question: in China’s five thousand years of history, was a universal, democratic system ever being implemented? (I emphasized universal because democracy is not a privilege of the West. Japan, South Korea and Indonesia are all democracies.) Practice is the sole criteria of testing the truth. If democracy has never been implemented, on what basis can we say that it is not suitable for China? Since the Opium War, when shoots of democracy were emerging, dictators would mask their fear with the sophistry that democracy is not suitable for China.

Empress Dowager Cixi of the late Qing dynasty said that reform was not suitable for China. Then, the ‘Six Gentlemen Martyrs’ were executed. Yuan Shikai said that Chinese people still did not have the wisdom to practise democracy. Then, he became the emperor. The ‘anti-revolutionary’ Nationalist Party said that democracy was impossible in China. At that time, the ‘progressive’ Communist Party said: ‘They say that democracy is foreign and cannot be applied in China… Democracy is better than non-democracy. This is like mechanized production is better than manual labor, whether in or out of China… Some say even if China needs democracy, it has to be different, and Chinese people should not be granted freedom. This is ridiculous. It’s like saying that the West should use the Christian calendar, and China should use the lunar calendar.’ (Xinhua Daily, 17 May 1944) 70 years ago, the Communist Party told everyone that democracy is universal. How come in the 70 years that follows, democracy was never being practised, but the Communist Party switched to the side of Empress Dowager Cixi and Yuan Shikai!

4. Obstruction to stability needs to be dealt with severely

ZLR: The June 4 massacre opened a new chapter in the dictatorship of the proletariat. ‘Who is our enemy? Who is our friend? This is the most important question of the revolution.’ (Selected Works of Mao Zedong, 1-4 one-volume edition, p.3) The ‘three big mountains’ were the people’s enemies of yesterday. Today obstruction to stability is the people’s enemy. Today our interests lie in the building of infrastructure. Whoever obstructs the progress of development and stability will be the people’s enemy, no matter what slogans he shouts out. There is no choice and compromise; they need to be dealt with. How to deal with them? Dictatorship. ‘Antagonizing class is the tool of oppression and violence, never anything “benevolent”.’ (ibid. p.1365) The sound of gunfire is the highest form of dictatorship. The June 4 massacre signals a message: ‘If there is need, we will use severe measures to eliminate any chaos which appear.’ (ibid p.349) Bullets are used to kill. Gunfire under the dictatorship of the proletariat is the enemy of obstructers of stability. For those who die, the question of reversing the verdict does not exist.

拓腾斋主人: The author’s logic is not clear. Stability is indeed a pre-requisite for a strong nation. But factors which lead to instability are many. One of them is dictatorship leading to grievances among the people. In such a situation, it would only lead to further instability if the government does not think about what it does wrong, but suppresses expressions of opinion and justice under the banner of ‘stability preservation’.

Looking back in Chinese history, many regimes depended on suppression to maintain stability: the Qin dynasty suppressed the rebellion of Chen Sheng and Wu Guang. But it did not think about reforms, which led to its overthrow by Liu Bang and Xiang Yu. The Tang dynasty was not alarmed by the Huang Chao Rebellion, and it was finally divided up by military governors. The Qing dynasty suppressed the Taiping Rebellion and stopped the Hundred Days’ Reform, only to be overthrown later in the Xinhua Revolution. History teaches us that regimes using the excuse of stability preservation to crack down on dissidents will not last long.

5. Don’t be afraid of foreign criticisms

ZLR: ‘We are dictators. Dear Sir, you are right. We are dictators.’ (ibid. p.1364) ‘Don’t be afraid of foreign criticisms. Their criticisms are all the same – we are uncivilized. Over the years, we endured much of these. But did we collapse?’ (Selected Works of Deng Xiaoping, Volume 3, p.286) We must learn from our two forbearers, Mao and Deng, who showed unusual contempt for the world, were fearless and unmatched then and now. Cheers for the June 4 massacre!

拓腾斋主人: Mao Zedong have said a lot of things in his lifetime. I would not argue with the author, and would just quote Mao’s conversation in 1944 with John Service, an American official in China: ‘There is no democracy unless we end dictatorship by one party. Our experience proves that Chinese people understand and need democracy. They don’t need to be taught and guided. Chinese farmers are smart. They care about their rights and interests.’ ‘Every American soldier in China is a living advertisement of democracy… We are not afraid of American influence through democracy. We welcome it.’ (Party History Communications, Vol. 20-21, 1983, compiled by Party History Research Center) These are in Mao Zedong’s own words. He knew clearly when to say the right thing. He needed to, because his power was at stake.

Liu Xiaoyuan on Residential Surveillance and its Pitfalls

In light of the ongoing disappearances and reappearances of lawyers, intellectuals and activists the legality [or lack thereof] of house arrest repeatedly came up in the news coverage, although not much explanation was given on one of the Chinese governments more peculiar measures in dealing with its subjects. Just as I was wondering where I could find further information I stumbled over a series of posts on Liu Xiaoyuan’s blog, who went into great detail to discuss what it’s all about. Obviously he had gotten a whole bunch of emails from people for whom the legal intricacies of house arrest or—in proper terminology—residential surveillance were equally hazy.

I guess most of these requests were related to Ai Weiwei’s whereabouts (as he is also believed to be under RS),considering that Liu might take over his defense. ((Unless he disappears into said legal limbo himself that is.)) For two interesting posts on the legality of Ai’s situation, albeit from opposite perspectives, check here and here.

In the first post Liu gives a detailed overview of the relevant laws and regulations, in the second post (translated below) he discusses legal ambiguities and cases of abuse of RS. In the third post (which I’ll try and post soon), he argues for an abolition of said measure due to the widespread problems arising in its implementation.

Translation

A further discussion of residential surveillance

Posted on May 26, 2011 by Liu Xiaoyuan

Residential surveillance is defined as a coercive measure that can be imposed on a suspect by the People’s Courts, the People’s Procuratorate and public security organs. In accordance with the Criminal Procedure Law a suspect can be ordered not to leave his home or designated residence for a certain amount of time, during which his actions can be monitored and his personal freedom restricted.

But to what extent can the personal freedom of a person under RS be restricted? How big a range of movement or action should people under RS still be entitled to? In regard to these questions the relevant laws and regulations, the interpretations by the judicature as well as further regulations by different departments [involved in its execution] are far from clear.

Article 57 of the Criminal Procedure Law states that criminal suspects or defendants under residential surveillance should not leave their domicile [or home residence] without permission of the executing organ, or, if the person in question has no fixed domicile, not to leave a designated residence without prior permission. Thus, without obtaining prior permission stating otherwise, their freedom of movement is limited to those places.

But it is not further elaborated what a home or designated residence exactly is.

Article 98 of the “Provisions on the Procedures for Handling Criminal Cases by Public Security Organs” defines the home residence as the legitimate residence the suspect holds in the city or county where the case is handled. The designated residence is defined as the residence a suspect is appointed, due to case-specific circumstances, by the PSB in the city or county where the case is handled. The police is not allowed to set up a special place for residential surveillance, in order to avoid that the suspect is actually put under a disguised form of detention. Furthermore, it can not be carried out in detention facilities or any kind of designated PSB work place.

But these explanations also lack clarity.

If a suspect under RS has an apartment in a residential compound, should his movements be restricted only to his apartment or should the residential compound be included? In other words, can he exit the door of his apartment and move around in his compound? The same question can be asked in regard to an assigned place of residence.

One reading of the law is, that “home residence” in rural areas should be understood as the entire village in which the home of the person in question is located or, in cities, should be interpreted as the entire compound surrounding the house. The assigned place of residence should be understood as the house or courtyard in which the living quarters are located.

Another interpretation is that while the requirements of an ongoing investigation and trial have to be met in order to guarantee that further steps can be executed swiftly, consideration should also be paid to enabling a suspect to lead a regular life and resume his work or study, when he is not demanded in court.

In my personal opinion, [the definition of] home or assigned residence should not be interpreted in a narrow and limiting sense. A person under RS can hardly remain in the confinement of his living quarters all day, without ever leaving the apartment. There should be some space and range for movement. Because if a suspect’s or defendant’s range of movement is limited to residential quarters alone, then he is de facto deprived of his personal freedom.

The longest duration of RS allowed by law is six months. If the suspect isn’t even allowed to step out of the door in such a long period of time, the severity of this measure would be so grave that there is virtually no difference to official custody or detention. The original intent of the RS legislation was to define a coercive measure that would only partially restrict a suspect’s or defendant’s personal freedom, and not another form of detention or arrest.

When put into practice, a multitude of problems arise:

1. Abuse of the measure as intended by law. The boundaries, subjects and conditions of RS are clearly defined, but some investigative organs severely breach the relevant laws and regulations in its implementation. This has for example happened in cases where the prosecution has decided against raising charges and authorizing an arrest, but instead of dropping the proceedings, as it should be done, the persons in question were subjected to RS. In other cases the relevant departments used RS as an alternative to conducting a proper investigation and thus put people in RS who shouldn’t be subjected to this coercive measure under the legal framework. In some cases RS was used as a means of resolving cases in which civil disputes had led to minor injuries. In all these particular cases RS was used due to intervention or under influence from forces outside the legal institutions, leading to a much higher amount of RS cases than would have been allowed by law.

2. RS is executed in locations that are in breach of the law and regulations. In these cases the suspect or defendant is subjected to a disguised form of detention, as intended for a criminal offense. Article 57 of the Criminal Procedure Law defines the locations where RS can be implemented as the home residence of a suspect or defendant or —if this is not possible— as a designated residence. But some of the departments entrusted with carrying out RS used some form of hotel, hostel, guesthouse or basement accommodation instead. In other cases the suspects where held at places meant for handling cases and carrying out administrative detention as well as property of security companies. In addition, some of the investigative organs denied the person under RS any direct contact with other people and even installed surveillance technology to keep constant watch. Others ordered that even people also living in the residence and appointed lawyers needed to obtain permission to gain access.

In cases where the suspects or defendants did not have a place of residence or their home residence was relatively far away from the place the case is handled, the investigative organs routinely put people in preinstalled “surveillance houses.” But bringing a suspect to a fixed location for the purpose of carrying out surveillance is nothing but taking someone into custody or putting him in detention. If the place where RS in carried out is illegal, resulting in a situation of disguised detention, it constitutes a serious violation of a suspects human rights.

3. The choice of the executing organ is illegal. Article 51 of the Criminal Procedure Law states that RS has to be carried out by public security organs. But PSBs, in whose jurisdiction the suspect or defendant falls, often hand the implementation out to “hired cops” or local public security defense forces, due to a lack of resources or other reasons. Situations where the number of PSB personnel is not sufficient and additional manpower is contracted from the civil sector certainly exist. Furthermore, some investigative organs authorize other departments or subordinate private security companies entirely with the implementation. Others hand the management of RS into the hands of local village committees and thereby turn [the legal intend of] RS into a mere formality. Because all these actors haven’t obtained the formal approval by the relevant body responsible for law enforcement, they don’t have the legal power to carry out RS and thus their actions are illegal.