After calls by Internet users prevented a farmer from being wrongly sent to prison for life earlier this year, moves to make the provincial court system more open to the public gathered strength, said Zhang Liyong, head of the Higher People’s Court of Henan province and a deputy to the National People’s Congress.

Starting from this year, the province’s court system will broadcast online as many trials as possible to put judges under public scrutiny, Zhang said. (China Daily)

As usual, while I sincerely believe this as a good thing, I also have some reservations. The good part is obvious. More transparency is always positive, and this project should be beneficial for several reasons. First, perhaps some corrupt activities will be either discovered or discouraged by such heightened public scrutiny.

Second, having access to trials will expose more of the public to the judicial system, hopefully resulting in more faith in the rule of law — assuming what they see is generally positive.

Third, as a pilot project, any successes here might spur on courts in other parts of the country to do the same. Indeed, this might spread to other parts of the government and help with other efforts at transparency.

Zhang Liyong also identified what he considers the biggest problem with judges in criminal cases:

If there are loopholes in a case or not enough evidence to prove the suspect’s guilt, judges should find the person innocent. But in reality, as the last link of the judicial system, some judges make compromises with prosecutors, presume the suspect is guilty, but hand down a lighter sentence, he said.

“Police make the dish (investigate criminal cases and find the suspects), prosecutors serve the dish (verify the facts and approve arrests), and the court eats the dish,” Zhang said.

“But often the judges devour the dish without checking whether it is clean or poisonous.”

This is a problem in many countries where judges develop close relationships with prosecutors and the police, particularly in nations where the independence of the judiciary is suspect. The attitude that judges are “on the same team” as the police and prosecutors is understandable and a huge difficulty to overcome.

But here’s where I have a couple of concerns. First, while it is true that judges can be biased, assuming the guilt of defendants, I would suggest that a lot of the trouble with criminal cases rest with the actions of the police and the prosecutors at the investigation and charging phases. While a good judge will be able to spot some instances where a suspect has been railroaded by the authorities, in many other cases, which may involve coerced confessions or manufactured evidence, a judge’s ability to remedy the situation may be limited. A judge can only rule on the evidence that is brought into the courtroom.

Second, and I have repeated this many times recently, I worry about the interaction between the public, particularly online activists, and the authorities in the criminal justice system. Greater transparency can help to avoid unjust outcomes, but online mobs can also push for outcomes based on incomplete knowledge of the facts.

We’ve seen this in the US, where many criminal trials are televised. We even had an entire cable TV network devoted to this stuff — Court TV. Commentators and the public would regularly decry judges’ actions based on only a cursory knowledge of the case, and in some US states where judges are elected by the public, this sort of criticism had real consequences.

I was thinking about this the other day, frankly wondering why I had devoted so much time to the topic so far this year. And then I realized that I had been right in the middle (geographically speaking) of one of the most sensational public trials in the history of the United States and saw first hand what can happen when the public disagrees with a criminal verdict. I refer of course to the so-called “Rodney King” incident and subsequent LA riots of 1992.

Now I’m sure most people would say that transparency (televising the trial) was not responsible for what happened in LA in ’92, but a host of other things, including decades of friction between citizens and their police force. Absolutely true, yet I still can’t help but wonder what would have happened if that trial had not been televised.

On balance, I will always vote for greater transparency. China is certainly working hard at such projects, in part because it desperately needs the public to “buy in” to reforms and government institutions, the rule of law being just one example.

In this sense, transparency of trials is one of many ways that people here can feel connected to their government and, in providing feedback on results, get the sense that their government is listening to their concerns. I don’t want to get into the larger issue of China’s political system and reforms, but I will end here with a relevant quote from a recent article from Francis Fukuyama:

Though not formally accountable to its people through elections, the Chinese government keeps careful track of popular discontents and often responds through appeasement rather than repression. Beijing is forthright, for example, in acknowledging the country’s growing income disparities and for the past few years has sought to mitigate the problem by shifting new investments to the poor interior of the country. When flagrant cases of corruption or abuse appear, like melamine-tainted baby formula or the shoddy school construction revealed by the Sichuan earthquake, the government holds local officials brutally accountable—sometimes by executing them.

Fukuyama is not talking about transparency, but I feel that broadcasting trials is definitely another one of these political feedback mechanisms he discusses.

© Stan for China Hearsay, 2011. | Permalink | No comment | Add to del.icio.us
Post tags: criminal law, rule of law, televised trials, transparency

The post is mostly a set of observations, not specific conclusions, so I’m not going to give a play-by-play and then include my commentary. However, I’ll throw out a few quotes and add a little perspective from what I know working and talking to litigators over the years, and how this relates to some “big picture” economic and political issues.

To start off with, it’s interesting that the post title is “Is China Giving Up on Western Rule of Law?” A fascinating question is whether “Rule of Law” as a concept can encompass “Western” and “Eastern” types or if it is simply a single concept that is either followed or not by a given nation. I think I’d lean towards the latter, that Rule of Law should be viewed the same way in China than it is in the U.S. or other Western nations. That’s a very complicated topic, though, so I’ll leave that alone for now.

The main point of Osnos’ post is the following:

I’ve noticed a number of recent comments that China has not simply slowed down the process of opening up, but has, in fact, mothballed previous attempts to improve Chinese courts as a site of conflict-resolution[.]

From reading the rest of the post, I get the feeling that “opening up” is not a reference to China’s economic policy, but simply another way to talk about reform. Osnos is not writing about anything more than the legal system, as far as I can tell.

So is the government really pulling back from Rule of Law? Let’s take a look at a few arguments.

First, Osnos takes a bit from a recent Financial Times article about the crackdown against activist lawyers. I’ll use the entire graph since it gives you a bit more context:

There is an ideological element too to the move against lawyers, a post-Lehmans drift away from western ideas of rule of law. Legal experts say there is renewed support for civil cases to go to mediation, a process conducted by a Communist party official, rather than to court – party wisdom trumping the law.

A couple of things here. Yes, there has been a move towards mediation in this country. But it’s not exactly a system designed to replace judges with party apparatchiks — Osnos notes this later in his post. Additionally, referring to the entire group of civil cases in this country is slightly misleading. The lawyers who have been locked away are not filing run-of-the-mill commercial disputes, but rather highly charged cases with political repercussions. I would argue that once these cases are separated out, the remaining majority of civil cases, and the legal system that processes them, measured up quite well in terms of Rule of Law.

Second, Osnos talks to some Beijing-based lawyers, who tell him that mediation in civil cases has been pushed harder in recent years, and that there is a policy goal at work here:

One aspect of this is mediating cases at the grassroots, community level to decrease the number of disputes that turn into litigation.

This is absolutely true and definitely is, as Osnos later suggests, part of “harmonious society” reforms. In addition to practicing lawyers, government officials are quoted on the push for increased mediation:

I visited a local community that had gained some national renown for its success in mediating disputes. The head of the neighborhood committee proudly called his community a “zero litigation” [district] … and also highlighted that there hadn’t been a single petition filed from his community in the last year.

Playing a gentle Devil’s Advocate here, I would simply point out that when it comes to grass-roots petitions, one can file a grievance and maybe get nowhere with it, or one can go through the mediation process. I don’t think one path is necessarily better than the other; it depends on the local rules and, even more important, the individuals hearing disputes. Is mediation a way for the government to keep things quieter? Yes, but that is not exactly a repudiation of Rule of Law principles, but something else entirely.

I’ll no doubt repeat this again in this post, but let’s keep in mind that mediation, as a procedure, is not antithetical to the Rule of Law. It is an alternative procedure that can be good or bad, depending on how it is implemented.

Third, Osnos does a fantastic job of distinguishing between the type of grass-roots mediation described above and court-based mediation overseen by judges. At the risk of sounding patronizing, I would not expect this sort of delineation from a non-lawyer journalist, so I give the post a huge thumbs up for doing so. Here’s the relevant quote:

There has also been a big push within the court system itself to resolve cases through mediation, with judges acting as mediators. Some local courts have even incorporated the number of cases successfully mediated as one measure of judges’ work performance.

If you’ve read this blog on and off for any length of time, you’ll know that it is this judge-based mediation that I usually write about. I don’t really have any experience outside of formal legal disputes. With that in mind, I first starting seeing this with IP clients a number of years ago, who came to me and complained that judges were telling them to settle cases or risk having them go into a judicial limbo.

I also used to see a seasonal push to clean dockets around Spring Festival, when judges tried to use settlement to clean the books before the end of the year. This has since spread to all kinds of civil cases, where judges are being pressured to keep down the number of cases that reach formal judgment. Moreover, Chinese litigators bear the brunt of this, with judges essentially ordering them to get their clients to settle “or else.” When your career hinges on making a small number of judges in town happy, well, the pressure on those litigators is significant.

All right, this is running long. Where does Osnos come down on all this? While distancing himself from the FT article, which suggested that Party ideology was at play here, he does agree that China is moving away from Rule of Law:

[. . . ] in the sense that the push to increase mediation is part of a larger trend away from formal, legal processes and the more transparent recognition and displaying of conflict that they can represent. As for the larger overall drift away from rule of law, I would agree with that.

I think part of this comes down to how we look at mediation itself as compared to court action. One thing I remember from studying this in law school is that the concept of mediation, as a form of alternative dispute resolution, took a long time in the West before it gained traction.

Why? Several reasons, but one that is important to this discussion is that we (Western folks, and particularly those from Common Law jurisdictions like the US and UK) have a natural bias towards litigation as a way to solve problems. This is historical and cultural.

I’ve talked to people in the past who literally see mediation as some sort of hippie concept adopted by cheap companies and lawyers too scared to go into a courtroom and fight things out. I think that’s indicative of a certain point of view, although I don’t think it is shared by Osnos.

If we instead look at mediation as simply an alternative to litigation, then we have the ability to look at pros and cons of each system, and to consistently reform both procedures. Keep in mind that mediation is in its infancy here in China (brand-spanking new mediation law here, by the way), so whatever faults exist, one would hope that these can be minimized or done away with entirely through future legislative fixes.

Another important factor here is that local governments and the courts have been deluged by disputes in recent years as the economy has chugged along. Despite what you may have heard, Chinese folks are extremely litigious people. I’d stack them up quite favorably in that regard against Americans.

A great deal of fantastic experimentation has been undertaken in the past few years when it comes to alternative dispute resolution, local petitions, transparency, and so forth. This is the Central Government’s way of acknowledging that there are both a lot of commercial disputes that need to be resolved to keep the economy moving ahead, and also a lot of pissed off folks with real problems (with land, the environment, etc.) that need to be dealt with.

Mediation can be used to avoid resolution of disputes that the government would rather be kept quiet. On the other hand, it can be a low-cost alternative to litigation that helps judges and local officials get their jobs done. Again, it all depends on how the system is implemented.

So does this push for mediation suggest a reversal of Rule of Law initiatives? On the whole, I’d say no. I’m not thrilled that my clients are being pressured to settle cases in the name of the “harmonious society.” On the other hand, courts are awash in civil cases, and these new forms of resolving disputes need to be attempted. At the end of the day, one hopes that this will actually strengthen, not weaken, the Rule of Law.

© Stan for China Hearsay, 2011. | Permalink | 9 comments | Add to del.icio.us
Post tags: alternative dispute resolution, litigation, rule of law

This is what was widely reported in the news following the trial and sentencing:

A Chinese farmer has been sentenced to life in prison for avoiding highway tolls adding up to more than 3.5 million yuan ($530,000).

State media this week reported that a court in the central province of Henan sentenced Shi Jianfeng on Dec. 21. He was also fined 2 million yuan ($302,000).

The news caused an uproar among some Chinese, who argued in online postings and commentaries that shorter sentences have been given out for the more serious crimes of rape or murder.

A report in the People’s Daily newspaper said Shi avoided paying tolls more than 2,300 times by using fake military license plates between May 2008 and January 2009 as he ran a business transporting gravel.

Keep in mind that although the sentencing took place on December 15, it was only recently that this story was picked up by national and international press, the latter running with it this week.

Just like all those other cases I’ve been talking about recently, we’ve got a situation here where the result is unpalatable. On its face, it looks like a farmer was given a life sentence because he owed a shitload of traffic tickets. When held up against many rapists and murderers who receive much more lenient sentences, you can see why people could be upset with this sentence.

Of course, the case isn’t quite that simple. The fines this guy owed were gigantic. He apparently evaded these fines for two of his trucks by using fake military license plates, military ID cards, and military driver’s licenses. The trucks, which he ran overloaded at times, traveled on toll roads more than 2,000 times in an eight-month period.  Needless to say, I’m sure the government was not amused with someone pretending to be military to save money on tolls.

But yeah, regardless, a life sentence seems extraordinarily harsh, even for someone like this. The public certainly had something to complain about.

And now we hear this:

A man sentenced to life in prison by a local court for evading 3.68 million yuan ($530,000) in highway toll fees by using fake military documents will face a retrial, as “new evidence” has been discovered, the court said on Friday.

So the sentence was issued one month ago, the story went viral a few days ago, and now all of a sudden some “new evidence” has magically been uncovered? It’s possible. This may have absolutely nothing to do with public pressure finding its way to the right ears in the government and the court being given some helpful advice regarding a retrial. Hell, for all I know, this new evidence might make things worse for this guy and he’ll get a stiffer sentence this time around.

Anything’s possible, but from the details I’m reading this evening, it sure looks like another case of the public pressuring the judicial system. This is a recipe for disaster in the long run, and with each new case like this, and even when we like the result, China’s goal of establishing rule of law looks that much more difficult to attain.

© Stan for China Hearsay, 2011. | Permalink | 3 comments | Add to del.icio.us
Post tags: criminal justice, online activism, rule of law, sentencing

(Photo: Associated Press)

After reading Peter Foster’s post for the Telegraph today, I thought a quick reality check was in order. Foster was commenting on the Zhao Lianhai case and what it tells us about politics and the law in China.

It’s a good post, and I share Foster’s discomfort with the specific case at issue. However, I think we need to be careful not to generalize too much. Let’s start with the background of this case, from the AFP, then I’ll explain my concerns:

A Chinese father jailed after campaigning for victims of a huge tainted milk scandal has said he was freed on medical parole and regretted his actions, but supporters say his words may have been forced.

A statement posted on Zhao Lianhai’s blog, apparently written by the 38-year-old himself, said he was being treated in hospital and did not want to have contact with anyone anymore.

Zhao — whose child was one of 300,000 made ill by milk tainted with the industrial chemical melamine in 2008, during a scandal that saw at least six babies die — was sentenced to two and a half years in prison in November.

At the time, he angrily denounced his conviction on charges of “creating a disturbance” through his advocacy activities and stated his intention to appeal, but his statement did not seem to match his previous indignation.

“I acknowledge the criminal penalty given to me by judicial authorities and hope other people won’t talk much more about this issue,” said the statement on his blog, posted late Tuesday.

“I support, acknowledge and thank the government, and express deep regret for my previous extreme opinions towards the government,” it said.

If the first thing that pops into your mind is a rehabilitated Winston Smith sitting in a cafe playing chess and smoking bad cigarettes, I’m with you. Sure sounds like he cut a deal, and I’m with Foster when he says that we shouldn’t pass judgment on that.

My problem begins with Foster’s post title, “Zhao Lianhai’s Apology Exposes the Utter Mess of China’s Legal System.” Maybe I’m nitpicking here, but “utter mess” when used to describe China’s entire legal system seems like a gigantic extrapolation, or generalization, that I believe is unwarranted.

This is not just a question about word choice in the title. It seems that Foster really does think that the entire legal apparatus of the country is in disarray. He says the Zhao Lianhai case is:

. . . a story that reflects badly not on the brave Mr Zhao, but on China’s legal system – or lack thereof.

Pretty clear there. China does not have a functioning legal system. Foster also concludes that:

That’s not a legal “system” as China likes to call it. There is nothing “systematic” about it at all. It’s just a mess of ad hoc, backroom deals and fix-ups in which China’s public, quite rightly, have absolutely no confidence.

OK, I understand what Foster is saying here. He is criticizing the lack of an independent judiciary in China. I agree with him on this. Judges are not insulated from political pressure, and this often leads to decisions that are made based on policy concerns, as opposed to a straightforward application of the law. Foster explains how all this works, and why:

China’s ruling Communist Party has made it explicitly clear that it will not allow any separation of judicial powers that would risk subjecting the Party to any form of external checks and balances.

Correct. Two different concepts here of how the judiciary should operate. One option, the traditional Western notion concerning Rule of Law, says that you need an independent judiciary. Without it, there is never a sense of legal foundation since decisions are made in an ad hoc fashion on the grounds of political expediency, and the public will not be confident that the system works or that it is fair.

The second option is a modified system of Rule of Law. This system is similar to the first, except that, as Foster explains, cases that risk political or social stability are treated differently. In other words, there is a two-track system for cases, and application depends on the subject matter or parties involved. Supporters of such a system would argue that a nation should strive for an independent judiciary, but that once in a while, there are more important principles that should be paramount.

I would argue that the second option has flaws. For one, a system that is ad hoc invites corruption, which leads to erosion of public confidence. Who’s to say what is a legitimate issue that should be given special treatment by the courts? By the way, Americans have dealt with this debate many times, including a few years ago with several “national security” cases involving alleged terrorists or surveillance programs, whereby the federal government used “security concerns” as a litigation strategy.

So I generally agree with Foster on the case of Zhao Lianhai, and I share his concerns about judicial independence.

But to take the criticism to the next level, saying that China’s legal system is an “utter mess” or that it is functionally nonexistent, well, this is way over the top. Perhaps Foster falls into use of such hyperbolic language because the judicial cases he looks at are the “bad” ones, like that of Zhao Lianhai or perhaps Xue Feng, a US geologist sentenced to 8 years on a state secrets charge.

One can criticize these cases on their merits, on the choice of the government to get involved in the first place, or on the resulting erosion of public confidence of the judiciary. But if you focus on these cases, you get a very skewed view of China’s legal system.

Lots of law professors have written entire books about this subject, so let me make some sweeping generalizations of my own here in the interest of brevity. China’s legal system is complicated and deals with a wide range of subjects. Highly-charged political cases involving whistleblowers and dissidents are important cases, but they represent a very tiny fraction of judicial activity.

China has a thriving court system, and the number of civil cases, for example, has skyrocketed in recent years along with economic growth. Obviously the public retains some confidence in parts of the legal system here.

Speaking for myself and my own experiences as a lawyer, I have seen tremendous strides made within the legal sector as successive waves of reform have targeted the way courts are run, cases are handled, and judges are selected and trained. China’s economy would not be where it is today without a functioning legal system, its many flaws notwithstanding.

I don’t think anyone would point to the Zhao Lianhai case as an example of China’s legal system at its best. On the other hand, it and other politically sensitive cases represent only one aspect, albeit a very significant one, of China’s judicial framework and its approach to Rule of Law.

Let’s not pretend that a functioning legal system doesn’t exist in this country or that it has not made tremendous progress to date. Whether it can ever reach a point where Westerners would be comfortable with China’s interpretation of Rule of Law, however, is a question for the future.

© Stan for China Hearsay, 2010. | Permalink | 12 comments | Add to del.icio.us
Post tags: Peter Foster, rule of law, Xue Feng, Zhao Lianhai

A recording clip on the Internet allegedly showing a government official talking about fengshui has sparked controversy as it seemed to suggest the construction of a building was halted because the official believed it would disturb the fengshui of a nearby government compound.

Several versions of the recording have been uploaded onto the Internet. In the longest recording, lasting 31 minutes, a man alleged to be Wang Yinfeng, Party chief of Jiangjin district in southwest China’s Chongqing Municipality, said the under-construction building would block the government building and asked men said to be representatives from the real estate companies: “Do you know what fengshui is?”

The developer lost a lot of money on the deal and is pissed off big time. Essentially you have an administrative decision that was based on what in U.S. law we would call “arbitrary and capricious” reasons. Obviously such reasons are not valid and such decisions are often struck down by U.S. courts.

I’ve railed against fengshui in the past, much as I’ve had harsh words for religion. At the end of the day, though, people can design and build buildings based on whatever personal preferences they have.

However, this was a public building and the decision was not limited to design or aesthetics. China does not have a national religion, so this sort of irrationality should not be institutionalized. While fengshui is not strictly a set of religious principles, its supernatural underpinnings make it close enough.

I am not naive. I understand that a lot of projects in this country, including public buildings, are greatly influenced by fengshui. Even the Bird’s Nest and Water Cube were constructed using fengshui principles.

There’s no way that the government could, or would even try, to eradicate the influence of fengshui from public architecture, and in the area of design, there’s no reason why it should. But you cannot have a system based on rule of law when arbitrary building approvals that encroach on property rights are made based on irrational principles. These things just don’t mix.

© Stan for China Hearsay, 2010. | Permalink | 3 comments | Add to del.icio.us
Post tags: fengshui, rule of law, superstition

BYD Co., China’s fastest-growing major automaker, will be a test case for whether the government values corn and wheat over cars.

BYD, maker of China’s best-selling F3 compact, unlawfully built seven factories on 112 acres of farmland it agreed to buy in Xi’an from a local economic development agency, the nation’s Ministry of Land and Resources said July 15. The government said it will decide by Sept. 30 whether to punish the Warren Buffett- backed company. (Businessweek)

I suppose this could go either way, depending on current political exigencies, but I’ll be damn surprised if the government is going to smack down an automobile manufacturer in order to send a message about illegal land use. That isn’t to say that land use problems are not widespread or that the government would be perfectly justified in making an example of BYD. There are competing interests here, though.

On one side you have a very powerful company in a key, showcase industry that will be pumping out major exports someday. The auto industry is already extremely powerful, exerting quite an influence on China’s government. On the other side you have an opportunity to show everyone in the country that rule of law is important and that illegal land transactions will not be tolerated.

Seems like the auto company wins that battle every time. If I’m the government, I don’t want to mess with successful factories in key industries, and although land transactions are a huge issue, it is not so important to use this specific incident to send a message. Why not wait for another company, perhaps one in a less important industry, with a land use issue and crack down on that one?

I’m not sure that I buy into this sort of overreaction:

“A lot of companies are watching the case closely, and it will set an example,” said Zhang Xin, an auto analyst with Guotai Junan Securities Co. in Beijing. “If the government lets BYD off the hook easily, the illegal usage of land won’t be effectively controlled going forward.”

Maybe, or perhaps most people will shrug and say, of course, that company is too powerful to be punished seriously. Will letting BYD off with a slap on the wrist send the message that the government doesn’t care about illegal land transactions? I don’t think so, although it will be a missed opportunity. Let’s keep in mind that this is only one incident, albeit a high profile one.

It also bears mentioning that foreign invested enterprises, perhaps even more than domestic firms, with land use irregularities are now, more than ever, squarely in the sights of approval and inspection authorities. For all of you who set up that JV or WFOE with some land ownership defects, probably after being promised that those problems would be fixed later on, now would be a good time to do another check of the land status. If you still have that problem, you might want to start thinking of a mitigation strategy before the shit hits the fan. The government will be happy to use your company to send that message to the masses about the rule of law.

© Stan for China Hearsay, 2010. | Permalink | No comment | Add to del.icio.us
Post tags: auto industry, auto manufacturers, automobiles, BYD, land transactions, land use rights, rule of law

You may have noticed an uptick in the number of posts on this blog and the number of links on my Twitter feed (@chinahearsay) on local legal reform. To be honest, this is not reflective of a sudden flowering of innovation. The more mundane explanation is that I started monitoring a Chinese-language news aggregator that contains a lot of those stories, and that’s why they’re on my radar screen.

In the past couple of days, I’ve seen several items about a pilot project in one district of Ningbo that has led to some interesting discussion. Under the policy, called “conditional non-prosecution” (??????), prosecutors may decide not to file charges against individuals based on present background and future conduct. The system is similar in some ways to Western concepts of probation and alternative sentencing programs, although in this case it is done prior to initiation of formal proceedings.

The program is indicative of a large number of grassroots legal reforms that are springing up in various parts of the country. Although I have no idea if there has been an actual increase in these pilot projects in recent years, it wouldn’t surprise me. As I’ve been writing over the past few months, civil and criminal cases in China have been proliferating and dockets are overflowing. Any legal reforms that may reduce this burden would certainly warrant a serious look in this sort of environment.

And yet there are critics. An Op/Ed in the Oriental Morning Post (Chinese only) on the “conditional non-prosecution” program in Ningbo poses questions about the ability of grassroots officials to institute such pilot projects given the lack of specific legal authority granted by Beijing (or any other higher judicial authorities). To put it another way: how conservative should legal reform be, and does local experimentation damage rule of law?

I have a feeling that I’ll be looking at this issue for years to come, so no need to cover all the angles in this post. However, consider just a couple of ways to look at this:

1. The “conditional non-prosecution” program has been criticized because it introduces the possibility of differing outcomes for the same crime as a function of geography. In other words, the punishment (or lack thereof) will be different depending on where the crime was committed. We bemoan this sort of thing when it occurs in the area of commercial law, so why is it acceptable here?

2. If pilot projects like this one result in criminals receiving lighter punishments, isn’t that being “soft of crime” and therefore bad for social stability?

3. Who really has the legal authority to introduce such programs? Shouldn’t localities wait for Central Government or provincial authorities to take the first step?

4. Do we really want to give local authorities even more discretion in legal proceedings? A lot of abuses, including corruption, are only possible given the wide discretionary power of local police, prosecutors, and judges. Don’t these programs exacerbate that problem?

These are some big questions to keep in mind when evaluating new programs as they pop up in the news.

Just to let you know my bias in this area, I’m pretty much a liberal when it comes to things like alternative sentencing and local experimentation, as long as new programs do not result in curtailing individual rights. To the extent that grassroots legal reform results in differing outcomes, I think the possible benefits probably outweigh the liabilities.

Moreover, if the public sees local innovation designed to make the judicial system fairer and more efficient, this will serve to strengthen the rule of law, not weaken it. On the other hand, if  programs like “conditional non-prosecution” are exploited by the powerful, using their wealth or influence to avoid punishment, then of course this would serve to undermine public faith in the judicial system. As with everything, it all depends on implementation.

© Stan for China Hearsay, 2010. | Permalink | 4 comments | Add to del.icio.us
Post tags: federalism, judges, judicial reform, legal reform, pilot projects, prosecutors, rule of law

The latest is from Henan, and it’s unfortunately very typical:

A 29-year-old man died mysteriously in a detention house last Sunday in Central China’s Henan province after being held for a month, leaving the police and his family in disagreement over the cause of his death.

The police of Zhecheng county in Shangqiu city told Wang Shouzhang’s family that he died suddenly of a heart attack with “no physical injuries”, while his family insist he died unnaturally, since his body was bruised.

“His body was so injured; blood was visible around his nose and ears and his chest was swollen with bruises,” Li Guizhi, Wang’s mother, told China Daily.

As usual, I do not know the facts of the case first hand, so I have no idea who is lying and who is telling the truth. That being said, whether the body had bruises on it or not seems like a fairly simple thing to check, huh?

Shan Dengjun, a publicity official with Zhecheng police bureau, said the cause of death having been listed as a heart attack was “inaccurate” and an inquiry is being conducted into the circumstances surrounding Wang’s death.

“If everything is as clean as the police claim, why did they stop us from taking pictures of him and smash our cell phones?” Li asked.

The local procuratorate went ahead with the autopsy and concluded that no injuries were found on Wang’s body.

Look, the guy either had bruises on him or not. The problem with these cases is that no one trusts the police, and then of course everyone assumes that the other local government officials (e.g. the prosecutors) are doing everything possible to protect the police.

To state the obvious, this is once again a rule of law problem that will not get better until people start to trust local government. With each one of these “mysterious” death cases, that trust is further eroded.

© Stan for China Hearsay, 2010. | Permalink | No comment | Add to del.icio.us
Post tags: criminal law, mysterious death, police, prosecutor, rule of law

This is quite a story, and I say that having spent more than ten years reading about these kinds of incidents. The basic facts are that the documentation used to justify the arrest of a group of people in Hebei Province were forged. This might remind you of the post I wrote a while back on the forged court verdicts.

In many ways, this case is much more egregious and therefore has even more potential to further erode the public’s confidence in the criminal justice system and therefore the rule of law in China.

Here is how the incident unfolded. I’ll just excerpt the China Daily report on the story, since it is the most comprehensive of the news reports I found.

Song Shuchun and five fellow villagers from Lingshou county were taken away by police officers in May 2009 for being involved in a land dispute.

They were detained for criminal charges, though the police did not acquire sufficient evidence, the report said.

Song was alleged to have intentionally injured a man in the dispute, while five others were alleged to have damaged property belonging to the victim.

While two of them were bailed out the following day, four others, including Song, were sent to a detention center in Shijiazhuang, provincial capital of Hebei.

However, the detention center refused to receive them because of their ill health.

Let’s stop right there for a moment. None of the reports I have read go into further details about the “ill health” of the prisoners. It’s possible they were suffering from illnesses unrelated to their detention. But it would be quite a coincidence if more than one individual in the group was is such bad health that they could not be held by the police. If I could ask one question about this issue, it would be: “Were they ill before being taken into custody?”

Since Shijiazhuang refused to take them, they were held locally, in poor conditions. At this point, outcomes seem to have depended on money paid to the authorities:

Police officers then implied that their families pay 5,000 to 20,000 yuan ($732 to $2,929) to bail them out, or else they would face prison sentences.

Excluding Song, the other three villagers were bailed out after each of them paid 5,000 yuan. Song, who insisted on his innocence and refused to pay bail, was detained for five months.

Under the charge of intentional injury, he was sentenced in October 2009 to one year in prison with two years’ reprieve and a fine of 15,000 yuan.

The villagers who paid to be bailed have not been placed on trial, nor has any of the bail money been returned to them.

So eventually everyone paid money and was released except for Song. None of the bail money was ever returned, even though these people were not convicted of a crime. This is apparently common practice in some parts of the country.

This is all bad enough, but there are two additional issues here that stand out. First, the warrants used to arrest Song and the other four individuals were forgeries, and second, the underlying issue that led to all of this was a disputed land transfer by the local authorities. Since this post is already getting a bit long, I will cover the forgery and land issues in separate posts.

© Stan for China Hearsay, 2010. | Permalink | One comment | Add to del.icio.us
Post tags: arrest warrants, criminal law, criminal procedure, forgeries, rule of law, unlawful detention

Following the release of new regulations in Henan designed to combat this problem, I wrote the following:

You may have noticed that the press accounts of “mysterious” custodial deaths in China have increased in frequency lately. Each explanation seems more absurd than the last and include these now instant classics: death by playing “hide and seek,” death by drinking hot water, and death by ingesting pesticide.

There are two problems: first, the underlying crime of course (i.e. murder), and second, the cover-up. It’s the second issue that should concern the local and provincial governments, since these murders were committed by police and prison guards; the only way to stop that is to prosecute aggressively and provide better training.

On the issue of rule of law implications, I covered this most recently when discussing the Rio Tinto verdicts:

[T]he notion of rule of law is harmed most when the public loses faith in the system. Every time we hear of a person killed mysteriously in police custody, with the story bandied about incessantly online, it does serious damage to public perception of the penal system.

Which brings us to the latest incident. All I have at the moment is this Xinhua story, which contains very few details. I will update if I find out more:

A woman detainee died Thursday after falling from a third-floor window of a police station in east China’s Anhui Province.

Zuo Xiaoqin had been taken to the police station after she allegedly smashed the window of an excavator that had come to demolish her home in Chizhou City, said a statement from the Chizhou municipal government.

Zuo excused herself from police questioning, saying she wanted to use the bathroom, and jumped from a third-floor window, the statement said.

The police rushed her to a local hospital where she died.

The municipal government, police and procuratorate are investigating the death.

The obvious issues here relate to the underlying incident for which she was placed in custody. It sounds like a very common story, someone who is being evicted or whose home is being demolished; in this case, she was staring down the demolition itself.

The other details are too sketchy to be useful, and the police certainly have a lot of questions to answer regarding the detention. Whether someone would try to kill themselves by jumping out a 3rd floor window after being charged with this sort of crime — I really have no opinion on that.

The more important issues relate to very familiar topics: China’s income gap, disaffected individuals, real estate transfer issues, and the harmonious society.

On a side note, I am still mulling over a longer post on the recent school violence. All of these things seem connected these days, and it keeps coming back to China’s economic and fiscal policy and the ability of the government to reduce that income gap, provide an adequate social safety net, reduce corruption, and continue working on social justice matters. A tall order, but these are all things that Hu Jintao and Wen Jiabao have been supporting for years – that’s the good news.

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Post tags: china criminal law, criminal law, harmonious society, income gap, mysterious death, police custody, rule of law

The corruption trial of former appliance tycoon Huang Guangyu, who was once China’s richest man, has finished and a verdict is pending, a lawyer involved in the case said on Friday.

[ . . . ]

Huang . . . built his Hong Kong-listed GOME Group into one of China’s largest electronics and appliance chains with more than 1,200 stores in over 200 cities.

But he was detained two years ago and charged with insider trading and bribing five government officials with 4.56 million yuan (667,000 dollars) in cash and properties from 2006 to 2008[.] (AFP)

This case has garnered a great deal of attention, but only because Huang had been deemed “China’s richest man” by the Hurun Report. Exciting perhaps, but not so much for lawyers who aren’t participating in the case. The defense lawyer and lead prosecutor, of course, are big shots who will benefit quite nicely after the guilty verdict comes in (I’m assuming).

Whenever there is a high-level case like this, there are possible opportunities to effect Rule of Law, specifically public perception of the judicial system. There are three options to consider here:

1. Putting the richest guy in the country on trial will further the concept that no one is “above the law.”

2. Seeing the most successful person in the country taken down will further the cynical notion that corruption is rife and the economic system really doesn’t work.

3. Neither. No Rule of Law implications because there are complicating factors.

(...)
Read the rest of Rule of Law Implications of Huang Guangyu Trial? (467 words)

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Post tags: anti-corruption, china criminal justice system, china criminal law, corruption, insider trading, rule of law

Usually when I write about Rule of Law issues, the context is a murder or rape case, bribery or other form of corruption, you know, big stuff. As important as these famous cases are in shaping public opinion, though, the little incidents can be just as powerful on a cumulative basis, particularly when people can closely relate to the underlying violations.

Case in point:

The city administration authority in Leiyang, Hunan province, recently came under fire from the country’s netizens for defying traffic regulations, information nddaily.com reported on Tuesday.

According to a post published on a local online forum, one of the cars that belong to the Leiyang city administration authority has violated traffic regulations as many as 508 times and the penalty of the breaches, which has mounted to 72,800 yuan ($10,665), has yet to be settled.

The car is said to top the list of traffic violators in the city, and the second on the list is also a vehicle belonging to the same office.

Traffic violations – doesn’t get any more down to earth than that. Anyone who has a car can certainly relate to this. Quite egregious, huh? The number one violator is the government vehicle, and the total amount in fines is a heck of a lot of money. Also remember that a traffic violation can be anything from parking in the wrong place to speeding to reckless driving; this pattern could reflect a disregard by government officials of public safety.

The Rule of Law implications are numerous, and we’re just talking about traffic tickets.

As a side note, this information apparently was disclosed in an online forum (I assume this means a BBS). Once again, for all those detractors of China’s restricted Net culture, these are the kinds of things that are going on every day. The Net has made a huge difference even though it is restricted — too bad the word on this reality has yet to spread to the West.

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Post tags: internet forums, local government, rule of law

And then I woke up to the news that Google had finally announced their intentions regarding their future in Mainland China, saying via online announcement (as they did in December when all this started) that they would essentially be shutting down Google.cn in China and offering that service from Hong Kong at Google.com.hk.

Because I had written about this issue at length on China/Divide, that seemed to be the best platform for a response to this latest issue. I therefore spent some time today on a bit of commentary for C/D. I would like to specifically point out, though, that my post on Google is in fact the third one of the day on C/D. Charles Custer and Kai Pan have already sounded off on the subject. All three links are as follows:

Custer: Google Losing the Message

Pan: Google Redirects! But Will The Chinese Government Block?!

Abrams: Google’s Hong Kong Gambit Is Public Relations Victory (will go live after 12:00am China time)

Enjoy. The short version of my piece is that Google’s “move” to HK doesn’t really change anything since the site will still be subject to censorship via the Great Firewall. That being said, Google seems to be winning the messaging war if the first round of press accounts are an accurate indication.

One additional topic for this post. As you recall from last week’s post, I attended a conference this past weekend at the University of Michigan Law School. I might write more about it later, but for now, I wanted to first say that the event itself, which was organized and run by the students of the Asia Law Society, was absolutely brilliant.

I’ve attended LOTS of conferences and seminars over the years, and these students got the job done in style. I suppose I shouldn’t be surprised that if you entrust an event to a bunch of very smart, well educated, law students (traditionally perfectionist, anal retentive types), you’re going to get good results.

Substantively, the conference dealt with Corporate Social Responsibility (CSR) and the Rule of Law. There were three panel discussions, concerning the environment, labor, and access to information. I was a speaker on the last panel.

The lunch speaker was Stanford Prof Chip Pitts, who I think basically gave us the introduction to his new textbook on CSR. It was an amazingly scholarly lecture. I don’t recall attending another lunch event where discussion included such disparate topics as Hugo Grotius‘ influence on international law and Google’s China strategy. By the end of the presentation, I was convinced that I needed to put together a CSR unit for my FDI class, which I plan on doing this Fall.

The panels had a great mix of academics, activists, businesspeople and legal practitioners. It was a pleasure meeting and speaking with them on a variety of issues.

With respect to my presentation, I discussed a bit of the content last week, so I won’t rehash. However, I would like to point out two interesting things. First, to be provocative, I did suggest that if China had given in to Google’s demands regarding censorship, it would have negatively affected Rule of Law in China.

Here’s what I meant. China has censorship rules. Google was supposed to follow them just like anyone else. If Beijing gave them a special pass, the public (I think justifiably) might not have appreciated the government giving special treatment to a huge, foreign multinational when other companies cannot just ignore the rules.

The other side of the argument, which I mentioned, is that the Rule of Law can be strengthened via free access to information. Scholars, activists, lawyers, the general public need information and a means of communicating with one another to push for institutional reforms and keep the system honest. In that sense, general liberalization of censorship is also good for the Rule of Law.

So which is preferable? I don’t think I really came down one way or the other, although I might have said that if Beijing changed the rules just for Google, then that would have been a poor decision.

Three of the speakers, all Americans, politely disagreed with my contention, suggesting I think that any win against censorship was worth it, even if Google received what appeared to be special treatment.

On the other hand, I noticed several of the Chinese students nodding their heads in agreement with me when I talked about special treatment. No surprise, I suppose, that I received different reactions based on nationality.

Second, and speaking of nationality, the conference reinforced something that I’ve seen over and over again when talking to Chinese students abroad. My presentation was meant to be the most fair, neutral treatment of the Google dispute as possible, an analysis of the legal situation without allowing my conclusions or comments to be prejudiced by normative concerns. In other words, I did not want my legal analysis “polluted” by my personal feelings about free speech or other outcomes.

That’s usually my standard approach at conferences (blogging, too, when I can), and it certainly isn’t remarkable. However, I consistently get very nice comments from Chinese students, who seem incredibly relieved that I didn’t simply engage in China bashing. (Just for the record, none of the other speakers were China bashers either.)

The favorable comments make me feel good, I suppose (I have a fragile ego, after all), but it really makes me wonder what sort of presentations/lectures/speeches these kids are used to attending (Chuck Schumer press conferences perhaps)? Is China bashing that common in the U.S. or are these students just super-sensitive? Maybe both.

This also made me realize that although there is a huge amount of foreign expat blogging on China out there, there really should be more (in English, on international-China topics) from Chinese expats overseas. This would fit in perfectly with what we’re trying to do over at China/Divide and provide a nice balance to our current stable of writers.

I’m therefore on a mission to find some good Chinese expat (or ex-expat) writers who can fit in with the China/Divide style and content. If anyone’s interested, please get in touch.

© Stan for China Hearsay, 2010. | Permalink | One comment | Add to del.icio.us
Post tags: asia law society, corporate social responsibility, Google, internet censorship, rule of law, university of michigan law school

2010 Symposium

Here’s a link to the info page, and here for the agenda.

Should be fun, although I will end up spending more time in transit than on the ground conferencing. Such is life.

I’ve already written several times now on the topic of Google and its travails with Beijing. In addition to everything I’ve posted on this blog, I wrote an inadvisably long rant on China/Divide in response to a protectionist Op/Ed posted on The Huffington Post (see below).

I’m planning on a couple of posts on the conference when I get back, but here are a few bullet points on Google as it relates to the conference topics:

• Google dispute has been touted as a CSR case study. Because it is a special case that will not be replicated with other MNCs, its value as precedent is minimal.
• Use of this dispute to push a protectionist agenda is inappropriate. This is not an anti-foreign investor stance by Beijing.
• Rule of Law would be undermined more if Beijing caved to some of Google’s demands than by being firm on censorship rules. This opinion will probably make me unpopular with the human rights crowd, but so be it.

Everything else pretty much flows from those points, so I’ll leave it at that for now. Depending on various and sundry issues related to free time and Wi-Fi access, I may be lurking on Twitter (@chinahearsay) or posting here or China/Divide over the next few days. I should get back to a normal schedule on all fronts by next Tuesday.

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Post tags: asia law society, censorship, csr, Google, rule of law, university of michigan law school

Of even more interest to me is the influence of public opinion on the judicial process, and here I would bring in the entire law enforcement infrastructure, which would include the police (PSB) and prosecutors (PP).

New pressures on the courts originate from the media, from protests, and from petitions, of which almost four million reached the courts in 2005. Activist lawyers, especially when their lawsuits generate unwelcome publicity, add to the pressures.

The Party-state wants the courts to act as safety valves, both to bring grievances to the attention of officials as well as to obtain remedies for the violation of rights. The courts respond to concern for social stability, but as government agencies they also contribute to strengthening the overall capability of the Party-state to expand its abilities to resolve grievances and deal with abuses, all within Party oversight.

So the Party has policy goals, the public has grievances, and the judges are supposed to fix the unpleasantness to ensure a Harmonious Society. This is a tall order. To make matters worse, a lot of the public pressure these days involves areas like criminal law, where you have specific incidents that become infamous via online popularization.

I have talked about several of the better-known cases on this blog in the past. Many of them involve suspected police abuse, protection of local officials who are accused of things like rape, and personal injury cases where compensation has been lacking for one reason or another.

What worries me about this phenomenon is that the Net allows for mob mentality. When “justice” is served, everyone is happy (not that I condone the process). But when the public gets the facts wrong (easy to do when all you have is rumor and speculation), the police and prosecutors can be treated quite badly through no fault of their own. And worst of all, judges feel a great deal of pressure to act towards a specific outcome notwithstanding the merits of that particular case.

Dangerous stuff. I hope to have more time in the future to write about this topic.

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Post tags: china judicial reform, political influence, rule of law, stanley lubman