Jerome A. Cohen. The Ai Weiwei Case: So Far, So Bad. SCMP (South China Morning Post)

April 27, 2011

It is now twenty-three days since artist-activist Ai Weiwei’s detention by Beijing police. Yet foreign media interest has not flagged, despite the silence of the Chinese legal system and Chinese government efforts to manipulate information.

Ai’s family still has not received the ordinarily-required notice of detention telling where he is detained and why. There has been no attempt by police to justify this failure on the only ground permitted by law — that such notice “might hinder their investigation”. Nor have the police claimed that Ai’s case falls within the narrow exceptions prescribed by law for extending a detained suspect’s detention beyond seven days without their seeking prosecutors’ approval.

Ai’s would-be legal advisors should have been permitted to meet him weeks ago, right after detention. That is what the law requires except when the police declare that the case involves “state secrets”, which they have not. Yet police intimidation appears to prevent access to counsel even now. One lawyer was himself illegally “abducted” for several days after his discussions with Ai’s family. The other, by keeping himself incommunicado, has thus far avoided the abduction, prosecution or illegal house arrest that so many other human rights lawyers have recently suffered. Without active defense counsel, there is no hope of making police and their thugs accountable to other officials including prosecutors, judges or legislators, not to mention the public. Although in ordinary cases even Communist Party leaders may have difficulty controlling local police, in prominent cases such as Ai’s one can assume that police follow high-level party instructions.

Meanwhile, Ai’s family and friends have sought to interpret and refute whatever vague allegations Chinese officials have unfairly leaked to the press in their efforts to diminish the strong condemnations by foreign governments, media and art and human rights groups that the case has aroused. An early commentary in the party-controlled newspaper Global Times seemed to confirm the widespread belief that Ai is being punished for his increasingly daring public challenges to the party’s arbitrary rule and restrictions of freedom. This soon was overtaken by a report in the Communist-connected Hong Kong  newspaper Wen Wei Po claiming that Ai was being investigated for “economic crimes”, bigamy and pornography and that he “has begun to confess”. The official Xinhua news agency confirmed that the investigation was focusing on unspecified “economic crimes”, as did the spokesperson for the Ministry of Foreign Affairs at a subsequent press conference. Although ten of the eighteen questions asked at the press conference were about Ai, the answers yielded little but were nevertheless entirely omitted from the official transcript. A later Xinhua dispatch embarrassingly accused Ai of plagiarism without checking its facts.

Since then we have been treated to a broad range of rumors and speculation. The most sensational, purporting to come from a disaffected Xinhua journalist, claimed that, after having been tortured and shown a video of the even more terrible police abuse of the courageous and long “disappeared” lawyer Gao Zhisheng, Ai confessed to tax violations in order to escape Gao’s fate.  Another report, from a foreign source close to certain Chinese officials, suggested that Ai may yet be investigated for involvement in one of Shanghai’s many illegal land transactions.

Only three things can safely be said at this non-transparent juncture, as we await the crucial decision whether or not Ai will be formally arrested. One is that now the investigation is indeed focusing on possible income tax violations. Although we do not know why the police continue to detain Ai’s associate, former journalist Wen Tao, and probably several other employees, we do know that staff members, Ai’s accountant, his business partners and his wife were interrogated by tax officials as well as police.

Second, it also seems clear, whatever the evidence being assembled about tax evasion or other charges, that this was not the motivation for Ai’s detention. This case started out on a “detain first and look for justification later” basis. If evidence sufficient to sustain a conviction is found, the case will become a preeminent example of what criminal justice experts call “selective prosecution.”  Ai has been singled out from a large number of potentially suspected offenders not because of the magnitude of any alleged economic crimes but because of his creative and eye-catching political challenges to the regime and his defense of human rights. Although China is rife with economic crimes that reach the highest rungs of party, government and courts, the decision whether or not to detain and investigate someone suspected of such crimes is often a political act that is influenced by more than legal considerations. This is true to some extent in most countries, but China’s situation is extreme.

The business and tax activities of Chinese leaders’ and their families are insulated from criminal investigation unless a leader loses a major power struggle. So too are the activities of many business executives unless they cross the politically powerful. In the rare instances when favored executives are caught in tax offenses, they sometimes avoid detention and criminal conviction, even if they failed to pay huge amounts of tax; they have been quietly allowed to settle their liability by paying at least a portion of what the tax authorities claim plus an occasional fine. Thus, even if the police find significant valid evidence against Ai, there would be precedent for terminating the investigation on a similar basis and releasing him.

Finally, however the investigation phase of this case ends, it has already demonstrated once again how far China’s police are not only from adhering to the standards of fair criminal justice enshrined in the International Covenant on Civil and Political Rights, which the government signed in 1998 but has yet to ratify, but also from adhering to their own country’s criminal procedure law. If a famous figure like Ai Weiwei can be so blatantly abused in the glare of publicity, what protections do ordinary Chinese citizens receive from their police?

This article was published with some editing on April  27, 2011 in the South China Morning Post, under the title, “Out of Reach.”  It was published in Chinese in the China Times (Taiwan) on April 28,2011. (简体中文)(繁体中文