Tag Archives: Law

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.

He Weifang: Under the Banner of Strict Professional Ethics

Bad day for Yuan Tengfei

“If you want to see Mao, you can go to his mausoleum at Tiananmen Square, but don’t forget it’s a Chinese version of the Yasukuni Shrine, which glorifies Mao, under whose hands many people were massacred.”

“Chiang Kai-shek was a dictator ruling with one party, but Mao was actually no different.”

“Less than 5 percent of the content of Chinese history textbooks is true, the rest is pure nonsense.”

These are just some of the comments from popular history teacher Yuan Tengfei that sparked a nation-wide debate in May with many major news organs carrying related stories. (More about Teng here, here and in this great post at chinaelectionsblog.) The public controversy centered around the damage Yuan could supposedly inflict on the image of national political icons and thereby erode the faith that Chinese people put in their leadership, with a lot of statements going something like “of course some of what he says is true but he really shouldn’t say it in such a disrespectful way, especially not in front of students”. It also illustrated how fast this nation can be polarized by one person openly questioning the consensual “historical truth”.

Incidentally the debate led up to the anniversary of a major political incident that is still a taboo in Chinese classrooms (and elsewhere). Even though the party regularly states that “the Chinese government has long reached its verdict on the June 4th incidents” even this seemingly clear position is faded out of the public discourse. In the days leading up to June 4th activists, intellectuals and netizens once again talked about the lack of open discussion and critical examination of the past. As one netizen put it: “In China everything has been wrapped in a cloak of silence for so long that we have almost lost the ability to speak. The problem is, how can we move on?”

But the area of silence seems to be expanding. On May 14th the Work Group for Education of the Party Committee and the Department of Education of Fujian province issued a new set of regulations concerning “professional ethics” of higher education teachers with the intent to effectively prevent “the dissemination of misguided or erroneous speech against the general and specific policies of the Party, the basic theory of the Party, the law and the constitution of the country during the course of teaching, which leads to a harmful effect on conveying correct ideas and political ideals to the students”.

In his excellent rebuttal judicial expert professor He Weifang not only points out how these regulations conflict with the Chinese law and the constitution but also analyzes the possible impact on creativity and the academic discourse.

Translation

Strong words still won’t make it a “law”

He Weifang
Originally published in Caijing Magazine, May 25th 2010

Let us first have a look at these passages of the constitution and the law:

Constitution of the Peoples Republic of China, Article 35: Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration. Article 47: Citizens of the People’s Republic of China have the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits. The state encourages and assists creative endeavors conducive to the interests of the people made by citizens engaged in education, science, technology, literature, art and other cultural work.

Legislation Law of the Peoples Republic of China, Article 8: The following affairs shall only be governed by law: … (5) mandatory measures and penalties involving deprivation of citizens of their political rights or restriction of the freedom of their person.

Higher Education Law of the Peoples Republic of China, Article 10: The state safeguards the freedom of scientific research, literary and artistic creations and other cultural activities in institutions of higher learning according to law. Scientific research, literary and artistic creations and other cultural activities in institutions of higher learning should abide by law.

Education Law of the People’s Republic of China, Article 28: Schools and other institutions of education shall exercise the following rights: … (8) to brook no unlawful interference in their educational and teaching activities by any organization or individual.

The reason why I emphasize these passages form the constitution and the law and cite them individually has to do with the “Regulations concerning the strengthening and improvement of professional ethics in higher education teaching personal in Fujian Province” ((The Chinese word 意见literally means “suggestion”, but since in the political context these “suggestions” tend to have a rather prescriptive character (you can’t really say “Dear higher level authority, thanks for your suggestions but I’ll just do it my way…”) I translated it as regulations. Especially since a series of workshops are held (some examples) on how to properly implement these suggestions.)) which were jointly released by the Work Group for education of the Provincial Party Committee and the regional Department of Education. Some “relevant people in the education circles” in Fujian refuted criticism [directed against these regulations] by stating that “they merely contain specifications of particular passages in the ‘Higher Education Law’ and the ‘Teachers Law’”. The strange thing is that these “relevant people” did not actually say what parts of the law they “specified”. And although every execution of government power [in order to modify existing laws] needs to be explicitly authorized, it was impossible to find out under whose authority the two organs introduced these “regulations”.

Decisively implement the regulations, strongly promote the building of teachers professional ethics!

In this document, which sounds like a law but is not a law, “the dissemination of misguided or erroneous speech against the general and specific policies of the Party, the basic theory of the Party, the law and the constitution of the country during the course of teaching, which leads to a harmful effect on conveying correct ideas and political ideals to the students” is determined as one of the 10 major issues concerning teacher’s professional ethics. It also states that teachers who bring about serious consequences and negative influences [by this kind of behavior] should have their teaching qualification revoked and their employment terminated. Without a doubt these [regulations] pose severe restrictions on the rights granted to teachers by the constitution and the law and a further discussion about its legitimacy is needed.

In regard to the actual implications we have to ask, what exactly does “the dissemination of misguided or erroneous speech against the general and specific policies of the Party, the basic theory of the Party, the law and the constitution of the country during the course of teaching” refer to? If this phrase isn’t further specified, it will inevitably lead to unbearable vagueness and general angst in the process of its practical application. The Chinese constitution states that citizens enjoy freedom of speech, the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits. While this kind of freedom is admittedly restricted by the law it also can only be restricted by the law.

The crucial thing that we have to comprehend about this kind of freedom is that it means we are not confined to existing doctrines, but are able to engage in active discussions about traditional viewpoints, in order to overcome the old and achieve something new in our theoretic discourse. During the Cultural Revolution the specific policy of the Party was “Class struggle is our guiding principle”. According to this [principle] Deng Xiaoping’s policy and path of reform and opening signified a departure from and rebellion against the accepted belief. Just imagine, if the fundamental principle of the “continuous revolution under the dictatorship of the proletariat” could not have been overturned, could we ever have achieved the economic progress and an overall relaxation of our society that we see today?

He Weifang teaching
He Weifangs lectures seem to be quite popular...

It is even more baffling and ridiculous that these “regulations” actually confine the law itself to the forbidden area [of discourse] by prohibiting teachers to “disseminate misguided or erroneous speech that is directed against the law and the regulations”. As someone who teaches law I am simply terrified by this. In my classroom I have in the past explicitly told students that our State Compensation Law should actually be called a “State Non-Compensation Law” and that article 306 of the Criminal Law poses a serious threat to lawyers exercising their profession. In 2003 I and some fellow scholars publicly criticized the “Measures for Custody and Repatriation of Vagrants and Beggars” as an abhorrent practice. If you follow the reasoning of the provincial Work Group for Education and the Department of Education I fear my behavior could all be interpreted as the “dissemination of misguided or erroneous speech” and even cost me my job. Just imagine how much a regulation like this can hinder and imperil the spirit of critical thinking!

In our modern society universities should be a hotbed for thought and innovation, a battlefield to cross swords, a place to talk and argue. If the aim is to foster creativity and innovation then you cannot just ban [acts of] expression under the label of “misguided or erroneous speech”. If everyone in the academic discourse stops before each statement to check for possible mistakes and [make sure they adhere to] the correct standards, this can only have the effect of stifling creativity and innovation. Isn’t the reason why the discourse of a new generation is considered innovative exactly because it breaches the boundaries of existing doctrines? You shouldn’t mistakenly think that promoting new ideas is only a privilege of the nation’s leaders. As a matter of fact it is rather teachers who, as a fundamental drive of the academic world, have to undertake this difficult mission. Because, on the basis of studying existing theories, their job is to bring forward new ideas, explanations and proofs. Moreover, the critical questioning of existing theories and doctrines and the exploration of new ideas has to happen in the course of their teaching. This in not only because education should always reflect the latest academic achievements, but also because students have to develop their critical thinking through exploratory work together with their teacher.

During his lifetime Qian Xuesen often sighed at the inability of Chinese Universities to foster talent ((The question that Qian Xuesen repeatedly posed and is also said to have been his last words was: “Why do our schools always fail to nurture outstanding talents?”. Read more about what became known as the “Qian Xuesen Question” here, here and here)) But if we do as those two departments in Fuzhou suggest and force all teachers and their students to crawl at the feet of current theories and doctrines and this kind of education still brings out real talents, that would be no less than a miracle. ((Somehow reminded me of these recent articles…))

The reason why I cited the Legislation Law at the beginning of this article was to question if the two departments actually have the authority to draw up regulations that concern the political rights of citizens. These “regulations”, which were put forward under the banner of strict ethical standards for teachers, impose restrictions on the freedom of speech, a basic political right, and thus override the Constitution. Therefore they clearly violate the Legislation Law as it stipulates that in these cases specific laws need to be introduced. But this also means that only the National People’s Congress or other standing committees can make adjustments to the law. Even regional legislative organs can not be allowed to encroach on this [principle]. Needless to say that this also applies to organs on an even lower level, like a work group for education of the Provincial Party Committee or a Department of Education.

Red guards classroom 101: Criticizing teachers

Finally I also observed that the two departments that drafted these “regulations” even followed due process and issued a “notification concerning the circulation of the ‘regulations’”. They demanded that each school should “establish and improve supervision mechanisms” by “urging students, parents and the public to carry out supervision and evaluation of the professional ethics of teachers in higher education.” Furthermore “every school should offer a hotline for complaints about teacher’s ethics to the public, put up complaint boxes or establish other ways to gather public feedback. ‘Supervision personal for teacher’s professional ethics’ should be invited to prevent and reduce behavior that violates the professional code of conduct for teachers.”

Seeing these kinds of methods – encouraging students to report on their teachers and even inviting so-called “supervision personal for teacher’s professional ethics” – I suddenly think of “concealing” and “hiding”, and I bemoan that these old practices of the Cultural Revolution still don’t cease to exist.

Commentary

While the personal consequences for Yuan Tengfei have yet to be seen it is known that some of his lectures and public readings were cancelled, videos of his classes have wildly been deleted. Although he wasn’t thrown into prison or sent to reeducation through labor and instead got away with a mild warning by “the relevant departments”, something his opponents praised as a testimony to how open the Chinese society has become (although they didn’t sound entirely happy about that). At the same time there seems to be a chilling breeze in academic circles and an overall tightening. He Weifang makes a very good point by stressing that you shouldn’t lightly give up the freedom already achieved and basically invite a new Cultural Revolution in disguise.

Will China even face its historical burdens and openly discuss all aspects of its past, can these collective taboos be broken? Is open criticism a.k.a. freedom of speech important for creativity, innovation and overall societal development and democratization? Was Yuan Tengfei right when he said: “This country can only produce autocracies. If Chinese haven’t shouted ‘Ten thousand years’ for a while they feel hollow and meaningless and cannot go on.”

Li Yinhe: “Things are Getting More and More Astonishing”

Sexologist Li Yinhe has been very vocal recently about her dissatisfaction with China’s pornography law. In her latest blog post, Li uses pretty rousing language to encourage readers to rebel against what she sees as improper enforcement of the law.

Translation

From the ‘Taiyuan porn site’ case [9 individuals were jailed for running pornographic websites] to the ‘Sichuan man Yang Huajun fined for downloading obscene video’ case [where a young man was fined 3000 RMB for downloading porn to his personal computer], things have been getting more and more astonishing. In the beginning, it was [only those who were] making profit that were being punished, [but] then those not making a profit were punished too, and now they’re even punishing people inside their own homes. I think that if we quiet down and stop rebelling, it will progress to a stage where everyone who peeks at a pretty girl on the street will have their eyes gouged out.

In my opinion, citizens watching pornography in their homes and online is fairly equal to looking at pretty girls on the street: the degree of harm it causes to society and to other people is similar [to that caused by looking at girls on the street]. It isn’t necessary to see this as being like confronting a mortal enemy; the heavens will not collapse, there will not be chaos in society, and the stability of the regime and of society will not be threatened. Who knows, maybe it could make society more stable – if everyone was to concentrate their desires and passions into sexual happiness, they wouldn’t be going out on the streets causing trouble, let alone thinking about overthrowing the regime. This [would be] a shared victory for the common people and the government.

The ‘Shaanxi porn DVD’ case ([in 2002, police officers burst into the house of a young husband and wife and violently arrested the husband for watching an erotic DVD, summary in Chinese here] provoked nationwide debate, and in the end it was the police who put an end to the matter with an apology. However, some people have short memories, and are committing the same mistakes. Recent internet obscenity clean-ups have been increasingly astonishing, we should all come out and yell “stop”. I’ve noticed that there’s a very [fresh] phrase in legal circles, that ‘lower-level law’ must obey ‘upper-level law’. [Law enforcers] say that being a fining guideline, the lower-level law “Measures for the Security, Protection and Administration of the International Networking of Computer Information Networks” should abide by the upper-level “Law of the People’s Republic of China on Public Security Administration Punishments”. To use their own words, the lower-level “Obscene Goods Law” must also abide by the article about free speech in the upper-level law “The Constitution of the People’s Republic of China”.

For more debate on this topic, read this post over on china/divide, written by the ChinaGeeks editor.

Li Yinhe: “Who Will Protect Prof. Wang’s Sexual Rights?”

Sexologist and social commentator Li Yinhe, long one of my favorite Chinese bloggers, is finally back. After months of just posting Nietzsche translations, she’s finally posting original stuff again, faster than we can translate it.

Recently, she called for an end to China’s now-outdated “Group Licentiousness” laws — laws that banned any and all group sex acts, even when they were conducted in private and involving only consenting adults (see our translation here). These laws are infrequently used, but Li argued there was no reason for them to stay on the books at all. A few days ago, we found out why.

Translation

Recently, associate professor Wang of a Nanjing college [she is being intentionally vague to protect the man’s privacy] was charged for particpating in a “wife-swapping” activity. If convicted, under the group licentiousness laws, he could be taken into custody to serve a prison sentence. His college has already suspended his employment and the dispensing of his salary.

Originally, I thought there weren’t cases of people being sentenced under the group licentiousness laws in the past twenty years, but it looks like I was too optimistic about China’s progress. If [Wang] is actually convicted, it will be a great leap backward for China’s human rights situation.

Group licentiousness laws violate the constitution; the conflict between the two appears on the front of “respecting and protecting human rights”. These laws infringe on the basic rights of citizens: the constitution (section 33) reads, “All those holding P.R.C. nationality are citizens of the People’s Republic of China. The nation respects and protects [their] human rights.”

What citizens choose to do in private in terms of consensual sexual activity should be protected under the constitution. Just as the constitution doesn’t have a provision that “Chinese citizens have the right to eat food”, it doesn’t have a provision saying “Chinese citizens have a right to participate in [private, consensual] sexual activity” because these two rights are part of the ‘fundamental human rights’ the constitution protects. For the same reason, just as we cannot use the penal code to forbid people from eating, we [should not be able to] use the penal code to prevent people from engaging in consensual sexual activity in private. Additionally, it’s worth reminding everyone: just as eating food isn’t fundamentally harmful to people, neither is sexual activity fundamentally harmful to people.

The crux of this [the Prof. Wang case] is that it hasn’t hurt anyone. Wife-swapping is a sexual activity enjoyed by an extremely small minority. It does violate [social] conventions, and the vast majority of people will not participate in it or approve of it. But just violating social convention isn’t violating the law. As long as activities that violate convention don’t harm anyone else, one has a right to participate in them. This right should not be stripped away in the name of protecting “morality” or “convention”.

I call on those people who are still rational, raise the voices of justice and mercy to protect the rights of Professor Wang. Improving the human rights situation in China isn’t just saving Professor Wang, it’s saving ourselves. Worsening the human rights situation isn’t just hurting Professor Wang, it’s hurting every single one of us. I hope everyone will raise their voice, and strongly oppose and obstruct Prof. Wang’s conviction.

Guest Translation: Li Yinhe on Porn and the Law

The following is a guest post written by Alex Taggart.

It seems Li Yinhe, one of China’s most prominent sexologists, is on a roll. Following her recent call for an end to ‘group licentiousness laws’, Li is now proposing that Chinese law on ‘obscene goods’ should also be reformed.

According to the CCP Customs Bureau’s explanation of its smuggling law, ‘obscene goods’ (淫秽品) include but are not limited to “obscene films, videotapes, audiotapes, pictures and publications”.

Li argues that the current law is unconstitutional, first citing the right to free speech:

The 35th article of the constitution of the People’s Republic of China states: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” Obscene goods are the product of human imagination, [so] they are speech [expression] and not action, therefore the obscene goods law and the ‘freedom’ article of the constitution contradict each other […] I propose to preserve the freedom article of the constitution, and the logical result of this is to change the obscene goods law.

…then on the grounds of the right to personal freedom:

Just as the constitution doesn’t contain the likes of “Citizens of the PRC have the right to eat”, neither does it contain “Citizens of the PRC have the right to have sex”, because these two rights should be provided for in the [constitutional] article protecting the right to personal freedom. In the same way, just as we cannot use criminal law to prohibit eating, we cannot use criminal law to prevent people from taking part in sex acts and consuming sex-related goods.

Similar to her criticism of group licentiousness laws, Li then gives a clear example of an instance where the law has failed:

There was once a failed experiment: in the early 80s, the Beijing police department ambitiously began [an action of] seizing all propagators of obscene goods. Before long, all prisons and detention centres were bursting at the seams, and they had no choice but to hurriedly outsource hotels and reception centres as ‘instant detention centres’.

Given that the CCP tends to defend obscenity laws on an “If you had kids, you’d understand” tack, Li Yinhe points out that it could be possible to protect the nation’s children whilst allowing free speech and ensuring sexual openness for adults:

We should think of a way to prevent adolescents from coming into contact with obscene goods […] Every country has measures to protect adolescents, such as film classification, age restrictions on erotic websites, and so on. However, there’s an important proviso: we must also protect the right of adults to consume obscene goods.

Finally, Li warns of potential consequences should the law remain:

The current obscene goods law’s biggest malady is that it has set a precedent for using criminal law to punish free speech. Since this special type of speech has become a crime, other types of speech can too. If we continue like this, we could once again end up with the disastrous policies of ‘literary imprisonment’, punishment on the basis of speech, and cultural absolutism.

This is not the first time that Li Yinhe has criticised obscene goods law. In a blog post in 2006, Li gave outlines of individuals who had fallen foul of the same law. As in her most recent post, Li’s 2006 post explained the absurdity of a law that effectively criminalises a very large portion of the population simply for having “crude tastes”.

Translation

The current obscene goods law is an unconstitutional law that encroaches on basic citizen’s rights. It is a draconian law, left behind by the age of cultural autocracy.

1) The issue of being unconstitutional. The 35th article of the constitution of the People’s Republic of China states: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” Obscene goods are the product of human imagination, [so] they are speech [expression] and not action, therefore the obscene goods law and the ‘freedom’ article of the constitution contradict each other. In order to defend the rigorousness and authoritativeness of the constitution, we should either alter it, or alter the obscene goods law. I propose to preserve the freedom article of the constitution, and the logical result of this is to change the obscene goods law.

2) The right of citizens to consume obscene goods is protected by the constitution. Just as the constitution doesn’t contain the likes of “Citizens of the PRC have the right to eat”, neither does it contain “Citizens of the PRC have the right to have sex”, because these two rights should be provided for in the [constitutional] article protecting the right to personal freedom. In the same way, just as we cannot use criminal law to prohibit eating, we cannot use criminal law to prevent people from taking part in sex acts and consuming sex-related goods. Aside from this, it’s worth reminding people to bear in mind: just as eating is fundamentally harmless to people, so is sex, as are its related goods.

3) Obscene goods are considered to be part of vulgar culture, a crude interest. We should vigorously promote the consumption of elegant consumerism, whilst resisting the consumption of obscene goods using the full extent of the greatest societal powers. But, we cannot use criminal law to penalise people’s crude tastes, because if we do, those imprisoned would number in the tens of millions. This is unrealistic. There was once a failed experiment: in the early 80s, the Beijing police department ambitiously began [an action of] seizing all propagators of obscene goods. Before long, all prisons and detention centres were fit to bust, and they had no choice but to hurriedly outsource hotels and reception centres as ‘instant detention centres’. The folly of this activity gradually became obvious, and finally, an order was passed down from the upper echelons that it should stop, and the entire activity left behind the result of ‘the head of a tiger, the tail of a snake’ [a strong start but a weak finish], and the matter was ‘settled by being left unsettled’.

4) We should think of a way to prevent adolescents from coming into contact with obscene goods. This is a commonly-faced problem by all countries that protect the citizen’s right to freedom of speech (most of them don’t have an obscene goods law). Every country has measures to protect adolescents, such as film classification, age restrictions on erotic websites, and so on. However, there’s an important proviso: we must also protect the right of adults to consume obscene goods.

5) The current obscene good law’s biggest malady is that it has set a precedent for using criminal law to punish free speech. Since this special type of speech has become a crime, other types of speech can too. If it continues like this, we could once again end up with the disastrous policies of ‘literary imprisonment’, punishment on the basis of speech, and cultural absolutism.

In order to ensure the citizen’s right to free speech, I propose to get rid of the unconstitutional obscene goods law that encroaches on the basic rights of the citizen.

Li Yinhe Calls for an End to “Group Licentiousness” Laws

Every year for several years now, blogger, sociologist, and sexologist Li Yinhe gives proposals advocating the legalization of gay marriage to her representative friends during the meetings of the NPC and the CPPCC. This year is no different, but she’s added another proposal to the mix this time around, calling for an end to laws that make “group licentiousness” [聚众淫乱罪] illegal.

What is “Group Licentiousness”?

According to this piece, group licentiousness is:

…the behavior of gathering in groups and participating in licentious activities. This crime is primarily characterized by its violation of social morality. Objectively, it is (1) a group of people together (often it is men and women mixed, but it could be all men or all women) and (2) they must be in the process of doing licentious things. This crime is mainly limited to the ringleaders and frequent participants […those convicted may be sentenced to] under five years in prison, short-term detention, or surveillance.

What Does Li Yinhe Propose

Translated directly from Li Yinhe’s proposal:

Obviously [the law against “group licentiousness”] is out-of-date; I recommend it be abolished. Originally, this charge was classified under “hooliganism/indecency charges” [流氓罪] but when that charge was abolished the “group licentiousness” charge remained under another heading. It is already very rarely applicable in actual society, therefore I propose it be abolished.

Li Yinhe lists several of the biggest cases of “group licentiousness” tried over the past few decades. The following is just one example, but most of them are similar and do not involve anything happening in public:

Case 4: Defendant Wang XX, female, successively seduced many men into having sexual relations with her. The procuratorate lodged a complaint under the indecency laws, and the court used these same laws to come to a verdict of guilty.

Li Yinhe then writes:

The cases above are the most serious sex-related court convictions [under this law] in China. So-called “group licentiousness” is nothing more than the “sex orgies” common in Western society. For example, case three resembles the American “swinger” trend of the 1970s. In Western personal ads, one can often see advertisements by swingers looking for lovers […] at present, there is much of this sort of activity in China as well.

As long as all the participants in these activities are consenting, the law should definitely not regard this as criminal. Citizens have the rights to do what they want with their own bodies […] If a person wants to play poker in private while wearing clothes, he has this right. If a person wants to play poker in private while naked, he has this right, regardless of how many people are involved. National law interfering in this kind of private activity makes it seem as though people’s bodies belong not to themselves but to the state […] this kind of legislative thought is, in and of itself, wrong, it is a mistake about who a person’s body belongs to.

Some reporters have raised questions about the proposal, and Li Yinhe has drafted a thorough response to the most common among them. In defending her proposal, she makes five main points (which I am rephrasing slightly in some cases):

  1. Decriminalizing “group licentiousness” does not mean [the government will be] advocating it.
  2. The law should not be used to resolve issues of morality.
  3. You cannot assume one group of people’s way of living to be normal and thus deem and punish another group’s way of living as illegal.
  4. The decriminalization of “group licentiousness” will not have a negative affect on people’s social conduct.
  5. Abolishing this law may have an upside no one has thought of in that it guards against the kind of violent trampling of people’s rights that occurred during the Cultural Revolution.

I expect this proposal will be ignored, just as Li’s yearly proposal to legalize gay marriage is. But Mrs. Li is correct in thinking this issue is of vital importance, and that the law should be abolished for the sake of protecting people’s right to do what they please with their own body (assuming all involved parties are consenting adults, and the activity is behind closed doors, of course!).

Do you think the “group licentiousness” laws should be repealed? Why or why not?

For more on sex in China see my recent post on china/divide, “Pornography should be Legal in China”.

Translation: Tan Zuoren’s Verdict

The following is a guest post by K. Drinhausen:

The final sentence for the good man of Sichuan?

Even considering the various indicators of the Chinese governments harder stance against any form of dissent in the past year (or even criticism voiced within the system) the outcome of the appeal of Tan Zuoren still came as a shock to many, with the Chengdu Middle Court raising the prison term from three to five years. In this supposedly open trial journalists were again preventedfrom attending.

Comparing the well prepared defense brought forward by Tan Zuorens lawyers Xia Lin and Pu Zhiqiang with the justification of the harsh punishment given in the verdict by the court doesn’t speak for the Chinese government’s every so often proclaimed efforts in promoting the rule of law. In the end it is the debate or even mention of why the objections failed to convince the court that makes the verdict look like a pre-written script and not the deliberate decision of an unbiased jury. Sometimes silence does say more than a thousand words.

Translation

(The following is a translation of Tan Zuoren’s verdict.)

Criminal verdict by the Chengdu Middle Court

Verdict No. 273 2009, public prosecutor of the Sichuan Province, Chengdu People’s Procuratorate.

Defendant: Tan Zuoren, male, born May 5th, 1954 in Chengdu, Sichuan. Han Chinese. Educational background: polytechnic school, currently unemployed. Residency: Chengdu, Wuhou district, Wangjiang street 29, Taolincun Compound, Apt. 6/6. Taken into criminal custody on March 28th 2008 under suspicion of inciting subversion to overturn the government. Formally arrested on April 30th 2009 on the ground of inciting subversion to overturn the government. Taken into custody by the detention house of the Wenjiang district in Chengdu.

Defense: Xia Lin, Lawyer at Beijing Law Firm Huayi, Pu Zhiqiang, Lawyer at Beijing Law Firm Huayi. The Peoples Procuratorate of Chengdu, Sichuan examines the possibility of criminal punishment following the indictment No. 183, 2009 charging Tan Zuoren with the crime of inciting subversion to overturn the government that was presented to this court on July 28th 2009. This court and its panel of judges are hearing and trying this case in accordance with the law. The Peoples Procuratorate of Chengdu, Sichuan appoints the prosecutor Wang Yihong as an agent for the public prosecution. The protocol is taken down by Secretary Li Zhenzhen. The defendant Tan Zuoren and his defense lawyers Xia Lin and Pu Zhiqiang are present at the trial. This is the final hearing of the trial.

The Peoples Procuratorate of Chengdu formally charges the defendant Tan Zuoren. He has been unsatisfied the CCP Central Committee handling of the “June 4th” incident and their definition of the occurrences and has for many years been commemorating the “June 4th” incident through different means. On May 27th 2007 Tan Zuoren cooked up the essay “1989: Testifying to the Final Beauty – Diary of an eyewitness on the square” (below referred to as “The Square Diary”) and the spreading of this article via the internet and on foreign hosted forums such as “Fire of Liberty“. In this article Tan Zuoren distorted and slandered the CCP Central Committees handling of the “June 4th” incident. Soon after the article was published, the foreign hostile element Wang Dan used e-mail to get in contact with Tan Zuoren and repeatedly send propaganda materials about the “June 4th” incident to the defendant.

On July 4th 2008 Tan Zuoren and others [gathered] on Chengdus Tianfu Square and used blood donations as a means of commemorating the “June 4th” incident. During that period the defendant also accepted a phone interview from the foreign enemy media “Sound of Hope”. After November 2008 Wang Dan repeatedly send materials concerning the commemoration of the 20th anniversary of the “June 4th” incident to Tan Zuoren. On February 10th 2009 Tan Zuoren sent Wang Dan an e-mail containing a “Suggestion for a commemoration of the 20th anniversary of June 4th” in which he suggested a commemorative action for the “June 4th” incident called ” Global June 4th Chinese People’s Blood Donation”. After the Wenchuan earthquake on May 12th 2008, Tan Zuoren accepted a lot of interviews by international media, and publicly discussed a lot of issues that seriously slandered the reputation of the Communist Party and the government*. On March 27th 2009 Tan Zuoren was taken into custody by public security organs to face charges.

To support the accuracy of the charges stated above the Peoples Procuratorate of Chengdu submitted documentation and evidence including the detention order, documentation of the arrest and the warranted search, a list of belongings of the detainee, witness testimonies and the defendants deposition. The Peoples Procuratorate of Chengdu believes that the actions of Tan Zuoren constitute a violation of the article 105 of the Criminal Law of the PRC and that he should therefore be held responsible and accordingly punished for the crime of inciting subversion to overturn the government. The defendant Tan Zuoren and his defense lawyers have no real objections against this case, but argue that his conduct didn’t constitute a criminal action and submitted several pieces of evidence that the defense collected to the court. After considering the evidence, it is still clear that the defendant Tan Zuoren is opposed against the way the Chinese government dealt with the “June 4th” incident in accordance with the law. On May 27th 2007 Tan Zuoren cooked up the article “The Square Diary”, claiming it to be the record of the actual events. This article really paid no attention to objectivity and misrepresented and distorted on a large scale, slandering and vilifying the Chinese government’s management of the “June 4th” incident in accordance with the law and thus incited people inside and outside of this country to oppose and protest the Chinese government. On July 4th 2008 Tan Zuoren colluded with other people to “donate blood” in a commemorative action of the “June 4th” incident on the Tianfu Square in Chengdu, where he accepted interviews from the foreign media “Sound of Hope” via his phone and publicly stated that by “donating blood” they were “keeping alive the spirit of June 4th”. On the same day the content of the interview given by Tan Zuoren was published on the “Sound of Hope” website. On March 28th 2009 Tan Zuoren was then taken into custody by the security forces to face charges.

The facts stated above were already subject of a court hearing; the authenticity of the following items of evidence was verified: […] All documents and pieces of evidence relevant to this case is listed.

The facts behind the charges the Peoples Procuratorate of Chengdu brings up against Tan Zuoren – concocting the article “The Square Diary” and spreading it through international media – are clear; the evidence is definitely sufficient and was confirmed in accordance with the law. Concerning the charges that weren’t recognized by the defense, which submitted evidence and interpretations, the facts they presented were found to hold no relevance and failed to convince the court.

This court found that the defendant Tan Zuoren incited subversion to overturn the government and the socialist system by spreading vilifying rumors and that his actions constitute the crime of subversion against the power of the state. The objections the defendant Tan Zuoren and his defense put forward – that his actions didn’t fulfill the crime of subversion against the power of the state – and the facts proven through the investigation and the relevant law are inconsistent and therefore were rejected by this court. On the basis of the articles [listed again below, including the content of the regulations] of the Criminal Law of the People’s Republic of China this court announces the following verdict: The defendant Tan Zuoren was found guilty of the crime of subversion to overturn the government and is sentenced to serve the full sentence of five years in prison and furthermore will be deprived of his political rights for three years. (The prison term will be active after the sentence is served; the time already spend in custody will be deducted, meaning the sentence will be served from March 28th 2009 to March 27th 2014). If the defendant doesn’t consent with the sentence, then he can appeal within 10 days following the day after receiving the sentence, either trough this court or directly trough the High Court of Sichuan Province. The written appeal has to be submitted in one original and two additional copies.
The relevant law article 105, passage 2 of the Criminal Law of the People’s Republic of China states that starting rumors, slander or other means of inciting subversion against the government or overturning the socialist system can be punished with up to five years of imprisonment; if the defendant is a major culprit or [his actions] constitute an indictable offence then he can be punished with five years or more of imprisonment.

  1. Article 65, passage 1 states that the crime of endangering national security can additionally be punished with the deprivation of the political rights; intentional manslaughter, rape, arson, explosives, poisoning, plunder and other serious offences against the public order can also additionally be punished with the deprivation of political rights.
  2. Article 55, passage 1 states that the limits for the deprivation of political rights, except for regulations concerning article 57. The time limit is set between one to five years.
  3. Article 47 states that the fixed term of imprisonment starts from the day the sentence is delivered by the court; the time already served in custody before the sentence can be deducted.
  4. Article 58, passage 1 states that the time of deprivation of political rights starts from the end of the prison term, the detention or with the parole, the deprivation of political rights should of course be taken into account in the general penalty.

* In regard to the order in which the “victims” of his supposed attacks are named I can’t help but wonder if damaging the image of the Communist Party wasn’t the real crime that he was found guilty of.