Recently a series of high-profile wrongful convictions in China have undermined public confidence with the criminal justice system and the official stress on ‘ruling the country by law’. This article aims to further the scholarship on wrongful convictions in China by investigating the characteristics of 141 erroneous convictions (206 defendants) in which the defendants are declared factually innocent by a court. These cases allow an examination of the direct contributing factors (such as mistaken eyewitness identification and forensic errors) and underlying political factors (such as the form of political–legal work as led by the Party/State and the political importance in maintaining social stability) for wrongful conviction in China. The analysis enables us to develop more effective countermeasures against wrongful conviction in the Chinese context.
January 23, 2018
Rimsky Yuen, Hong Kong’s third Secretary for Justice, stepped down in early January. He leaves his department, and the city’s reputation for rule of law, markedly worse than they were when he took office in July 2012.
According to the Department of Justice’s website, the Secretary for Justice’s role is to act as “guardian of the public interest in a wider sense.” Yet Yuen’s tenure has been marked by attempts to wield the law against political opponents, a refusal to defend the courts from unfair and racially-charged criticism or Beijing’s attempts to strip them of their power, and a steady attack on the foundations of Hong Kong’s constitutional order. Far from fulfilling his constitutional duty to speak up for the rule of law in Hong Kong, he has been a willing collaborator in Beijing’s sustained campaign to undermine it.
The inﬂuence of Chinese public opinion on individual criminal case decisions is a phenomenon that has received a great deal of attention in China and around the world. Some commentators have lauded the phenomenon as empowering the public to seek justice in Chinese courts. Others have expressed concern that following public opinion may achieve justice in an individual case but does little to improve the justice system.
As President Donald Trump visits China, the Chinese government wishes that billionaire fugitive Guo Wengui would follow suit and board a plane to Beijing. For months, he has regaled the world from his luxury apartment in Manhattan with stories of high-level corruption among China’s elite. Untangling the truth of Guo’s claims is complex, but what the Chinese government wants is simple: to have some of its citizens, especially Guo, returned to China to face a long list of criminal and civil charges.
The gulf between legal systems across the Taiwan Strait is far wider than a hundred miles. Last month, Lee Ming-che — a Taiwanese citizen and human-rights activist — pleaded guilty to subversion charges in China for peacefully expressing political opinions. Today he remains in custody awaiting a decision on his punishment. Lee’s case has heightened already strained cross-strait relations. It has also laid bare the increasing divergence between China and Taiwan with respect to protecting human rights.
April 20, 2017
A Taiwanese Man’s Detention in Guangdong Threatens a Key Pillar of Cross-Straits Relations
Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.”
Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei?
Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.
Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.” Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei? Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.
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June 06, 2017
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April 28, 2017
China convicts rights lawyer Li Heping of 'subversion of state power'
Li, once told that China considered him ‘more dangerous than Bin Laden’, sentenced in secret trial to three years in prison with a four-year reprieve
A respected Christian human rights lawyer has been convicted of “subversion of state power” at a secret trial in China, almost two years after he was first detained in a sweeping crackdown.
Li Heping was sentenced to three years in prison with a four-year reprieve, the court in the eastern city of Tianjin said on an official social media account, meaning he should be released but could be arrested and jailed at any point.
The trial was held behind closed doors on Tuesday because “the case involved state secrets”, the court said, but was only announced along with the verdict on Friday.
'I want to rescue my dad': children's heartbreak for the lawyers China has taken away
Li was swept up in a nationwide crackdown on rights lawyers and activists in July 2015, where police detained or questioned about 250 people. Since assuming power, China’s president, Xi Jinping, has launched a new wave of attacks on activists and the lawyers who defend them.
Li’s case drew attention around the world, and EU officials, as well as the embassies of 11 countries, called for his claims of torture while in custody to be investigated. His wife has said authorities used electric shocks on him.
“A suspended sentence does not mean he’s free until we actually get to see him and he’s allowed to speak freely, and given what we’ve seen in the past that probably won’t happen,” said Eva Pils, a professor at King’s College London and longtime friend of Li.
“It was a secret trial so we don’t know what state he is in,” Pils added. “In addition to our usual concerns about torture and physical health, I’m worried that this entire process may have robbed him of his mental health, especially after what they’ve apparently done to his brother.”
Li’s younger brother, Li Chunfu, emerged from 500 days of secret detention in January and was later diagnosed with schizophrenia, according to his family.
Li became well known for defending the disenfranchised, including Christian house churches, victims of forced evictions and free speech advocates. He worked within the scope of China’s legal system, rather than taking to the streets in protest. One Chinese security agent reportedly once told Li that the state considered him “more dangerous than Bin Laden”.
Although Li is likely to be released in the coming weeks, he has already spent more than 20 months in detention. At least 11 activists who received suspended sentences disappeared shortly after they were released, with some forced to undergo months of political education classes before being placed under house arrest by local police, according to human rights groups.
The court’s verdict was seen as a warning to other activists, and included a catalogue of vague charges, without citing any specific examples of illegality.
“The court ruled that since 2008, the defendant Li Heping repeatedly used the internet and foreign media interviews to discredit and attack state power and the legal system,” the court said. The court also accused Li of accepting foreign funds and employing paid defendants.
A lawyer hired by Li’s family to defend him was rejected by authorities and he was ultimately given a government appointed lawyer, an increasing trend in political prosecutions.
The conviction came on the same day that another civil rights lawyer, Xie Yang, was set to go on trial, but it was later cancelled.
Read the full article here.
May 8, 2017
China Court Says Lawyer Retracts Torture Charge; Wife Calls Trial a Farce
Government uses social media to highlight confession of attorney who defended activists
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June 5, 2017
China activists fear increased surveillance with new security law
(Refiles this May 25 story to add "Chinese" to advocacy group's name in paragraph 13.)
By Christian Shepherd
Chinese activists say they fear intensified state surveillance after a draft law seeking to legitimize monitoring of suspects and raid premises was announced last week, the latest step to strengthen Beijing's security apparatus.
Half a dozen activists contacted by Reuters say they already face extensive surveillance by security agents and cameras outside their homes. Messages they post on social media, including instant messaging applications like WeChat are monitored and censored, they said.
The draft of a new law to formally underpin and possibly expand China's intelligence gathering operations at home and abroad was released on May 16.
However, the law was vaguely worded and contained no details on the specific powers being granted to various state agencies.
"State intelligence work should...provide support to guard against and dispel state security threats (and) protect major national interests," the document said.
The law will give authorities new legal grounds to monitor and investigate foreign and domestic individuals and bodies in order to protect national security, it said.
Public consultation for the draft ends on June 4. It is unclear when the final version may be passed.
Hu Jia, a well-known dissident, said the release was met with fear and despair in his circle of reform-minded activists, where it was seen as a sign of strengthening resolve in the ruling Communist Party to crush dissent.
"Before, the party acted in secret, but now they have confidence to openly say: 'We are watching you'," Hu told Reuters.
"The law is also partly to frighten people ahead of the 19th Party Congress; to tell them to be careful, to be quiet," he added. Hu was referring to the once in five years congress of the Communist Party likely to be held in October or November in which President Xi Jinping is likely to further cement his hold on power by appointing allies into the party's inner core.
Read the entire article here.
May 31, 2017
Margaret K. Lewis is a professor of law at Seton Hall University School of Law and a Fulbright research fellow at National Taiwan University School of Law.
As the world reflects on this week’s anniversary of the Tiananmen Square protests and subsequent violent crackdown by the PRC government, it is worth contemplating what President Donald J. Trump would do if faced with a similar situation. When asked about Tiananmen during the campaign, Trump said he was not “endorsing” China’s response, but he called the demonstrations a “riot.” Would President Trump see a riot or a massacre if the events of June 4, 1989, were replayed today?
The U.S. bombing raid in April that President Trump linked to the Syrian government’s use of chemical weapons against civilians suggested that human rights would be prominent in shaping foreign policy. Yet President Trump’s remarks during his recent visit to Saudi Arabia and praise for leaders with deeply problematic human rights records, such as Egyptian President Abdel Fattah al-Sisi, caution otherwise.
Specifically regarding China, in March 2016 the Obama administration joined eleven other countries in issuing a rare statement expressing “concern[ ] about China’s deteriorating human rights record” and calling on China “to uphold its laws and its international commitments.” The United States was noticeably absent a year later when eleven countries—including Canada, Australia, and the United Kingdom—sent a letter to the Chinese government expressing “growing concern over recent claims of torture and other cruel, inhuman or degrading treatment or punishment in cases concerning detained human rights lawyers and other human rights defenders.”
The Trump administration is admittedly not breaking the mold: U.S. government policy towards China has always been, at least to some degree, pragmatic. President Jimmy Carter entered office with human rights as a cornerstone of his foreign policy. Nonetheless, even he recognized the United States’ many interests when dealing with China and normalized relations. President George H. W. Bush suspended military contracts and technology exchanges with China following the Tiananmen Square massacre. President Bill Clinton, however, restored China’s most favored nation trading status four years later and quickly relaxed rhetoric that China must make significant progress towards conforming with international human rights standards.
While the tension between principles and pragmatism is not new in U.S. policy towards China, the current dismissive attitude towards human rights is jarring. The past four months indicate that policy decisions based on immediate economic and security calculations will prevail over long-held human rights values. As I have argued elsewhere, this is a mistake. Addressing human rights in both a principled and pragmatic way requires not just stating that human rights matter in the abstract but also articulating an integrated, executive-branch-wide plan for how human rights will be raised in various contexts.
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A broken lawyer and a hawkish judge cast deep pall over China’s legal system
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BEIJING — For 500 days, Li Chunfu, once a lively and tough human rights lawyer, was kept in secret detention by China’s Communist Party. When he was finally released on Jan. 12, his wife was so shocked she could hardly believe her eyes.
Her 44-year-old husband was a thin, pale and sick man, Bi Liping said, a fearful and paranoid person who seemed to have been broken by the system.
A Beijing hospital soon gave him a tentative diagnosis of schizophrenia.
Li was one of 300 lawyers and advocates who were rounded up in a crackdown in July 2015. Most were soon released, but two have been sentenced and four remain in detention.
In statements to the China Change website, relatives and fellow lawyers said Li had been severely tortured and drugged during detention.
But his story is not the only one to have cast a shadow over the rule of law in China this month.
In a remarkable speech two days after Li’s release, the chief justice of the country’s Supreme Court told provincial judges to resist “erroneous” Western ideals of judicial independence, constitutional democracy and the separation of powers.
“One needs to have a clear-cut stand and dare to show the sword against them, to struggle against any erroneous words and actions that deny the leadership of the Communist Party, or slander the rule of law and the judicial system of socialism with Chinese characteristics,” Zhou Qiang said.
While the idea that the Communist Party is in firm control of the legal system is hardly new, to see the idea of judicial independence so explicitly condemned by the country’s top judge, a man once seen as a reformer keen on limiting officials’ power over local courts, came as a shock to many people.
Two open letters expressing outrage at Zhou’s remarks are circulating, one signed by 23 lawyers and another signed by 155 leading liberal intellectuals.
“In the past few years, the legal community has been working hard toward establishing an independent judicial system,” said Lin Liguo, a former lawyer based in Shanghai who wrote the lawyers’ letter.
Lin said Zhou’s remarks had burst reformers’ optimism. “What Zhou said is basically that we don’t need judicial independence at all,” he said. “That’s why people are so upset.”
At a key meeting in October 2014, the party’s top leaders promised to give judges more independence from interference by local officials, and President Xi Jinping has often pledged to strengthen the rule of law — while at the same time underlining that the Communist Party remains firmly in control and effectively above the law.
Yet such was the controversy stirred by Zhou’s remarks that the Supreme Court issued five separate social media posts last week, each hundreds of words long, explaining and amplifying his remarks. At first, they attracted hundreds of comments from ordinary people, until censors shut down the comment function.
In a blog post, Jerome Cohen, an expert in Chinese law at New York University School of Law, called it “the most enormous ideological setback for decades of halting, uneven progress toward the creation of a professional, impartial judiciary.”
He said there was “enormous dissatisfaction among many judges at the restrictive, anti-Western legal values being imposed by President Xi Jinping, with many younger officials leaving the courts and procuracy for work in law firms, business and teaching.”
Eva Pils, an expert in transnational law at King’s College London, said Zhou’s speech came as a “real shock” to people in the legal system who had been educated to believe that China was striving for better rule of law and who found it unacceptable that their country was “departing so completely and so rapidly from the reform path.”
It is, in other words, one more nail in the coffin of the idea that China’s legal and political system would ultimately move in a more liberal direction, experts said.
“I think that lots of people are still in denial about this departure from the reform path, and the turn to rule by fear, and that they are unwilling to consider the full implications of the new rhetoric,” Pils said.
Experts said Zhou may have come under pressure to publicly declare his loyalty to the party, especially as a team from the Communist Party’s anti-corruption arm had been reportedly carrying out an inspection of the Supreme Court since mid-November. Ensuring his appointment was renewed at a major party Congress in October may have played a part, they said.
But Zhou’s words still came across as particularly strident, as he insisted on the importance of “ideological work” and recommended judges “severely strike” at people who use the Internet to endanger national security — code for undermining the Communist Party.
He also recommended judges protect the images of leaders, heroes and historical figures, “to resolutely safeguard the glorious history of the Party and the People’s Army.”
Zhou’s warning echoes Xi’s campaign against “historical nihilism” — questioning the Communist Party’s heroic account of its own history. In the past few weeks alone, a Chinese professor and a government official were both sacked, and a TV producer was suspended, for criticizing Mao Zedong, who is officially revered as the founder of modern China even though he presided over the deaths of tens of millions of people in a famine during the Great Leap Forward and unimaginable cruelty during the Cultural Revolution.
The case of the lawyer Li has underlined what happens to people who dare to challenge the party.
Li grew up poor in China’s central Henan province. He dropped out of school at 14 to work in factories but spent six grueling years studying in his spare time to follow in his brother’s footsteps and become a lawyer.
Maya Wang at Human Rights Watch said it was unclear what he was supposed to have done wrong — perhaps demonstrating outside a police bureau in Heilongjiang in 2014 to demand access to his client, perhaps being the brother of Li Heping, a well-known civil rights lawyer who was also detained in July 2015, or perhaps simply being tarred as an agent of a hostile foreign government.
But what broke him is no mystery, she said in a statement, citing how suspects are frequently beaten, hung by their wrists and deprived of sleep, as well as subjected to indefinite isolation and threats to their families.
China issued a new regulation to better protect whistle-blowers who report work-related crimes. Among the provisions are several articles that not only prohibit retaliation, but also, for the first time, describe the many forms it can take and provide greater detail on how the government should prevent and address reprisals.
Professor Jerome A. Cohen contributed an Opinion piece to the Wall Street Journal entitled: "A Legal Defense Against Chinese Oppression."
Chinese President Xi Jinping stated that “China has made enormous progress in human rights. That’s a fact recognized by all the people of the world.” The statement is true when viewed against the abuses committed under Mao Zedong. Yet the 2015 UN report on China’s compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment presents a bleak view of the realities in China today.
President Barack Obama's meeting with the Dalai Lama and Secretary of State Hillary Rodham Clinton's speech condemning China's internet censorship have added to the complications plaguing Sino-American relations, rekindling debate over the role of human rights in US policy towards China.
China is increasing spending on the World Expo in an attempt to confirm the country's arrival on the world stage, but there is also a far darker side to China's rapid development and to the Expo itself: the silencing of a growing number of protesters. Police brazenly warned Shanghai's most famous dissident, Feng Zhenghu, to keep quiet or be "disappeared" like Gao Zhisheng.
(作者孔杰荣 Jerome A. Cohen，纽约大学亚美法研究所共同主任，外交关系协会兼任资深研究员。英文原文请参www.usasialaw.org。亚美法研究所研究员韩羽译。)
(作者孔杰荣 Jerome A. Cohen， 纽约大学法学院亚美法研究所共同主任，纽约外交关系协会兼任资深研究员。作者义务担任刘晓波之妻刘霞的法律顾问小组“现在自由”（Freedom Now）之成员。英文原文请参www.usasialaw.org。亚美法研究所研究员韩羽译。)
How should China’s human rights lawyers confront increasing repression under President Xi Jinping? I discussed this question several years ago with a group of Chinese activist lawyers, some of whom the Communist Party later imprisoned.