Tag Archives: rule of law

The “Yan Xiaoling” Case and its Legal Ripple Effects

On June 28th three netizens were sentenced to jail terms between one and two years for libel in their appeal trial in Fuzhou in what was the latest ripple effect of the mysterious circumstances surrounding the death of Yan Xiaoling in February 2008.

Her story had first set Chinese forums abuzz after the post “Minqing’s Yan Xiaoling is ten thousand times more tragic than Deng Yujiao!” appeared in June 2009 and soon made nationwide headlines. The article, written by Fan Yanqiong, was based on information from Lin Xiuying, mother of the deceased, who had been petitioning to have her daughter’s case reexamined. The post contained allegations that local police where involved in a cover up of the rape and subsequent death of Yan Xiaoling. Two other netizens, You Jingyou and Wu Huaying, followed up on the story by posting a video interview with Yan Xiaolings mother. This prompted a quick reply from the local police who held a press conference detailing how Yan had died of natural causes. ((Translation of the original post and extensive background information on ESNW here and here.))

The story made international headlines, although indirectly, when on July 15th the following tweets spread around the world: “I have been arrested by Mawei police, SOS” and “Pls help me, I grasp the phone during police sleep”. The author was blogger Guo Baofeng, who had reposted the Yan Xiaoling video on different forums and subsequently been detained under suspicion of defamation and spreading rumors. The case generated a quite unique response when netizens nationwide called for Guo Baofeng “to come home and have dinner” ((More on one of the most popular internet memes of 2009 here at chinaSMACK.)) in what has become seen as an example for a new form of social (cyber)activism. Guo was released a few days later with no known legal consequences, since he is still out there twittering.

But Fan, You and Wu, also in investigative custody, were later charged with libel, a step that was widely seen as an infringement on the right of netizens to freedom of speech and supervision of state power (which the government holds in the highest esteem). On their first trial date in March hundreds of netizens gathered in front of the court house to show their support. The trial was postponed, raising hopes that they would be acquitted. But on April 16th they were found guilty of libel by the Mawei court and sentenced to between one and three years. As stated above, the verdict was upheld by the Fuzhou court. But questions were raised about the treatment of the case and their unlawfully prolonged investigative custody. It was alleged that their harsh sentences were connected to previous activism since other netizens involved in this case had been released.  ((For more information about the developments in the Yan Xiaolin case check the timeline on Amoiist’s bolg and various posts on lawyer Liu Xiaoyuans blog.))

The chain of events that started with Yan Xiaolings death first and foremost demonstrates the dwindling trust in government institutions, public security organs and the legal system amongst the population, starting with her mother’s distrust in the outcome of the official investigation. The same distrust motivated Fan, You and Wu to make the story public and also fueled the actions taken by netizens to support their fellow bloggers. It can also be seen in a blogger resorting to his one tweet instead of his one phone call.

In this context the trial of the three Fujian netizens also illustrates just how well fundamental citizen rights like freedom of speech and the right to a fair and lawful trial are being safeguarded. In his post lawyer Dou Yonggang does an excellent job at pointing out the procedural shortcomings of the trial and their implications.

Translation

Lapses in the Trial of the “Yan Xiaoling” Netizens

Author: Dou Yonggang, Lawyer

On June 28th 2010 the final verdict of the netizens in Fuzhou accused of libel, also referred to as the “Yan Xiaoling case”, was reached.

The case was tried in first instance at the Mawei court. The first verdict states that “this court is convinced that the defendant Fan Yanqiong intentionally concocted a story, wrote articles on two occasions and posted these fabricated articles on foreign websites. The defendants You Jingyou and Wu Huaying, who where fully aware that the relevant departments of Fuzhou city had already held a press conference and made public the real circumstances under which Yan Xiaoling died, still insisted on recording a member of Yan Xiaolings family, which they added as a video to the story online concocted by Fan Yanqiong. That video was then widely spread online. The three defendants intentionally twisted right and wrong, slandered others and mislead the masses. This has led a large number of netizens who are ignorant of the truth to view [the information] online and repost it as well as to attack, abuse and defame the victims [who are accused in the story]. [Those netizens] thereby inflicted serious harm, destroyed their reputation and gravely affected their work and lives. The events also had a negative social impact and consequently seriously endangered social order. Considering the gravity of the circumstances, their actions definitely constitute the crime of libel." (For details see the court verdict of the first instance trial.)

The second trial was held at the Fuzhou middle court. In the second trial it was pointed out that Fan Yanqiong must have known that Yan Xiaoling “died because of a shock due to the blood loss connected with a ruptured ectopic pregnancy”, especially since the police organs had already clarified the situation through a news conference. But the defendants still concocted [the story] of Yan Xiaoling being raped to death by mafia members [connected] to the police and published the names [of some officials] as well as posted the fabricated articles online on two occasions. The court also believed that “the defendants You Jingyou, Wu Huaying and Fan Yanqiong all posted [the article] ‘Yan Xiaoling was raped to death by gangsters [protected] by the police’ even after the police clarified the situation, thereby seriously harming the image of the government and the credibility of the law enforcement and judicial organs. They also gravely endangered social order. [Their actions] constitute the crime of libel.” The middle court of Fuzhou rejected the appeal and upheld the original verdict. The defendants were sentenced to between 1 and 2 years respectively.

Yan Xiaoling

Yan Xiaoling was the original victim of this case and would have needed the protection of the law the most [through a thorough investigation]. But because Yan Xiaolings actual cause of death leads to [the question] if some [government] departments and personnel were involved in any way, a very simple judicial matter has been complicated. But the complexity of the circumstances isn’t the worst of it. Because if  legal procedures are followed and the truth and the law are both respected, then even the most complicated matters can be resolved in a just and objective way. But in the end the courts in the first and second trial failed to convince the public [that this was the case].

Let us look at the biggest problem in the judicial procedure of this case: The courts finally ruled the case as a case of libel, but most parts of the trial followed public prosecution procedures. If a defendant is suspected of being guilty of libel, then the case should have been handled as a private lawsuit and the evidence should have been collected and brought forward by the [lawyer of the private] plaintiff. If a defendant is suspected of falsely accusing or framing someone, only then is this a case for the public prosecution. Then the prosecuting organ is also the litigator and obtaining evidence is relatively easy. Maybe it is for this reason that at different stages of the trial the actual charge went through interesting transformations. [The defendants] were taken into criminal custody under the suspicion of libel, but the official arrest was made under the suspicion of falsely accusing and framing a third party. The case was turned over to review and again the decision to prosecute was made because of the suspicion of falsely accusing and framing a third party. Falsifying accusations and a frame-up was also the content of the formally lodged charge, but the charge that the court so strongly believed to be true in its indictment went back to libel. After going in a big circle they returned to the starting point and managed to reach the outcome of a private lawsuit by using the means of the public prosecution. A very skillful handling of the procedural process indeed.

Protesting netizens hold up a banner in front of the court that reads: "Justice and Fairness shine brighter than the sun"

But there were also major problems with the facts: The court did not actually clarify how Yan Xiaoling died. The defendants believed that „mobsters [connected] to the police raped her to death”, the court on the other hand is convinced that this story was fabricated by the defendants. The court verdict stresses that “the police cleared everything up in the press conference” and that “the relevant departments of Fuzhou had already held a press conference and made public the real circumstances under which Yan Xiaoling died”. In other words, faced with two contradicting statements, the court believed the explanation brought forward by the “police” or “relevant departments”. But concerning this [decision] the court didn’t even supply facts or a legally sound explanation. Why is everything the “police” or “relevant departments” say automatically taken as a fact, but what the defendants say is considered untrue? The defense has the right to verify the evidence and raise reasonable doubt. Reaching a verdict relying on such flawed evidence before the reasonable doubt has been eliminated is obviously unjust.

The present case touches upon some very important principal questions: How valuable can a testimony be that the government gives on behalf of itself? Doesn’t the legal system show its responsibility by considering inconclusive or negative proof? In regard to this it seems that the courts [involved] have already given their reply. They were convinced that “after the police had held a press conference to clarify the issue, the defendants still insisted on spreading the information that ‘Yan Xiaoling was raped to death by mobsters [connected] to the police ‘, thereby seriously harming the image of the government and the credibility of the public security and judicial organs. They also gravely endangered social order. All constitutes the crime of libel.” [Using] this kind of logic amounts to the court conveying the following message through the given verdict: Explanations given by government departments, public security or judicial organs are always the ultima ratio. They have [absolute] public credibility and are beyond doubt or [the possibility of] falsification. Thereby questioning or contradicting them inevitably [means] harming “the image of the government and the credibility of the public security and judicial organs” which will result in corresponding legal consequences. Thus was the courts unfortunate wishful thinking, which the vast majority of legal experts would not approve of.

Event though the verdict in the “Yan Xiaoling case” has already come into effect, it still cannot really convince people. I think that in this case the government and the public security and judicial organs themselves did greater damage to their image and credibility, as well as to social order, than anyone else could have done.

Comment

Dou Yonggangs assessment is right to the spot. Chinese governmental institutions can be simply astonishing in how effective, resourceful and systematic they are in destroying their own reputation and credibility. I’d just like to add some general thoughts & questions:

  1. The underlying question (previously raised on this blog) is: Can a writer, even when his information turns out to be wrong, be guilty of “false accusation” or “libel” if he believed it to be true? Why was intentionality – or the lack thereof – not considered at all?
  2. Why was Lin Xiuying, Yans mother, not apprehend and charged? Since she was the one spreading all the “rumors” and “false information”…
  3. Even if there is a possibility that Lin Xiuying is a paranoid schizophrenic or simply lost her mind because of grief, there were enough mistakes in the investigation to fuel doubt in its credibility. Maybe the only way to avoid these kinds of situations is to finally establish “independent autopsy centers” as Han Han suggested and, well again, outlaw the cremation of bodies without the consent of the family?
  4. Why do they always stress “foreign media” in trials? Does it turn into “aggravated libel” when a piece of information crosses national borders?
  5. “[…] a large number of netizens [ie. masses] who are ignorant of the truth […]” That one again, really?

Lessons on How to Love China

Gao Zhisheng is a Chinese firebrand lawyer-turned human rights activist. He’s taken up the cross for cases ranging from underground Christian sects to democracy activists, displaced homeowners and more. Gao’s opponent in and out of court has traditionally been one face or another of the CCP, and he’s been a thorn in the Party’s side for years. Himself an ex-member of the Party and former PLA soldier, Gao says the day he tore up his Party membership card was the proudest day of his life.

A cursory look at some of Gao’s statements gives an insight into just exactly what he is all about. In an open letter to the U.S. Congress in 2007, Gao declared:

“The only law that the communist regime treat with any seriousness is ‘the constitutional law ensures the permanent reign of the Chinese Communist Party in China.’”

Gao is no stranger to run-ins with the law. He was imprisoned and tortured for several months, and was finally coerced into admitting to “inciting subversion” by appealing to top leaders on behalf of a certain banned religious organization. Now he’s facing the same plight: Gao went missing from his Shaaxi home in early February 2009 and it is assumed that he’s been taken into custody by Chinese authorities.

Now it’s not just Gao Zhisheng that’s gone, but his wife and children as well. His family had been under house arrest and Gao’s 15 year-old daughter unable to attend school, spurring them to pay human traffickers a small fortune to carry them overland to Bangkok in January of this year. From there they flew to the United States, where they are currently seeking asylum.

Gao Zhisheng is neither the first nor last lawyer of his breed in China, but he is perhaps one of the bolder and, some might say, reckless human rights activists on the mainland today. Himself a victim of torture and imprisonment in the past, Gao understood well the consequences of his actions, once stating that “you cannot be a rights lawyer in this country without becoming a rights case yourself.”

Western observers of China should always be careful not to commit the sin of allowing our own prejudices and preconceptions to color our view of events that are entirely domestically Chinese. It’s instinctual for us to paint Gao Zhisheng as a flawless knight in shining armor.

A debate could be had over whether his particular brand of rights activism is preferable to more subtle approach. Zhang Sizhi, another lawyer known for advocating the rule of law in China, has argued that “If you go too far, you will only hurt the chances of legal reform, as well as the interests of your client.” Gao clearly understood the likely consequences of his actions for him and his family: he once ominously noted that he is “not sure how much time [he has] left” to carry out his activism.

Regardless of whether Gao’s career exhibited courageous daring or dangerously unsound judgment (which are certainly not mutually exclusive qualities), Gao Zhisheng’s experience is a lesson for any patriotic Chinese with an idealistic streak: you can’t have your cake and eat it too. Progressive reform has consequences for individuals. Period.

Anyone that studies, reads, and writes about China can’t help but have an emotional reaction to Gao’s story in general and his family’s tragedy in particular. Foreign China observers, in general, are rooting for China: the rule of law and human rights are what we want to see. People that aren’t interested in those things tend to not stick around very long.

The jingoistic climate of 2008 is settling down: Carrefour protests are over and the Olympics weren’t thwarted by a certain wolf in sheep’s clothing after all. 2009 has had a few rough patches so far but it’s not unsalvageable. With any luck, people like Gao Zhisheng can teach other Chinese what it means to love China.

UPDATE: On another, related note, articles like this bug me. The heading mentions that Gao’s wife “defected” to America, which has very specific implications. Nothing in the body seems to suggest that it was anything resembling a change in political allegience, which leads me to believe that someone thought that word looked a bit more sexy so decided to throw it in without thinking about what it meant.