Ling Wancheng and the Party’s Drive to Rule the Law
Chinese authorities announced a number of apparently encouraging legal reforms this week, promising to boost legal aid, regulate corruption investigations, and crack down on illegally extended detentions. At the same time, however, the Party is aggressively moving to secure its monopoly on the legal process through prosecutions, intimidation, and harsh new laws.
Legal aid agencies processed more than 1 million court cases on behalf of low-income or otherwise disadvantaged people nationwide last year, including 990,000 civil lawsuits and 240,000 criminal cases, the ministry reported. That caseload reflected a 14 percent increase over the previous year’s demand – a growth rate that has held steady every year for the past five years.
What’s troubling officials is that the government’s 20-year-old legal aid system has failed to keep up with the burgeoning demand for its services. And for years, they have heard academics and voices in the legal community cite concerns over a widening gap between public demand for and the available supply of legal services, especially lawyers.
In a major step toward addressing these and other soul-searching issues, on June 29 the cabinet released a directive that sets a reform course. It includes measures aimed at increasing the ranks of available lawyers, expanding the system’s coverage area and improving the quality of services.
Supporters of the reform plan call it a much-needed reboot for an overloaded and under-funded system. Other experts, however, are approaching the proposal with caution, arguing that its success or failure will larger depend or how specific reforms are implemented at courthouse and local government levels, and how well they are received by the public. [Source]
Investigators will be suspended and “dealt with according to discipline and the law” if the subjects of their inquiries escape, are injured, or commit suicide because of their “unlawful” or “severely irresponsible” acts, it said in a statement on its website.
Prosecutors are also banned from accepting money from companies under investigation, unreasonably imposing coercive measures, or obtaining confessions through torture, according to the statement.
“The eight bans are prosecutors’ code of conduct in their participation in the fight against corruption,” it said.
“They will help build an anti-graft system that ensures justice, transparency and standards, and improve the effects and credibility of the anti-corruption campaign.”
It vowed “zero tolerance” over violations of the rules, warning prosecutors and the police that the bans were “high voltage cables” that no one should dare to touch. [Source]
And at South China Morning Post, Nectar Gan notes more rules from the SPP to address unduly extended detentions:
Under the regulations, procuratorial officers will issue rectification notices to the police if cases of prolonged detention are uncovered at detention centres. On receiving a notice, police should within seven days release the suspects or apply for an extension to keep holding them.
The procuratorate will monitor police to ensure they fast-track cases of suspects being held for over five years without being sentenced.
[…] Joshua Rosenzweig, a Hong Kong-based independent human rights researcher, said the law already had a lot of flexibility in detention and trial periods.
“The law gives them so much leeway to extend deadlines set by the law basically by just asking for it without any institution to scrutinise whether they are justified,” he said.
“These guidelines are addressing the problem in a superficial way. The deeper problem requires not only a revision of the Criminal Procedure Law, but a reform of the legal system to allow an independent judiciary.” [Source]
Following the Party’s rule of law-themed Fourth Plenum last November, New York University law scholar Jerome Cohen welcomed the possibility of “important, if limited […] improvements in China’s legal system.” But in a discussion at ChinaFile this week, he wrote that his former optimism for such legislative improvements has evaporated after the “Black Friday” crackdown, in which more than 230 rights lawyers and others have been detained or questioned with nearly 30 still missing or in custody. The crackdown demonstrates the Party’s vision of rule of law as, in Cohen’s earlier words, “the pre-eminent expression of central power”: as a knife, and not a shield.
The ChinaFile conversation’s topic is China’s request for the return of Ling Wancheng, the younger brother of former Hu Jintao aide Ling Jihua, who is now under investigation for corruption. China and the U.S. have no extradition treaty; nor, Cohen argues, is such an agreement conceivable given the current deterioration of China’s already substandard legal system:
There is a reason why the U.S. and most democratic nations do not have extradition treaties with China. That reason is China’s criminal justice system, which, twenty-six years after the Tiananmen tragedy, has still failed to meet the minimum standards of international due process of law. Indeed, since Xi Jinping’s assumption of power, despite a plethora of hymns extolling the rule of law, in practice China’s criminal justice system has been steadily marching in the wrong direction, and this is no state secret or development known only to Chinese and foreign legal specialists.
[… Instead of] practice gradually coming to conform to legislation, legislation is being revised to conform to practice. The National People’s Congress is enacting a comprehensive legislative agenda designed to confirm China as a de facto garrison state administered by the police and other domestic security forces. Hence the new National Security Law [background], the draft Cybersecurity Law [background], the draft Counter-Terrorism Law [background] and the draft Foreign NGO Management Law [background] designed to terminate exchanges with Western organizations that preach such “hostile” concepts as constitutionalism, independent judges and unfettered defense counsel. As part of this legislative assault, the Criminal Law itself is about to be amended so that any lawyer bold enough to wage a vigorous defense in court can easily be sentenced to three years in prison, marking the end of his career. […]
We also must acknowledge that, however disappointing and dangerous this new round of legislation may be, in China today laws nevertheless continue to be secondary to lawlessness, as the current attack on lawyers demonstrates. To be sure, in individual cases Chinese defense lawyers have frequently been subject to kidnapping, torture, illegal detention, arrest and prosecution, loss of employment, disbarment and many other forms of intimidation, not only against themselves but also their families. But what is distinctive in recent weeks is the uninhibited attack, at the same time in many Chinese cities, upon hundreds of rights lawyers and their staff, whether or not they are at present involved in controversial cases. This is an effort to destroy any remaining possibility of waging a vigorous defense at trial or of challenging government in the broader arena of public opinion. [Source]
Chinese Human Rights Defenders highlights two proposed Criminal Law amendments that would restrict lawyers’ activities, along with others expanding crimes of “disrupting social order,” prohibiting advocacy of vaguely-defined terrorism, and criminalizing businesses’ failure to cooperate with online censorship.
• Disrupting court proceedings (Amendment 36 to Article 309): The draft law would amend the existing article to give authorities broad powers to interpret speech in court as “insulting,” “threatening,” or “disruptive,” and it includes a vague provision prohibiting “anything else that seriously disrupts court proceedings, where circumstances are serious.” These changes could effectively criminalize lawyers’ speech during trials if they challenge court procedures or treatment of their clients, which would become a “crime” punishable by up to three years in prison. Chinese authorities through state media have attacked the professionalism of several lawyers detained in the ongoing crackdown on rights lawyers, claiming they had exhibited “unruly behavior,” “disrupted” court order, or “insulted” judges. The amendment, if passed, would provide legal rationale to criminalize the speech of lawyers when they defend clients’ rights at trial.
• Disclosure of case information (Amendment 35 to Article 308): The draft law adds a new sub-article on prohibiting “judicial personnel, defenders, agents ad litem or other litigation participants” from disclosing case information “that should not be disclosed in a case that is not tried in public in accordance with law,” punishable by up to three years’ imprisonment. This provision may increase abuses of clients’ due process rights that already occur with secret detentions and closed-door trials. Lawyers have often challenged law-enforcement and judicial authorities for citing “national security concerns” as a pretext to deny individuals involved in “sensitive cases” their rights to fair and open trials, access to legal counsel, and family visits. This new sub-article would allow authorities to criminalize challenges made by lawyers over abuse of clients’ due process rights. [Source]
An analysis at the Dui Hua Human Rights Journal focuses on other aspects of the draft amendments including “death penalty reform and the redefinition of punishments for protestors and ‘cult’ members once commonly subjected to the now defunct system of reeducation through labor (RTL).” RTL was abolished in 2013, but Dui Hua notes that “with this tool of maintaining stability no longer available, the Criminal Law is being adapted to handle many of the kinds of cases that were previously dealt with through RTL. […] As Tsinghua University law Professor Zhou Guangquan recently noted, ‘Criminalizing such acts will make it harder to carry out supervision and check that local party and government bodies are governing in accordance with the law.’”
Another form of detention that has been widely used in the Black Friday sweep is residential surveillance, a perhaps innocuous-sounding form of confinement which in fact allows suspects to be held outside the relative safety of the formal criminal detention system. CHRD reported on Wednesday that lawyer Wang Yu, a central figure in the crackdown, has now also been placed under residential surveillance. George Washington University’s Donald Clarke points out a notice of residential surveillance for lawyer Xie Yuandong, who is accused of “stirring up trouble.” He describes Xie’s case as “a particularly glaring example” of the authorities’ disregard for the law:
The problem with all of this is that under Article 73 of the Criminal Procedure Law, which reflects a 2012 amendment designed to reduce police abuses of this procedure, “residential surveillance at a designated place” may be imposed on a suspect only for three crimes: “Where there is suspicion of the crime of endangering national security, the crime of terrorist activities, or the crime of receiving bribes in serious circumstances, and implementing residential surveillance at the suspect’s residence could hinder the investigation, then upon approval by the next higher people’s prosecutor’s office or public security authority, residential surveillance may be implemented at a designated place of residence[.]” (对于涉嫌危害国家安全犯罪、恐怖活动犯罪、特别重大贿赂犯罪，在住处执行可能有碍侦查的，经上一级人民检察院或者公安机关批准，也可以在指定的居所执行。)
Thus, placing Xie in residential surveillance at a designated place is an open-and-shut violation of the Criminal Procedure Law and is nothing more than kidnapping. Of course, the whole problem could easily have been avoided had the authorities had the wit to fill in the blank for the suspected crime with one of the eligible ones. But this is exactly the point: the law means so little to them that they can’t be bothered to understand or follow it even when it would be easy to do so. [Source]
International reactions to the crackdown now include a petition to China’s ambassador to the U.S. Cui Tiankai, organized by Amnesty International. Thai activists delivered another petition to the Chinese embassy in Bangkok this week, handing it to a man in a panda suit outside in the absence of any consular official willing to receive it.
At China Law & Policy, Elizabeth Lynch suggests that the U.S.’s official response should be to showcase the potential benefits of relinquishing a monopoly over legal power:
The Chinese government’s unprecedented and alarming attack on its weiquan lawyers comes only weeks before President Xi Jinping’s first state visit to the United States. Many have called on President Obama to cancel the visit because of the detention of these lawyers. But that would be a mistake. Instead, President Obama should take Xi’s visit as an opportunity to highlight the United States’ commitment to public interest lawyering by inviting many of the country’s various public interest lawyers to a meeting with President Xi. And not just the American Civil Liberties Union and the Center for Constitutional Rights, two organizations that repeatedly sue the federal government for its civil rights transgressions.
[…] Affordable housing, mental health issues, disability discrimination, these are all issues that China is currently grappling with and is why President Obama should highlighting the role that United States legal services attorneys have played in bringing these issues to the forefront and protecting these individuals’ rights in this country. Even though these cases appear to challenge the government’s authority, in the end this approach is necessary to provide an escape valve for growing societal pressures.
[…] State visits are highly choreographed affairs where words and actions matter. Too often this means that words that directly criticize are not said. But here, by inviting Xi Jinping to a session with U.S. public interest lawyers and their supportive corporate law brethren, such as Ms. Raskin, President Obama could get the message across that the Chinese government’s current behavior is not just in violation of its own law and international law, but is also self-defeating. Individual claims must be heard; this is why the United States and every state government continues to fund legal services organizations that directly challenge them. [Source]
As for the removal of Ling Wancheng, who according to Mingjing News founder Ho Pin “may have knowledge of more government secrets than anyone who has fled China since 1949,” the U.S. government’s hands may be legally tied. At Fortune, Claremont McKenna College’s Minxin Pei suggests that there are lessons for Beijing here, too:
Since Ling Wancheng is privy to secrets American intelligence agencies would die for, he is simply too valuable to give up. More importantly, legally and procedurally, returning him to China is far more complicated than Beijing would like to acknowledge. Unlike China, where the Communist Party is the law and defendants have no meaningful rights once they are in the custody of the police, the U.S. government is not above the law. Since Ling is now on American soil, he is protected by the same rights granted to foreigners temporarily residing in the U.S. With his wealth, Ling presumably can afford the best lawyers to make a strong case for political asylum on the ground that the Chinese government’s case against him is politically motivated.
Ling Wancheng’s case could cloud the pending state visit by Chinese President Xi Jinping to Washington in September. Because Xi himself has given high priority to extraditing fugitives abroad as part of his anti-corruption campaign, the presence of Ling Wancheng in the U.S. will not only be an embarrassing reminder of the limits of his power, but also deprive him much-needed leverage in prosecuting Ling Jihua, who may choose to defy the party rather than plead guilty and beg for leniency, as most of his fallen comrades have done.
However, Beijing should not be disheartened by this likely setback. If there is one lesson to be drawn from the Ling Wancheng case, it is the urgent need to reform China’s legal system and respect the rule of law. If China’s criminal justice system had the same transparency and protection of the rights of defendants as in most developed countries, Western countries would be more cooperative in returning Chinese fugitives.
[…] The greatest irony in the Ling case is that it is China’s lack of rule of law that shields fugitives like him abroad. [Source]
[… T]he clampdown under Xi still represents a disheartening turn for those who had hoped a period of greater relaxation was on the horizon. “I haven’t seen it so bad since the 1980s,” said Tim Cheek, a historian from the University of British Columbia in Vancouver who is an expert on Chinese intellectual life.
[…] “I didn’t see it coming and I don’t think many of us did. I thought the party would become more latitudinarian and more flaccid [under Xi]. But this is a real muscle-up to grandpa’s way,” said Cheek.
[…] “[Liberal academics] are very depressed. They see no way of stopping the logic and the direction of what Xi Jinping is doing because he is shutting down civil society – or putting very strong constraints on it – and they are hunkering down. They feel that what we are seeing now is what we are going to get for the next 10 years, which just stuns me. They think this is a long-term situation.”
[…] “We are all trying to figure out what it means,” he added. “The bad news is it is getting worse. There’s more supervision. There is more pressure. The good news is that my Chinese colleagues respond in a way that they have for decades, which is: they cope and they dissemble and they bide their time and they phrase things in another way. So I don’t see them giving up.” [Source]