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  • Sep 20, 2014
  • Updated: 4:32am
CommentInsight & Opinion

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

PUBLISHED : Wednesday, 29 January, 2014, 12:22pm
UPDATED : Thursday, 30 January, 2014, 5:08am

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.

Yet any doubts about his continuing democratic resolve were soon removed by the increasingly courageous activities of his impressive New Citizens Movement, whose organised but peaceful public protests led to his current prosecution.

Was Xu's trial "in accordance with law"? Certainly not. In many respects, it violated the "law" - but not the practice - of China. Indeed, it made a mockery of the recent speeches by President Xi Jinping and leaders of the Supreme People's Court emphasising the need to prevent further wrongful convictions by requiring verification of evidence in open, fair court hearings.

Unlike the "show trial" of Bo Xilai , this trial, in a 17-seat courtroom with only two for Xu's family and none for his supporters or foreign media, was held in a virtual domestic news blackout.

Moreover, despite the fact that the defendant and his counsel disputed the prosecution's version of the facts, the court refused to summon prosecution witnesses so the defence and judges could question them. It contented itself with having the pre-trial statements of prosecution witnesses read into the record, denying the defence any meaningful opportunity to demonstrate their falsity or inaccuracy.

Even the best lawyer cannot cross-examine a piece of paper and, as Bo demonstrated, one need not be a lawyer to take advantage of the right to cross-examine prosecution witnesses authorised by law, but seldom granted in practice.

Even more preposterous was the rejection of the defendant's request to summon his own witnesses. To make certain that no one could support the defendant's case, the court also insisted that Xu's colleagues - being prosecuted for some of the same offences - had to be tried separately rather than jointly with him, as the Criminal Procedure Law requires.

To protest at the succession of judicial rulings that denied him the protections of Chinese law, Xu and his counsel remained silent during the trial's consideration of evidence. But he did seek to exercise a defendant's statutory right to make a closing statement.

Unfortunately, when the opening passages of his speech made clear that he was challenging not only the injustice of his trial but also the legality of all the detentions and prosecutions that are destroying the New Citizens Movement and generally repressing freedoms of expression in violation of the constitution, the court cut him off and ended the hearing.

His closing statement argued that he was not guilty because the government's application of the criminal law to suppress peaceful public demonstrations deprived him of his constitutional rights. A conviction that violates the constitution cannot be "in accordance with law".

Yet, China denies its citizens any effective means of enforcing their constitutional rights. The Communist Party does not permit the courts to consider constitutional challenges to government action, and the party has long prohibited the National People's Congress Standing Committee, which has exclusive jurisdiction over constitutional interpretations, from fulfilling this responsibility.

Xu knows this situation well. In 2003, after the scandalous death of university graduate Sun Zhigang in police detention, Xu was one of three young scholars who startled legal circles by submitting a "proposal" to the Standing Committee challenging the constitutionality of the notorious "custody and repatriation" regulation that had authorised such confinement without requiring the approval of a judge or even a prosecutor. The government annulled the regulation, making a rare concession to domestic human rights pressures.

To maintain his protest against the court's rulings, Xu could have refused to appeal against his conviction and four-year sentence. He is surely aware that, in such a politically manipulated case, the chances of impartial appellate review are dim. Yet his decision to appeal is correct.

Xi and the new leaders of the Supreme People's Court may belatedly realise that Xu's prosecution repudiates everything they have been preaching in the past year about the need "to let every citizen feel fairness and justice in every case", and the appellate court could then decide that the statute should not be interpreted to forbid peaceful protests.

In any event, Xu's supporters may wish to follow his 2003 example by submitting a proposal to the Standing Committee, challenging the constitutionality of the Criminal Law's "gathering a crowd" prohibition as applied to his case.

In the interim, Chinese and foreign journalists, legal experts and diplomats should ask Xi and judicial leaders whether Xu's case illustrates the new type of justice "in accordance with law" they have been advocating. Or is it just another wrongful conviction?

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. See also www.usasialaw.org


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This article is now closed to comments

We've stated our arguments
You have demonstrated impressive concentration power
focusing on minutiae which I’ve not the slightest interest
de minimis non curat argumentum
for example as per ctr c + ctr v
“1 1:13PM and Jan 31 8:16AM”
I didn’t care to read the time figures
and won’t care less what kind of joke that supposedly is
I have no time for you not just tomorrow,
the last of CNY holidays that have been wonderful
but, yes, days after tomorrow
If you can’t afford a professional
talk to a preacher
who between his times for hospice visits and funerals
may find times to help you
please skip what follows
which is not for your
You've better things to do
than "entertaining" yourself with someone
who you consider "3-year old"
I’ve many emails to reply
But to make up for someone’s obsessive reversals to mundane “arguments”
something interesting for readers who’re interested
MBF’s usual diet after the usual 5+hours weekend hiking
Mixed veg (corn+pea+carrot)
3 i-phone length sardines
Defat charsiu (barbecue pork)
A piece of bread with cheese
3/4 cup of Hills
together with the daily doses of
A Glucosamine + Chondroitin in bone powder cube
A TriOmega capsule
A multivitamin tablet
321manu if you have crept this far
try MBF’s diet
you’ll find it slows down dementia
go play ball and socialize
with people of your age
not thru pc but in person
Listen, if you can't answer questions, just say so. No need for the obfuscation and the long song-and-dance histrionics, even though as a CCP apologist I realize it is in your genetic composition to engage in same.
Unlike you, I'm for precision in language and in debate. And because you're slow, you needed to be led by the nose to numerous issues you had failed to address borne out of your earlier feeble attempts at an "argument". I already knew long ago that you're the type who might utter niceties like "due process" and "intent" but is entirely incapable of handling what are logical second order follow-up queries. It's like the CCP teaches you guys to bark out words on command, like in a Pavlov lab, but with no foundation or logical basis. But I do enjoy pointing it out, and you're so kind as to provide me with repeated opportunities to do so. Much obliged. Like I've said before, your purpose in life is to amuse me, and you routinely meet that objective. So take comfort in the fact that you're a success in at least one realm. And I applaud you for it.
Now, it's also true that, with the intelligence of a 3 year-old, yours is not a high brow form of humour. But that's OK too. Variety is the spice of life, and it's useful to avail oneself to some cheap laughs that require no thinking. It's all about balance. You provide the low IQ side.
BTW, your post-exercise diet is junk. Lean protein is what you want for recovery. But as they say, garbage in-garbage out.
321manu shouldn’t blame the one he considers 3-year old
The fault, if any, lies with Luther, Gutenberg and BeiXing
Our minds obviously operate on different levels
Let’s state our views and leave them like that
What are the lessons to learn from the parables?
Christian bible one of my favorite books supposedly has universal implications
Can it be well understood without asking questions?
Let’s ponder the Answer given to the one who’d asked the most
in the whirlwind according to the Book of Job
answer unquestioningly accepted by hundreds of millions
In it I find a concise summary of Aristotle’s ethics and communitarian Politics
It’s in part a tree and forest issue
“Dimon’s pay soars 74% to $20m …
despite the bank’s high-profile woes” (FT, jan25, p10)
Occupy Wall Street?
Over 700 were arrested on Oct 1, 2011 alone
All quiet in the western front
Different trees and different forests
There must be reasons for the contrast
the quietude there and the altruistic fervor
In broadcasting the noise of a fallen tree in this forest
Never one to presume absolute correctness
I’m always open to convincing ideas
Among my faults which are many
I don’t suffer slogans, casuistries, political bean counting …
Convince me with reasons
and let me and other readers decide
if or where a stated position is flawed
"dinner is ready"
I've been called n times
You sound like a 3-year-old who is lost, whose likeness should grace the side of a proverbial milk carton. And don't worry, there's no blame; just observations. To cast blame is to expect the capacity for accepting responsibility, and that surely seems beyond your grasp, or reach, the heavens notwithstanding.
So I see you've again wandered off-topic. And reflexively, you've returned to Tu-Quoque-town, and entered into Chez Logical Fallacy, where everybody knows your name. It seems GPS technology is only as good as the person using it. While your logic isn't clear, your position is, as is my mockery of it. But since you seem deliciously impervious to logic and reason, convincing you is the last thing on my mind. Your love of the CCP is a faith-based proposition, and there is no getting through to the true believers.
Anyway, I've left you many questions to rouse your contemplative juices, such as they are, from Feb 1 1:13PM and Jan 31 8:16AM. Feel free to have a go.
One must be silent before the powerful statement
“if a process is inherently "unfair", then it is "unacceptable"”
without first clarifying what is fair and acceptable?
Armchair activists may forever bluff
with Amartya Sen’s three boys and a flute
or M Sandel’s runaway cart at a junction
For retired judges and unemployed barristers
Speluncean Explorers always invite further judgments
After such thought entertainments beloved by freshmen
for the final paper one must choose a position
For ease of comprehension by westerners
I’d begin with the tree of good and evil
Is it fair to condemn humanity
for the taste of the fruit
or for the knowledge it gives?
Is “equal” award fair for full-day and half-day workers
with “equal” referring to “equal to promise” and “same as others”?
Was it fair for the tree to be cursed because JC looking for fruit
happened to pass by but couldn’t find any?
Reality isn’t that removed from biblical fantasy
Is the institution of monarchy fair and why is it acceptable?
Fairness and acceptability not necessarily relativistic are irrelevant
The real question is why anglous countries practice
what they criticize other countries of practicing?
Your bastardized references to scripture are completely irrelevant and pointless, as usual. We're not talking about the 'fairness of life'. We're not talking about the "fairness" in one's good- or bad-fortune of birth. We're talking about the fairness of legal due process. Your entire paragraph about biblical fantasy was ill-conceived, a non-sequitur, and a complete waste of time and pixels.
If you're gonna quote, you should acquire the good habit of quoting properly. " if a process is inherently "unfair", then the mere fact that it might be "legal" does not necessarily make it acceptable" was what I said. Your attempt was a lousy fascimile thereof.
But hey, if you want to suggest that a "western" definition of "fairness" may not be applicable in China (and who knows what you're really saying cuz your idiotic writing style has returned after a very short respite), that's ok too. I'd be happy for Chinese people to define for themselves what constitutes, "fair", "legal", and "substantive due process", among many other pillar concepts of the rule of law. The problem with the "legal system" in China now is that it is of the CCP, and not of the Chinese people. And that's not gonna change as long as the CCP is around, cuz a special interest group like that writing their own laws will always be looking out for number one, first and foremost. The Xu case is just the latest in the sadly long list of examples of that disturbing phenomenon.
And btw, what is "fair" and "acceptable" should've been obvious to any adult reading this discussion. But since you've relapsed to your 3-year-old state, let me help you out. "fair and acceptable" would be a trial where prosecution witnesses are availed to the defense for cross examination, where defense and rebuttal witnesses are heard in court, where the defense is permitted to enter a closing statement/argument, and where the court is not pre-determined and politically ordered to throw down and make an example of Mr. Xu. But in China's case, that may as well be a biblical fantasy. And in China's case, reality is the antithesis of that biblical fantasy. There, hope that helps.
For brevity, contextually consider Aristole’s Nicomachean Ethics, Book I
“We decided that the highest good was the same thing as the goal of the statesman;
and statesmanship is mostly concerned with turning citizens into …good people,
who can be relied on to behave ethically”
Ethics is communal
Don’t balk at statesman’s definitions
As Aquinas explains, again contextually,
“all things have a function
real things are good
… insofar as (people) think it good …
their intention primarily aims at the good
and only incidentally touches on the evil"
Are the CCP "statesm(e)n", or simply those who position themselves to best advance their own self-interests? In the abstract, or perhaps ideal, scenario, "statesmen" could arguably be striving for the greater good. But in the physical realm, how does the CCP's handling of Xu's case meet that bar? Wouldn't the greater good (for PRC citizens) be served by uncovering and publicizing acts of corruption, as a first step in ridding society of it? How does silencing and jailing a person who sought to do that promote the interests of Chinese society?
And even if you invoke "intent", how does jailing Xu bespeak an "intent" for doing good? What good intentions could motivate the jailing of a person who wanted to out official corruption?
Seems to me that keeping the lid on information about CCP corruption only serves the good of the CCP. Serving the CCP is not serving the greater good. Intent to prevent corrupt CCP officials from being exposed is hardly equivalent to an intent to doing good for Chinese society. And so the CCP isn't really much of a "statesman". But that's no surprise. I'd be more inclined to characterize them as a bunch of thugs anyhow.




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