Category Archives: Law

Translation: “Looking Forward to When Anti-Corruption Has Some Culture”

I came across this short piece by Wang Gengxing in Southern Weekend today; I think it’s quite worthy of discussion. (All the links were added by me for the purposes of providing extra context; none of them are in the original piece).

Recently officials have been falling one after another: “Watch brother” Yang Dacai, Guangzhou former PSB chief He Jing, Yibin deputy mayor Chen Guangli…we can see that the government is resolute in opposing corruption and that the anti-corruption system is gradually improving. But even the most perfect system will not easily show results without corresponding cultural support. Taichung (Taiwan) mayor Hu Zhiqiang once dressed up as a beardless “modern-day Zhong Kui” and beheaded four kinds of green “corruption demons” with a group of children to plant the seed of opposing corruption in their hearts. Hong Kong’s ICAC uses many approaches to plant the seed of “clean governance” in the people’s hearts: they used the cartoon “Zhi Duo Duo” to communicate with children, set up an interactive website to communicate with young people, sent “clean government ambassadors” to colleges, held anti-corruption activities…Central Commission for Discipline Inspection secretary He Guoqiang recently emphasized that we must give prominence to the special characteristics of clean government culture, “in improving writing styles from top to bottom, in innovating new measures from top to bottom, ceaselessly raising the level of anti-corruption/pro-clean government education and propaganda work.” Why can’t you and I also put forward plans and make anti-corruption even more cultured?

Is cultural involvement really necessary to fostering cleaner government? Clearly not everyone thinks so. One commenter on the article above wrote:

Without civic consciousness, without consciousness of civil liberties, without an effective system of checks and balances, all we can do is count on idle talk, what’s the point?

Another wrote:

Culture’s influence is imperceptible [but present], however in today’s society, this road is destined to be long and winding [i.e., eliminating corruption via cultural changes is going to be a very slow and inefficient process]. Returning to the main topic; greed comes from human nature; unless we wait for the arrival of true socialism when there is no more inequality, we’re just treating the symptoms but ignoring the root cause.

Another commenter hit on my own personal reaction to the piece:

The system is useless, it’s all Monday-morning quarterbacking ((The original Chinese here is one of my all time favorite expressions, ‘an after-the-fact Zhuge Liang’)). Mostly it relies on net users, mistresses, and Gan’s daughters.

In other words, the system is often reactive and does nothing to stop corrupt officials who don’t draw attention to themselves. Indeed, one of the examples Wang cites in the original piece, “Watch brother” Yang Dacai, was only brought to justice after internet users uncovered his corruption and started raising a ruckus.

Returning to the original point though, despite the fun-sounding stunts in Taiwan and Hong Kong, I don’t think that corruption can really be regulated through education and culture, and especially not through the PRC government’s propaganda machine, which hasn’t proven to be particularly effective with this sort of thing. (For example, the government has been both promoting and legislating gender equality for years in the hopes that it can stamp out the traditional girl-bad-boy-good mentality; the failed results of that campaign so far are pretty evident in the country’s growing gender gap). As one commenter pointed out, greed seems to be a part of human nature, and it’s not likely to be overcome by a cultural campaign even if Zhongnanhai plasters the walls of the Forbidden City with red banners about fighting corruption.

On the other hand, though, the Chinese school system certainly could be doing more to promote transparency and honesty. At present, many students in Chinese schools are learning (among other things) how to get away with cheating; cheating and plagiarism are (in some schools) basically considered part of the game. I can only assume that attitude does contribute to the idea that it’s OK to cheat in other ways in one’s professional life, including — if one opts to go in that direction — one’s life as a public official.

Moreover, I suspect the larger issue facing China’s anti-corruption drive is the perception that Party membership and officialdom is generally motivated by personal interests rather than ideology or any genuine interest in serving others. For example, a cursory search for “Why Should I Join the Party?” turned up this question on Baidu Knows (What is the best reason why I should join the Communist Party?”). The top answer is exactly what you would expect, but here are snippets from some of the other answers users submitted:

…The best reason to join the Party is that after you commit a crime you’ll become famous. As soon as someone says official so-and-so did it. Otherwise, you won’t be able to become famous…

Of course, joining the Party has advantages for you…

Because you’re a Chinese person and you have to live in China…

Because these days many companies give priority to Party members when hiring.

Entering the Party is not just a reflection of improving your political identity, it is also creating a political foundation for your personal struggles. In a sense this means it will improve your personal value; for example when filling out a resume and putting down that you’re a Party member, the results will be very different [than if you weren’t; in other words, Party members will get jobs and meet other goals more easily.]

My personal opinion…when Party members make mistakes, they take away your Party membership first; if you’re not a member you’re just directly criminally prosecuted. Also I hear that if you’re a Party member and you’re arrested they can’t put handcuffs on you, haha.

There’s plenty more where this came from; the point is that clearly a lot of people feel that joining the Party ((which, granted, isn’t quite the same as public service although it’s generally the first step towards that)) these days is just a way to get ahead in your career or give yourself a little bit of padding in case you ever get caught breaking the law.

That’s a cultural problem of sorts, so could a cultural push really help stem the tide of China’s corruption? And if it could, would the Chinese government actually be able to effectively pull off such a campaign? I have my doubts, but I’m curious to hear what others think.

(Please keep in mind before you comment that we have recently changed the commenting rules. I highly suggest reading that link before commenting if you’re not already aware of the changes.)

Wen Yunchao: An Open Letter to the Investors of Sina

Note: Below is a translation of an open letter written by Wen Yunchao (twitter: @wenyunchao), an outspoken blogger and free speech activist on the Chinese Internet. It is addressed to the investors of Sina Corp, and explores the censorship practices and implications of the corporate structure of the company, which runs the most popular microblogging service in China. If you are not familiar with Wen Yunchao, the recent New York Times feature about him, Where an Internet Joke is Not Just a Joke, is strongly recommended. For an extensive discussion of the methods used by Sina to censor its micro-blogging service, be sure to read the blog post by Jason Ng at Kenengba. The post is in Chinese, but William Farris has provided a helpful English summary.

Update: If you would like to sign the letter, you can send your name, country and occupation to wenyunchao@gmail.com.

Wen Yunchao: An Open Letter to the Investors of Sina

Dear Investors of Sina Corp,

We issue this open letter because Chinese Internet company Sina and its microblogging service, Sina Weibo, fully cooperate with the Chinese government to censor and suppress the free speech of online citizens, without regard to any principle. Their behavior is disgusting.

The blog “Kenengba”, which received the Best Chinese Blog award in the 6th Deutsche Welle Best of the Blogs (BOBs) competition in 2010, once published the article “Ten Impressions I’ve gotten from Sina Weibo”. The article summarizes the censorship tactics of Sina Weibo, including keyword screening and post deletion, unidirectional blocking, screening of posts, banning of speech, “The Little Secretary Helps You”, account deletion, blocking of re-registration, and blocking of IP. The article also uses the case of Sina’s plagiarism from the Google-focused website Guao (http://www.guao.hk/) to illustrate how Sina Weibo not only cooperates with the government on censorship, but also deletes users’ information on its free will. ((可能吧:新浪微博给我印象最深刻的10件事, http://www.kenengba.com/post/3019.html))

Beifeng, well-known Chinese blogger and winner of the 2010 annual award of the French National Consultative Commission on Human Rights, writes: “Sina not only cooperates with the authority to impose censorship, it also conforms to their requests to frame certain people.” The article highlights the practice of Sina to change the account name of a user so that others can use the original name to publish contents which can endanger that user with legal liabilities. ((北风:新浪配合“他们”作恶的明确证据, http://www.bullogger.com/blogs/wenyc1230/archives/383569.aspx))

Xiao Han, associate professor at the China University of Politics and Law, “protests against Sina’s account deletion through reincarnation.” In his article “Why I leave Sina Weibo”, he writes, “the outrageous behavior of the administrators (the banning of unused ID intended for reincarnation) is for all to see. They abuse their power to destroy other people. Although they only destroy IDs, their way of thinking is the same as the Communist Party.” Xiao Han’s blog, on which the article was published, has also been removed by Sina. ((萧瀚:我为什么离开新浪微博? http://news.jcwb.net/news_of_microblog/378.html))

Furthermore, a video on YouTube entitled “How Sina Weibo deceives its users” clearly shows how Sina Weibo limits the number of followers of some accounts. Ms Liu Ping is an indepedent candidate for the local people’s congress of Jiangxi province. Because of her candidateship, over 30,000 people follow her on Sina Weibo at some point. But then Sina Weibo uses deception to reduce her followings. When other users click to follow her on Weibo, the system will send a message showing that the operation is successful, when in fact it is not. Now, the number of followers of Liu Ping’s account has dropped to 20,000. ((Youtube:新浪微博是如何故意欺骗用户的? http://www.youtube.com/watch?v=543pH7uUd-g))

Chinese internet users cannot count on any legal remedies against the actions of Sina which go beyond the bottom line.

Chinese netizens have previously tried to sue Chinese Internet companies for their censorship practices. But none of the cases have ever received a trial. On 16 August 2007, Chinese human rights lawyer Liu Xiaoyuan went to the Beijing Haidian court to sue Internet services provider Sohu for hiding blog posts. The court accepted and filed the case on the same day. But on 12 September, the same court refused to accept the case, which was assigned the civil case number 23191. Liu appealed to no avail.

Some suggest to sue Sina in its place of registration or listing. However, according to publicly available information, what we normally refer to as the Sina portal is different from and has no subordinate relationship with the NASDAQ-listed Sina Corp.

The NASDAQ-listed Sina Corp is a holding company registered in the Cayman Islands. It has four subsidiaries, namely the Hong Kong Sina Co. Ltd. (which operates the Hong Kong Sina portal), Lifang (Hong Kong) Investment Co. Ltd., the California-registered Sina Online (which includes two Sina portals in North America and Taiwan), and the British Virgin Islands-registered Sina Limited.

In mainland China, Sina has registered several companies using the variable interest entities (VIEs) structure, including Beijing Sina Information Technology Co. Ltd., Sina Interactive Corp, Sitonglifang Software Corp, and Beijing MicroDream Creation Internet Technology Co. Ltd. Sina Information Technology operates the content part of the Sina portal, and holds the ICP, news publishing permit and other relevant licenses; MicroDream operates Sina Weibo and independently holds the ICP and other licenses.

Sina Interactive is fully in charge of the advertising business on the Sina portal and Weibo, while Sitonglifang provides technical support to Sina Information Technology and MicroDream. Advertising and gaming revenues from the Sina portal and Weibo are shared to Sina Interactive through an agreement. For Sifanglitong, it receives revenues in the form of fees for technical support. In turn, profits from these two companies are transferred to a subsidiary fully owned by the listed Sina Corp through other agreements.

The Sina portal and Weibo cooperate with the Chinese government on censorship, and they are respectively operated by Beijing Sina Information Technology Co. Ltd. and Beijing MicroDream Creation Internet Technology Co. Ltd. These are purely Chinese entities which only have business and contract relationships but no direct affiliation with the listed Sina Corp. Therefore, it is impossible to force them to stop censorship by taking action in the place of registration or listing of Sina Corp.

In 2011, several New York residents tried to sue Baidu Corp in a US district court for “shielding” the information they published online. Chinese Foreign Ministry spokeswoman Jiang Yu said that China’s management of the Internet is in line with international practices. This is an act of sovereignty which foreign courts have no jurisdiction under international law.

We know that China has severe restriction on public speech, and it is not realistic to request Sina to completely abandon censorship. However, in view of the reality that Chinese netizens have no effective channels to limit the behaviors of Sina, we believe that appealing to the investors of Sina Corp to reduce their shareholding could weaken Sina’s efforts in censorship. This can force Sina to follow clear censorship rules and ensure that users can seek judicial relief in China or third places.

According to Sina Corp’s 2011 second quarter financial report, although revenue has increased year on year, the net profit is down 60.3% to US$10 million. “The operating expense of the second quarter of 2011 is US$59.7 million, compared with US$32 million for the same period last year. The increase in operating expense is mainly related to Weibo marketing and human resources.” According to outside estimates, Sina employs nearly 1,000 people to censor Weibo. For some time in future, Sina Corp will continue to increase spending on marketing and staffing related to Weibo. We think that it is feasible to pressure Sina to reduce its censorship efforts by dumping Sina’s stocks.

The Chinese government’s policy on Weibo has a significant effect on the prospects of Sina. Holding the shares of Sina Corp entails tremendous uncertainty. On 20 September 2011, the share price of Sina dropped by 15.17% to US$92.76, the greatest daily drop since December 2008. Sina’s market capitalization has shrinked by US$1 billion to US$6 billion. Market commentators attribute this drop to concerns over regulatory risks. ((第一财经日报:微博监管风险重挫新浪股价 http://www.21cbh.com/HTML/2011-9-22/wMNDA3XzM2NzUwMg.html))

On 17 October 2011, Beijing Daily published an anonymous op-ed titled “Lack of credibility will mean the end of Weibo”, which calls for a real-name registration system for Weibo. ((北京日报:网络微博诚信缺失将无以立足, http://news.xinhuanet.com/politics/2011-10/17/c_122165528.htm)) The article criticizes the serious shortcomings which come with the rapid growth of Weibo. If left unchecked, these problems will threaten the society. It urges the government to purify the Internet through more comprehensive and targeted measures so that new media will be responsible for ensuring integrity. It suggests that the government should fully implement a real-name registration system for Weibo and an accountability system for online media. Guangdong’s Southern Metropolitan Daily thinks that “a strict real-name system may drive away users.” ((南方都市报:微博要搞实名制? http://gcontent.oeeee.com/6/9a/69a5b5995110b36a/Blog/9a1/4437ac.html))

In a recent interview with CCTV’s program Economic Half-hour, Sina CEO Charles Chao commented that Weibo will be the future driving force of Sina. ((曹国伟:微博将是新浪未来驱动力, http://finance.sina.com/bg/tech/sinacn/20110226/0635235624.html)) China’s regulatory policy towards Weibo will undoubtedly have a significant impact on the prospect of Sina. As social conflicts are becoming more acute, the government’s control on the society will tighten, and the space for free speech will shrink. In this context, Internet censorship will undoubtedly be strengthened, and the possibility of the Chinese government shutting down the microblogging services will always be with us.

Perpetrators and their collaborators should be punished. We hereby urge investors to reduce their shareholding in Sina based on both moral and rational judgments, thereby indirectly applying pressure to Sina and its microblogging service to get them onto censorship practices based on clear and transparent principles.

 

Written by: Beifeng
November 2011

The Supreme Court Speaks Out on Forced Demolitions

This link is currently being passed around Chinese social networking circles. It is a Baidu cached version of a document that was posted to and then subsequently deleted from the official website of China’s Supreme Court. Since these sorts of things often get deleted from Baidu’s cache as well, I’ve uploaded a full-size screenshot of the document (click the image for full size) and will also repost the Chinese text in full below.

I don’t have time to translate the whole thing, so I will translate the introduction and the eight major instructions given in the article. Each instruction is followed by some elaboration, which I haven’t translated.

Translation

Recently, land seizures and forced demolitions in some places have given rise to the repeated occurrence of violent ((恶性, hard to translate)) incidents. Some of those [whose homes were] affected have set themselves on fire, jumped off of buildings and committed suicide or maimed themselves in other ways, or resisted, with some lighting gas canisters, splashing gasoline, throwing rocks, etc. to impede enforcement, some have ganged up and surrounded [demolition teams], attacked workers and caused mass incidents, court officials and police cadres have inappropriately used weapons to kill and would people, etc. Recently, another person [whose home was being demolished] set himself on fire in Zhuzhou, Henan (paramedics were unable to save him). Although the above incidents represent a minority of cases, that have given rise to an extreme level of public attention, and had an extremely negative influence on society, and what they have taught us is very profound:

  1. We must attach great importance to, and strengthen, our sense of urgency and our sense of crisis.
  2. We must strictly investigate the implementation [of forced demolitions] in accordance with the law.
  3. We must seriously control [cases where] a lawsuit [is still in progress] but permission to demolish is preemptively granted.
  4. We must employ force cautiously, and ensure that all is safe.
  5. We must strengthen the supervision and guidance of higher-level courts.
  6. We must optimize the environment of justice as it pertains to implementation [of demolitions and seizures] ((awkward translation, sorry, pushed for time!))
  7. Seriously emphasize the information reporting system. [The elaboration on this point makes it clear this is referring to higher level Party committees and court organs being given speedy and reliable information; it is not related to media reporting].
  8. Clarify responsibilities, and seriously investigate illegal dereliction of duty.

Comments

All in all, it’s a somewhat liberal but not particularly shocking document. It reads a bit like a call to clean things up, but since there are very few specifics, it’s hard to imagine this really rocking the boat all that much. On the other hand, there must be a reason it was deleted from the Supreme Court’s official website.

Why was it deleted? Who knows. It’s still available via Xinhua and elsewhere, so it could be the deletion is not political, or it could be the news media just hasn’t been cleaned up yet. We’ll keep an eye out.

Original Text

Since I don’t have time to translate it, and in case it disappears, here you go!

最 高 人 民 法 院
关于坚决防止土地征收、房屋拆迁强制执行
引发恶性事件的紧急通知

近年来,一些地方在土地征收、房屋拆迁强制执行中引发的恶性事件屡屡发生。有的被执行人以自焚、跳楼等自杀、自残方式相对抗,有的以点燃煤气罐、泼洒汽油、投掷石块等方式阻挠执行,有的聚众围攻、冲击执行人员酝成群体性事件,有的法院干警不当使用武器致人死伤等等。前不久,湖南省株洲市又发生一起被执行人在房屋拆迁强制执行中自焚(经抢救无效死亡)的严重事件。上述事件虽属少数或个别,但引起的社会关注度极高,造成的社会影响极为恶劣,其中的教训也极为深刻。为防止和杜绝类似事件再次发生,现就有关问题紧急通知如下:

一、必须高度重视,切实增强紧迫感和危机感。土地征用、房屋拆迁往往事关人民群众切身利益和社会稳定大局,是社会高度关注的问题,也是矛盾多发的领域。各级人民法院的领导和干警必须站在依法保护人民群众合法权益、维护社会和谐稳定、巩固党的执政地位和国家政权的高度,充分认识做好这项工作的极端重要性,将此作为坚持群众观点、贯彻群众路线的重要载体,以更加严格执法的信念、更加严谨审慎的态度、更加务实细致的方法,依法慎重处理好每一起强制执行案件,坚决反对和抵制以“服务大局”为名、行危害大局之实的一切错误观点和行为,坚决防止因强制执行违法或不当而导致矛盾激化、引发恶性事件。

二、必须严格审查执行依据的合法性。对行政机关申请法院强制执行其征地拆迁具体行政行为的,必须严把立案关、审查关,坚持依法审查原则,不得背离公正、中立立场而迁就违法或不当的行政行为。凡是不符合法定受案条件以及未进行社会稳定风险评估的申请,一律退回申请机关或裁定不予受理;凡是补偿安置不到位或具体行政行为虽然合法但确有明显不合理及不宜执行情形的,不得作出准予执行裁定。

三、必须严格控制诉讼中的先予执行。对涉及征地拆迁申请法院强制执行的案件,凡是被执行人尚未超过法定起诉期限的,一律不得受理;凡是当事人就相关行政行为已经提起诉讼,其他当事人或有关部门申请先予执行的,原则上不得准许,确需先予执行的,必须报上一级法院批准。

四、必须慎用强制手段,确保万无一失。对当事人不执行法院生效裁判或既不起诉又不履行行政行为确定义务的案件,要具体情况具体分析,注意听取当事人和各方面意见,多做协调化解工作,尽力促成当事人自动履行。凡最终决定需要强制执行的案件,务必要做好社会稳定风险评估,针对各种可能发生的情况制定详细工作预案。凡在执行过程中遇到当事人以自杀相威胁等极端行为、可能造成人身伤害等恶性事件的,一般应当停止执行或首先要确保当事人及相关人员的人身安全,并建议政府和有关部门做好协调、维稳工作,确保执行活动安全稳妥依法进行。

五、必须加强上级法院的监督指导。上级法院要切实履行监督指导职责,增强工作协同性,及时发现和纠正下级法院存在的各种问题。下级法院要主动争取上级法院的指导和支持,充分发挥执行工作统一管理的优势。凡涉及征地拆迁的强制执行案件,相关法院在执行前必须报上一级法院审查同意后方可实施。

六、进一步优化执行工作司法环境。鉴于目前有关征地拆迁的具体强制执行模式尚待有关国家机关协商后确定,各级人民法院要紧紧依靠党委领导,争取各方理解和支持。凡涉及征地拆迁需要强制执行的案件,必须事前向地方党委报告,并在党委统一领导、协调和政府的配合下进行。同时,积极探索“裁执分离”即由法院审查、政府组织实施的模式,以更好地发挥党委、政府的政治、资源和手段优势,共同为有效化解矛盾营造良好环境。

七、严格重大信息报告制度。凡在执行中发生影响社会稳定重大事件的,有关法院必须迅速向当地党委和上级法院如实报告有关情况,做到信息准确、反应灵敏。对不具备交付执行条件的案件,凡遇到来自有关方面的压力和不当干扰的,必须及时向上级法院和有关机关报告,坚决防止盲目服从、草率行事、不计后果的情况发生。

八、明确责任,严肃追究违法失职行为。凡是因工作失误、执法不规范或者滥用强制手段、随意动用法院警力实施强制执行导致矛盾激化,造成人员伤亡或财产严重损失等恶性后果以及引发大规模群体性事件,或者对重大信息隐瞒不服、歪曲事实,造成影响社会稳定等负面效果持续扩大的,要严肃追究有关法院领导和直接责任人员的责任,并予以曝光通报。
特此通知。

Troubling Legal Reforms

via Yahoo NewsFirst off, apologies for the recent relative silence of this blog. I’ve been busy with a number of other things (including moving to a new apartment). At least one of those things will be appearing here quite soon, I hope, but in the interim, you’ll have to excuse the delays.

Anyway, if you’ve been following the news you’re probably already aware that proposed revisions to China’s criminal law code are currently making the rounds for public comment, as is customary prior to the revisions being ultimately approved (or not). These revisions have caused quite a stir because among them is a clause that would allow police to detain persons suspected of terrorism or endangering state security ((a crime many dissidents are accused of)) for long periods of time in secret locations and without informing their family members. Siweiluozi has been covering this issue particularly well, and I suggest reading his blog and also following his Twitter, which often contains commentary on the proposed laws from famous Chinese lawyers.

Anyway, the full text of the revisions is available here, but we’ve translated the relevant segment, which is from article 30, below (emphasis added):

Residential surveillance ((i.e., house arrest)) should be carried out at the residence of the accused criminal suspect; those without a fixed residence can be held at specified location. As for those suspected of harming state security, terrorist activities, or major corruption, carrying out residential surveillance in their residence could pose obstacles to investigation, [so if it is approved by] the immediately superior people’s procuratorate or the public security organ, the residential surveillance can be carried out at an appointed location. However, the appointed place does not need to be a detention center or a designated case center [专门的办案场所].”

The family members of the person being held should be notified of the location and reasons for the detainee’s detention at a designated location for residential surveillance within 24 hours of the detention being carried out, except in cases where notification is impossible or the detainee is suspected of involvement in harming state security or terrorist activities, or if informing them could impede investigations.

Now, I am not a legal expert, nor am I a legal translator, but I’m fairly confident that even if I haven’t translated this as precisely as a professional might, I’ve gotten the general idea correct. And it should be pretty clear why people are concerned about these revisions; clearly, they allow the PSB to summarily detain anyone at an undisclosed location for an unlimited period of time, so long as that person is suspected of harming state security.

There is no indication of what evidence (if any) is required, and no clarification whatsoever as to what it takes to label someone as “suspected” of harming state security. There is also no stated time limit for the deteintion of these suspects or the informing of their family members. And most concerning, to get approval to do this, the police must either get approval from the people’s procuratorate or from “the public security organ” — in other words, from themselves. It appears that a local PSB official of sufficient rank could in essence summarily detain anyone, anywhere, for any period of time, for doing anything, so long as the police official “suspected” they were involved in harming state security and/or terrorism.

The good news is that the revisions are attracting attention. Officially, over 40,000 opinions have already been submitted, and discussions are taking place everywhere from newspapers to Sina Weibo. Here’s hoping the NPC is listening to what people are saying.

Given that, I was interested when Tom Lasseter pointed out that the Global Times has addressed this issue:

One article of the amendment is interpreted as both progress and regression in China’s legal system, depending on how you look at the issue.

The amendment stipulates “under special conditions, suspects can be held under surveillance without their families being notified within 24 hours.” The special conditions include: notification being impossible, crimes concerning national security, severe law violation involving terrorism activity and if notification may hinder an investigation.

These special conditions have triggered outcry that it leaves room for secret detention, and has caused concern in media outlets, such as the New York Times, that “more Chinese dissidents appear to disappear.”

But if one reads it from another perspective, the article has actually been written into the Criminal Procedure Law for 32-years, and the amendment is trying to clarify the special conditions and limit the circumstances of detention without proper notification of the family.

Law articles can’t be black and white. There are cases that have to be decided differently. For example, the detention of a corrupt official may conform to the special conditions of withholding information in order to prevent the fleeing of others involved. Conspirators may be kept from communicating when nabbing a terrorist network.

There are worries of overuse or improper use of these special conditions. These are legitimate concerns. But the way to prevent misuse is through further improvement and clarification, not by completely denying it. With the legal consciousness of the public on the rise, plus scorching media scrutiny, law enforcement procedures are under mounting pressures that force police to reduce abuses of power.

China’s legal system has much to improve, but the country is also not under the dark days of the Middle Ages. Law is meant to protect the majority of people, not only a few who speak loudly.

As I understand it, these laws were last revised 14 years ago. Are those of us who are concerned by this development meant to wait another 14 years in the hope that this law will be further revised? That’s nonsense. Regardless of what you think of the law, it it needs “further improvement and clarification,” why wait? And if it doesn’t, why bother saying that at all?

Of course, disputing the logic of a Global Times editorial is sort of like taking candy from a box labeled “free candy — please take.” So I’ll just leave it at this: I find this suggested revision very disturbing, and in fact would say it appears to be an attempt to legitimize and legalize the “disappearing” of “dissidents” like Ai Weiwei and Gao Zhisheng. Under the current laws, his disappearance was possible because of a loophole in the legal code, which they are now proposing be written into law.

Passing this revision would be a step backward in China’s march — perhaps glacial crawl is actually a better term — towards embracing human rights as meaning something beyond GDP growth. Other nations, including the United States, have similar provisions for terror suspects, and they are equally reprehensible. Whatever crimes a person may have committed, they should not be subject to extended or arbitrary detention before they are convicted, and their family — who have committed no crime — should at the very least be allowed to know their whereabouts.

Professor Calls for Special Investigation into Train Crash

On July 28, five days after the deadly high-speed train crash in Wenzhou, Chinese premier Wen Jiabao visited the scene and gave a press conference. Responding to a question about investigations into the causes of the incident, Wen said:

After the incident, the State Council has immediately set up an accident investigation team. This team is independent, and it involves the departments of safety, supervision and the procuratorate. Through on-the-ground survey, sampling, scientific analysis and expert reasoning, the team will reach a solid conclusion that can stand the test of history.

But the credibility of such an investigation has been called into question. Earlier on July 26, He Weifang, law professor at Peking University and an activist for the reform of the Chinese judicial system, wrote three posts on Sina Weibo calling for the setting up of a special investigation committee according to Article 71 of the Chinese Constitution, which says:

The National People’s Congress and its Standing Committee may, when they deem it necessary, appoint committees of inquiry into specific questions and adopt relevant resolutions in the light of their reports. All organs of state, public organizations and citizens concerned are obliged to supply the necessary information to those committees of inquiry when they conduct investigations.

The three posts, translated below, have altogether attracted over 45,000 forwards and 10,000 comments. Netizens on Weibo are overwhelmingly in support of Professor He’s proposal, although they know that it has a slim chance of being adopted.

After the 2003 Sun Zhigang incident, I and four other legal experts called for the triggering of the special investigation procedures as stipulated in Article 71 of the Constitution. The suggestion fell on deaf ears. The Wenzhou accident sparked a public outcry, and investigation by the Railways Ministry would be unconvincing. The reliability of the high-speed rail system is now in doubt. I once again call for the opening of the special investigation committee in order to conduct hearings and give an answer to the public. (link)

The system of special investigation committee as stipulated in the Constitution has been in force for 30 years. But it has never been used. The article is therefore a “sleeping beauty”. The committee is a normal act of power by our highest authority, which has an obligation to do so. In February last year, the US Congress conducted a hearing on Toyota following its vehicle recalls. Our media called it “US Congress interrogating the safety of Toyota”. Who is to interrogate the safety of our railways? (link)

Article 21 of the National People’s Congress Standing Committee rules of procedures said: “The Standing Committee may, when they deem it necessary, appoint committees of inquiry into specific questions and adopt relevant resolutions in the light of their reports.” This means that such committees can still be appointed when the NPC is not in session. The motions can be raised by the State Council, other authorities, or ten or more members of the Standing Committee. (link)

Yesterday, Professor He also wrote a blog post (translated in full below) calling for the waking up of the “sleeping beauty”. An abridged version of the post also appears in the Southern Weekend.

After the serious incident on July 23, the nation is paying much attention to the causes, number of deaths, handling of the scene and issues of responsibilities. From media reports, it is clear that the State Council is playing a major role in the on-site investigation, while the Railways Ministry does the explanation to the public. Apparently, the media, including official ones, is dissatisfied with the answers given by the spokesperson in response to questions raised by the public. The Railways Ministry itself is the involved party bearing responsibilities, and the State Council, being the supervising authority, also has a conflict of interest. Furthermore, the investigation itself is non-transparent. We can expect the results to be unconvincing.

This is worrying. It is clear that the problem stems from the investigating bodies themselves and the defects in the procedures. On July 26, I wrote on Weibo that the investigation should be based on Article 71 of the Constitution, and the National People’s Congress Standing Committee should start a special investigation committee. According to relevant regulations, this committee should be composed of members from the legislature and outside experts. From overseas experience, the works of the committee could include investigations into the causes of the accident, identifying relevant personnel to testify in subpoena, holding debates between experts with different views, and reaching a conclusion.

To achieve some basic credibility, the hearings should be open to the public, and broadcasted live on television, except if it involves state secrets. This puts the truth in front of the public and is an important channel of public supervision. It also helps people, including those accountable, to accept the final conclusion of the committee.

Furthermore, the committee can conduct wider investigations. Using this incident as an example, apart from the above matters, the committee can investigate and assess the current state of development of the high-speed rail system, the hidden problems (such as quality of rails and bridges) and the management system. Only through this can the accident be turned into an opportunity to redress the defects of the system.

My suggestion has attracted widespread responses. Within the first ten hours or so, the first post has been forwarded over 20,000 times and attracted over 5,000 comments. However, many people worry that the NPC Standing Committee is not likely to trigger the special investigation procedures. After all, during the 30 years that the present Constitution has been in force, there is not even one precedent case. Article 71 can be described as a typical “sleeping beauty article”. In the 2003 Sun Zhigang incident, I, together with four other legal experts, called in vain for the triggering of this procedure. Can the tragedy in Wenzhou wake this “sleeping beauty” up?

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.

Zhang Wen on Yang Hengjun’s Disappearance

UPDATE: A friend of Yang Hengjun’s is suggesting that he’s now free. Where he’s been is unclear, but I expect we’ll hear in detail from Yang himself sooner or later.

The following is a translation of this post from journalist Zhang Wen’s popular blog.

Translation

Yang Hengjun disappeared on March 27, and there has been no news from him since ((Actually, he called a relative and told her that he was “chatting with old friends,” which she says is a code for “arrested.”)) According to his blog manager, that night he received a call from Yang saying that three people were following him. After that he never got back in touch.

On March 28, when I saw this news on the net, I was shocked; I truly couldn’t believe my eyes. On the 26th, I had met up with him and had a chat. In the past, I recommended his book “Jiaguo Tianxia”, and he had agreed to give me a signed copy and present it to me when he got to Beijing this trip.

During the meal [on the 26th], Dr. Xu Zhiyong, mentioned lawyer Teng Biao had been taken away [by police], and everyone felt very sad. Only brother [Yang] Hengjun was still smiling and trying to console us. Who could have known that just the next day, it would be his turn to “have an accident.”

Thinking about that now, it’s really hard to focus. After the lunch ended, we all went our separate ways. I went to Houhai to meet up with some family and have a little fun. In the warm afternoon sun and spring breeze, I flipped idly through “Jiaguo Tianxia,” and I was moved again by the warm, loving, sincere, and powerful words.

Honestly, I didn’t understand brother [Yang] Hengjun’s complex background until now; I first learned that he had become an Australian citizen from the BBC News report. But that’s not important to me, I could feel his love for his homeland even years ago, reading his doctoral thesis. His complaints and criticisms aren’t “griping without cause”, they’re not “willfully stirring up trouble”, they’re always very pointedly looking forward to reforms and the end of officials’ malpractice.

What was Brother Hengjun’s crime? At the moment, we do not know, and no one is coming forward to explain it. But I think that if a person disappears, whether they’re a foreigner or they’re Chinese, there should at least be an explanation provided. I’ve heard that Yang Hengjun’s friends and family have filed a report with the police station at the Guangzhou airport, and are asking us all to pay attention to this case.

Note: As the situation is not yet clear, please exercise restraint in your comments. We already enjoy our socialist rule of law, we must trust that our nation’s legal system is a shield to protect its citizens.

If there is time, I may come back to this post later today and add some translated comments from Zhang Wen’s post