Some Observations on the Conviction of Hu Jia

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

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

What's the Rush?

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

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

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

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

A Lenient Sentence?

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

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

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

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

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

Concluding Remarks

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


Related Links:

• Arrest of human rights activist shows China's determination to suppress protests
• Hu Jia Formally Arrested: Human Rights in Olympic Spotlight
• Media coverage of Dui Hua, with articles on Hu Jia's case

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

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

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

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

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

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

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

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

Hu Jia Formally Arrested: Human Rights in Olympic Spotlight

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

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

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

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

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

Commentary: Arrest of Human Rights Activist Shows China's Determination to Suppress Protests

After the December 27 detention of Chinese human rights activist Hu Jia, Dui Hua was invited by JURIST, a web-based legal news and legal research service, to comment on the significance of the detention in terms of China's approach to handling popular dissent. Dui Hua Executive Director John Kamm submitted a perspective on the topic entitled, "Arrest of human rights activist shows China's determination to suppress protests."

Commentary: Increased Rate of Political Arrests in China is Troubling

Following its November 27 statement on the rise in Chinese political arrests in 2006, Dui Hua was invited by JURIST, a web-based legal news and legal research service based at the University of Pittsburgh School of Law, to comment on the legal implications of the increase for China. Dui Hua Manager of Research and Programs Joshua Rosenzweig shared his perspective in a short commentary, "Increased rate of political arrests in China is troubling."

Will Death Penalty Review Overwhelm China's Supreme Court?

The following opinion piece, which appeared on November 21, 2007 in The Beijing News (新京报, Chinese original in PDF) and was then translated by Dui Hua, raises concerns about the future of China’s Supreme People’s Court. Faced with an "extremely large number" of death sentences to review, the SPC has been forced to take on hundreds of new criminal court judges, many of whom have lower qualifications than judges in the past. The author suggests this influx of less-qualified judges who focus on reviewing individual capital cases presents an obstacle to the SPC’s progress toward a more ideal goal, one in which high-court decisions contribute to the nation’s social and economic development. At stake, he warns, is the court's ultimate ability to ensure judicial authority.

It’s unclear how much consideration the author (who is very likely writing under a pseudonym) has given to the most obvious solution: a substantial reduction in the application of the death penalty in China. If, as he argues, the burdens of death-penalty review are hindering the efficiency of China’s legal institutions, this could be yet another argument in favor of further reducing the use of capital punishment.

A Cold, Hard Look at the Supreme Court’s
“Expansion of the Ranks” of Criminal Judges
By Ni Jian, Beijing (Scholar)

The Supreme Court is the symbol of justice and equality in the system of state power. Put plainly, the number of cases that make it to the Supreme Court should be strictly limited to only those that are essential, substantial, and that will have general relevance for lower courts hearing similar types of cases.

Registration for the 2008 central government civil service examination has closed, with the number and composition of available positions in government bureaus remaining steady compared to last year—but, I noticed the biggest change was in the Supreme People’s Court (SPC). According to its recruitment plan, this year the SPC will hire 120 “criminal judicial officers” and nine “civil and administrative judicial officers.” Compared to previous years, in which roughly 20 new hires were sought, distributed more or less evenly between criminal and civil tribunals, this is a fundamental change.

It should be pointed out that such a change was predictable. Since January 1, 2007, authority to carry out review of death sentences has returned to the SPC, and, in order to meet the work burden of the large number of capital cases sent annually for review, the court began its largest “expansion of the ranks” since the founding of the PRC, adding three criminal tribunals and several hundred judges. Except for judges picked from local courts and institutions of higher learning, all of these new judges are chosen based on the results of the civil service examination.

Following the tremendous shock caused by the She Xianglin and Nie Shubin cases, among others, the legal community and the general public both feel that the death sentence should be handled with utmost caution and that the power to review capital cases should only be exercised by the highest judicial institutions. This has developed into a kind of social consensus. However, the volume of cases that have flooded the SPC as a result will have a considerable impact on the composition of the ranks of judges at the court, as well as its style of judgment and overall character. This deserves more attention.

The Supreme Court is the symbol of justice and equality in the system of state power. Put plainly, the number of cases that make it to the Supreme Court should be strictly limited to only those that are essential, substantial, and that will have general relevance for lower courts hearing similar types of cases. For this reason, many countries employ a system in which courts decide whether or not to accept cases for appeal, based primarily not on considerations of the right and wrong of a particular case but on whether a decision in that case can solve a certain type of problem that is the focus of society. People expect that the extremely large number of death-sentence review cases will have no impact on the court’s ability to carry out its most important responsibility, “ensuring judicial authority.”

Under a Chinese court system employing four levels, two trials, and final judgments, only a very limited number of civil and administrative cases get to be heard by the SPC; death penalty cases will make up more than 90 percent of the total number of cases heard by the court. Consequently, the ranks of SPC judges will be dominated by the large number of criminal court judges, who also will make up the principal part of the [court’s] adjudication committee. This could have an impact on the Supreme Court’s character and functional effect. Historically in China, rectification of problem cases and review of death sentences, through institutionalized procedures such as the “autumn assizes” and “court assizes,” were always the primary responsibility of the central judicial body, whether it be the Board of Punishments or the Court of Judicial Review. However, looking at the last one or two hundred years of experience in the West, the Supreme Court’s role in promoting fairness in individual cases and supervising lower courts has gradually been marginalized in favor of a more active role in economic life. For example, the series of rulings on contract freedom by the US Supreme Court basically led to the development and rise of the entire country.

The authority of an institution is typically determined by the character, quality, and reputation of its members. Compared with the past, we’ve seen the educational requirements for SPC judges drop from a doctoral degree to a master’s degree—a concession perhaps necessary in light of the recruitment needs. Though I don’t believe that academic background counts for everything, I still feel that under China’s present circumstances it is necessary to preserve a high threshold for [positions on] the Supreme Court. Only by selection according to the most exacting standards can SPC judges be differentiated from other ordinary civil servants and garner society’s trust and approval.

We live in an interconnected world, where a perfectly normal systemic adjustment enjoying popular support can produce many indirect negative consequences. We should proceed with caution.

Leadership Transition Points to Possible Reduction in Police Power

[Edited 10/29/07]

The ascension of Zhou Yongkang (周永康) to the Chinese Communist Party’s Politburo Standing Committee, announced at the close of the 17th Party Congress, leaves an opening at the head of the Ministry of Public Security. This position will reportedly be filled by Meng Jianzhu (孟建柱), who previously served as the party secretary of Jiangxi Province.

This transition in leadership could significantly affect the power of the Ministry of Public Security and China's police. Holding a concurrent position on the Politburo, Zhou Yongkang was the most powerful public security minister in recent history. From this position, he ushered in new reforms designed to professionalize China’s police force—while also boosting the political leverage of the Ministry of Public Security vis-à-vis other bodies in China’s criminal justice system, particularly the courts and the procuratorate. The result has been a failure to move forward on key legal reforms that would limit police power over detention and the criminal investigation process.

When Meng Jianzhu takes over as public security minister, it will be from a far weaker political position than Zhou. Meng will presumably even have to wait until at least next spring’s plenary session of the National People’s Congress to become a member of the Standing Committee of the State Council (China’s cabinet). Analysts predict that Meng and future public security ministers will not be allowed to hold a concurrent position on the Politburo precisely in order to limit the power of the police among China’s legal institutions.

Zhou Yongkang is now expected to take over from Luo Gan (罗干) as head of the Central Party Political-Legal Committee, arguably an even more powerful position, since this body sets policies and oversees all the institutions in China’s legal system. However, it is yet unclear whether Zhou—who has long focused on the importance of maintaining social stability—will continue to favor the extra power of the police from his new post. It is possible that, in fact, Zhou will be forced to pay more consideration to greater balance among the institutions in the criminal justice system, which would mean more authority and oversight by the courts and procuratorate. If so, it would be a welcome step toward establishing a more just and credible legal system for China.

Related links:

• China appoints new minister, party chiefs, China Daily, October 29, 2007.
  


• 孟建柱證實接掌公安部 非政治局委員出任 降低權重 ("Meng Jianzhu confirmed to take over Ministry of Public Security, will wield less weight as non-member of Politburo"), Ming Pao (Hong Kong), October 25, 2007, in Chinese only [via news.sina.com.tw].


• China oilman turned top cop wins place in elite, Reuters, October 22, 2007.