Wednesday, December 20, 2017

Imprisonment for Crimes No Longer in the Criminal Law

1983 Strike Hard Campaign in Shanghai. Given the catch-all nature of hooliganism, hooligans became a target of the campaign, where tens of thousands were prosecuted, many for non-violent acts seen as “immoral.” Image Credit:

Dui Hua research has uncovered the names of more than 180 individuals serving sentences for hooliganism -- a crime removed from the Criminal Law in 1997 -- as late as 2015. Dozens of these prisoners are still serving their sentences. Based on circumstantial evidence, Dui Hua believes that one of them may have been convicted of hooliganism for offenses committed during the Spring 1989 protests that rocked China.

The last known June Fourth prisoner serving a sentence for hooliganism was Liu Zhihua (刘智华). Liu was released from Loudi Prison in Hunan Province in January 2009.

Hooliganism: A Catch-all Offense

Since hooliganism was codified in the Criminal Law in 1979, a large but unknown number of people have been convicted of this offense. The crime of hooliganism was created with the aim of deterring a wide range of disorderly conduct including “assembling a crowd to have brawls, stirring up fights and causing trouble, humiliating women, and other hooligan behavior.” Inspired by the criminal laws of the former Soviet Union and other socialist states, Chinese lawmakers left vague what constituted “humiliation of women” and “other hooligan behavior.” Hooliganism is essentially a catch-all offense, giving authorities discretion to punish undesirable behavior as defined in interpretations issued by the Supreme People’s Court and the Supreme People’s Procuratorate.

The Case of Wang Shaohua: A June 4 Prisoner?

Wang Shaohua (王少华) was sentenced to death with reprieve for hooliganism at the age of 17, two months following the pro-democracy protests of 1989. Wang remains incarcerated in Wuzhong Prison in Ningxia autonomous region. Student and worker protesters who participated in the June Fourth protests were given swift and severe punishments for crimes such as hooliganism, counterrevolution, and charges such as arson, assault, and robbery, often within a few months following their detention. August 1989 accounts for the highest number of trials for hooliganism following the June Fourth protests.

Wang was sentenced in Shizuishan, a town just 47 miles north of Ningxia’s provincial capital Yinchuan. Yinchuan was a city rocked by the June Fourth protests. A government record states that approximately 50,000 people took to the streets of Yinchuan on May 18. The day following the bloody suppression in Beijing on June 4, 800 students and teachers from Ningxia University held a memorial for the deceased protesters. Two days later, the number of participants at the memorial nearly doubled. The mourning continued until participants were arrested en masse by public security authorities on June 25.

Wang received several sentence reductions after being convicted of hooliganism. In 1997, Wang was released on medical parole, but he failed to observe the terms of his parole and was eventually taken back into custody. In 2008, a local court combined the remainder of his hooliganism sentence with an additional crime of tomb-robbing, leading to a total sentence of 19 years' imprisonment. Wang is due to be released in August 2018. (Unlike counterrevolution which was tried by intermediate people’s courts, hooliganism was tried by district courts.)

Incarceration for Crimes no Longer in the Criminal Law

Image Credit: Dui Hua Foundation.

After the crime of counterrevolution was removed, along with hooliganism, in the revised Criminal Law in 1997, Dui Hua Executive Director John Kamm began lobbying the Chinese government to release counterrevolutionaries who were still serving sentences in prison. His pleas fell on deaf ears. A letter from the Ministry of Justice dated April 17, 1998, cited Article 12 of the amended Criminal Law: “Before the entry into force of this law, any judgment that has been made and entered into law and has become effective according to the laws at the time shall remain valid.”

Individuals who committed crimes of counterrevolution before the revised Criminal Law came into effect that were discovered after 1998 have in fact been prosecuted and sent to prison for committing the crime of counterrevolution. A striking example is the case of Chen Yulin, a former Chinese official and Hong Kong businessman who was sentenced to life in prison in 2004 for spying for the British in pre-handover Hong Kong.

Chinese news media has reported at least two hooliganism trials since the crime was removed in 1997. In May 2012, Zhao Dameng (赵大猛) received a suspended sentence in Nanjing for an act of hooliganism committed in 1996; in April 2013, a man surnamed Cao was sentenced in Hunan to 18 months’ imprisonment for hooliganism. Several other hooliganism trials concluded recently have not received any coverage.

Dui Hua’s research into online judgments reveals that as of January 1, 2015, at least 182 hooliganism prisoners remained in prison. Of them, 121 were released between 2015 and 2017; 61 continue to serve their sentences.

China’s Criminal Law imposes no limit on the period of prosecution for cases where the suspect has escaped after a case has been filed by police or procuratorate, or heard by the courts. Not all hooliganism prisoners sentenced after 1997 were escapees like Zhao Dameng. Some were released on probation, but re-sentenced for violating parole rules. Courts can also hear a new case and extend sentences for hooliganism prisoners for violating prison regulations. A few prisoners were sentenced to new offenses that were missing in the original hooliganism trials, and thus received sentence extensions.

Dui Hua found that 20 of 182 hooliganism prisoners still in jail as of January 1, 2015, were sentenced during or after 2010. Of these 20 prisoners, Chen Dong (陈东) is set to be released in 2023. Chen was sentenced to 15 years’ imprisonment for hooliganism as a standalone charge in 2010.

Image Credit: Dui Hua Foundation.

  • The 1983 Strike Hard Campaign
  • Given the catch-all nature of hooliganism, hooligans became a target of the 1983 Strike Hard campaign where tens of thousands of hooligans were prosecuted not only for their violence or trouble-making, but also other non-violent acts seen as “immoral.” Courts were required to hand down “swift and severe” punishments, with sentences up to immediate execution. An even larger number were sent to re-education through labor camps without trial.

    Most prisoners sentenced to death with reprieve or life imprisonment during the 1983 campaign have received some form of clemency, but not all of them have been released. Dui Hua’s research indicates that as of January 1, 2015 six hooligan prisoners sentenced in 1983 were still serving their sentences and as of the end of 2017 two remain incarcerated.

  • The 1996 Strike Hard Campaign
  • In 1996, China launched a second Strike Hard Campaign, this time to curb the growing influence of gangsters and triads. Although hooligans were not the focus of the campaign, another wave of life sentences and death with reprieve sentences for hooliganism were imposed. Dui Hua found that as of January 1, 2015, 76 hooliganism prisoners sentenced during the 1996 campaign remained imprisoned and twenty are still serving their sentences as of the end of 2017. At least four will be released in the 2020s.

    Ethnic Bias in Clemency

    Clemency provided to hooliganism prisoners has a clear ethnic bias. Of the six hooliganism prisoners who did not receive clemency prior to 2016, four are Xinjiang ethnic minorities. The other two are Han Chinese who were sentenced to life imprisonment in 2012. The Fujian High People’s Court received recommendations from the prison to commute their sentences to 19 years and 19½ years, respectively, in 2015. The result of the sentence commutation application is unclear.

    Unlike the two Han Chinese who were considered for clemency three years into their sentence, the same opportunity was not given to three Uyghurs and one Uzbek in Xinjiang until they had served many more years of their sentences. The Uzbek was sentenced in 1992 to death with reprieve for hooliganism and other violent crimes; the Uyghurs were sentenced to life imprisonment or death with reprieve in April-May 1997. They were sentenced a few months after the Ghulja Incident in 1997, a violent crackdown by the Chinese government on the traditional Uyghur cultural festival of Meshrep. While the two sentenced to death with reprieve had their sentences commuted to life imprisonment, neither of them are known to have received further sentence reductions. Even if the Xinjiang High People's Court were to have granted them clemency in 2016, they would still have at least two more decades to serve until the late 2030s, possibly making them the last known hooligans serving sentences for the now defunct crime.

    An Outdated Sentencing Regime

    One would be mistaken to assume that the acts that hooliganism prisoners were prosecuted for are no longer considered illegal. In today’s Criminal Law, crimes of disturbing public order like “picking quarrels and provoking disturbances” and “assembling crowds to disturb public order” are used to prosecute human rights lawyers, petitioners, and protesters for what were formerly considered hooligan “trouble-making behavior.” Equivalents for hooligan “licentious behavior” like “insulting women” are harder to locate in the current criminal law.

    In March 2015, President Barrack Obama commuted the sentences of 22 prisoners who were sentenced to life imprisonment for drug offenses because they were convicted under what he called an “outdated sentencing regime”. Their cases were largely non-violent, but “because of the operation of sentencing laws on the books at the time, [they] received substantial sentences that are disproportionate to what they would receive today,” said a deputy attorney general at a press conference announcing the clemency initiative. Similarly, hooliganism prisoners are incarcerated under an “outdated sentencing regime.” Campaign-style trials during the two Strike Hard Campaigns were concluded at the expense of defendants' rights and judicial fairness. The sentences they received at that time were more severe than what they would receive under today's Criminal Law. Under Article 15 of the International Covenant on Civil and Political Rights, a prisoner shall benefit from a lighter penalty if such provision is made by law subsequent to the commission of the offense. As a signatory of the covenant since 1998, China should consider granting additional clemency to those who remain in jail for the crimes of hooliganism and counterrevolution. Failure to do so will present yet another obstacle to the country’s ratification of the International Covenant on Civil and Political Rights.

    Thursday, November 2, 2017

    Clemency for Singing Red Songs

    Prisoners compete in a red song contest at Fuquan Prison in Guizhou province. Image Credit: Weibo.

    Before Bo Xilai’s famous downfall in 2012, he was widely known for his role in launching Chongqing’s “Red Culture Movement” as the city’s Party Secretary. The movement was an attempt to revive Mao-era culture through a series of propaganda campaigns. A hallmark of the movement was the promotion of singing “red songs” from China’s “revolutionary era.” The songs reached nearly every corner of daily life in Chongqing, from televisions and radio programs to schools and workplaces.

    What is perhaps less known is how the red culture movement also found its way into China’s prisons. In 2008, a total of 100 revolutionary songs glorifying the Communist Party of China, the People’s Liberation Army, and the People’s Republic of China were selected to “rehabilitate” prisoners through prisoner performances. In some cases, these performances have been used to gain points towards granting clemency for prisoners in the form of sentence reductions.

    There is little doubt this directive comes from the highest echelons of judicial power in China. In a statement released by the Ministry of Justice, they acknowledged the “benefits” of instilling red culture for both prison administration and prisoner rehabilitation. They encouraged all judicial officials to further understand the “essence” of red culture. The Ministry even claimed that the contribution of red songs to prisoner reform was “statistically proven.” In 2010, the success rate of reforming “stubborn” prisoners was celebrated for having marginally increased from 79.1 to 81.56 percent since the introduction of red songs in 2008. Over the same period, red songs also purportedly helped to lower the number of prisoners classified as “at-risk.”

    Red song rehabilitation has been widely challenged in and outside of China by former prisoners. In an interview with The Beijing News in November 2012, former Chongqing village official Ren Jianyu (任建宇) recounted his experience serving in a re-education through labor (RTL) facility. He said that in the now defunct system of RTL, detainees would receive sentence reductions for singing red songs. Ren was sentenced to two years for inciting subversion in November 2011 for circulating critical messages online about China’s political system. After Ren had served over one year of his sentence, the Chongqing RTL Committee vacated his sentence on the grounds of insufficient evidence. When asked why Ren refused to sing in RTL while he had promoted red songs in his capacity as a village official in the past, Ren responded that red songs were “meaningless” and had no actual benefits for rehabilitation. Government officials are better off spending resources improving people’s livelihood rather than promoting red songs, said Ren.

    Reforming Prisoners through Red Song Rehabilitation

    In the first few decades after 1949, red songs were used as a legitimate tool for ideological reeducation and prisoner rehabilitation against the “class enemy.” Today, official narratives claim that red songs can widen prisoners' intellectual and cultural horizons, instill repentance, and ultimately transform them into law-abiding citizens. On August 31, 2015, prisoners in Guangdong’s Huizhou Prison took part in a red song performance contest to commemorate the 70th anniversary of the War of Resistance Against Japan. The prison’s website displayed a picture of three prisoners singing on a red-carpet podium underneath a slogan reading “Remember History and Martyrs; Treasure Peace.” The nature of the contest was described as both artistic and rehabilitative. The prison claimed that the participants were inspired by the “revolutionary heroes” mentioned in the red songs and through their participation became more “enthusiastic, determined, and confident” to reform.

    A red song can be performed as a small choir of a few dozen prisoners or as a massive show with hundreds of participants. To celebrate China’s National Day in 2016, over a thousand prisoners in Guizhou’s Liupanshui Prison spent two months rehearsing patriotic songs and choreography for a performance titled “Blessing the Motherland, Thankful for Society.” The prison stated that red songs allowed prisoners to reflect on their crimes and alleviate stress. A month later, Sichuan’s Yibin Prison reported hosting a red song contest with over 500 prisoners.

    Red song performances are about more than just singing. To diversify and develop a unique prison culture, Fuquan Prison in Guizhou organized 64 prisoners in an artistic troupe to play musical instruments such as drums, gongs, and cymbals in preparation for a red song contest. The prison even hired an expert musician from Shaanxi to teach how to play the instruments to the prisoners.

    The messages of nationalism and party allegiance underlying these red songs are clear. In June 2014, Guangxi’s Guizhou Prison organized a red song concert in celebration for the 93rd anniversary of the founding of the CCP. Each participant was required to perform two propaganda songs, one of which was titled “Without the Communist Party, There Would Be No New China.” The second song could be chosen from a list of eleven songs provided by the prison. The Guangxi Prison Administration Bureau claimed that the positive energy and patriotism cultivated from red songs created a healthy environment for rehabilitation.

    Prisoners in a Xinjiang prison perform in a red singing song contest titled “Remember History, Treasure Peace, Love the Motherland, Combat Splittism.” December, 2015. Image Credit: Xinjiang Prison Website.

    Prisoners from ethnic minority groups are no strangers to the red song artistic troupes, in fact their participation is actively sought out. In a China National Radio article, the Xinjiang Agriculture Construction Division praised red songs not only for their propensity to boost the “low levels of cultural development among prisoners,” but also as a way to nurture a sense of national identity. On October 25, 2015, eight Uyghur prisoners were selected to sing the song “Socialism Is Good” in Xinjiang’s Alar Prison. In Alar Prison, Han Chinese and Uyghur prisoners reportedly recite red poems and sing red operas together, of course all in Mandarin Chinese. Instilling messages of nationalism and party allegiance through red songs and the deliberate usage of Putonghua education serves the party and prison’s wider aim to “de-extremize” Uyghur prisoners in the restive region, stated Xinjiang Production and Construction Corps Prison Administration Bureau.

    Clemency Rewards for Red Prisoners

    In May 2011, Chongqing Standing Committee member Liu Guanglei demanded that clemency be granted to prisoners for their excellent performances of red songs, leading to widespread criticism concerning the legality and arbitrariness of such a practice. The Chongqing government issued a vague defense, reiterating that sentence reductions and parole are granted in accordance with the law and that the performance of red songs was not the only basis to evaluate clemency. There are no legal provisions that reference red songs as determining meritorious behavior or remorse – conditions necessary for granting clemency under China’s Criminal Law.

    It’s unclear how many prisoners have benefited from early releases for red song performances. After delving into clemency judgments from the Supreme People's Court website, Dui Hua found that the performance of red songs continues to be commonly used to gauge meritorious behavior and remorse, even for prisoners who are sentenced to life imprisonment or death with reprieve for violent crimes. For example, a prisoner convicted of rape in Heilongjiang was deemed to have an outstanding performance and to have shown remorse due to his active participation in a red song singing contest in 2015. “He actively requested to participate, earnestly took part in rehearsals, memorized well the lyrics, mastered the singing technique, and played a positive leading role [among prisoners].” As a result, he was granted a two-year sentence reduction in January 2016.

    Normally, prisoners can accrue points for acts of meritorious behavior that can then be used towards sentence reductions and parole. Participation in a red song performance generally awards one point. A prisoner from Fujian sentenced to life for aggravated assault earned two points for winning the championship in a red song performance during a “culture week” event in December 2013. He received additional points for his keen participation in political and cultural learning alongside his excellent labor. In October 2015, the Fujian High People’s Court commended his enthusiasm to reform and commuted his sentence to a fixed-term of 20½ years’ imprisonment.

    From government offices to schools and television stations, red song performances have been promoted at the behest of propaganda officials to stir patriotism and party allegiance. While many leftist groups today gather in public spaces in China to sing red songs in praise of Chairman Mao, ironically many have been placed under surveillance and even imprisoned for subversion for organizing underground parties seeking to revive pre-reform era socialism.

    Within the carceral system, Ren Jianyu’s criticisms concerning the superficiality of promoting red songs as a means to rehabilitation ring true. Using public displays of patriotism as a benchmark for rehabilitation indicates a trend towards a more moralistic form of criminal justice and one that opens more opportunities for the arbitrary treatment of prisoners. While China has made early releases more accessible to “ordinary” prisoners who avidly sing praises of the nation, it is likely that those imprisoned for expressing dissent of one-party rule or criticism of the state are less willing to participate. Dui Hua has long observed that the rate of clemency for prisoners convicted of inciting subversion or splittism is far lower than the rate enjoyed by the general prison population. Red song rehabilitation has made clemency for political prisoners more difficult, and further derailed China's crafting of a single-track criminal justice system committed to equal procedural rights for all.

    Thursday, May 18, 2017

    Phan-Gillis Case Highlights Deportation of Foreigners in China

    Nanning Intermediate People 's Court. Image Credit: GXBaiBang.Com.

    The adjudication of the Sandy Phan-Gillis case by the Nanning Intermediate People’s Court has drawn attention to the supplemental punishment of deportation under Chinese law. Ms. Phan-Gillis, a prominent American businesswoman, was convicted of espionage by the court on April 25, 2017. She was sentenced to three and one-half years in prison and deportation. She was deported on April 28 without serving her prison sentence.

    Expulsion is one of four supplemental punishments in China’s Criminal Law, the others being deprivation of political rights, fines, and confiscation. Article 35 of the Criminal Law as amended states that expulsion can be a stand-alone punishment or a supplemental punishment. (In common usage, expulsion and deportation are synonymous. They both refer to the compulsory removal of a foreigner from the territory of a sovereign state.)

    Deportations of foreigners are carried out in accordance with the Joint Regulations of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of Justice, and the Ministry of Finance Regarding the Implementation of Compulsory Deportation of Foreigners. The regulations were jointly issued on July 31, 1992. Despite being nearly 25 years old, the regulations remained in force as of 2013, according to a Supreme People’s Procuratorate source (see also a 2016 discussion on deportation on a Chinese law firm website). There is no record of the regulations having been amended or replaced.

    Although the joint regulations do not mention the role of the State Security Ministry in carrying out deportation of foreigners, the 1993 National Security Law and the Counterespionage Law, passed in 2014, authorize state security bureaus to carry out deportations of foreigners for state security violations and espionage. (The 2015 National Security Law does not mention deportation of foreigners.) Provincial and municipal state security bureaus have issued regulations that deal with deporting foreigners in state security cases (see, for example, the document issued by the Shanghai State Security Bureau that defines the scope of its administrative authority.)

    A source in Beijing familiar with the case relates that the deportation of American citizen Xue Feng in 2015 was the first time that the Beijing State Security Bureau had carried out a deportation. More than a dozen officers were involved. Xue was flown back to New York instead of to his home town of Houston. No one from the American Embassy in Beijing could speak to him before he was put on a plane for the United States.

    Dui Hua’s translation of the 1992 joint regulations ("deportation regulations") can be found below. The foundation welcomes comments and suggestions for improvement.

    Review of Court Judgement Websites

    A search of judgements on the Supreme People’s Court Judgement Website yields 34 sentences of deportation of foreigners in criminal cases covering the years 2014-2016. This is not an exhaustive listing of all deportation sentences for foreigners during these years. Several deportation sentences, including that of the Canadian citizen Kevin Garratt, convicted of espionage and deported in September 2016, are not to be found on the website.

    Of the 34 deportation sentences found on the court website, five were stand-alone sentences and the rest were supplemental sentences. Three of the five stand-alone deportation sentences handed down by the court of first instance were appealed by the procuratorate, thereby delaying the effective date of judgment and deportation (see Chapter II Article 1 of the deportation regulations.) Two of the sentences were upheld by the court of second instance. The stand-alone deportation sentence for drug trafficking handed down for Nigerian citizen Ukaegbu Kingsley Chinonso by the Hunan Hengyang Intermediate People’s Court on August 20, 2015 was overturned by the Hunan High People’s Court on November 21, 2016. The latter court sentenced Chinonso to 15 years in prison, confiscation of property valued at RMB 50,000, and deportation.

    Deportation as a Criminal Penalty in Endangering State Security Cases

    Seven citizens of the United States and Canada have been convicted of espionage or state secret crimes, both crimes of endangering state security, since 1995. All were sentenced to be deported.

    Of the seven citizens of the United States and Canada convicted of endangering state security and ordered by the court to be deported, one was given a stand-alone deportation sentence, three were sentenced to prison and were deported upon completion of the sentences (including reductions), and three were sentenced to prison and deported without serving the prison sentence. The seven cases, six of which involve naturalized American citizens of ethnic Chinese descent:

    1. Harry Hongda Wu, an American citizen and human rights activist, was detained on June 3, 1995 by officers of the Wuhan Public Security Bureau on suspicion of trafficking in state secrets and fraud. He was convicted by the Wuhan Intermediate People’s Court and given a combined sentence of 15 years in prison and deportation on August 24, 1995. He was deported the same day. His deportation came weeks before First Lady Hillary Clinton visited Beijing to attend an international conference.

    2. Li Shaomin, an American citizen and scholar, was taken into custody in late February 2001 in Shenzhen and subsequently charged with spying for Taiwan. He was tried by the Beijing Intermediate People’s Court on July 14, 2001 and sentenced to deportation as a stand-alone penalty. He was deported on June 25, 2001.

    3. Fong Fuming, an American citizen and business consultant, was sentenced to five years’ imprisonment and deportation in March 2002 by the Beijing Intermediate People’s Court for the crimes of trafficking in state secret and bribery. He was released 22 months early on October 27, 2003 and deported the same day to the United States.

    4. David Dong Wei, an American citizen and businessman, was taken into custody in September 2003 on suspicion of spying for Taiwan. He was convicted and sentenced to 13 years in prison and deportation by the Guangzhou Intermediate People’s Court in April 2005 for the crime of espionage. After sentence reductions totaling four years, David Dong Wei was released in September 2012. He is believed to have been deported to the United States shortly after his release.

    5. Xue Feng, an American citizen and geologist, was placed under residential surveillance in a designated location in 2007. He was convicted in 2010 of trafficking in state secrets and sentenced to eight years in prison, confiscation of RMB 200,000 worth of property, and deportation. He served his full sentence, minus a sentence reduction of 10 months, and was deported on April 3, 2015, returning to the United States the same day.

    6. Sandy Phan Phan-Gillis, an American citizen and businesswoman, was taken into custody in March 2015. She was convicted of spying for the United States and sentenced to three and one-half years in prison, deportation, and confiscation of personal property on April 25, 2017. Her deportation and return to the United States on April 28, 2017 came six weeks after American Secretary of State Rex Tillerson visited Beijing to prepare for the summit between Chinese President Xi Jinping and American President Donald Trump held on April 6-7, 2017 in Florida.

    7. Kevin Garratt, a Canadian citizen detained in 2014, was convicted of spying for Canada and sentenced to eight years in prison, a fine of Canadian Dollar 20,000 (in RMB equivalent), and deportation in September 2016. His deportation on September 15 came several days after Canadian Prime Minister Justin Trudeau finished a state visit to China.

    There is no clear basis under Chinese law for executing a deportation sentence prior to a defendant serving his or her imprisonment sentence. In all three cases where deportation was carried out prior to the defendant serving his or her sentence, the case had become a political issue affecting relations between the home countries and China, and the foreigners who were deported were the subjects of intense media attention, civil society advocacy, and high-level interventions by leaders of the home countries.

    Deportation as an Administrative Penalty in Politically Sensitive Cases

    Chapter Six of the Entry and Exit Administration Law of the People’s Republic of China (2014) and both the 1993 National Security Law of the People’s Republic of China and the Counterespionage Law, which took effect on January 1, 2015, provide for public security organs and state security organs, respectively, to carry out deportation of foreigners following detention and investigation, but prior to indictment and trial.

    In April 2001, American citizen Wu Jianmin was detained by agents of the Guangdong State Security Bureau on suspicion of spying for Taiwan. According to the Xinhua News Agency, he was expelled from China on September 29, 2001, and returned to the United States the same day.

    More recently, Swedish citizen and human rights worker Peter Dahlin was taken into custody on January 3, 2016 and placed under residential surveillance in a designated location. He was investigated for violating Article 23 of the Criminal Law, using foreign funding for subversive activities, and, following the airing of a taped confession, deported on January 24, 2016. His property was confiscated and he was banned from entering China for 10 years.

    China’s public security organs have detained, investigated, and deported foreign missionaries who have engaged in proselytizing in China on several occasions in recent years. Most have received little or no media attention.

    It is likely that espionage cases involving both Chinese citizens and foreigners will increase following the release of local state security bureaus’ measures that provide rewards to citizens who report espionage activities. The Beijing measures, announced on April 10, 2017, provide rewards on a sliding scale up to a maximum of RMB 500,000 for deterring and preventing espionage activities. If enacted, the National Intelligence Law, released on May 17, 2017 for public comment, will increase scrutiny of the activities of foreigners and foreign institutions in China.

    Wednesday, March 15, 2017

    Wrongful Conviction for Counterrevolutionary Incitement Resurfaces

    After the Cultural Revolution, workers at Shanghai No. 1 Textile Factory gathered to denounce the crimes of the "Gang of Four." Image credit:

    When China emerged from the Cultural Revolution and set off on its path of “reform and opening," the country’s judicial system was enlisted to address many of the politically motivated judgments that had been handed down during the Mao era. Courts throughout the country overturned verdicts against former “counterrevolutionaries,” clearing away their status as “enemies of the people.”

    This effort took place as China worked to rebuild its shattered legal institutions and put a new legal framework in place that would help to reduce some of the arbitrariness and injustice that had characterized the preceding era. Notably, a new Criminal Law and Criminal Procedure Law took effect on January 1, 1980. Counterrevolutionary crime continued to be punished, but punishment would henceforth be handed down in accordance with laws and would follow prescribed legal procedures.

    Of course, not everyone could benefit from the political rehabilitation of past political crimes. Those associated with the “Gang of Four,” pinned with blame for the violence and destruction of the Cultural Revolution and deemed to oppose the Communist Party of China and its leaders, were among the first "counterrevolutionaries" sentenced in accordance with the new laws. It didn’t matter much that most of them had been sitting in jail for years without access to any legal counsel or even anticipation of any formal legal proceeding. And though the courts that handed down judgments were now technically bound to do so “in accordance with the law,” the law was still primarily an instrument of the state’s political power that offered defendants little as far as protection of their rights was concerned.

    Lingering Stigma: Counterrevolutionary Incitement

    Concern for wrongful convictions and miscarriages of justice might lead one to take another look at some of these cases from the early 1980s. One example of residual injustice from this period recently came to light via Liu Xiaoyuan, a Beijing-based criminal defense lawyer who has been actively involved in rights-protection cases. Liu recently blogged about being contacted by an 80-year-old man from Henan who has spent most of the past four decades trying to get his elder brother’s 1980 conviction for “counterrevolutionary incitement” overturned.

    Ren Ruixiang (任瑞祥) was 17 years old when the People’s Republic of China was founded in 1949. Though he came from a “rich peasant” background, his middle-school education made him a valuable asset for building a “New China.” He served as a local government cadre in the city of Luoyang and joined the Communist Youth League.

    But Ren’s “bad class background” would eventually catch up with him. In 1959, in the fevered final months of the Anti-Rightist Movement, he was accused of having concealed his membership in a Nationalist Party youth organization and stripped of his position. Most likely he was also sent for re-education. He would eventually be transferred to Mianchi County, where he spent the tumultuous years of the Cultural Revolution labelled as a “bad element.”

    At the end of the Cultural Revolution, local authorities accused Ren of having been a follower of the “Gang of Four” and sent him for compulsory “re-education” in what was euphemistically known as a “study session” (xuexi ban). During his time there, in December 1977, Ren allegedly jotted down a short piece of counterrevolutionary verse in a notebook and then shouted it aloud. The verse read:

    "China’s troubles aren’t through—
    Bandit Hua* has risen again!
    My fellow Chinese brothers—
    You must eliminate Bandit Hua!"

    Ren was arrested and sent to the county detention center in January 1978, where he was alleged to have continued shouting counterrevolutionary slogans calling for the ouster of central party leaders, including Hua Guofeng, Ye Jianying, and Deng Xiaoping. China’s procuratorate system had not yet been restored after the Cultural Revolution, so the county public security authorities sent the case to the local court for prosecution the following month. But no trial was held and Ren spent the next two years in a detention center.

    At the time, China had few trained legal professionals. Therefore, it's surprising to learn that Ren Ruixiang was able to be represented by a defense lawyer named Bo Xiping. When Bo went to meet with his client at the detention center, he found his behavior odd and reported this to the court. As a result, the court arranged for Ren Ruixiang to be evaluated by the Kaifeng Psychiatric Hospital. The hospital’s assessment report stated that Ren Ruixiang’s mental state was fine and that he had been feigning illness to avoid criminal responsibility.

    Imprisonment & Release

    China’s new Criminal Law and Criminal Procedure Law took effect just days after the completion of Ren’s psychiatric evaluation. The Mianchi County People’s Court proceeded to find Ren Ruixiang guilty of “counterrevolutionary incitement” and sentenced him to seven years in prison. According to Ren’s brother, however, the court held no trial hearing and did not notify the defense lawyer of Ren’s conviction. By the time anyone knew what had happened, the deadline for appeal had already passed.

    Ren was sent to a “reform through labor” camp at a glue factory in the city of Jiaozuo. Doubts about his mental state persisted, and family members again called upon Bo Xiping to file a petition for post-conviction relief. Bo also met with Ren Ruixiang and was shocked to hear the detainee insist that he “spoke with Chairman Mao every night.”

    Bo reviewed Ren’s medical file at the Kaifeng Psychiatric Hospital and found in the entrusted letter that the court had sent the hospital several statements detailing Ren’s past and his alleged “counterrevolutionary speech”. Bo considered the court’s behavior to be prejudicial and noted that the hospital had not employed modern diagnostic tests, such as an EEG, in assessing whether Ren was mentally ill and instead conducted only blood and urine tests.

    By this time Bo had become a senior legal figure in the province, and doubts about the case had begun to reach other senior provincial and central officials. In 1983, the Jiaozuo People’s Procuratorate arranged for Ren Ruixiang to undergo another psychiatric evaluation at the provincial psychiatric hospital in Xinxiang. This time, doctors performed an EEG and found abnormalities in his frontal cortex. They also reported that Ren Ruixiang frequently suffered from auditory hallucinations in which voices told him to say or do certain things. They diagnosed Ren as suffering from paranoid schizophrenia, and he was soon released on medical parole.

    Erasing Stigma

    Of course, Ren Ruixiang’s release is not the end of the story. His brother told Liu Xiaoyuan that the family’s limited resources meant that Ren was never able to receive the medical treatment needed for his illness. He has spent most of the past four decades unsuccessfully trying to clear his brother's name. Now at the age of 85, Ren’s mental illness is unaddressed and the stigma of his conviction for “counterrevolution” remains.

    In the early days of “reform and opening”, courts across the nation overturned a number of counterrevolution cases handed down at a time when China’s criminal justice system did not operate under the boundaries of law. Ren's case was decided after the Gang of Four was purged from leadership and his "reactionary" verse was cited as evidence of him being a remnant of the cadre population. The highly political nature of the case barred him from exoneration, or pingfan, that allowed many of the former "counterrevolutionaries" to escape stigma.

    There was no hope of a legal remedy until February 2012 when the Sanmenxia Intermediate People's Court offered to pay Ren monthly subsidies so long as his family acknowledged his involvement with the Gang. Ren's brother nevertheless rejected the offer and insists that Ren should never have been criminally responsible as he became mentally ill during his incarceration in the “study session” back in 1977. The family continued to file petitions until 2011, but the Mianchi County People’s Court formally rejected the family’s petition and upheld its original findings and the psychiatric assessment that Ren was “mentally sound” at the time of committing the crimes and had “feigned illness.”

    Setting aside the question of Ren Ruixiang’s mental illness, as Liu Xiaoyuan points out there are several substantive and procedural issues that arise because of the way that Ren’s case straddles a moment in history when Chinese criminal justice began to be implemented “in accordance with the law.” On the substantive side, it is unclear whether Ren’s statements against central government leaders amounted to “incitement to overthrow the dictatorship of the proletariat and the socialist system,” the standard under the Criminal Law at the time. And given the restrictive space (a “re-education” class) and the limited audience that heard Ren’s comments, the decision to classify his speech as a “serious offense” appears arbitrary. These objections about the arbitrary and harsh criminalization of political speech in China persist to the current day, however, as “counterrevolutionary incitement” is replaced with "inciting subversion" and "inciting splittism," both crimes of “endangering state security.”

    Ren’s trial also seems to have violated several procedural protections that should have come into force with the new legal provisions. Under the Criminal Law, Ren’s case should have been handled by an intermediate court and not by the Mianchi County People’s Court. (In the county court’s 2011 appeal decision, it states that the Luoyang Prefecture Intermediate Court had granted it jurisdiction to try the case on its behalf, but no mention of this was made in the original court document.) The case should have been tried in open court, with Ren Ruixiang’s lawyer there to represent him. And by 1980 the prosecution should have been handled by the county procuratorate, but the record only shows that the case had been sent for prosecution by the county public security bureau.

    Double Standard

    There was nothing magical about the “legalization” of criminal justice in 1980 that would make Ren Ruixiang’s case any less deserving of re-evaluation than the cases that came before. But by the same token, a decision to re-evaluate a case like Ren’s could open the door for re-evaluation of other counterrevolution convictions that came afterwards, say in 1983 or 1989.

    Under Xi Jinping, China’s judicial system has made a point of its efforts to prevent and remedy wrongful convictions, and there have been some notable instances in which longstanding convictions have been overturned. But the victims of past political persecutions are clearly not meant to be included among the cases subject for review. Though willing, on occasion, to acknowledge the contribution of police abuse and procedural violations to miscarriages of justice in “ordinary” criminal cases involving rape and homicide, it is easier to pretend that these same things don’t happen in cases involving purported threats to the security of the regime. Perhaps it’s worth asking those who want to strengthen the credibility and legitimacy of China’s judiciary whether a system that maintains this sort of double standard and blindness to past injustice can ever be considered “fair.”

    * "Bandit Hua" likely was referring to the then Chairman Hua Guofeng.

    Tuesday, September 27, 2016

    Earthquake Victim Sentenced to Prison for Desecrating Flag

    The devastating 7.8-magnitude earthquake that rocked Nepal on April 25, 2015 also brought casualties and widespread damage to southwestern Tibet. Across the region there were 25 deaths, four missing, hundreds of injuries, and more than 47,500 people were displaced. Tingri, 150 miles southwest of Shigatse, was one of the hardest hit counties, where nearly 80 percent of housing was leveled by the quake.

    Disaster relief efforts often produce tensions between government officials and those whose lives have been most affected. This appears to have been the case for Tingri county resident Garab, whose home was destroyed in the quake and whose apparent frustration with inaction by local officials led to a symbolic act of protest that put him in prison for two and half years.

    According to the court verdict (translated below), Garab reportedly found an old PRC flag in the ruins of his former home weeks after the April quake. Prosecutors alleged that he burned holes in the flag and then used a marker to write “Free Tibet” on it. After allegedly hiding the flag under his mattress for several days, he discarded it along a path where some village children found it. Members of a work group stationed in the village noticed the children playing with the flag and reported the incident to local authorities. Garab was later taken into custody and charged with flag desecration under China’s Criminal Law.

    Garab’s November 2015 trial appears to have been only the third criminal trial filed at the court that year, making it a rather rare event for the judges of the Tingri County People’s Court. Similar acts of protest elsewhere in China have resulted in lighter sentences. But, instead of ascribing Garab’s act of protest to high emotions in the wake of tremendous personal loss, the court showed little leniency—shaving only six-months off the maximum three-year prison sentence though Garab had confessed, expressed remorse, and had no prior police record.

    The trial itself appeared perfunctory. While the verdict refers vaguely to forensic testimony, Garab’s confession seems to have been the prime piece of evidence linking him to the flag desecration. However, because his act of protest happened in an ethnic border region during a time of heightened tensions, local authorities’ need to preserve stability took priority.

    Wednesday, April 27, 2016

    China’s Average “Death Row” Prisoner Waits 2 Months for Execution

    A court official reads a decision confirming sentence to a death row inmate.

    In the United States, men and women sentenced to death typically await execution in “death row” sections of state and federal prisons. Due to complex and time-consuming appeals procedures, that wait can be quite long, averaging roughly 15 years, according to government statistics. This has led to arguments that the “death row phenomenon”—execution after extended delay under the harsh regime applied to condemned prisoners—constitutes cruel and inhumane punishment outlawed under international law.

    Though China continues to make liberal use of the death penalty—executing more people than the rest of the world combined—the Chinese public is less aware of “death row.” In part, this is because individuals are not transferred to prisons but remain in detention centers during the period between sentencing and execution. There, they are often housed alongside other detainees rather than being segregated into special units. People sentenced to death often stand out, however, because of the shackles on their hands and feet.

    Another reason why China is not typically thought to have a “death row” is because people spend relatively less time awaiting execution. Though there can be lengthy delays while cases bounce back and forth between intermediate courts of first instance and provincial courts of appeal, the wait becomes much shorter once the death sentence is sent to the Supreme People’s Court (SPC) for review and approval.

    Just how long or short this wait is remains shrouded in the cloak of secrecy that surrounds many other aspects of the death penalty in China. More detail has become available since the SPC started routinely publishing review decisions on its website in July 2013. The court still has quite a way to go in terms of disclosing information about capital punishment, but even the rather limited information it publishes provides some insight into opaque territory.

    As a demonstration, Dui Hua recently reviewed roughly 500 SPC review decisions in an attempt to answer a surprisingly complicated question: How long do Chinese “death row” prisoners wait between the time their sentences are approved by the SPC and execution?

    In all, these decisions concerned 525 individuals and were handed down between April 2011 and November 2015. Most of the decisions were from 2013–2015, with 2014 accounting for more than half of the total (see table below). The SPC rejected the death sentences given to only 11 individuals, leaving 514 facing execution.

    Supreme People’s Court Death Penalty Review Decisions, Apr 2011- Nov 2015
    Year issued No. of individuals w/ sentences reviewed Death penalty rejected Execution publicly reported
    2015 115 3 22
    2014 283 4 41
    2013 121 4 37
    2012 4 0 1
    2011 2 0 1
    TOTAL 525 11 102

    It can be assumed that all of these individuals have been or will be executed, but in order to confirm exact dates, Dui Hua drew upon public execution reports. Doing so, Dui Hua was able to confirm the executions of 102 of the 514 individuals whose death sentences were approved by the SPC. In other words, no public record of any execution could be found for 80 percent of those whose sentences received final approval. An even smaller fraction of those whose executions were logged by Dui Hua have had their court decisions made public on the SPC website.

    Based on Dui Hua analysis of the SPC decisions, China’s average “death row” prisoner can expect to wait roughly two months from the time the court approves their death sentence to the time of execution. But this period can vary considerably, with a small handful of people waiting more than 200 days and others waiting less than a week. Based on our sample, the median length of time on “death row” was 50 days.

    This suggests that there is often a gap between the time that the SPC finishes its review and the time that highest court’s president signs a warrant of execution. This is clear because, under the Criminal Procedure Law, courts are required to carry out the death penalty within seven days of receiving such a warrant. The only statutory grounds for altering this strict timeline are when: 1) there is evidence of a possible error in the original judgment; 2) the person sentenced to death provides evidence of other crimes or performs other acts of major meritorious service that could result in leniency; or 3) the person sentenced to death is discovered to be pregnant.

    The speed with which execution is carried out may be associated with certain individuals or crimes. For example, all 16 Uyghurs in the sample had their executions for terrorist activity carried out between five and nine days after the SPC approved their sentences. This means that warrants for execution had to have been issued more or less simultaneously with the court’s decision to approve capital punishment. The wait was also very brief for Xu Maiyong (eight days) and Liu Han (13 days). Xu was the former vice-mayor of Hangzhou who was executed for corruption in 2011. Liu was a politically connected business figure executed in 2015 for allegedly leading an organized crime syndicate in Sichuan.

    In fact, the timing of executions may be tied to the social and political value of their publicity. Most of the Uyghurs were executed after region-wide mass rallies were covered widely in the national press in 2014 in an apparent attempt to show government resolve to combat violent terrorism. The April 2014 execution of Wang Yunsheng, only five days after SPC approval of his death sentence for murdering a doctor, appears to have been timed to coincide with the release of a judicial opinion on stricter punishment for crimes against medical practitioners.

    Timeliness can also mean longer periods in custody. People who commit drug offenses sometimes wait for weeks or even months after their sentences have been approved, apparently in order for their execution to herald the “International Day against Drug Abuse and Illicit Trafficking” commemorated on June 26.

    These cases are relatively easy to single out precisely because reporting on the death penalty in China is very selective and incomplete. Most cases receive no publicity at all, while others are used to send messages to the public. By virtue of being reported in some way, the executions reviewed here are more likely to have been carried out according to a schedule not simply determined by the judicial process. Were China to report information about death penalty cases more routinely, it would be possible to test the results of this dataset and learn more about the final days on China’s “death row.”

    Monday, November 30, 2015

    Ethnic Nationalism Along the China-Burma Border

    A map indicating the location of the Wa population within China's Yunnan province, which borders Burma.

    Ethnic Nationalism Along the China-Burma Border

    China watchers are well aware of ethnic unrest involving Tibetans and Uyghurs, but little is known about independence movements and cultural rights activism among other ethnic minorities. Dui Hua research has explored the suppression of Christianity among China’s ethnic Koreans. Now, based on public security records obtained by Dui Hua (PDF 1.2MB), we expand our understanding of this topic to include the Wa and Lahu.

    The Wa and Lahu primarily inhabit mountain villages along the border between China's Yunnan Province and Burma. Today there are an estimated 1.2 million Wa people worldwide, with 800,000 in Burma and 400,000 in China, and 800,000 Lahu, of whom more than half reside in China.

    In the latter half of the twentieth century, authorities in Yunnan's Simao Prefecture (or present day Pu'er City) targeted the Wa and Lahu people in efforts to suppress nationalistic sentiments. Official sources trace ethnic nationalism among these groups to Zhadie (扎谍), a Wa man born in a contested territory between China and Burma in 1924. Records describe him as an overseas separatist instructed by the United States and Kuomintang to carry out counterrevolutionary activities on the mainland. (Some Kuomintang forces refused to retreat to Taiwan and instead withdrew to Burma after the Communist Party established the People’s Republic of China in 1949.)

    Calling himself “old Buddha,” Zhadie saw increasing support among Burmese Wa and Lahu after the end of World War II. In 1950, he began sending his followers to Pu’er and Lincang, Yunnan, to spread the idea of establishing a Wa-Lahu nation.

    Zhadie argued that Wa-Lahu independence was necessary to free the two ethnic groups from Han Chinese oppression. According to government records, one of his slogans was: “Han Chinese repress Wa. Exterminate the Han.” Early on, Zhadie likened himself to the Mao Zedong of the Wa and Lahu people. In the 1980s, he compared himself to the Dalai Lama, as the spiritual leader of Wa and Lahu in China and Burma.

    The number of Zhadie's supporters is unknown. Spotty government records state that as many as 3,500 people from more than 30 Wa villages gathered in Yunnan in March 1959 to perform folk dances led by Zhadie's followers and to listen to their nationalist speeches. The government responded by saying that the villagers had been “deceived” and by reinforcing patriotic education in the area.

    Between 1950 and 1961, government sources document 48 instances of infiltration associated with Zhadie. Eleven were small-scale armed rebellions or disturbances that were swiftly suppressed by the much larger joint forces of the People’s Liberation Army (PLA) and public security. The largest of these armed activities took place in June 1951. During the incident two to three hundred of Zhadie's rebels besieged the Wendong District government and kidnapped communist cadres with the support of Kuomintang forces.

    Burma agreed to let the PLA fight Kuomintang forces on Burmese soil in 1961, putting Zhadie’s mainland activities on hold for approximately two decades. Zhadie’s influence diminished without the military backing of the Kuomintang, but it had a resurgence during the reform and opening in 1978.

    From the mid-1980s to 1998, Simao police arrested 66 people in 20 incidents of subversion and sabotage linked to Zhadie. During the period, he made plans for a Wa-Lahu nation more concrete, stating that it would be established in the year 2000 and that he would serve as president. In March 1990, nearly 200 villagers joined his core supporters in celebrating the establishment of the “Zhadie District government” in Yunnan’s Ximeng County. Between 1991 and 1993, his supporters went to 121 Wa and Lahu villages to hand out photos of Zhadie and seals and flags of the new "regime."

    It was not until the mid-1990s that China addressed the problems through diplomacy. In the spring of 1996, Chinese officials traveled to Burma's Mongmao County to meet with Zhadie, then age 72, and announce that he and his adherents had violated Chinese law. China threatened to impose sanctions on Burma and to close the border for religious worship during Chinese New Year. In response, the local Burmese government began imposing restrictions on Zhadie in 1998, greatly diminishing his influence in China.

    Nonetheless, nearly ten years later, on December 27, 2006, The People's Daily named Zhadie as an overseas separatist force in Yunnan that was funded by western countries and supported by the US government and religious organizations.