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  • Oct 23, 2014
  • Updated: 2:14pm
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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pslhk
Cohen’s observation “criminal justice involves discretion”
agrees with M Sandel’s dictum that legal legitimacy is locally determined
-
But Cohen’s study follows a misconceived question:
“what procedures MUST be followed in applying the LAW?”
-
Compare the prosecution of serious crime in common law jurisdictions
it is by grand jury in the US but under the bureaucracy of CPS in the UK
-
Common law can’t cover even tiny uk
Scotland follows the civil law tradition
-
“The LAW” as a unitary source of rules
with universally applicable procedures and interpretation is a fiction
Procedural fairness doesn’t refer to any specific process
A due process may not be a fair process
-
The English number cases were legitimate at their times
substantive laws were applied thru due procedures
on compelling evidence on beyond reasonable doubt basis
-
Then the political weather changed
Birmingham Guildford and Maquire
have become associated with miscarriages
and they’re by no means isolated instances
Think Dred Scot and OJS
-
Like specters are raised not for justification
but for comparative study in search of explanations
321manu
Nice post. I would agree that, within the broader concept of rule of law, the specific rules employed by individual jurisdictions need not be identical. In other words, rule of law does not preclude an act being legal in one jurisdiction while being illegal in another.
I'd even stipulate that Chinese "due process" may look very different from US due process. However, if a process is inherently "unfair", then the mere fact that it might be "legal" does not necessarily make it acceptable. In Xu's case, the prosecution offered no witnesses, and the defence was not permitted to call any witnesses. Is that typical of a trial in China? If not, then even Chinese due process was not followed. But if it is, then is "Chinese due process" really due process? If you submit that "a due process may not be a fair process", then is it acceptable to soldier on with that "due process"? Shouldn't that process be changed for the benefit of fairness?
Your last point is well taken. What's fair at one time may come to be viewed as unfair at some future time. But is the reverse true? If something seems unfair now, will it be viewed more favourably at some point in the future? Is someone down the line going to look back at the Xu trial and say: "you know what, there's no problem that he was convicted in a trial with no witnesses and no cross examination back in 2014'. I think that would be rather unlikely.
pslhk
Writing between two doors I now jump to my conclusion
Xu seemingly a good fellow has questionable priorities
that he tried too hard to push
Take a walk down pedestrian shopping streets
in Shanghai, Beijing … on holidays
to appreciate the meaning of “gathering a crowd to disrupt order”
in the Chinese context
realestate
oh sure the whole world will shiver at China's justice..all countries must learn a lesson..China is the next frontier....!!
captam
So Professor Cohen can you please explain to dumb Hongkongers why you consider it is "wrongful" for a person to be arrested and charged for "gathering a crowd to disrupt order " in China yet this is perfectly acceptable for the police to do in your own home city (New York). In 2012 the New York Police made 185 arrests of peaceful demonstrators who turned out on the streets to commemorate the anniversary of the Occupy wall Street Protests. Police officers also shoved news photographers with their batons to prevent them from taking photographs.
Most of us refer to this as having "Double Standards". Perhaps the NYU School of Law hasn't written a chapter on this yet in their manual! Perhaps you should do this first before lecturing Asian governments on what is right or wrong.
mpvaz
captam, why are you so xtúpido?
321manu
Ah yes, the classic tu quoque logical fallacy. It seems not a day goes by without you guys reaching for your old stand-by.
So, out of those 185 arrests in New York, how many were actually charged with a crime? How many of those charged were actually convicted of a crime? And how many of those convicted were sentenced to 4 years in jail like Xu? I mean, if you're gonna compare in the service of a logical fallacy, then let's compare, right?
And tu quoques aside (if you can manage that for just a second), are you suggesting that the CCP was "right" in how it handled the Xu case? Cuz that I would love to hear.
ianson
Down with the CCP
321manu
Another fine example of the kangaroo court that forms the basis of the "Chinese legal system", such as it were. A total farce that is no doubt repeated throughout China on a daily basis.
The reason why, in the 21st century, China is still unable to summon the courage to adopt the rule of law? Because the CCP wouldn't hold up under it. Make no mistake: it's not that Chinese citizens wouldn't benefit from rule of law; it's that the CCP wouldn't benefit, and since everything the CCP does is for its own benefit first and foremost, that's just too bad/so sad for average PRC folk.
chaz_hen
Beijing often does things to mock itself. It doesn't need "evil forces" or "external agents" to ensure its own hypocrisy.

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