Xu Zhiyong's trial makes a mockery of Beijing's pledge to enforce rule of law
Jerome A. Cohen says every step of the prosecution and jailing of rights advocate Xu Zhiyong belies the promise by China's president and judicial leaders to ensure fair court hearings
Whenever asked about China's latest criminal prosecution of a human rights advocate, the foreign ministry says it is being handled "in accordance with law". This sounds assuring, but what does it mean? Last week's trial of Xu Zhiyong , which the ministry termed "a common criminal case", provides an occasion for inquiry.
Apparently, the ministry was referring to the fact that Xu was being charged with a mundane offence under the Criminal Law - "gathering a crowd to disrupt order in a public place". The words of this offence are general, even vague. They require definition and application by police, prosecutors and, ultimately, courts. Otherwise, Chinese lack adequate warning of what conduct is prohibited, and the government can easily deprive them of the freedoms of speech, religion and assembly guaranteed by the constitution.
The administration of criminal justice inevitably involves the exercise of discretion. What factors are allowed to influence the exercise of that discretion in China? What procedures must be followed in applying the law?
Xu's ostensibly "open" trial was veiled in secrecy. Yet the decision to prosecute him was plainly an act of discretion based on his insistence on his innocence. By contrast, Beijing's First Intermediate People's Court announced that his co-defendant, Wang Gongquan , the millionaire supporter of Xu's New Citizens Movement, had been released from custody, having confessed to the charges. This illustrated the traditional Chinese Communist Party maxim of "leniency for those who confess, severity for those who resist", a practice shared with law enforcement even in liberal democracies but boldly enshrined in theory in China.
Although Wang was released under a provision that restricts his freedom for up to a year pending a determination whether to put him on trial, the authorities often use that provision to quietly drop charges.
Indeed, Xu himself received such a release in 2009, after a month's detention for the alleged tax violations of his previous public interest organisation, the Open Constitution Initiative. At that time, apparently chastised by his first experience in criminal detention, Xu implied that he might moderate his persistent challenges to political repression.