Criminal “justice” in China

Last March, senior Communist Party official Ren Zhiqiang criticized President Xi Jinping’s handling of the coronavirus in Wuhan.  Writing in his social media account to tens of millions of followers, Ren said he hoped the party would “wake up from ignorance” and oust the leaders getting in its way. “I see not an emperor standing there exhibiting his new clothes,” he went on, “but a clown who stripped naked and insisted on continuing to be an emperor.”

Soon after calling Mr. Xi a clown, Mr. Ren disappeared.  A few weeks later, an official statement was released reporting that he was being investigated, but the announcement “did not provide Mr. Ren’s whereabouts, give details about the status of his case or make mention of [his social media post].” 

China experts assumed that Ren had fallen victim to “shuanggui,” a system which NYU Law Professor Jerome Cohen described as allowing officials “to indefinitely confine Party members incommunicado in secret… facilities. There, for as much as a year or two, the detained members have undergone investigation and have been interrogated [including]… torture… until their captors decided what to do with them…  So feared has been this secret process of indeterminate length that some who have been summoned have committed suicide rather than endure it.”

Note that the harsh realities of shuanggui apply only to the 92 million members of the Communist Party.  As Richard McGregor has noted in his book The Party (p 137)  “Senior Party members… cannot be arrested by civilian law enforcement bodies… until… allegations have been investigated by the Party first.”

In Mr. Ren’s case, the initial investigation was completed in July.  He was expelled from the Communist Party for “‘smearing the party and country’s image’ and resisting the party’s investigation into him — phrasing that suggests he has refused to admit any wrongdoing…”

Next, Mr. Ren will almost certainly be sent to the criminal justice system for trial. 

The good news about China’s criminal justice system is that there is one.  When Mao Zedong was in power (1949 – 1978), “the legal system was attacked as a counter-revolutionary institution and the concept of law itself was not accepted. Courts were closed [and] law schools were shut down.”  But since Mao’s death there has been a gradual attempt to create a fair and transparent criminal justice system.  For example, in 2012, the national Criminal Procedure Law was revised to ban the use of illegally obtained evidence in trials.  Limits were also set on how long the police can detain civilian suspects:  three to 30 days, depending on the type of offense. 

The bad news is that, according to Professor Cohen, the police have “demonstrate[d] their mastery of the art of distorting legislative attempts to curb their arbitrary powers…  they routinely allow themselves 30 days whenever they choose, regardless of the circumstances of the case.”

In addition, Cohen continued, for cases involving national security, terrorism or bribery, police frequently add “‘residential surveillance’ in a police-designated incommunicado location on suspects for up to six months… before deciding whether to treat them in accordance with the detention time limits prescribed for ordinary criminal cases…  in some cases that they regard as unusually important or difficult, [police] may repeat the initial extraordinary six-month detention.”    

This is one of many examples of the gap in China between the theory of law and its practice.  Another can be seen the fact that the practice of “re-education through labor” was banned in 2013.  For the half-century or so before that “it had empowered the police, without meaningful opportunity for defense or review by other official agencies, to detain people in the equivalent of a prison or a labor camp.”  However, the one million Muslim Uighurs and others who are currently being held in labor camps know that in fact “re-education through labor” is still very much alive and well.

So, put it all together, and Mr. Ren’s future prospects are not looking bright. The evidence collected in his investigation will next be turned over to civilian prosecutors who will decide whether the evidence is sufficient to proceed to trial. 

When it goes to trial, there will be no jury, no right to remain silent, and there may not even be a defense lawyer.  A panel of judges will ask all the questions. According to a website for defense lawyers compiled by International Bridges to Justice “Witness statements are merely read aloud in court, depriving either the prosecution or the defense of the opportunity of cross-examination.”  Defense lawyers “are rarely allowed by police to collect evidence or to conduct any other activities that would help [them] develop a solid defense case.”

Altogether, “Lawyers often play a small role in Chinese trials… [they] rarely dispute anything that the prosecutor alleges against the defendant or actually defend the client…” Their role is “usually limited to asking for more lenient sentences…”

The result of all this is that, as noted in an article entitled “China’s deeply flawed criminal justice system,” the conviction rate in China’s criminal courts is 99.9%.

With a rate that high, you might guess that not everyone who is convicted in China is actually guilty.  Of course you’d be right, but you’d have a tough time proving it.

In one highly publicized case, a man confessed under torture to killing his wife and was sent to prison.  Eleven years later she showed up alive.  This man was released, but in a second well known case, the evidence of innocence came too late.  In 1995, 21 year old Nie Shubin was convicted of murder, then executed.  His family fought for years to clear his name, to no effect.  Finally, in 2005 another man admitted that he had committed the crime.  But it still took another 11 years after that for lawyers, journalists, and Nie’s family to officially clear his name. 

Like most red blooded Americans, I am appalled by these examples.  This criminal justice system clearly violates the United Nation’s Universal Declaration of Human Rights:  “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

Many US politicians have taken up this cause, including US Secretary of State Mike Pompeo who recently said that: “We, the freedom-loving nations of the world, must induce China to change …” 

Good luck with that.

As I’ve been emphasizing since the first post in this blog, cultural differences often lead Chinese citizens to see the same facts in a very different way from Americans.

As Harvard Professor Graham Allison has noted “Chinese culture does not celebrate American-style individualism… Indeed, the Chinese term for ‘individualism’—gerenzhuyi—suggests a selfish preoccupation with oneself over one’s community…  For China, order is the highest value, and harmony results from a hierarchy in which participants obey Confucius’ first imperative: Know thy place… China’s equivalent of ‘give me liberty or give me death’ would be ‘give me a harmonious community or give me death.’”

In mainland China, most citizens seem to care less about liberty than about nationalism and the economy.  In their view, it is “social stability… [that] enabled China to lift hundreds of millions of people out of poverty in a mere few decades, generate huge economic growth, and peacefully re-establish China as a major power among nations.”  In addition, “there have been intense campaigns against what have been condemned as ‘Western’ or ‘universal’ legal values, such as… judicial independence, the separation of powers, [and] political and civil rights.”   

As China becomes more powerful, the US would be well advised to put less effort into exhorting Chinese politicians to think and act like Americans, and more effort into protecting world peace.  Once the State Department has world peace under control, then they can decide whether to encourage Chinese citizens to think and act more like Americans.