Dui Hua Human Rights Journal

Translation: The Course of Humanization of the Criminal Law

2009-06-25T09:04:00.000-07:00

On June 16, the China Daily reported that by the end of 2009 all criminals sentenced to death in Beijing would receive lethal injection rather than being executed by gunshot. The news prompted Liu Renwen (刘仁文), a researcher at the Institute of Law at the Chinese Academy of Social Sciences and a vocal advocate of abolishing capital punishment in China, to publish the opinion piece below in the June 18 edition of Southern Weekend (南方周末), a weekly newspaper based in Guangzhou.

The course of humanization of the criminal law
Liu Renwen

Lately, the nation’s attention was turned to the news that Beijing will use lethal injection to carry out all death sentences by the end of the year. Having reflected on this issue, my conclusion is that this is in step with China’s course toward eventual abolition of the death penalty.

The Chinese government has always indicated that, in the long term, we eventually want to abolish the death penalty, but the present conditions are not yet ripe. As to precisely when is “eventually,” no one had any idea in the past. But if we consider the reforms to China’s system of capital punishment over the past 10-plus years and the achievements they have brought about, perhaps we have reason to be slightly more optimistic for this prospect. The 1996 revision of the Criminal Procedure Law added lethal injection as a method for carrying out the death penalty. The background for this legislation was a consideration of the requirement made in the “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,” passed by the UN Economic and Social Council in 1984, which called on countries that had not yet abolished the death penalty to carry out executions “so as to inflict the minimum possible suffering.” After careful study, legislators decided that, compared to execution by gunshot, lethal injection was better able to reduce the pain of the executed and even more able to preserve the corpses of those executed and prevent the bloody spectacles brought about by execution by gunshot, such as the bursting of brain tissue. Since time was still needed for the development of drugs, construction of facilities, and training of personnel, the traditional method of execution by gunshot was retained at that time.

Beginning with the first use of lethal injection for execution in Kunming in 1997, lethal injection has been promoted in varying degrees in places throughout the country. Starting last year, the Supreme People’s Court began providing lethal injection drugs to local courts free of charge, indicating its attitude toward the gradual replacement of gunshot with lethal injection as a mode of execution. Shortly after this year’s “National Human Rights Action Plan” was issued, Beijing’s stance toward accelerated implementation of lethal injection fills people with hope for an early end to the lack of uniformity in execution methods and the replacement nationally of gunshot with lethal injection for the execution of capital punishment.

Reform of execution methods is not an isolated thing. First, this is the embodiment of the humanization of punishment and those who carry out punishment. Historically, forms of capital punishment have been split between those that “deprive a person of his or her life” and those that “in addition to depriving a person of his or her life, cause the executed to experience pain and suffering”—the latter including “slow slicing” (lingchi), exposure of the decapitated head (xiaoshou), and mutilation of the corpse (lushi). At the end of the Qing Dynasty, Shen Jiaben strongly advocated unifying execution methods and the abolition of “slow slicing,” exposure of the decapitated head, mutilation of the corpse, and other methods that “cause the executed to experience pain and suffering.” After the revolution, we carried out executions by gunshot for a long time. Though, given contemporary historical conditions, execution by gunshot cannot be considered a method that “causes the executed to experience pain and suffering,” when combined with massive sentencing rallies, parading condemned prisoners in the streets, and open-air execution grounds at which spectators gathered to watch the excitement as if at a festival, perhaps it was still [a form of] cruelty that did not take into consideration the dignity or feelings of the condemned and their families. Even more important, this way of doing things induced a culture of social violence and sustained practices that were out of step with the times, such as the death penalty being used as an accepted tool of social control and even a part of people’s daily lives. Now, lethal injections are all carried out in specialized facilities, which will help to slowly eliminate society’s dependence on capital punishment.

Moreover, the gradual replacement of execution by gunshot with lethal injection has been made possible in part by the large-scale decline in the use of capital punishment in China. Beginning on January 1, 2007, the authority over final review of the death penalty in China was restored to the Supreme People’s Court, and death penalties and executions declined dramatically in China following this symbolic event. In 2007, the Supreme People’s Court rejected 15 percent of the death penalty cases it reviewed, and the number of suspended death sentences nationally exceeded the number of death sentences with immediate execution for the first time in many years. [Even] with this reduction in the number of death sentences, odious crimes like setting explosions, murder, and arson actually occurred at a significantly lower rate that year compared to 2006, showing that we can still maintain social order as well or better, even without overly relying on the death penalty. It is precisely because the number of death sentences has declined to such a large extent that places can more quickly satisfy the requirements of lethal injection in terms of things like establishing facilities and mobilizing personnel. According to reports, Beijing only has one facility for carrying out lethal injections. If the number of people to be executed were greater, this would clearly be insufficient.

Looking globally, we can observe a general pattern in Europe and many other countries where the death penalty has been abolished, insofar as these countries have all followed this kind of path: They started with a large number of crimes being eligible for the death penalty, later limited [its use] only in serious murder cases, and finally completely abolished capital punishment. They started with widespread use of the death penalty, later used it more and more infrequently as a kind of “symbolic penalty,” and then completely stopped using it altogether. They started with many different ways of carrying out executions and chose methods involving more or less pain and humiliation depending on [the circumstances of] the individual to be executed, and later they began unifying the methods of capital punishment and employing the method causing the least pain in all cases. They went from “raising troops and mobilizing the masses” to carry out an execution to gradually removing capital punishment from public view. Looking back on the path China has followed with respect to capital punishment and its implementation, I think that it is in line with the logic and experience of eventual abolition of the death penalty.

Related links:

刑法的人道化历程, 刘仁文, 南方周末, 2009年6月18日; "The course of humanization of the criminal law," Liu Renwen, Southern Weekend, June 18, 2009 (Chinese only)

"Beijing ready for lethal injections," China Daily, June 16, 2009

Welcome Reduction in Use of Capital Punishment in China, Dui Hua Human Rights Journal, June 27, 2008

Tibetan Guide's Incitement Case Surfaces: 3-Year Sentence for Emails, Text Messages

2009-06-22T09:45:00.000-07:00

Dui Hua has obtained and produced English translations of the indictment and verdict (original documents in PDF) for a previously unknown case of a Tibetan sentenced to three years in prison for “inciting splittism” after the March 14 riots in Lhasa. The case against Gonpo Tserang (贡保才让), a well-respected expedition guide who has trekked with foreign celebrities and participated in high-profile mountain rescue efforts, involved a series of emails and text messages sent over three days to acquaintances outside of China. These messages, which prosecutors claim “distorted the facts and true situation regarding social stability in the Tibetan area following the ‘March 14 incident” were considered by the court to be deserving of severe punishment.

This case is significant in a number of respects. First, it is the only case Dui Hua is aware of in which a Tibetan in Yunnan Province has been convicted of a state security crime following the Tibetan protests of 2008. Second, it is not at all apparent that the charge of “inciting splittism” was properly applied. The content of the messages is never specified, and it is questionable whether individuals who are not located in China are even capable of carrying out acts that would “split the nation or undermine national unity.” An argument could thus be made that, never imagining that his messages could “incite splittism,” Gonpo Tserang did not intend to do so. This is perhaps an argument that an attorney could have raised in his defense. Unfortunately, it appears that, at least for his appeal, Gonpo Tserang was not represented by counsel—very likely a result of the reluctance of most lawyers to take on criminal defense work in political cases and the threats made warning of serious consequences for lawyers who volunteered to defend Tibetans.

Finally, Gonpo Tserang’s case illustrates both the extent to which Chinese police were engaged in monitoring communications between Tibetans and outsiders during the period after the protests and the low threshold for criminal liability in such situations. We do not know the content of Gonpo Tserang’s messages, but sending this handful of messages to individuals outside of China resulted in a three-year sentence. Such intense monitoring and the potential consequences of being caught saying the wrong things to outsiders help to explain the wariness of many Tibetans to report what they witnessed. To a large extent, this wariness has allowed the official Chinese narrative of events to become dominant. It also compels observers to wonder what punishments might be handed down to Tibetans who have been reported detained for saying or doing even more.

Lawyer's Request for RTL Information Disclosure Rebuffed by Chinese Ministry of Justice

2009-06-18T11:20:00.000-07:00

On May 14, 2009, Beijing lawyer Xie Yanyi (谢燕益) sent a letter to the Ministry of Justice (MOJ) requesting that information about China's "reeducation-through-labor" (RTL) system be made public under the provisions of the country's 2007 Regulations on the Disclosure of Public Information. That same day, he posted the content of the letter on his blog. On June 6, Xie received a letter from the General Office of the Ministry of Justice (view MOJ document), which denied most of his requests on the grounds of state secrecy but also responded that some general RTL statistics are "open government information" available on the MOJ website. (Dui Hua's translations of Xie's letter and the MOJ response are below.)

Xie's request for information references numerous provisions in China's laws and constitution, as well as plans and policies put forward by the government and the Chinese Communist Party—all of which profess the importance of public information and the right of citizens to exert oversight over government agencies. He explains that disclosing information about RTL is essential so that both policymakers and ordinary citizens have "the important facts and information necessary in the debate over whether to retain or abolish the RTL system." Xie clearly stands on the side of those who believe RTL should be abolished, seeing it as a major obstacle to implementation of rule of law and an arbitrary abuse of power that breeds social resentment and threatens to create the very instability it is supposedly intended to prevent.

Xie Yanyi is one of a relatively small group of lawyers in China who actively represent individuals seeking protection of their rights against injustice. He is known for taking on cases involving HIV carriers, farmers whose land has been seized, individuals whose homes have been forcibly demolished, and Falun Gong practitioners. As a lawyer who frequently meets with obstacles set by the government to prevent him from carrying out his professional responsibilities, Xie no doubt was fully aware that there was little chance his application would be granted and that China's overreaching statutes protecting "state secrets" would be the most convenient grounds upon which to dispose of his request.

This type of rights-protection work carries with it many costs. Since Xie's request was sent to the MOJ, he has become one of dozens of lawyers whose annual licenses to practice law have not been renewed by local lawyers associations, a measure widely interpreted as official retaliation against those who dare to take on sensitive cases.

Document One: Xie Yanyi's Request to the Ministry of Justice

To: Ministry of Justice of the PRC
From: Xie Yanyi, applicant
Date: May 14, 2009

1. Make public on the Ministry of Justice website how many RTL facilities there are currently in China, how many citizens are currently being held in RTL, how many police officers there are in the RTL system, and the annual state financial expenditure [for the RTL system];

2. Make public on the MOJ website how many citizens who have been sent to RTL in the past five years have not accepted the RTL decision and have filed an appeal (including through administrative review, lawsuit, formal complaint, petition, accusation, etc.) and what sort of legal relief these citizens who have been sent to RTL received, such as the acceptance and success rates for administrative lawsuits;

3. Make public on the MOJ website the proportion of the various groups that comprise the group of citizens who have been sent to RTL in the past five years. For example: (1) The percentage and number of petitioners; (2) the percentage and number of religious believers; (3) the percentage and number of individuals sent to RTL who created serious disturbances or other [offenses] that did not "reach the level where they should be subject to criminal punishment"; (4) the percentage and number of dissidents, those imprisoned for speech, rightists, etc.

4. Make public on the MOJ website how individuals sent to RTL are currently being treated. For example: whether they are compelled to engage in labor, the number who have suffered bodily injury after being subjected to beatings or other abuse, and the number of citizens sent to RTL who have died unnatural deaths.

Facts and Rationale:

I. Legal basis for this application for disclosure of information

According to Article 2 of the Constitution of the PRC: "All power in the PRC belongs to the people....The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law." [According to] Article 27: "All state organs and functionaries must rely on the support of the people, keep in close touch with them, heed their opinions and suggestions, accept their supervision, and work hard to serve them." [According to] Article 41: "Citizens of the People's Republic of China have the right to criticize and make suggestions to any state organ or functionary."

Article 1 of the Regulations of the PRC on the Disclosure of Government Information states: "These regulations are hereby formulated in order to ensure that citizens, legal persons, and other organizations obtain government information in accordance with the law, enhance transparency of the work of government, promote administration in accordance with the law, and bring into full play the role of government information in serving the people's production and livelihood and their economic and social activities." Article 9 [states]: "Administrative agencies should disclose on their own initiative government information that satisfies any one of the following basic criteria: (1) Information that involves the basic interests of citizens, legal persons, or other organizations; (2) Information that needs to be extensively known or participated in by the general public; (3) Information that shows the structure, function, and working procedures of and other matters relating to the administrative agency."

In the National Human Rights Action Plan (2009–2010) issued by the State Council of the PRC in April 2009, Part Two on the protection of civil and political rights states: "In the period 2009–2010, China will continue to strengthen work to improve democracy and the rule of law, improving systems for democracy, diversifying the forms of democracy and expanding the channels of democracy, strengthening the protection of civil rights in the execution of administrative laws and in judicial practices, and raising the level of ensuring people's civil and political rights." Section Five on the right to be informed [states]: "The Chinese government will make more efforts to keep the public informed of government affairs and improve relevant laws and regulations so as to guarantee citizens' right of information....By implementing the Regulations on the Disclosure of Government Information, the state will make comprehensive, regular assessments of the work of the government and relevant departments about the disclosure of government information, examine and urge organizations responsible for public affairs management to make public information related to government affairs, and in accordance with the law call to account personnel in charge and people directly responsible who violate the Regulations. Local regulations concerning how to make known to the public government affairs will be improved."

At the same time, the governing [Communist] party, in its report from the 17th Party Congress, clearly [articulated its intention to] safeguard the people's right to information, right to participate, right to expression, and right to supervision, and that government power should operate under the light of day.

II. Why this request for disclosure of information is being made

The RTL system has been controversial from the beginning, and as a citizen of the PRC, in the face of this institution that violates the Constitution of the PRC and the law, in which a decision to deprive an individual of his or her liberty can be made without any legal or public procedure or trial, and for which the administration is not public and frequently offers no manner of judicial remedy, one shudders in fear at such a system which during its long period of existence threatens the personal liberty of every citizen at any time. Although the applicant has to date never suffered harm from RTL, I have always been clear about the principle that "when one man is enslaved, all are not free."

If the RTL system is to continue on as usual, the following initiatives and efforts by China in the area of rule of law and human rights will all amount to empty words:

In 1999, [the phrase] "ruling the country in accordance with the law" was written into the Constitution of the PRC. In 2004, the safeguarding of human rights was written into the Constitution of the PRC in Article 33, which states: "The state respects and safeguards human rights."

In 2000, the National People's Congress passed the Legislation Law of the PRC, clarifying that "coercive measures and penalties involving deprivations of citizens' political rights or restriction of their personal liberty" shall "only be governed by law."

In 1996, the National People's Congress passed the Administrative Penalty Law of the PRC, clarifying that "administrative penalties involving the restriction of personal liberty shall only be created by law."

In a speech to commemorate the 30th anniversary of [the policy of] opening and reform, the ruling [Communist] party general secretary Hu Jintao said, "Don't pointlessly create trouble" (bu zheteng). Everyone knows that the RTL system was an illegal product of the "pointless trouble" (zheteng) created during China's special anti-rightist history. Today, "don't pointlessly create trouble" has increasingly become national consensus.

In the introduction to the April 2009 National Human Rights Action Plan (2009–2010), it is written: "The realization of human rights in the broadest sense has been a long-cherished ideal of mankind and also a long-pursued goal of the Chinese government and people....The National Human Rights Action Plan (2009–2010) is a document explaining the policy of the Chinese government with regard to the promotion and protection of human rights during the period....Governments and government departments at all levels shall make the action plan part of their responsibilities and proactively implement it in line with the principle of 'each performing its own functions and sharing out the work and responsibilities.'" In Part Two on the protection of civil and political rights, section one on rights of the person states: "China will improve its preventative and relief measures to protect citizens' personal rights in every process of law-enforcement and judicial work....The state prohibits illegal detention by law-enforcement personnel....Those who are responsible for illegal detention....shall be subjected to inquiry and punished if found culpable."

III. The significance that raising and resolving the issues raised in the request above will have for makers of national policy, law enforcement officials, and citizens in the current period of social transformation:

From "Legal basis for this application for disclosure of information" and "Why this request for disclosure of information is being made" in Sections I and II above, it is clear:

The RTL system is incompatible with the letter and spirit of China's current constitution and laws and the policies of the ruling [Communist] party. Making the matters in this application public to the applicant and to society in accordance with the law not only fulfills the MOJ's responsibility as a government department to make information public, it also allows facts to speak for themselves and provide policymakers and all of society with the important facts and information necessary in the debate over whether to retain or abolish the RTL system.

[As the saying goes:] "He who cannot manage a single matter will be unable to manage the overall situation." The RTL system and its current implementation have bearing on the vital interests of the people, citizens' supreme rights to life and liberty, and the fundamental difference between good and bad governance. The more a government relies on rule of law, the more it establishes its legitimacy and authority; the more it despises rule of law, its legitimacy and authority will of course be in doubt.

Facing this transitional period in society in which class divisions and conflicts are intensifying daily, rule of law is the only way for a society to solve its own conflicts and [achieve] harmonious, non-violent, sustainable development. The minority of bureaucratic elites who are unwilling to be bound by the law and arbitrarily use such unjust, unlawful methods as RTL to control the people will ultimately bring about negative consequences such as popular resentment and collapse of the regime. At this moment, all of society should stand together and support the government's ongoing efforts to promote rule of law, protect all fundamental civil rights, treat citizens who have been sent to RTL in accordance with the law, and work tirelessly in pursuit of the speedy restoration of personal liberty and provision of fair treatment to all citizens who have been sent to RTL. Doing this will allow even more citizens—including citizens who have been sent to RTL—to become positive forces promoting social reconciliation, harmony, and order and make a historical contribution towards the eventual establishment of a rule-of-law society and the realization of long-term stability!

CC: National People's Congress Standing Committee, State Council, National Human Rights Action Plan Leading Unit

Document Two: Response from the Ministry of Justice to Xie Yanyi

Xie Yanyi:

We have received the request to disclose government information you sent to the Ministry of Justice. Our response is as follows:

I. The number of RTL facilities, the number of individuals sent to RTL, and how RTL inmates are being treated is already open government information that has been made public on the MOJ website.

II. The number of individuals sentenced to RTL who have not accepted the RTL decision and have filed petitions for administrative review and the acceptance and success rates of administrative lawsuits all do not fall under the MOJ's scope of administrative responsibility.

III. Statistics on the categories of individuals sentenced to RTL is a state secret, and the MOJ administrative organ does not have the statistics you have requested.

IV. The other information requested falls under the category of state secrets and cannot be disclosed.

Ministry of Justice of the PRC (seal)
June 3, 2009

Related links:

政府信息公开申请书（致司法部）, 谢燕益, 5月14日2009年; Government Information Disclosure Request (to the Ministry of Justice), Xie Yanyi, March 14, 2009 (Chinese only)

司法部对本人提出的劳教信息公开申请书的答复, 6月4日2009年; Ministry of Justice Response to the RTL Information Disclosure Request Submitted by (Xie Yanyi) (Chinese only)

Six Months Later: What's Next for Liu Xiaobo?

2009-06-08T07:30:00.000-07:00

Prominent Beijing intellectual Liu Xiaobo (刘晓波) was taken into police custody on December 8, 2008. The exact reason is unknown, but his detention appears to have been connected to his role as an original signatory of Charter 08, a public appeal to promote human rights and democracy in China. However, authorities may have also been anxious to take Liu—a longtime critic of the Chinese Communist Party—out of circulation before China's year of sensitive anniversaries in 2009.

According to reliable reports, police have been holding Liu under "residential surveillance" (监视居住) in a hotel located in the Beijing suburbs. One of several "coercive measures" (强制措施) provided for under China's Criminal Procedure Law (CPL), residential surveillance authorizes police to restrict a suspect from leaving his or her residence while an investigation is carried out. In this case, police in Beijing appear to have violated the law and applicable regulations by holding Liu in a hotel, rather than his residence. The six-month time limit established by law for this status is set to expire soon, presumably on or shortly after June 8, 2009.

There is some uncertainty about what might happen to Liu when the period of residential surveillance expires—in part because the charge against him has not been made public and few know exactly why he is being held. Though more attention has been paid in recent years to abiding by certain provisions of the CPL, Chinese law-enforcement authorities have in the past frequently ignored legally established rights and time limits, especially in cases like this one that appear to be of a political nature.

It is clear, however, that when the six-month period expires it will be unlawful for Chinese police to simply continue holding Liu Xiaobo under residential surveillance. Some change to his status will need to be made, and no matter what, this change should have significant consequences. Based on a careful reading of the CPL and the associated regulations on implementing the CPL issued by the Supreme People’s Procuratorate and the Ministry of Public Security, Dui Hua believes that Beijing police have the following options open to them:

They can release Liu and end their criminal investigation.

They can release Liu on bail pending further investigation. Under this status, Liu would presumably be free to return home but would remain under police monitoring; he would be unable to leave Beijing without permission, required to appear when summoned for questioning, etc. The investigation against Liu would continue. This status can last 12 months.

They can place Liu under criminal detention and transfer him to a police-run detention center. Normally, this would involve issuing a notice to Liu’s family, specifying the charge, but police could be exempted from this requirement if they make some (in this case, tenuous) argument that doing so would hinder their investigation. In practice, police would be able to detain Liu for 30 days before needing to again decide how to handle his case.

They could formally arrest him, with approval of the procuratorate. Again, this would normally involve issuing a notice to Liu’s family specifying the criminal charge, but exemptions are allowed under the law under certain circumstances. If police were to formally arrest Liu, they could theoretically keep him in custody in a detention center for up to five months while they continued their investigation.

They could claim to have uncovered evidence of a new crime and launch a new investigation against Liu, at which point all procedural time limits would be reset.

Or, they could send his case to the procuratorate for prosecution. At this point, all of Liu’s rights to engage and meet with a defense attorney would automatically take effect. It is true that the procuratorate could decide to place Liu under a further six-month period of residential surveillance, but his status would change significantly with respect to rights as a criminal suspect in comparison to the previous six months.

It seems obvious that, short of releasing him outright, the best scenario for Liu Xiaobo as far as making the charges against him known and restoring his procedural rights would be for the case to be submitted to the procuratorate for prosecution. The CPL simply gives China’s police too much leeway to hold suspects without making the charge known and without allowing access to a lawyer. Unfortunately, sending the case to the procuratorate would be bad news for Liu on another front, as a very high percentage of the political cases that reach China’s courts result in conviction.

Former June Fourth Prisoners Still Paying Heavy Price

2009-05-21T15:50:00.000-07:00

As the 20th anniversary of the suppression of the China's pro-democracy demonstrations approaches, Dui Hua estimates that there are approximately 30 individuals still serving sentences for their participation in the 1989 protests. While remembering those imprisoned, it's worth noting that several individuals detained in connection with the protests are currently incarcerated, albeit not for the crimes they committed in 1989.

Of the eight people whose cases are summarized below, a number have spent most of the past two decades in prison and have many years remaining on their sentences. Medical parole has not been granted for several of these prisoners who are believed to be in extremely poor health. These individuals’ current prison terms—lengthier than their first sentences, in most cases—are actually in line with provisions in Chinese criminal law, whereby individuals who recidivate are liable to be sentenced more severely than first-time offenders.

Like many governmental and non-governmental bodies, Dui Hua has raised the following eight cases with the Chinese government. This list is by no means exhaustive, but Dui Hua believes it documents some of the most noteworthy cases to be kept in mind as human rights observers reflect on the tragedy of June Fourth.

Li Wangyang (李旺阳), 58, originally a worker at the Shaoyang Cement Plant in Hunan Province, was involved in organizing an independent labor union and served as chairman of the Shaoyang Workers' Autonomous Federation in 1989. After the suppression of the demonstrations in Beijing, Li publicly called on workers to go on strike and held a ceremony to mourn the victims of the crackdown. Arrested on charges of "counterrevolutionary propaganda and incitement," Li was sentenced to 13 years' imprisonment in October 1989 by the Shaoyang Intermediate People's Court. While imprisoned in Hunan's Chishan Prison, Li developed serious heart disease and was transferred to a prison hospital for treatment in 1996. He subsequently developed a number of other medical issues and was eventually released early in June 2000 after having served 11 years of his sentence. With no way to earn a living and facing major medical bills, Li carried out a 22-day hunger strike in February 2001 to protest the Shaoyang government's unwillingness to take responsibility for the health problems he had developed while imprisoned and to pay for his medical care. In May 2001, police took Li from his hospital bed on charges of "inciting subversion," and he was subsequently sentenced to 10 years in prison on September 11, 2001. In response to official inquiries, the Chinese government acknowledges that Li suffers from heart disease, hyperthyroidism, and vision and hearing deficiencies, and he has been held in a prison ward intended for the elderly and handicapped, where he is exempted from all physical labor. Despite this, prison authorities insist that his condition is "normal" and have not approved his release on medical parole. He has not received a sentence reduction since re-entering prison in 2001. In the two decades since the suppression of the pro-democracy demonstrations in Beijing, Li Wangyang has spent all but 11 months behind bars. He is due for release from Chishan Prison on May 5, 2011.

Wang Miaogen (王妙根), 55, was sentenced to 2-1/2 years of re-education-through-labor in connection with his activities as chairman of the Shanghai Workers’ Autonomous Federation during the 1989 protests. After being released, Wang carried out a series of protests to demand the release of other workers who had been detained during the 1989 demonstrations. During one incident at a local police station, Wang cut off several of his fingers. He was taken into custody by police in April 1993, diagnosed with paranoid schizophrenia, and committed to the Shanghai Ankang Hospital, a police-run psychiatric detention center. After his condition was determined to have stabilized, he was released in May 1997, only to be recommitted two years later. Although the Chinese government has provided no confirmation of his whereabouts for more than five years, Wang is presumed to remain incarcerated in the Shanghai Ankang Hospital. Since his first imprisonment in 1989, Wang Miaogen has been in custody for more than 16 years. Unlike the other individuals listed here, he has no terminal date when his release can be expected.

Xu Wanping (许万平), 48, participated as a worker activist in Chongqing during the pro-democracy demonstrations in 1989 and was sentenced to eight years in prison for "counterrevolutionary propaganda and incitement" and "organizing a counterrevolutionary group" in connection with his attempt to establish the China Action Party in opposition to one-party rule. After his release from prison in July 1997, Xu immediately became involved with the national movement to organize the China Democracy Party (CDP) and was sentenced to three years of re-education-through-labor following attempts to register a branch of the opposition party in Chongqing. Upon his release in October 2001, Xu remained active in CDP activities, frequently used the Internet to publicize local cases of injustice, and made efforts to raise and distribute funds to support the families of other jailed activists. Police arrested him on subversion charges in April 2005, and he was sentenced to 12 years' imprisonment. Xu is serving his sentence in Chongqing Municipality's Yuzhou Prison, where he is reported to suffer from spleen problems and general ill health attributed to his many years of incarceration. Xu has spent 15 of the past 20 years in prison and still has just under seven years left to serve. Prison authorities granted him a one-year sentence reduction in August 2008, meaning he is now scheduled to be released on April 29, 2016.

She Wanbao (佘万宝), 51, was a bank employee in his hometown of Guangyuan, Sichuan, when he became involved in the pro-democracy demonstrations in the spring of 1989. After the protests were suppressed in June, She organized a resistance movement and wrote essays that were published in Hong Kong. In November 1989, he was convicted of "counterrevolutionary propaganda and incitement" and sentenced to four years in prison. After being released in July 1993, She Wanbao became a private entrepreneur and remained active in dissident politics. He was a leading member of the Sichuan preparatory committee of the China Democracy Party and organized public protests calling for the release of CDP leaders and other political prisoners. Police in Guangyuan detained him on subversion charges in July 1999, and he was sentenced to 12 years in prison the following month. Chuanzhong Prison authorities placed She in solitary confinement for a period in June 2001 after he attempted to transmit a secret communication from prison. In September 2005, he was granted a six-month sentence reduction. As of today, She has been imprisoned for 14 of the past 20 years and is not scheduled to be released from prison until January 6, 2011.

Zhang Lin (张林), 45, headed the Bengbu (Anhui) Students Autonomous Federation in Anhui Province during the 1989 demonstrations. Throughout May of that year, he gave speeches, organized sit-in demonstrations, and led a hunger strike in support of students in Beijing. Police arrested him on June 8, 1989, and he was subsequently sentenced to two years in prison. In 1994, Zhang was sentenced to three years of re-education-through-labor for his role in organizing the independent Federation for the Protection of Workers' Rights. After being released in 1997, Zhang spent a period in the United States, where he had contacts with exiled political activists like Wang Bingzhang. In 1998, Zhang Lin secretly returned to China and was captured by police, who again sentenced him to three years of re-education-through-labor. Upon his release, Zhang remained under close police surveillance and supported his family by publishing articles in overseas publications, all of which were highly critical of the government. Zhang was detained in January 2005 when he attempted to travel to Beijing to pay respect to the recently deceased Zhao Ziyang, who had been deposed as general secretary of the Chinese Communist Party in 1989 after expressing sympathy for the pro-democracy demonstrators. Zhang was subsequently charged with inciting subversion and sentenced to five years in prison in July 2005. He is scheduled to be released from Anhui's Tongling Prison on February 12, 2010. Adding together his four stints of imprisonment, Zhang has spent 12 of the past 20 years behind bars.

Zhang Jianhong (张建红), 51, was sentenced by authorities in Ningbo, Zhejiang, to 1-1/2 years of re-education-through-labor for supporting the pro-democracy demonstrations in 1989. Zhang (who is also known by his pen name Lihong) is an author and editor who has published poetry, fiction, and several screenplays. He was detained for one month in 1999 in connection with the efforts to organize the China Democracy Party, and in August 2005 he founded and became editor of a popular literary and current affairs website called "Agean Sea," before police shut it down in March 2006. Zhang was arrested for inciting subversion in September 2006 after expressing support for human rights activists and lawyers such as Gao Zhisheng. In March 2007, the Ningbo Intermediate People's Court sentenced Zhang to six years in prison. Two months later, he was diagnosed with a rare neuromuscular disease, a condition that was reportedly left untreated while authorities considered whether he should be released on medical parole. Zhang's petition for medical parole was ultimately rejected, and he was transferred first to Qiaosi Prison, then to the Zhejiang Prison General Hospital, and finally to Changhu Prison in Changxing County. Despite repeated calls that Zhang be released on humanitarian grounds, prison authorities have so far refused to show clemency, insisting that Zhang is receiving adequate medical treatment for his condition and that he is otherwise healthy. He is currently scheduled for release on September 6, 2012.

Xie Changfa (谢长发), 56, had already been involved in local pro-democracy groups in his native Hunan Province for several years before becoming active in the 1989 movement. For giving a series of speeches denouncing the suppression of the protests in June, Xie was sentenced to three years of re-education-through-labor. Released after serving two years, he continued his political activism and was detained by police several times during the 1990s. In 1998, he helped to found the Hunan preparatory committee of the China Democracy Party, and for the next decade he remained an active member of the outlawed party, many of whose founding members were imprisoned. Beginning in 2002, he organized a series of annual meetings of CDP members in different cities throughout China, and in June 2008 he and other party members discussed the possibility of holding a national party congress. Shortly thereafter, police in Changsha took Xie into custody and charged him with the crime of subversion. A trial was held at the Changsha Intermediate People's Court on April 28, 2009, but the court has not yet issued a verdict.

Zhou Yongjun (周勇军), 42, was about to graduate from university in Beijing when the pro-democracy demonstrations broke out in 1989. Zhou briefly served as chairman of the Beijing Students Autonomous Federation and was one of three students who, in April 1989, knelt on the steps of the Great Hall of the People to request a meeting with then-Premier Li Peng. He participated in the May hunger strike and acted as a legal adviser to the Beijing Workers Autonomous Federation. Zhou was detained in Beijing's Qincheng Prison for more than 18 months on charges of "counterrevolutionary propaganda and incitement" but was later released without trial. In 1992, Zhou fled to Hong Kong and soon thereafter settled in the United States. Like many political activists living overseas, Zhou Yongjun was denied a Chinese passport and was thus unable to return home legally. When he tried entering China illegally to visit his ailing mother in December 1998, he was caught and sentenced to three years of re-education-through-labor at a facility in Mianyang, Sichuan. He was released early in March 2001 and allowed to return to the United States the following year. In September 2008, Zhou was once again taken into custody while crossing the border between Hong Kong and Shenzhen. Held incommunicado for seven months on unspecified charges, Zhou was recently transferred from Shenzhen to a detention center in Suining, Sichuan Province, and his family was notified that he had been formally arrested on fraud charges. The case is currently under further investigation.

Commentary: "China's Battle Over the Right to Criticize" (in Far Eastern Economic Review)

2009-05-07T09:36:00.000-07:00

An essay by Joshua Rosenzweig, Dui Hua’s senior manager of research based in Hong Kong, has been published in the May 2009 issue of the Far Eastern Economic Review. Entitled “China's Battle Over the Right to Criticize,” the essay analyzes cases of Chinese citizens charged with defamation after criticizing local government officials. It also explores broader questions about the legal provisions in such criminal cases and the current state of Chinese society and government leadership that is influencing the exercise of free speech.

A Human Rights Journal post from April 30 provides a related commentary—and translation of opinion pieces by Chinese scholars—on the specific case of Wang Shuai, who was charged with libel and detained for eight days in March after posting a satirical criticism online of officials from his hometown.

After Six Years, Innocent Man Escapes Execution

2009-05-06T15:59:00.000-07:00

Last week, Nanning's Southland Morning News (南国早报) published the incredible story of Zhuo Fakun, a 39-year-old farmer from Liuping Village in central Guangxi (original Chinese article begins here and concludes on a second webpage). In November 2002, Zhuo was apprehended from a construction site where he was working as a laborer and charged with the brutal murder of an elderly woman back in his hometown. He was convicted and sentenced to death, but continued to maintain his innocence while his case bounced back and forth in the local court system. After Zhuo had spent 2,339 days—nearly 6-1/2 years—in detention, most of that time forced to wear the heavy leg shackles worn by death-row prisoners, judges from the Guangxi High People's Court went to the Laibin Detention Center on April 24 to tell Zhuo that he was free to go home.

As Gao Yifei, a law professor at Southwest University of Politics and Law in Chongqing, has pointed out in a commentary, the case against Zhuo Fakun was so defective that it's hard to explain why it took six years to release him. The prosecution's main evidence against Zhuo was his confession to police, but several details in that confession contradicted each other as well as the testimony of other witnesses—none of whom were eyewitnesses to the murder. For instance, Zhuo reportedly confessed six different times to committing the murder "just after 10 p.m.," but according to the testimony of another witness, Zhuo had been in another village drinking with his brother-in-law on the night of the crime and had not returned to Liuping until well after 11 p.m. Neither police nor prosecutors submitted other evidence to explain how Zhuo could have committed the crime given the time discrepancies. Another key piece of evidence was a blood-stained shirt belonging to Zhuo that had been retrieved at the time of his arrest. The blood on the shirt was determined to be of the same type as that of the victim, but Zhuo's blood type was also a match, and police investigators never provided any evidence (such as DNA tests) to establish the source of the blood on Zhuo's shirt.

Despite the many holes in the prosecution's case, the Laibin Intermediate People's Court convicted Zhuo Fakun of murder and sentenced him to death in July 2003. Zhuo appealed the conviction, and more than a year later the Guangxi High People's Court ruled that the facts in the case were unclear and the evidence was insufficient. A retrial was ordered, and four months later, in December 2004, the Laibin Intermediate People's Court once again sentenced Zhuo to death. Zhuo again appealed and, this time, benefitted from the work of a legal aid defense attorney who began to poke holes in the prosecution's case. In the end, even prosecutors had to acknowledge that their case against Zhuo was weak and the Guangxi High Court decided to acquit him.

In his remarks on the case, Prof. Gao essentially takes for granted the likelihood that Zhuo Fakun's confession was extracted through police torture, considering it the only reasonable explanation for why someone would falsely confess to a crime carrying the death penalty. But Gao's harshest criticism is of the Laibin court for failing to act independently and, twice, "accommodating itself" to police, prosecutors, and (he suspects) pressure from local party and government officials. He argues that had the case been tried in open court with full media coverage from the beginning, judges "wouldn't have issued such a foolish judgment that defies common sense." Most egregiously, Gao argues, the courts failed to exercise sufficient caution with their gravest of powers, showing "utter disregard for human life" in the process.

Unlike in the United States, where individuals awaiting execution routinely sit on death row for years while appeal motions are filed and refiled, the wheels of China's criminal justice system tend to move quickly in capital cases. With at least 5,000 executions expected to take place in China this year, the country carries out far more death sentences than the rest of the world combined. And under the banner of "striking hard," there is little support for letting convicted murderers and others awaiting execution languish in detention for too long. In this light, perhaps the most remarkable thing about Zhuo Fakun's case was how slowly the wheels of justice actually turned. Although in this instance it shouldn't have been necessary to take six years to bring justice to Zhuo, one wonders how many more innocent men and women might have been spared from execution in China had the judicial process moved more deliberately and their cases scrutinized with more care.

Commentary & Translations: "Online Post Case" Stirs Outrage in China Over Government Crackdown on Free Expression, Weak Rule of Law

2009-04-30T16:24:00.000-07:00

A recent incident in China—with a defamation charge levied against Wang Shuai of Lingbao City, Henan, who satirically criticized his local government in an online post—has provoked heated public discourse around the country. In his post, the 24-year-old Wang suggested that Lingbao officials were misappropriating funds while supporting policies to increase drought to cut land values, which would then allow the government to offer less compensation for requisitioned farmland. Arrested for libel due to his comments but later released when the charge was dropped, Wang posted his remarks only after provincial authorities did not respond to his petition requesting them to investigate land deals in Lingbao.

Wang was taken into custody on March 6 in Shanghai, 1,200 kilometers from Lingbao, by police from his hometown. He was detained in Shanghai for three days and then brought back to Lingbao, where he was held for five more days before finally being released on bail after he signed a written confession. On April 8, the China Youth Daily reported on Wang’s case, setting off public outrage in China, with both common citizens and legal scholars expressing sympathy for Wang while vilifying the Lingbao City government. Moved to action by this show of support, provincial officials in Henan took some measures; they issued a public apology, suspended four police officers, and compensated Wang a total of 783.93 yuan (approximately US$115) for his eight days of incarceration. They also ordered an investigation into Wang’s original allegations that led to various punishments for local officials.

Even though the libel charge against Wang was dropped and some efforts were made to “redress” the situation, the furor that erupted over his case and its aftermath shows Chinese citizens’ concern over the excessive power wielded by local governments, which are often believed to be out to protect themselves instead of lawfully defending the public interest. The case also exposes the potential hazards of open expression over the Internet for the increasing numbers of Chinese who view online communication as an effective method for sharing opinions about the world around them—even on subjects as sensitive as alleged wrongdoing by government officials.

Translated by Dui Hua, the two commentaries below by Chinese scholars—about pervasive problems of rule of law and the limits of free expression exposed by Wang Shuai’s case and other libel cases—have recently appeared in the official Chinese press. The first article, ‘“Lingbao post case”: Who should apologize more?,” was written by Dr. Yu Jianrong, a prominent scholar with the Chinese Academy of Social Sciences. The piece (original Chinese text) critiques the issue of legal responsibility in such cases and emphasizes the importance of being persistent in taking on local government corruption.

The second translation is of an article (original Chinese text) just published on April 30, “The Winner in the ‘Wang Shuai Post Case’ is ‘Power,’ not ‘the Law,’” by Sheng Dalin, a well-known lawyer, media critic, and writer. In his commentary, Sheng decries that even the “resolution” of the case was orchestrated by the main local power brokers—the Lingbao Party Committee and city government—and, as such, an appropriate procedure that recognizes tenets of law was not followed.

"Lingbao post case": Who should apologize more?
Yu Jianrong
April 17, 2009

Yesterday, Qin Yuhai, Henan vice governor and chief of the provincial public security department, visited with the People’s Daily website to discuss the incident of the “cross-provincial arrest in Lingbao, Henan, of Wang Shuai, the online poster.” He indicated that local public security organs had made mistakes in enforcing the law, that Wang Shuai’s case did not conform to conditions of the crime of defamation, and that [Wang] had already received state compensation. Qin Yuhai also apologized for the incident and said the Henan Province Public Security Department had sent a team to Lingbao to conduct an investigation (April 16 People’s Daily website). On April 10, when Wang Shuai and I agreed to be interviewed together by the People’s Daily website, I was still concerned about whether he would be arrested and taken into custody again. Now, with Qin Yuhai having taken this position, we can rest assured, but the matter cannot end here.

Although Qin Yuhai also serves as vice governor of Henan Province, his statement mainly is made from the perspective of the public security system, and criticism is being directed at the problem of arbitrary law enforcement by public security departments. But there has yet been no clear answer regarding whether the Lingbao public security departments got involved in the case because of pressure or direct instructions from the local government.

A public security organ should carry out the sacred duties as major enforcers of the nation’s laws and the protectors of society, work in accordance with the law, and place the interests of the masses first. But it also is a government department, [and] its personnel matters, finances, and operations must be subject to the jurisdiction of government at the same level. So it is inevitable at times that a number of local political interests creep in. Police power is often abused not by local police themselves, but by those who use their authority to employ police power. In dealing with thorny issues such as land requisition, some local governments force police to overstep their authority.

The “Pengshui poem case” in Chongqing, the “Jishan document case" in Shanxi, the “Zhidan SMS case” in Shaanxi, and the “Gaotang Internet case” in Shandong—a lot of behavior clearly falling within the scope of freedom of speech has been pinned with the label of “defamation," and public power has been employed abusively in carrying out interrogation, arrest, and prosecution, all for “causing a [negative] impact on local economic development” or “damaging the local image.” It’s clearly unimaginable that all of this can take place without specific power-holders in the background deliberately “governing illegally and abusing office,” “suppressing criticism and controlling public opinion,” or “perverting the law to suit one’s own selfish needs.” In Wang Shuai’s case, the public has reason to question the role the Lingbao City government played and whether or not there was abuse of police power, and [the public] even hopes to see someone held responsible for the incident. Besides the apology by Qin Yuhai, an even more standard way of doing things for a society with rule of law would be for the Lingbao City government or a higher-level government to officially publicize the details of Wang Shuai’s case, including the entire process of its occurrence up to the recognition that the case was faulty, the specific staff who must take responsibility, and the handling of decisions by relevant departments and staff. [These actions] will make the conduct of those in power more open and transparent.

The Wang Shuai “defamation case” simply should never have happened, and withdrawing the faulty case now only solves a derivative problem. The incident emerged as a response to unlawful land use by the Lingbao City government, and this is where [our] attention should return. Since Wang Shuai did not commit libel, the Lingbao City government should provide a clear response to Wang Shuai and the public regarding the issue of illegal land requisition that he raised. If the public has misunderstandings because of Wang Shuai’s post and if the Lingbao City government thinks the image of the local government has been tarnished, then the government is obliged to clarify the actual situation, respond to the suspicions of netizens, and dispel their doubts. Without effective communication, the masses who don’t know the truth will never understand [the situation]. If the issues in Wang Shuai’s case are valid (on April 16, the China Youth Daily reported the requisition of over 27 square kilometers [of land]), the Lingbao City government should not conceal this, but instead acknowledge the problem, take responsibility, and seek an effective solution. Whether through restoration of farmland, remedial measures, or pursuit of greater land compensation, [the government] needs to provide a clear response to those affected and to members of society who care about this issue.

After attracting so much attention, if this matter simply went away without being resolved, it would actually do great damage to the image of the local government. It would seem to send the message that whatever local governments want to do—legal or not and regardless of whether a citizen who voices criticism is sent to prison or if farmers are pushed off their land at a low price [in compensation]—can be achieved through a variety of methods. Even if [such actions] bring about serious consequences, the government also can pass the buck for various reasons, with its own illegal acts falling outside the bounds of the law.

The Winner in the "Wang Shuai Post Case" is "Power," not "the Law"
Sheng Dalin
April 30, 2009

According to an April 29 report in The Beijing News, the Sanmenxia Party Committee and city government held a meeting to “seriously punish” the illegal occupation of land in Lingbao City that had been exposed in the “Wang Shuai post case.” The Lingbao City Party Committee and city government were ordered to carry out a thorough investigation for the Sanmenxia Party Committee and city governmnent, and Lingbao City Party Secretary Lü Junping and Mayor Qiao Changqing were ordered to carry out a thorough investigation for the Sanmenxia Party Committee and city government. It was decided to punish those officials who were found to be responsible.

So now, the “Wang Shuai post case” that has made such a stir throughout the nation can be said to have come to a close. No doubt many citizens who offered encouragement and support to Wang Shuai will be very happy with this result, but I can’t help but feel that the conclusion is less than perfect.

The final outcome of the “Wang Shuai post case” is certainly just as we had hoped. But did we only want to see the outcome? No—outcomes are important, but the process is important, too. We wanted to see substantive justice done, but we also wanted to see procedural justice as well. However, looking back at the entire course of the “Wang Shuai post case,” we must admit that the course of action taken was not the ideal choice.

Actually, there are many paths that could have been taken to achieve a just outcome. For example, the public security bureau could have strictly handled the case in accordance with the law and refused to file the case for investigation or withdrawn the case in accordance with the law after public opinion pointed out that the charge of “defamation” was completely untenable. But it did neither of these. After the storm of public opinion, not only did Lingbao City have no intention of rectifying the case, it actually fought back hard against public opinion. Only intervention by the Henan Province Public Security Department and Vice Governor and Public Security Department Chief Qin Yuhai’s public admission that “defamation is untenable” was there a sudden shift in their course.

It’s a clear fact that, from start to finish, the main actor in handling this case, the Lingbao City Public Security Bureau, was secondary to the Lingbao City Party Committee and city government, which was in the driver’s seat. It was the party committee and government that made public statements, and it was always the publicity department of the city party committee, speaking on behalf of the city party committee and government, that gave media interviews. Obviously, the “filing” in this case was a result of the intervention of power and its “withdrawal” was a result of the intervention of power as well. From the beginning, what the city public security bureau was enforcing was not the “law,” but rather “orders” from superiors. Even though the oversight of public opinion played an important role, what ultimately brought about a reversal in these events was power. In other words, the winner in the “Wang Shuai post case” was “power,” not “the law.”

This is not an isolated situation. From the “Pengshui poem case” to the “Jishan document case,” in recent years there have been several “defamation” cases that were nothing more than the result of “power overshadowing the law.” In the Wu Baoquan case in Hohhot [sic, should be Ordos], Inner Mongolia, there have even been a few judges and prosecutors handling the case who have openly expressed their frustration at being unable to handle the case in accordance with the law.

“Supremacy of the law” is the first tenet of the rule of law. “Power overshadows the law” is a vestige of the rule of man. Even though the “Wang Shuai post case” was recently overturned and the responsible people concerned have received “serious punishments,” not a single hair has been harmed on the “chief culprit” in this case and others like it—namely, the idea that “power overshadows the law.” Unless we eradicate this “chief culprit,” individual rights such as freedom of speech can never be protected and cases involving the punishment of free speech will never cease.

China's Human Rights Plan Met With Mixed Reactions

2009-04-13T21:46:00.000-07:00

On Monday, China unveiled with great fanfare its National Human Rights Action Plan for 2009–2010 (full text available in English | Chinese). This plan, the first of its kind for China, is intended to set goals and measures for all of China's government to follow in the next two years in its efforts to better protect and respect human rights.

The plan, which was greeted with great enthusiasm by the China's domestic media, received a more lukewarm reception outside the country. Although the plan contained several important expressions of support for the protection of human rights and some specific proposals, skeptics question whether the plan contained enough concrete benchmarks against which to measure achievements, particularly in the area of civil and political rights, and whether China's system was transparent enough to allow for independent verification of progress.

The following essay, published on the website of the Changjiang Daily in Wuhan (and reprinted by several major Chinese-language news portals), argues strongly that China's ambitious plans need to be accompanied by sufficient action, else its goals will be in danger of not being realized. The author also reminds us that human rights are "naturally inherent" and "sacred" and not to be doled out by the state as it sees fit "according to national circumstances." Progress in the protection of human rights should move forward in all areas simultaneously: economic, social, cultural, civil, and political.

Safeguard Human Rights with Sufficient Action
Li Qiong
April 14, 2009

Yesterday, the State Council authorized the State Council Information Office to issue the "National Human Rights Action Plan (2009–2010)" (NHRAP). This is the first time China has established a national program focused on human rights, and its action plan clearly sets out the Chinese government's goals and concrete measures for the promotion and protection of human rights during the coming two years.

From 1991, when the Chinese government published the "Chinese Human Rights Situation" white paper, the first government document to positively affirm the status of the concept of human rights in China's political development, to 2004, when the phrase "the state protects and respects human rights" became part of the constitution, there has been increasingly clear and resolute identification of human rights as a common achievement of human civilization and a mainstream value of international society.

On the level of theory and perception, the concept of human rights has already cast off the cloak of ideological struggle, and in speech it is no longer a sensitive or taboo subject. A whole series of legal provisions have reflected elements of the protection of human rights. The positive significance of the NHRAP lies in its clarification of the basic elements of the protection of human rights in China and turning these national values and strategic goals into a roadmap for the near term.

In addition to progress on the level of ideas and perception, we cannot deny the accomplishments China has made in the area of action on human rights protection. But compared to the human rights content found in the NHRAP and in our various laws, we remain deeply concerned about the protection of human rights in practice.

Looking at the reality of present-day Chinese society, many aspects of respecting and protecting human rights have yet to reach the ground, and there is much that remains unfinished with regard to upholding and protecting people's rights. In some areas, whenever there is an accident involving major loss of life, the first thing that local government and enterprises think to do is conceal and cover up. In some management of society at the grassroots level, the difficulties people face in expressing and upholding their rights end up turning into intense popular confrontations or conflicts with officials or the police. In all areas of law enforcement and the administration of justice, there often appear flashes of the dark shadows of torture, prison bullies, and miscarriages of justice. In the hospitals of every major city, many parents of children with leukemia fiercely hope for a chance meeting with the Premier. The lack of basic cultural facilities in rural areas, the detention and even incarceration in psychiatric hospitals of those who make complaints and petitions—these facts make it clear that there remains a long way to go before realizing civil, cultural, and political rights.

These hard realities that run through our rule of law and human civilization remind us that it is precisely at the level of implementation that human rights continue to be in danger of being ignored, neglected, distorted, and emptied of all meaning. Government and society continues to bear an enormous responsibility to respect, protect, and improve human rights.

To be sure, it is even more difficult to break through barriers at the level of action and implementation than it is at the level of thought and speech. After 30 years of rapid economic expansion, the human rights issues we face are no longer limited to the single element of the right to life. The times are changing, and people's knowledge of and desire for rights is growing stronger and more varied. The types of rights-protection problems that need to be resolved are increasingly complex as well. In the broader context of social transformation, respect and protection of human rights means increasing public investment to strengthen important social services, overcoming institutional inertia and improving the work of government, and sweeping away unreasonable vested interests and bringing fairness and justice to society in return. Improving these areas of implementation requires sufficient political awareness, a courage to reform, and sufficient mechanisms and platforms for the expression and interplay of interests.

Human rights is something naturally inherent, something sacred; it is not a favor to be bestowed on the people or something that can be arbitrarily taken from them. We have already firmly established a national vision and system, but what we hope to see even more is respect, protection, and improvement of human rights in actual practice. When the promotion and protection of human rights is realized in practice, when it can be seen in every action taken by the government everywhere—only then can we really say that the citizens become the masters of the state and "putting people at the center" becomes the core of development.

Chinese State Security Arrests, Indictments Doubled in 2008

2009-03-25T14:00:00.000-07:00

Arrests and indictments for "endangering state security" (ESS) in China soared in 2008, more than doubling for the second time in three years, according to data made available by the Supreme People's Procuratorate (SPP) in its annual work report to the National People's Congress (NPC) on March 10.

While no figures for ESS were explicitly provided, data appended to the work report distributed at the annual plenary session of China's legislature point unambiguously to such a rise. Based on those statistics, The Dui Hua Foundation estimates that last year more than 1,600 individuals were arrested and more than 1,300 individuals indicted on state security charges in China.

Arrests and prosecutions for alleged "splittist" activities by Uyghurs and Tibetans are believed to have contributed significantly to the large increases in 2008. Security forces cracked down in Tibetan areas and Xinjiang following an uprising in Lhasa last March and numerous protests throughout the Tibetan plateau amid concerns that ethnic unrest and social instability would mar the Olympic Games held in Beijing last August.

Close Tracking Makes Estimate Possible

In 2007, Dui Hua called attention to the doubling of ESS arrests in 2006 over the previous year. Last year, the foundation used data announced in the SPP work report for 2007 to reveal another 23 percent increase in ESS arrests for that year. As early as January 2009, there were indications that arrests and prosecutions for ESS increased significantly in 2008. That month, an official spokesperson for the Xinjiang Uyghur Autonomous Region People's Procuratorate revealed that nearly 1,300 individuals were arrested for endangering state security in that region alone—compared to 742 for the entire country in 2007.

The version of the SPP work report for 2008 that was distributed to NPC delegates, members of the media, and other observers included charts breaking down arrest and indictment totals by the crime categories as found in China's criminal code. In these charts, the three smallest categories—ESS, "endangering national defense interests," and "dereliction of duty by military personnel"—are combined in a category marked "Other." When these totals are routinely reported in the China Law Yearbook, each category is listed separately. Looking at the data over time, one finds relative stability in the number of arrests and prosecutions made for endangering national defense interests and dereliction of duty by military personnel—meaning that most of the variance can be attributed to ESS cases.

Analysis Yields Astonishing Results

From 2004 to 2007, arrests for endangering national defense interests and dereliction of duty by military personnel remained at a fairly consistent rate of about 7 per 20,000 total arrests. (By contrast, arrests for ESS over this same period displayed considerable variation.) Assuming that this rate did not vary considerably in 2008, it would mean that Chinese law enforcement authorities arrested more than 1,620 individuals for ESS that year. This marks a 119 percent increase over 2007 and a 448 percent increase over the historic low reported in 2005. Similar calculations for indictments yield an estimate of 1,327 for ESS in 2008, a 114 percent increase over 2007 and a 280 percent increase over 2005.

Corroboration of a doubling in arrests and indictments for ESS in 2008 can be seen in figures made public in the work report of China's Supreme People's Court, which shows that first-instance trials for ESS (and a small number of trials for dereliction of duty by military personnel) increased by more than 50 percent compared to 2007. Given that it routinely takes 12 months or longer to conclude ESS trials, one would expect to see a substantial proportion of the arrests and indictments in 2008 reflected in trials concluded in 2009. (Click on the chart below to view data on ESS arrests and indictments in China since 1998.)

Dui Hua's estimates for arrests and indictments for ESS in 2008 raise questions about the report from Xinjiang earlier this year. If, as reported, 1,295 individuals were arrested for ESS crimes in Xinjiang during the first 11 months of 2008, this would comprise 80 percent of Dui Hua's estimated total, leaving roughly 330 arrested throughout the rest of the country—including Tibetan areas, where dozens, if not hundreds, are suspected of having been charged with ESS during the year. This number appears rather low.

It is possible that the data reported nationally and the data for Xinjiang do not categorize ESS crimes the same way, with the Xinjiang total including cases of terrorism and other crimes that do not strictly fall under the category of ESS as defined by the criminal code. However, if uniform criteria are being used, it means either that Uyghurs and Tibetans represent an even larger proportion of ESS cases than previously believed or that Dui Hua's estimate for the total number of arrests and indictments nationally is too conservative. Clarity on these questions will have to wait until the 2009 China Law Yearbook is published—assuming that Chinese authorities maintain a basic level of transparency of the criminal justice system by continuing to report specific figures for ESS crimes.

Related Links:

Official Statistics on ESS Arrests, Indictments in Xinjiang Point to Big Crackdown on Political Crime in China in Olympics Year, The Dui Hua Foundation, January 6, 2009

Statistics Show Chinese Political Arrests Rose Again in 2007, The Dui Hua Foundation, March 16, 2008

New Statistics Point to Dramatic Increase in Chinese Political Arrests in 2006, The Dui Hua Hua Foundation, November 27, 2007

Discussion of 60th Anniversary Special Pardon Intensifies in China

2009-03-06T13:33:00.000-08:00

In recent weeks, the official Chinese media has covered the issue of a special pardon to celebrate the PRC’s 60th anniversary, with opinions of prominent academics and legal professionals appearing in many publications. Dui Hua has generated attention on the proposal since early this year, featuring it in the Winter 2009 issue of the Dialogue newsletter and in postings in the Human Rights Journal, and will continue to track official discussion on the topic. The following summarizes and provides context for some views on the “anniversary special pardon” published in China since mid-February, with links to referenced Chinese-language articles.

The anniversary pardon proposal recently gained widespread attention in China when an interview with Gao Mingxuan (高铭暄), a professor at Renmin University and preeminent legal scholar and pioneer in the field of Chinese law, was published on February 16 in the Yangcheng Evening Post (羊城晚报). This occurred soon after a convicted murderer in Suizhou in Hubei Province had been sentenced to death and then appealed for clemency based on the principles of a special pardon, an incident which stimulated tremendous debate. Assuring he did not consider that particular case as commensurate with such a pardon, Prof. Gao stressed that special pardons should not be issued indiscriminately for prisoners who show no remorse or still pose threats to society, but instead can be implemented under proper conditions, such as in recognition of prisoner reform and for national anniversaries.

Gao also emphasized that special pardons have a role in promoting “harmony,” a central ideal of current Chinese leaders, and commented on its rehabilitative benefits for individuals and society. In his remarks, he likened the reform and pardoning of prisoners to the treatment of people with serious illnesses who should be hospitalized and then released once their health is restored.

Other legal scholars and members of the general public have since expressed strong opinions on the proposal. The many responses in favor of an anniversary pardon have underscored its humanitarian nature, precedents that exist in Chinese history, and the legal provisions of pardons set forth in Articles 67 and 80 of China’s constitution. For voices opposed, principal concerns have been how China can implement pardons while avoiding corruption of the process, the lack of clear procedures for implementing pardons, and whether public safety would be jeopardized by a large-scale release of prisoners.

The China Youth Daily (中国青年报) published a response supportive of Prof. Gao’s call. The article urged that the proposal be taken seriously as a policy with a sound basis in both Chinese law and common sense, and argued that punishment and reform of prisoners have been complementary elements throughout Chinese history.

In a February 18 article in the Chinese Commercial Daily (华商报), Jia Yu (贾宇), a scholar from the Northwest University of Political Science and Law, repeated a sentiment often voiced by special pardon supporters: Pardons demonstrate the confidence and tolerance of a powerful country and reflect the political stability, national prosperity, and social environment of today’s China. Still, Prof. Jia was skeptical that there would be support for pardoning prisoners convicted of “endangering state security” or economic crimes due to the serious nature of the offenses. He further suggested that pardons should not be determined based on crime categories. Jia indicated that an option could be to consider pardons for common criminals who receive light prison sentences and those with less than three years left to serve in prison.

Not all intellectuals, however, have been in favor of the special pardon. In a February 25 interview published in Southern Weekend (南方周末) responding to Prof. Gao, criminal law expert Zhou Guangquan (周光权), who is a member of the National People’s Congress Law Committee and vice dean of Qinghua University’s School of Law, spoke out against the proposal, reasoning that conditions for a special pardon are not appropriate this year.

Zhou made four main points against the special pardon: 1) A pardon could influence China’s criminal law and judicial authority, as people now put their faith in the judicial system to appropriately punish criminals; 2) institutions are not in place to reintegrate pardon recipients back into society and professional life, since the prisoners themselves may not have been reformed; 3) many crimes involve victims who have been harmed but gone uncompensated for their injuries, so releasing prisoners might lead to direct conflicts between criminals and their victims and give rise to new social unrest; and 4) a special pardon might undermine already tenuous social stability, which Zhou pointed out is a concern harbored by the general public, and one that is not without merit.

In reality, attitudes among the general Chinese public about an anniversary special pardon are hard to ascertain. Amid the coverage in the Chinese press have been online surveys, however unscientific, that suggest a substantial number of common citizens may support the idea of a special pardon this year. (A poll showed in early March, after nearly 50,000 “votes” had been tallied, the numbers of supporters and opponents of the pardon proposal were nearly identical.) While definite conclusions cannot be drawn from this kind of polling, the mere existence of surveys—and the growing coverage in official media—clearly demonstrates that the idea of an anniversary special pardon is being considered by Chinese citizens and heard among high-level Chinese leadership.

Ching Cheong in Support of 60th Anniversary Special Pardon

2009-02-11T00:14:00.000-08:00

In the lead article of the most recent issue of the Dialogue newsletter, Dui Hua expressed support for the idea of a special pardon for prisoners as a means of commemorating the 60th anniversary of the founding of the People's Republic of China on October 1, 1949. The article, which noted a variety of voices in China who have already raised the idea of a special pardon, has since generated considerable discussion on the proposal both inside and outside of China.

A recent supporter of the 60th anniversary pardon proposal is Ching Cheong, veteran China correspondent for The Straits Times newspaper based in Singapore, who expressed his views in a February 5 opinion piece published in the Hong Kong Economic Journal. Translated below by Dui Hua, the piece is highly personal in nature, drawing on Ching's own experience of being imprisoned in China on espionage charges from April 2005 until his release on parole in February 2008.

Invincible are the benevolent, their love boundless

By Ching Cheong
(Hong Kong Economic Journal, February 5, 2009)

February 5th marks the first anniversary of my regained freedom. It feels great to be home again! I am so happy to be free! Following the great efforts of so many Hong Kong people and the ceaseless petitioning of the Hong Kong SAR government on my behalf, the central government one year ago finally agreed to release me on parole. I shall never forget the understanding, trust, and support offered me by all sectors of society. I have pledged to transform this thanks into a guiding force working on behalf of democracy, freedom, human rights, and rule of law in Hong Kong and China.

Announcing a special pardon offers a fresh a start

This year marks the 60th anniversary of the founding of the People's Republic of China and marks the first full cycle of 60 years since the establishment of a new China. According to the traditional Chinese calendrical system of "roots and branches," this is the beginning of a new cycle and an opportunity to reflect on original intentions and start new ventures. I propose that the central government celebrate this 60th anniversary with the announcement of a special pardon, a policy of benevolence that will offer people a fresh start.

Chinese history early on established this tradition of benevolent rule. For example, take the case of Emperor Wu of the Han Dynasty. In the "Annals of the Wu Emperor" in the History of the Han Dynasty, it is written: "On the Jiazi day, in the third month of the year in spring in the first year of the Yuansu reign period [128 BCE] . . . [Emperor Wu] decreed: 'I wholeheartedly admire [the benevolent rule of] Tang and Yu [two enlightened rulers in the early history of China] as well as those found in the Yin [1600–1100 BCE] and Zhou [1100–771 BCE] dynasties. The old provides a mirror for the new. We thus declare a general pardon over the entire nation and make a fresh start with our people.'" Emperor Wu opened the way for a period of peace and prosperity such that to this day we are especially proud to refer to ourselves as "Han." This has much to do with his willingness to "offer people a fresh start."

Besides considerations of cultivating benevolent rule, a special pardon today offers more of a chance to resolve judicial errors. Over the past decade, the CPC Central Committee has committed to reform of the judicial system, twice issuing a "Five-year Reform Program for the People's Courts." This is something that helps restore people's confidence in the administration of justice. But it also highlights many of the deficiencies in past trials. These institutional problems cannot be reformed overnight; choosing to issue a special pardon on the occasion of this 60th anniversary National Day will meet the goal of resolving these errors, thereby easing feelings of social discontent.

Based on my personal experience, I feel that resolving these miscarriages of justice is especially urgent. My reasoning is as follows:

First, during the Fifth National Conference on Criminal Sentencing Work, former Politburo Standing Committee member and Central Politico-legal Committee Secretary Luo Gan noted: "We must effectively guarantee quality in handling cases and strengthen the protection of human rights in the area of criminal justice. We must strictly implement each procedure and system in the criminal justice process, and firmly grasp the central facets of facts, evidence, procedure, and use of law in each case so that every case possesses clear facts, sufficient evidence, accurate convictions, appropriate sentencing, and lawful procedure that can stand the inspection of history." From these words by a top party leader responsible for China's law enforcement work, we can clearly see that the authorities have in the past not mastered these four central facets and that this failure has been widespread. Otherwise, it would not be necessary to enact reforms.

Second, the February 8, 2007, issue of the Legal Daily reported that China's public security organs in 2006 had developed "special control measures," one of which was aimed at controlling the extraction of confessions through torture. Later, in the second half of 2007, the same paper published a series of articles examining why the problem of extracting confession through torture "had not stopped, despite repeated prohibitions." From these reports, we see that the extraction of confessions through torture is a very serious problem.

Third, in 2007, China's National People's Congress Standing Committee passed a new Lawyers' Law, explicitly including a section on the "professional rights and obligations of lawyers" and establishing clear provisions covering the rights of lawyers in the criminal justice procedure to meet with clients, view case materials, investigate and obtain evidence, and defend their clients—thereby taking a first step towards resolving the long existing problems in the profession of "difficulty to meet," "difficulty to view evidence," and "difficulty to investigate and obtain evidence." This is a great step forward, to be sure, but it also highlights the fact that defendants in the past were unable to receive proper legal protection.

Extraction of confessions through torture during the investigative phase, failure to grasp the four central facets of the trial process, and depriving defendants of their right to legal protection can only lead to miscarriages of justice.

Make more use of parole to resolve contradictions

Fourth, the present criminal code offers criminals who have served at least half of their sentences the possibility of leniency through parole. But in practice, only a handful of individuals who have served half of their sentences are actually paroled. According to statistics from China's Ministry of Justice, in the decade from 1996 to 2005, the rate of parole never exceeded three percent. This effectively negates the leniency built into the criminal code. According to data from the Asian and Pacific Conference of Correctional Administrators, in 2005 China lagged far behind other countries and regions in the Asia Pacific region with respect to implementing parole. (In that year, China's rate of parole was 2.3 percent, whereas Australia's was 39.7 percent, New Zealand's 39.4 percent, Canada's 32.7 percent, Thailand's 37.9 percent, Japan's 5 percent, and Hong Kong's a high 40.4 percent.) Since the rate of parole use is so low, many mainland legal experts have suggested that parole ought to be used more to resolve social tensions and fulfill the government's criminal justice policy of "lenience mixed with severity."

These four errors that exist in law enforcement were created by the existing justice system, so we must rely on judicial reforms to solve them completely. But the social grievances that have accumulated as a result of this must be resolved in a timely manner if there is to be social harmony. As there are a wide range of such injustices that cannot be easily resolved one by one in a short period of time, I propose issuing a special pardon in order to resolve a larger portion of them. Only in this way can society's grievances be effectively defused.

Thirty years ago, Deng Xiaoping passed a "Resolution on Certain Questions in the History of Our Party Since the Founding of the State,"resolving serious contradictions within the Party and clearing the way for 30 years of prosperity. Today, if Hu Jintao were to issue a special pardon, expressing the government's sincerity in healing old wounds and granting people a fresh start, resolving historical difficulties and enhancing the peaceful atmosphere of society, who would object? Invincible are the benevolent, their love boundless. I hope that the parties concerned can give this idea serious consideration.

Olympics Six Months On: No Lift for China’s Image

2009-02-09T10:51:00.001-08:00

Six months after the dazzling ceremony that opened the Summer Olympics in Beijing, the first post-Games poll of international opinion toward China has been released by the BBC World Service. The results indicate that China’s image has worsened over the past year among most countries polled. The release of the poll coincides with the first Universal Periodic Review (UPR) of China’s human rights record this week at the United Nations in Geneva.

According to the BBC poll of views in 21 countries released on February 6 this year, the percentage of people outside China who think the country exerts a positive influence in the world has slipped six percentage points to 39 percent from 45 percent a year earlier. Forty percent think China exerts a negative influence, up from 32 percent in 2008. Last year, 16 countries had a predominantly positive view of China and five held a negative view. In the most recent poll, 10 countries have a negative view and 10 countries have a positive view.

The most recent poll indicates a modest improvement in the United States’ image since the low point recorded in late 2006, when only 30 percent of those polled outside the United States thought that the country wielded a positive influence. Those who have a positive view of the United States now account for 40 percent of those polled, while those who hold a negative view stand at 43 percent—a decrease from 51 percent in late 2006. The most recent poll was conducted after the November 2008 election of the first black US president, who campaigned on a platform of taking steps to improve America’s battered image by closing Guantánamo’s detention center, outlawing torture of detainees, and promoting better relations with countries that have strained ties with the United States.

Over the past year, positive opinion toward China has dropped sharply in Europe and in parts of Asia (including in the Philippines, where China’s negatives rose from 30 percent to 52 percent) and the Muslim world (with double-digit drops in positive ratings recorded in Egypt, Indonesia, and Turkey). It has remained negative in the United States and Canada, but has improved in Latin America and Africa. Opinion toward China in Russia remains positive. In sharp contrast to international opinion, more and more Chinese—92 percent in the most recent poll—believe that China exerts a positive influence in the world.

The recent poll reveals views of China from eight of the 12 top medal-winning countries at the 2008 Olympic Games. Excluding responses from China, an average of 52 percent of those polled among the top medal winners felt that China exerts a negative influence—up from 44 percent a year ago—and the percentage of those who think that China has a positive influence dropped to 28 percent from 37 percent. Among audiences likely to have watched the Games, China’s image appears to have deteriorated.

Opinion toward China suffered some of its biggest losses in countries that hosted a leg of the around-the-world torch run. Positive views of China dropped to 39 percent from 48 percent in Great Britain, and negative views rose to an astonishing 70 percent in France (up from 46 percent a year ago). In Turkey, where sympathy for the Uyghur people is high, 64 percent now have a negative view compared to a mere 18 percent who see China in a positive light. In Australia, where a year ago 60 percent of the population felt that China exerted a positive influence, the number which does so now has dropped to 47 percent. The Japanese already had a very negative opinion of China’s role in the world, but even here the country’s positive numbers dropped from 12 percent in the 2008 report to 8 percent in this year’s report.

This week in Geneva China’s human rights record is being examined by the UN’s Human Rights Council. The Chinese government will field many questions about its human rights record, but one question should be directed at to the Chinese people: Why do an increasing number of people around the world view China so negatively, even after the hard-won triumph of the Summer Olympics, the outpouring of international support after the Sichuan earthquake in May and the realization that China’s economy and foreign exchange reserves are vital to repairing the damaged world economy?

A principal reason is doubtless the perception that the human rights situation in China is worsening, with reports of a sharp increase in arrests for political crimes, tightened controls over expression on the Internet, increased repression in Xinjiang and Tibet, and continued support for some of the world’s worst rights abusers in Sudan, Myanmar, and North Korea. As the United States and others have learned the hard way, the way power treats people, at home and abroad, counts heavily in the court of public opinion.

Parole, Sentence Reductions Benefit Hundreds of Prisoners in Beijing Before Spring Festival

2009-01-22T12:25:00.000-08:00

An article published today on the front page of the Legal Daily reports on the release on parole of 144 prisoners in Beijing prisons immediately prior to the Spring Festival holiday (Chinese text below). An additional 361 prisoners received sentence reductions. A special ceremony was held at Beijing Prison, the municipality’s model prison, on January 21 at which representatives of Beijing's law enforcement community watched as officials from the Beijing Number One Intermediate People's Court announced parole decisions for 87 inmates.

According to the article, Beijing party leaders have instructed law enforcement agencies to be more lenient in assessing the eligibility for parole of older prisoners, those whose crimes were committed accidentally, female prisoners, juvenile prisoners, and those whose families are facing particular difficulties. At the same time, they have been warned to be particularly careful in issuing sentence reduction and parole to those at risk of committing further crimes, such as violent criminals, serial offenders, or repeat offenders.

The types of prisoners in Beijing who received parole and sentence reductions are similar to those paroled in Sichuan in the latter half of 2008, when the Sichuan prison system released more than 1,000 prisoners categorized as "elderly, infirm, or disabled." (See Dui Hua’s Human Rights Journal entry on the Sichuan paroles posted on January 8.)

The reports from Sichuan and Beijing may point to greater use of parole and sentence reduction for Chinese prisoners who don’t pose threats to society. They coincide with a growing debate in China about making more use of the special pardon mechanisms provided for in China’s constitution, a topic that Dui Hua explores in its current issue of Dialogue.

北京144名服刑人员节前假释

1月21日上午，北京市召开宽严相济政策兑现大会，在全市各会场共有144名服刑人员被依法假释，361名服刑人员得到减刑。其中，北京市监狱主会场，北京市第一中级人民法院依法对87名服刑人员宣布了假释裁定，全市公、检、法、司相关部门领导出席了会议。
　　
据了解，在北京市委政法委的部署下，全市公、检、法、司各单位对减刑假释工作规定进行了完善，进一步放宽了对老年犯、过失犯、女犯、未成年犯、家庭有特殊困难的罪犯假释条件；同时对重新犯罪风险较高的暴力犯、连续犯、有前科劣迹的罪犯细化了从严减刑假释条件。

Related Links:

北京144名服刑人员节前假释 (“144 inmates paroled in Beijing prior to holiday”), Legal Daily, January 22, 2009, in Chinese only.

Calls Grow in China for Special Pardon to Mark PRC’s 60th Birthday, Dialogue, Issue 34, Winter 2009

Sichuan Expansion of Parole Worth Watching

2009-01-08T04:49:00.000-08:00

An important expansion in the use of parole and other early release has been quietly taking place in Sichuan Province over the past six months, according to an in-depth report in the January 8, 2009, edition of The Beijing News (新京报). As of December 31, 2008, the Sichuan prison system had released more than 1,000 prisoners categorized as "elderly, infirm, or disabled." The article further suggests that even more releases can be expected in 2009.

This is a huge expansion in the use of parole in China. According to Sun Zeng of the Sichuan Province Prison Administration Bureau, China's annual parole rate typically does not exceed 3 percent, compared to 40 percent in some Western countries. In Sichuan, one of the most populous provinces with one of the largest prison populations in all of China, the past rate for parole has been a mere 0.2 percent. For example, in recent years only four or five prisoners from Chengdu Women's Prison were released on parole each year. Last year, 22 women either had the remainder of their sentences commuted or were released on parole.

Recognizing the challenges that thousands of prisoners who are too old or disabled to care for themselves pose to prison administration, last May provincial authorities took the initiative to draft regulations expanding the use of parole and non-custodial punishment for prisoners over the age of 65 (or 60 for women) who had served at least half of their sentences, the physically disabled, those who have difficulty caring for themselves, and those who are no longer able to perform labor. These prisoners still have to meet evaluative criteria for early release, show genuine repentance, and no longer pose a threat to society. In August, these regulations were jointly issued by the provincial higher people's court, procuratorate, public security department, and justice department.

The article notes that some have criticized the parole measure as prison authorities "casting off a burden," but Shang Aiguo of the Supreme People's Procuratorate sees parole of such prisoners as an opportunity for their families to provide them better care and medical treatment than they could receive in prison, while also allowing limited resources for correctional facilities to be deployed elsewhere. To be sure, the mass release of some of the most expensive prisoners to keep in custody has many practical benefits, but prison authorities are quick to point out that early release for these prisoners also promotes the development of a harmonious society.

Further support for the idea that parole and early release in Sichuan was intended to have wider social benefits can be seen in another group of prisoners who has benefitted recently: prisoners from the part of the province hardest hit by May 2008 earthquake. Also eligible for release under the new measures are individuals who because of losses sustained during the earthquake are needed at home to provide care to elderly parents or young or disabled children. More than 200 prisoners from Aba Prison, located in the earthquake zone, have already been released thanks to these measures.

It is important to note that this is not a relaxation of the standards for parole and early release, but rather an expansion of their application in accordance with existing laws to a broader group of prisoners. Prisoners are evaluated on their ability to admit guilt and show remorse, obey prison regulations, undergo "thought reform" and "reform through labor,"and obey work safety and personal hygiene standards. The legal procedure for parole remains unchanged: the prison makes its recommendation to the court, the court issues a decision under the supervision of the procuratorate, and after release the parolee is supervised by police.

According to Xu Haifa, who represents the Supreme People's Procuratorate at Hebei's Yancheng Prison, the biggest obstacle for the expansion of parole in China is the lack of supervisory capacity, as local police are already stretched thin carrying out other responsibilities. He points to the need for community corrections institution-building and the establishment of an agency dedicated to the supervision and guidance of parolees. This would enable more prisoners who no longer pose a threat to society to return to society without increasing the pressure on law enforcement.

It will be very interesting to see whether these measures in Sichuan serve as the basis for a greater expansion in the use of parole, sentence reduction, and other forms of early release nationwide. Certainly, the opportunity for China to reduce economic expenditures and promote a harmonious society could prove quite attractive to prison authorities in 2009.

Related link:

千余“老病残”被假释引争议 ("Parole of more than 1,000 'elderly, infirm, and disabled' sparks debate"), The Beijing News, January 8, 2009, in Chinese only.

Official Statistics on ESS Arrests, Indictments in Xinjiang Point to Big Crackdown on Political Crime in China in Olympics Year

2009-01-06T15:21:00.000-08:00

At a recent news conference by procuratorial officials in Urumqi, statistics on arrests and prosecutions for endangering state security (ESS) in the Xinjiang Uyghur Autonomous Region (XUAR) were released. Through November 2008, 1,295 suspects were arrested and 1,154 individuals were indicted in 204 separate cases of ESS crimes. The statistics were published in a Procuratorial Daily article (in Chinese) on January 3, 2009 (see Dui Hua’s translation below), and were later posted on the website of the Political and Legal Committee of the XUAR.

In addition to revealing the number of ESS arrests and prosecutions, other statistics on how the procuratorate in Xinjiang handled political crime were also released, including rare numbers for cases dismissed, erroneous verdicts and illegal use of coercive measures, including, presumably, torture. Such transparency on a politically sensitive subject is rare in China, and could portend greater openness on such topics in the future.

The numbers of ESS arrests and indictments in Xinjiang in the first 11 months of 2008—with some indictments covering suspects arrested the year prior—are roughly double the totals for all of China in 2007, when 742 ESS arrests and 619 indictments were recorded, the most in each category since 1999. On a 12-month basis, it is estimated that more than 1,400 individuals were arrested for ESS crimes in Xinjiang in 2008, with nearly 1,300 indictments for the year as a whole.

According to statistics published in the Xinjiang Yearbook for the years 1996 through 2003, approximately one half of all ESS trials in China take place in Xinjiang. The number of defendants in ESS cases tried in Xinjiang is typically more than in other parts of China, making it difficult to estimate national totals from the 2008 statistics released for Xinjiang. But, with the large number of arrests and indictments following unrest in Tibet, and the crackdown against dissent in other parts of China, it is likely that for the country as a whole the number of ESS arrests and indictments in 2008 more than doubled compared to the totals recorded in 2007 and could well exceed 2,000.

The jump in 2008 arrests and indictments follows a 50 percent increase in ESS arrests and indictments in 2007 over 2006 and a 100 percent increase in arrests and indictments in 2006 over 2005. It is virtually certain that last year’s number of arrests and indictments for ESS—a category that covers subversion, separatism, espionage and trafficking in state secrets, among other political crimes—is the largest since statistics on ESS were first released in 1998.

The big increase in arrests and prosecutions for ESS last year is reflected in an unprecedented rise of known and suspected cases of individuals imprisoned for endangering state security in Dui Hua’s prisoner database. During 2008, the number of such prisoners in the database more than doubled—going from 355 on December 31, 2007, to 763 on December 31, 2008, largely from widely applied ESS charges in Tibet for arrests related to the protests in March.

Xinjiang: Striking hard against endangering state security crimes

by
Lu Lifeng

Since the beginning of 2008, procuratorial organs at all levels in the Xinjiang Uyghur Autonomous Region have taken on maintaining social stability as the central political task for strengthening legal supervision. [The organs] have struck hard according to law against endangering state security crimes conducted by the “three forces,”¹ dispatching work groups in a timely manner and carrying out instructions that authorized arrests and prosecution for cases of violent terrorism. The following is information obtained by this journalist from the Xinjiang Uyghur Autonomous Region Procuratorial Work Conference convened on December 27, 2008.

In the first 11 months of 2008, procuratorial organs in the Xinjiang Uyghur Autonomous Region authorized arrests according to law for 1,295 individuals and prosecuted 1,154 individuals in criminal cases of “endangering state security” (ESS). Investigative organs were supervised to file 204 cases that should have been filed but were not, and ordered to dismiss 16 cases that were filed but should not have been. [Investigative organs] were ordered to arrest an additional 61 suspects for whom no request for arrest had been issued, and also to indict 125 more in cases where orders for indictment had not been submitted. Opinions for correction against investigative organs were issued in 110 cases due to improper use of coercive measures and other illegal circumstances during the course of investigation. Appeals were filed in 51 cases in which criminal verdicts or [appeal] decisions were in error and in eight cases with errors in civil or administrative decisions. 55 cases were recommended for retrial. Corrected opinions were issued in 86 cases in which, among other illegal circumstances, sentence reductions, parole, and non-prison confinement were improperly issued [for criminals], and where penalties were not carried out according to regulation in terms of criminal handling.

The Xinjiang Uyghur Autonomous Region Procuratorate requests that all of its procuratorial agencies in the New Year make strengthening legal supervision their focus and make an effort to carry out supervisory work in a strict manner. At the same time, [agencies] have to further the standards for supervision of all institutions involved in law enforcement activities and the judicial process, and exert full effort to defend social stability and uphold the administration of justice.

1. Dui Hua note: The “three forces” are terrorism, separatism, and religious extremism.

Related Links:

新疆：严打危害国家安全犯罪 ("Xinjiang: Striking hard against endangering state security crimes"), Procuratorial Daily, January 3, 2009, in Chinese only

Statistics Show Chinese Political Arrests Rose Again in 2007, The Dui Hua Foundation, March 16, 2008

More Official Statistics Point to Increasing Crackdown on Political Dissent in China, The Dui Hua Foundation, December 4, 2007

New Statistics Point to Dramatic Increase in Chinese Political Arrests in 2006, The Dui Hua Hua Foundation, November 27, 2007

New Supreme People's Court Regulations Issued Governing Death Penalty Procedure

2008-12-25T21:16:00.000-08:00

China's Supreme People's Court today issued new regulations clarifying the procedure used to halt execution of the death penalty. Dui Hua has produced below an Engish translation of the regulations and accompanying notice, as published in the December 26, 2008, edition of Legal Daily.

Dr. Flora Sapio, of the Centre for Advanced Study on Contemporary China in Turin, Italy, examines the provisions of these regulations with respect to the Criminal Procedure Code at her blog, Forgotten Archipelagoes.

It is worth noting that the Supreme People's Court first passed these regulations governing the conditions and procedure under which an execution may be halted the same week that the attention of many was focused on the fate of Wo Weihan, whose execution was carried out despite concerns that procedural violations in his case may have led to precisely the kind of "error of judgment" these regulations describe.

Supreme People's Court Regulations Concerning Questions About Procedure for Halting Execution of the Death Penalty

(Passed at the 1455th Meeting of the Supreme People's Court Adjudication Committee on November 24, 2008)
Leg. Interp. [2008] No. 16

Notice of the Supreme People’s Court of the People's Republic of China

The Supreme People's Court Regulations Concerning Questions About Procedure for Halting Execution of the Death Penalty were passed at the 1455th meeting of the Supreme People’s Court Adjudication Committee on November 24, 2008. With this announcement, they will take effect on December 26, 2008.

Supreme People’s Court
December 15, 2008

In order to guarantee that the process for halting the execution of a death sentence is lawfully carried out in a standardized manner, the following regulations are established in accordance with the relevant provisions of the Criminal Procedure Code of the PRC and in combination with criminal adjudication practice.

Article 1 With respect to the provisions of Articles 211 and 212 of the Criminal Procedure Code, a judgment "may be in error" in the following situations:

(1) Discovery that the criminal may have committed an additional crime;

(2) The arrest of suspected accomplices to the same crime may have an impact on the sentencing of the criminal;

(3) Other criminals convicted in the same crime have had their executions postponed or halted, which may have an impact on the sentencing of the criminal;

(4) There are other possible errors in the judgment.

Article 2 After receipt of an order of execution from the Supreme People’s Court but before the execution is carried out, if a lower-level court discovers any of the circumstances described in Articles 211(1) or 212(4) of the Criminal Procedure Code, the execution should be postponed and a report requesting the execution be halted along with relevant documents sent to the Supreme People’s Court for approval.

Article 3 Following review [of the report] by the Supreme People’s Court, if it is found that [the circumstances reported] do not have an impact on the conviction or sentencing of the criminal, a decision should be issued to the lower-level court ordering resumption of the execution. If it is found that [the circumstances reported] could have an impact on the conviction or sentencing of the criminal, a decision should be issued to the lower-level court ordering the execution be halted. After the lower-level court halts the execution, it and other relevant agencies should conduct an investigation and verification and report the investigation results and opinions immediately to the Supreme People's Court for examination.

Article 4 After issue of an order of execution but before the execution is carried out, if the Supreme People's Court discovers any of the circumstances described in Articles 211(1) or 212(4) of the Criminal Procedure Code, a decision should be issued immediately to the lower-level court ordering the execution be halted and relevant documents transmitted to the lower-level court. After the lower-level court and other relevant agencies conduct an investigation and verification, [the court should] report the investigation results and opinions immediately to the Supreme People's Court for examination.

Article 5 The original collegial panel of the Supreme People's Court that reviewed the death sentence in the case should take responsibility for examining the report and relevant documents sent by the lower-level court requesting that execution be halted. If necessary, a new collegial panel may be formed in accordance with the law.

Article 6 With respect to cases in which executions have been halted in accordance with the law, the Supreme People's Court should handle the following situations accordingly:

(1) If the criminal is found to be pregnant, the verdict should be changed in accordance with the law;

(2) If the original judgment is found to be in error or if the criminal has rendered major meritorious service that ought to lead to a change of verdict in accordance with the law, a decision should be issued withdrawing approval for the death penalty, the original verdict should be vacated, and the case should be remanded for retrial;

(3) If the original judgment is found to have no errors, the criminal has not rendered major meritorious service, or the major meritorious service does not have an impact on execution of the original sentence, a decision should be issued ordering resumption of the execution of the original decision approving the death sentence and a new order of execution be issued by the president of the Supreme People's Court.

Article 7 After these regulations take effect, in case of discrepancy with the provisions of any previously issued regulations the present regulations shall take precedence.

Related Links:

Supreme People's Court Regulations Concerning Questions About Procedure for Halting Execution of the Death Penalty (original Chinese text), Legal Daily, December 26, 2008
Death Penalty Execution Procedure: New Judicial Interpretation, Forgotten Archipelagoes, December 26, 2008
China Executes Scientist for Alleged Spy Activity, The Dui Hua Foundation, November 28, 2008

Op-Ed: "Blinded by the Firewall"

2008-08-07T10:00:00.000-07:00

Executive Director John Kamm submitted an op-ed to The Washington Post that was published on August 7. Entitled “Blinded by the Firewall,” the op-ed makes use of a recent survey of world opinion conducted in 24 countries by the Pew Global Attitudes Project to explore the disconnect between the way Chinese citizens think the world sees China and the far more negative opinions of the country actually held by many people around the globe. Kamm touches on factors that underlie the vast difference in responses, and argues that the positive view of how Chinese people think the world sees the country works against efforts to persuade China’s leaders to take steps to improve human rights.

Op-Ed: "Free on the Fourth of July"

2008-07-10T13:10:00.000-07:00

Following Dui Hua's July 2 statement on the release on parole of naturalized American citizen and businessman Jude Shao, Executive Director John Kamm was invited by The Wall Street Journal/Asia to comment on the case. Kamm's op-ed, entitled "Free on the Fourth of July," was published on July 4 and discussed the background of Shao's case, the significance of his release, and the value of human rights diplomacy in the pursuit of better treatment and clemency for prisoners.

Welcome Reduction in Use of Capital Punishment in China

2008-06-27T00:23:00.000-07:00

According to a report in Friday's China Daily, in the first half of 2008, China's Supreme People's Court (SPC) overturned about 15 percent of the death sentences sent by provincial courts for final review. This news follows another report last month estimating that roughly 30 percent fewer death sentences were handed down in 2007 compared to the previous year.

Both of these revelations illustrate the impact of one of the most important reforms to take place in China's criminal justice system in recent years: the restoration on January 1, 2007, of the SPC's authority of final review over all death sentences in China.

Chinese legal officials, especially former SPC President Xiao Yang, deserve considerable credit for seeing this important reform to fruition. Facing serious practical challenges in guaranteeing that final reviews of capital cases are carried out in a consistent, timely fashion, SPC judges nevertheless have clearly made a priority of ensuring that the most serious punishment possible is only handed down when warranted by law, evidence, and the facts of the case.

Many Chinese legal experts believe that China should end—not just curb—its use of execution. Officially, the SPC appears to share this aspiration, but warns that the time is not yet right because of the deep-seated demand for retributive justice that reportedly still exists in Chinese society. But even if now is not the time for abolition, there are additional steps that China can—and should—take to further reduce its use of capital punishment.

China should increase the transparency of its system of capital punishment by releasing detailed statistics. China executes more people per year than the rest of the world combined. Dui Hua estimates that around 5,000 people were executed in China in 2007. We can make this statement based on a combination of published and anecdotal evidence despite the fact that the Chinese government closely guards its statistics on capital punishment on the grounds of "state secrecy." As the speakers at a recent press conference held in Hong Kong by the World Coalition Against the Death Penalty persuasively argued earlier this month, the attitude of the Chinese public about the necessity of retaining capital punishment might soften somewhat if more Chinese could know precisely how many people are executed on their behalf annually.

China should place stricter limits on the number of crimes eligible for the death penalty. China's criminal code allows criminals to be executed for more than 50 different crimes, many of which do not involve violence of any kind. China's use of capital punishment for "extremely serious or heinous crimes that lead to grave social consequences" is overly broad, including serious, but nonviolent crimes such as drug trafficking, official corruption, and disclosing state secrets abroad. If China is serious about moving towards abolition, it should remove these nonviolent crimes from the scope of application.

China should increase use of "suspended death sentences." Chinese law already provides for a punishment in which the death semtence is suspended for two years. After the two-year period expires, the case is reviewed by the court and, if the prisoner is not found to have committed any crimes during the intervening two years, the sentence is commuted to life imprisonment. As part of the effort to guide Chinese public opinion away from the expectation of death for serious crimes, Chinese courts should expand their use of this unique form of punishment.

To be sure, the substantial drop in the number of death sentences carried out in China is welcome news whose significance for preserving the dignity of human life should not be overlooked. Building on this important accomplishment to improve China's human rights situation further will require more bold, decisive actions and additional legislative and institutional reforms.

Related links:

Top court overturns 15% death sentences in 1st half year, China Daily, June 27, 2008
China sees 30% drop in death penalty, China Daily, May 10, 2008
Will Death Penalty Review Overwhelm China's Supreme Court?, Dui Hua Human Rights Journal, November 25, 2007
Death Penalty Reform Should Bring Drop in Chinese Executions, Dialogue 26 (Winter 2007)
China 2008: Some records must be broken, World Coalition Against the Death Penalty, February 15, 2008

Sentence Reductions for Political Prisoners More Than Previously Thought

2008-06-17T07:06:00.000-07:00

Over the last two months, The Dui Hua Foundation has received information on a total of 19 Chinese prisoners convicted of subversion for attempting to establish four separate illegal political groups. The information was provided by multiple authoritative sources in the Chinese government that have proven reliable in the past.

Most of these individuals and the causes they led are not well-known, even within China. The groups (three political parties and one labor rights organization) were set up in Gansu, Chongqing, Henan, and Fujian, and were active in the period between 1999 and 2002. Despite the relative obscurity of these groups, Dui Hua researchers were able to collect sufficient information to recommend several leading members for inclusion on prisoner lists submitted as part of bilateral dialogues on human rights with Beijing as well as pursue several direct inquiries of its own.

Analysis of 19 Prisoners: Sentences and Prisoner Lists

Of the 19 individuals about whom Dui Hua has received information, 10 are still in prison. Five of the nine individuals who received sentence reductions have already been released from prison. Three of the nine who received no sentence reductions have been released after serving out their terms; the remaining six continue to serve their original sentences. One individual died shortly after being released on medical parole. (Please refer to the accompanying table for additional details.)

While it is difficult to draw firm conclusions from such a small sample, the information nevertheless suggests that there have been more sentence reductions for political prisoners in the last two years than previously believed. All of the sentence reductions and early releases in this group took place over the past two years, since the middle of 2006. The timing may be significant: Beijing informed the US government at the end of 2005 that prisoners serving sentences for endangering state security enjoyed the same access to sentence reduction and parole as prisoners convicted of other crimes. Around that time, a nationwide review of China's policies towards sentence reduction and parole was being conducted by the Ministry of Justice, the Supreme People's Court, and the Supreme People's Procuratorate. The review uncovered many irregularities in the application of sentence reduction and parole policies.

The information on this group of prisoners once again illustrates the impact of being asked about in a human rights dialogue with China's central government. Eight of the 19 individuals had their names on prisoner lists submitted to China's Ministry of Foreign Affairs. Of these, sentence reductions were granted to six prisoners, three of whom have since been released from prison. Of the 11 prisoners who were not on lists submitted in a dialogue, sentence reductions were given to only three prisoners, two of whom have been released.

The most recent prisoner information received by Dui Hua concerns a group in Fujian Province who were given long sentences in 2003 for allegedly attempting to form a labor rights organization. The group's leader, Li Jianfeng (李建峰), was given a 17-month sentence reduction in December 2007—he still has eight years to serve—and one of his two top lieutenants was released 10 months early, in May 2007.

Hu Shigen Case: String of Reductions Sets Up Impending Release

The news of the clemency granted to the Fujian labor activists comes shortly after confirmation that Hu Shigen (胡石根), a pro-democracy leader and labor organizer who is one of China's longest-serving counterrevolutionaries, received his third sentence reduction since December 2005. The latest reduction was granted on April 1, 2008, setting the date of Hu's expected release from Beijing Number Two Prison for August 26, 2008—nearly four years before the end of his original sentence. The former university lecturer was originally sentenced to 20 years in prison for counterrevolutionary propaganda and incitement and leading and organizing a counterrevolutionary group.

In Dui Hua's experience, the reductions to Hu's sentence are unusual in terms of their swift succession. According to the relevant regulations, a prisoner serving a sentence longer than 10 years should be eligible for a sentence reduction only every 18 months, but Hu's three reductions were spaced approximately 14 months apart.

Once more, this case shows the value of handing over prisoner lists to the Chinese government as part of the human rights dialogue, whether the names are of prominent prisoners like Hu or among the more obscure individuals profiled here.

Situation of Uyghur and Tibetan Political Prisoners

All of the sentence reductions reported to Dui Hua in recent months have been granted to Han prisoners convicted of endangering state security. Dui Hua is unaware of any recent sentence reductions granted to Uyghur or Tibetan prisoners convicted of political crimes. This is consistent with other news recently received by Dui Hua: that sentence reduction and parole for prisoners convicted of "splittism"—the criminal charge for separatist activity—are now being "strictly handled." This means that clemency is rarely granted to Tibetan and Uyghur political prisoners, who are almost solely involved in "splittism" cases.

Table: Political Prisoner Cases: Group Affiliation, Prisoner List Presence & Sentence Information (opens in new window)

Commentary & Translation: "Can 2008 Become China’s Year of the Special Pardon?"

2008-05-16T18:30:00.000-07:00

In late April, The Dui Hua Foundation appealed for an “Olympic pardon” for some long-serving Chinese prisoners in a letter from Executive Director John Kamm to Wu Bangguo (吴邦国), Chairman of the Standing Committee of the National People’s Congress. In the recent past, articles have in fact appeared in the official Chinese press about the idea of Beijing issuing pardons in 2008, a special year that marks both Beijing’s hosting of the Olympics and the 30th anniversary of the country’s economic reform and opening.

These articles have received little coverage in English-language media, but their publication may represent a sign of openness by the Chinese government on the subject of pardons. At the very least, they suggest that Beijing has felt for some time that granting pardons to prisoners, which was last done in China in 1975, is a topic worthy of renewed public attention during this important period for the country.

The most widely cited official Chinese article with a highly favorable view of issuing pardons is, “Can 2008 Become China’s Year of the Special Pardon?,” published in the Guangzhou-based Southern Weekend (南方周末) on December 13, 2007 (PDF of Chinese article with Dui Hua’s translation). The author, Liu Renwen (刘仁文), a prominent scholar with the Chinese Academy of Social Sciences, presents the history of special pardons in China since 1949, the legal basis for pardons under the Chinese constitution, and their implementation by other countries that can serve as positive examples for Beijing.

Mr. Liu points out categories of prisoners who are good candidates for pardons, such as those serving what now may be seen as excessively severe sentences after their arrests during “strike hard” campaigns. He further discusses how the government can use pardons to “relieve strictness with lenience” as a way to help achieve a “harmonious society.”

Notably, the piece quotes remarks made by Xiao Yang (肖扬), President of the Supreme People’s Court, whose views provide insight, however limited, about how the topic of pardons perhaps has been part of an internal dialogue among top-level government officials. In comments on penal policy he laid out in a “Report of Achievements,” President Xiao stated, “[p]ardons are a major national policy measure and an important manifestation of civilized progress for society.” He added that “fully demonstrating the role of the pardon system certainly will have an enormously positive impact toward creating a harmonious and stable social environment and enhancing the internal unity of the people.”

At this moment in history, as Beijing looks to improve the country’s image abroad, it would be welcome to see the government re-activate its dormant pardon system for long-serving prisoners who pose no threat to society. This benevolent gesture would speak to China’s historical spirit of generosity as well as the country’s principal ambitions to build a society that integrates the ideals of harmony and rule of law.

Related links:

Dui Hua Appeals for “Olympic Pardon” for Long-Serving Prisoners, 「对话」呼吁为长期服刑的囚犯实施"奥林匹克特赦"

2008，能否成为中国特赦年？(“Can 2008 Become China’s Year of the Special Pardon?") ,南方周末 (Southern Weekend), November 7, 2007, in Chinese only

Southern Weekend home page

Some Observations on the Conviction of Hu Jia

2008-04-04T08:43:00.000-07:00

The prominent Chinese rights activist Hu Jia (胡佳) was sentenced yesterday to 3-1/2 years imprisonment by the Beijing Number One Intermediate People's Court. According to the Xinhua News Agency's official report on the conviction, "Hu published articles on overseas-run websites, made comments in interviews with foreign media, and repeatedly instigated other people to subvert the state's political power and socialist system."

Hu's case can be examined from a number of angles—for example, whether China's laws against "incitement" contravene the International Covenant on Civil and Political Rights or whether punishing Hu is part of a larger effort to silence dissent in advance of the Beijing Olympics. Here, though, we explore briefly two aspects of the way Hu Jia's case was handled and try to place his case in a bit more context.

What's the Rush?

It took only 98 days from the time Hu Jia was detained for the court to render its verdict. This is an unusually short amount of time to investigate and try a political case in China. Although time limits for each stage in the legal process are spelled out in China's criminal procedure law, numerous provisions allowing for extensions make those deadlines highly elastic.

To compare, we checked Dui Hua's prisoner information database and came up with a collection of 48 other cases involving a single charge of inciting subversion in which the dates of detention and sentencing were both known. These 48 cases cover the period from October 1997, when the law prohibiting "inciting subversion" came into force, until March 2008 and originate from 22 of China's 31 provinces and municipalities.

In this sample, The median amount of time taken to process a case of inciting subversion was 229 days, more than four months longer than in Hu's case. Jiang Qisheng (江棋生), a veteran democracy activist who called for a candlelight vigil to mark the tenth anniversary of the crackdown on the 1989 pro-democracy demonstrations, spent more than 19 months in detention before being sentenced to four years' imprisonment. Yang Chunlin (杨春林), the land-rights activist whose petition demanding "human rights, not the Olympics" gathered more than 10,000 signatures and brought a five-year sentence for "inciting subversion" less than two weeks ago, spent more than 260 days in detention.

On the one hand, we might welcome the fact that, unlike so many other cases involving political crime, Hu's case was handled in accordance with the time limits set out by law. However, given the atypical nature of such judicial dispatch, one cannot help but suspect that the relevant authorities were reluctant to announce a judgment against Hu too close to the Olympics (where it might cause image problems), preferring instead to send an early warning to other activists not to make trouble.

A Lenient Sentence?

Xinhua also noted that, in light of Hu's "confession of crime and acceptance of punishment," the court had judged leniently and handed down a lighter sentence.

Just how light a sentence did Hu receive? Chinese law sets the maximum sentence for the crime of "inciting subversion" at five years' imprisonment, unless the crime can be considered major, in which case a fixed-term sentence of more than five years is allowed. Also, those previously convicted of criminal charges who re-offend within five years of completing their sentence are also subject to heavier penalties.

Whether or not the court determined Hu's crimes to be major will likely remain unknown until the verdict becomes available, but given what is known about the charges raised by the prosecution it seems unlikely that the court would make such a determination. Moreover, we know that Hu had no previous convictions.

Looking again at the 48-case sample, we find the median punishment for inciting subversion to be . . . exactly 3-1/2 years. Because Chinese courts do not reveal the considerations that go into determining sentencing, it is impossible to know the basis for considering Hu's sentence to be "lenient."

In fact, recent years have seen several similar, high-profile cases that were arguably handled more leniently. Suspended sentences were given to both Du Daobin (杜导斌), another critic of the government whose essays frequently appeared on overseas web sites, and Gao Zhisheng (高智晟), the crusading human rights lawyer who represented defendants in a number of controversial cases. In November 2003, Beijing Normal University student Liu Di (刘荻) was released after 386 days spent in detention for her Internet essays and alleged involvement in organizing an opposition party; prosecutors subsequently determined her crimes to be too minor to prosecute and set her free.

Concluding Remarks

China's judicial system is far from transparent, and the number of cases we know about is small relative to the total number of incitement cases. (Official statistics revealed over the past six months have shown that we know fewer than five percent of the names of people arrested for political crime in China. Our knowledge about the outcomes of political trials is limited to a similar degree.) Nevertheless, based on what evidence is available, it certainly appears that Hu Jia's case was handled with unusual urgency, if not particular lenience.

Related Links:

Op-Ed: "Laws, not favours, for political prisoners"

2008-03-04T10:58:00.000-08:00

On March 4, an op-ed submitted by Dui Hua was published in the South China Morning Post. The piece was written in reaction to the recent release on parole of Hong Kong journalist Ching Cheong, with an emphasis on the Chinese government's inconsistent use and arbitrary enforcement of parole laws for political prisoners. Printed under the title, "Laws, not favours, for political prisoners," the op-ed was co-written by Executive Director John Kamm and Research and Programs Manager Joshua Rosenzweig. The full content as submitted to the South China Morning Post appears below:

Hearing that Singapore Straits Times correspondent Ching Cheong (程翔) had been released on parole earlier this month and allowed to return to Hong Kong, we noticed many similarities to the January 1997 release of Ming Pao journalist Xi Yang (席扬), who was also granted parole following an international campaign and allowed to return to Hong Kong after serving less than one third of a 12-year sentence for trafficking in state secrets. Both releases were the result of political decisions made at the highest levels in Beijing, decisions that despite being made "in accordance with the law," actually suggest more of a willingness to bend China's laws and regulations, rather than operate subject to them.

To this day, we still don't know all that went on behind the scenes prior to Xi Yang's release. Preparations were underway for a visit of President Jiang Zemin to the United States in the summer of 1997, and Xi's name headed an American list of eight cases of concern submitted to Premier Li Peng, who had taken the most interest in Xi's case. Many have speculated that Ching was released early in an effort by China's leaders to improve the country's human rights image as the clock ticks down toward the opening ceremonies of the Beijing Olympics. Both journalists' cases became causes celebres for the media in Hong Kong, and the Hong Kong government played a strong role in securing both releases.

With all of the conjecture about why Ching might have been released at this time, less attention has been paid to the peculiar manner in which the release was carried out and the unanswered legal questions that arise as a consequence. Parole is not unconditional release, which is why it is a less ideal route toward early release than either medical parole or sentence commutation. (Having a verdict in a political case overturned by a court, with a declaration of innocence, is almost unknown in China.) Chinese law subjects parolees to regular police supervision and places numerous restrictions on their rights. In fact, to the best of our knowledge, Xi Yang and Ching Cheong are the only two political prisoners who have been allowed to leave China during their parole period—with the apparent knowledge of the authorities that such legal restrictions would not be enforced.

Specifically, the provisions of the "Procedural Regulations for the Handling of Criminal Cases by the Public Security Organs" (公安机关办理刑事案件程序规定) prohibit parolees who were deprived of their political rights as part of their original punishment—which includes the majority of political offenders—from publishing books, giving interviews, making speeches, or expressing any views damaging to China's national reputation or interests. Chinese police are prohibited from issuing passports to released political prisoners until the subsequent period of political rights-deprivation brings to an end the court's original punishment (and frequently continue to do so for long thereafter on grounds of potential threats to national interests). And regulations prohibit any journalist convicted of a felony from ever receiving the necessary accreditation to work.

By allowing Ching to return to Hong Kong, Chinese officials essentially abandoned any pretense of enforcing their own parole regulations. In recent weeks, Ching has given a press conference, granted interviews, indicated plans to publish books begun during his stay in prison, and expressed his intention to continue working for the Straits Times and even his desire to cover the Beijing Olympics. There are no apparent restrictions on his ability to travel abroad. Under "one country, two systems," China presumably has no means to compel law enforcement agencies in the Hong Kong SAR to act as its agent in supervising Ching's parole. And, even if Ching were instructed to return to Guangzhou periodically to "check in" with police there, can the Chinese government—or the SAR government—oblige him to do so?

Small victories such as the early releases of Xi Yang and Ching Cheong are welcome, if opaque and arbitrary, gestures by the Chinese leadership. The question remains: will others benefit as well? Will Lu Jianhua (陆建华), serving a 20-year sentence in Beijing in connection with Ching Cheong's case, be blessed with the slightest gesture of clemency? And what of the hundreds—perhaps more than 1,000—other Hong Kong residents serving prison sentences on the mainland? Will they also enjoy the right to serve their paroles in Hong Kong? Justice demands that, as we rightly celebrate Ching Cheong's release, we do not forget them and ask the Hong Kong government to help them as it has helped in the case of Ching Cheong.

Hu Jia Formally Arrested: Human Rights in Olympic Spotlight

2008-01-31T10:37:00.000-08:00

News has just emerged of the formal arrest of Beijing rights activist Hu Jia (胡佳) on charges of "inciting subversion." Hu was taken into police custody on December 27, 2007, following a raid on his home.

Members of Hu's family were reportedly served with a notice of the arrest approval on January 30, 2008. Specific charges against Hu Jia have not been made public. For several years, however, he has been publicly active on behalf of victims of injustice, during which he has maintained close communication with dissidents, petitioners, and rights lawyers and used the Internet to serve as an invaluable source of information about human rights abuses throughout China. This work has led to several previous run-ins with political security police, including a 41-day incommunicado detention in the spring of 2006 and more than 200 days of informal house arrest that preceded his detention in December. Hu and his wife Zeng Jinyan, also an activist, were prevented from traveling to Europe in May 2007 on the grounds that they were suspected of "endangering state security." (Since Hu's detention over a month ago, Zeng and their infant daughter have been prevented by police from leaving their apartment or receiving visitors, and virtually all communication ties have been severed.)

Under China's criminal procedure law, approval for "formal arrest" (正式逮捕) is granted to police by prosecutors upon consideration of evidence obtained during the preliminary period of criminal detention, which can last up to one month. After formal arrest is approved, police have two months to continue their investigation before being required to hand the case over to the procuratorate for prosecution. However, other legal provisions allow for police to request up to five additional months for investigation of complex cases in which the defendant faces 10 years or more in prison.

Hu's case has been formally classified as a "state secret," meaning that he has no right to meet with his defense attorney until after the case has been handed over to the procuratorate for prosecution—which, given the procedural regulations described above, could happen as late as seven months from now. The state secrecy classification also means that, assuming Hu's case goes to trial, the court will be required by law to bar all members of the public from attending all court proceedings other than the final verdict announcement.

One month before his arrest, Hu spoke via an Internet connection to a committee of the European Parliament, during which he is reported to have offered criticism of China's human rights record and the Beijing Organizing Committee for the Olympic Games. Whether or not these criticisms triggered his arrest, it is clear that the action taken against Hu Jia cannot escape being connected to the Olympics. From the perspective of the authorities, the opportunity to take this high-profile rights activist out of action in the final months before the Olympics may have been too good to pass up. By the same token, however, the arrest of such a prominent activist who maintained close connections to the international community creates a huge image problem for the Chinese government, as Hu Jia is likely to remain behind bars through the Olympic Games—possibly without even having a chance to see a lawyer. In his absence, Hu thereby becomes a leading symbol of China's human rights problems, a subject Beijing would rather the world not think about in connection with the Olympics.