Reading into China's White Paper on the Internet

China released it's White Paper on the Internet yesterday (Beijing June 9, 2011), full text in English here, in Chinese here, a brief English news report by China Daily here.

So what do we make of this story? The paragraph that has got a lot of attention starts like this:

Chinese citizens fully enjoy freedom of speech on the Internet. The Constitution of the People's Republic of China confers on Chinese citizens the right to free speech. With their right to freedom of speech on the Internet protected by the law, they can voice their opinions in various ways on the Internet.

Coming from a regime that is known to have censored Facebook, Wikipedia, Twitter, Youtube, even Gutenberg - the site that offers free classics, the farthest thing from porn or violence, this seems pretty hypocritical. Indeed, the succeeding part confirms this suspicion:

Vigorous online ideas exchange is a major characteristic of China's Internet development, and the huge quantity of BBS posts and blog articles is far beyond that of any other country. China's websites attach great importance to providing netizens with opinion expression services, with over 80% of them providing electronic bulletin service. In China, there are over a million BBSs and some 220 million bloggers. According to a sample survey, each day people post over three million messages via BBS, news commentary sites, blogs, etc., and over 66% of Chinese netizens frequently place postings to discuss various topics, and to fully express their opinions and represent their interests.

Do you see the contradictory? Maybe not at first sight, but as many Chinese netizens have pointed out, according to these official statistics, these channels of "vigorous-idea-exchange"- BBSs, carry less than an average 3 posts per day each - if all 3 million messages come from BBS and a little come from news commentary sites, blogs, microblogs, or anything else.

Netizens have called this "blatant lying", but then again, we are reminded that BBS posts as well as blog posts, comments, etc are heavily censored and monitored in China, and at the same time, there is an army of "fifty-cents party" allegedly paid by the government to make posts that swing towards the official line, which would mean, if any person would trust this "White Paper", that messages from real netizens were even less than the 3 million, not that so little is posted, but so many many many more is censored. The same post that pointed out this contradiction says this would mean 98% of the original posts are censored and never saw the light of the day.

I'm inclined to think that the White Paper drafters simply made these numbers up than to believe that censorship is so rampant as to make these numbers real. But this is not my concern, I'm interested in what this White Paper tells us about China's legal environment for the Internet.

One thing that struck me about this White Paper is the sheer number of laws, regulations, decisions, rules it mentioned, in order to, as we could safely assume, to draw legitimacy of the claims: a whole 18 of them, not including another six or seven conventions related to Internet management. Here is the thing: the more is not the better. The only "law" is Electronic Signatures Law (though there are other "laws" that contain articles related to the Internet, e.g. Article 285 and 286 of the Criminal Code pertain to computer hacking), the other regulations are issued by State Council, the Information and Technology Ministry, etc - and the execution and supervision of those regulations/decisions are carried out by the relevant ministries, security department, Administration for Industry and Commerce, Administration of Press and Publication, etc.

Here is the question: how do you expect an administrative body to write its own "law", AND to execute it, to monitor and supervise it?

Peking University Professor Hu Yong, who specialized in media and communications, has similar question and calls for more "constitutional thinking" in managing the Internet. He took the Green Dam disaster as an example of administrative agencies, in this case, the Ministry of Industry and Information Technology, went outside of the legal frame and issued an order that doesn't seem to come out of much deliberation of consequences, would adversely affect the lives of millions.

We should note that this unsystematic legal situation is not unique to laws regarding the Internet, but the whole body of what we call "Chinese law" is actually consisted of many many many individual statutes, decisions, orders, and of administrative regulations and rules made under different ad hoc policy orientations. The messiness increases because according to Administrative Litigation Law of China, the courts are not empowered to interpret a set of regulations or declare them unconstitutional or as exceeding their delegated authority – the most that the courts can do is determine that a specific application of a regulation (or law) to a specific individual (or a legal person) is unlawful and hence, should not be applicable in that instance or should be compensated for.

Although administrative regulations, district rules, etc, under Article 89 of the Law on Legislation should be reported to relevant higher authority: measures promulgated by the State Council, its Ministries and Commissions, and sub-national People’s Congresses are to be reported to the NPC Standing Committee and that those of People’s Governments are to be reported to higher levels of People’s Government through to the State Council and under the Constitution, the NPC Standing Committee can annul any State Council action and the NPC as a whole can do the same re any Standing Committee action (meaning that everything is potentially reviewable by the NPC).

In theory, these mechanisms are going to ensure that the measures are consistent with the Constitution and relevant laws (Note: China does not yet have a full constitutional review system). The challenges are: 1. According to Article 82 of the Law on Legislation, departmental rules and provincial level local regulations have comparable authority, thus there is the possibility of overlapping but not always consistent legal enactments. 2. Sub-national level agencies report both to the national ministry to which they belong, and their level of government.

So if I may make a suggestion here to the Chinese government here: censor the Internet all you want (netizens will only get better in getting around the GFW); make excuse for it; make up statistics if you like (and not be afraid of being caught lying); but please, review these rules, root out unconstitutional, illegal or inconsistent regulations, and have a real Internet law.

To digress a little, another point made pertinent in the White Paper is China's report on its "success" in bringing government online, claiming that it has built more than 45,000 government portal websites and that more than 80% of governments above county level have their own e-govern website. My friend Graham Webster wrote a brilliant A.M. thesis on this very subject, and finds that due to the lack of a centralized guideline/model for these websites, the city e-government websites are very diversified and lack of a common infrastructure; and if we were to see these websites as channels of citizen participation then the data these e-governments would get at their back end is very fragmented. (If you want to read his thesis, which I found very interesting, ask him for it:)

Death Penalty, Torture, and Criminal Justice in China

reposted from my law school blog here.

China issued new regulations on May 30 banning evidence obtained through torture or intimidation, especially in death penalty cases. Konrad Lawson of the History Department has a very nice post here which puts this in a historical and comparative contexts, and inspired me to write this post, discussing them from more of a legal perspective.

The two regulations - Regulations on Several Issues in Investigating and Determining Evidence in Handling Death Penalty Cases, and Regulations on Several Issues in Disregarding Illegal Evidence in Handling Criminal Cases – were released jointly by the Supreme People’s Court, Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice. One curious thing about these two regulations is that there is no official texts of them to be found anywhere online – they are not on ANY of the websites of the above-mentioned five agencies that have supposably “released” it, and they are not to be found on Xinhua either, the Party-run official news agency which usually release full texts of new rules and regulations. The only text available, so far, that could tell people what the new regulations are about is an official Q & A (in Chinese). And the most substantive English coverage is from Xinhua.

Another interesting aspect of the “release” is the five agencies: the highest of judicial power, the highest of prosecution and supervision power (The Procuratorate), and the three agencies from the administration system. It shows that, on the one hand, the CCP is taking these two regulations very seriously, but on the other hand, it also shows the weakness of China’s judiciary – it takes 5 agencies to tell the law enforcement agencies and the like that they mean business. (But this is another topic that may get its own very long post)

So without the full texts of the two regulations and from what is covered in the Chinese press, it seems to me that one of the most exciting development is the emphasis on legal procedures. For instance, the Regulations on Illegal Evidence stipulates that not only is evidence obtained from substantive violation inadmissible and insubmissible such as that which is obtained through torture; but also evidence obtained through procedural violation such as one single investigator got the evidence by him/her-self. I hope this would be a precedent to a real criminal procedure law in China.

Another significant breakthrough is that the Regulations on Illegal Evidence for the first time states non-equivocally (again, since the full text is not available, this is just what’s stated by the official) that the prosecutor bears the burden of evidence, including using videos of the interrogation, or even calling witnesses to prove that the evidence is acquired legally and without coercion.

The Regulations on Death Penalty is considered, from the Chinese official perspective, an attempt to “strictly control [the sentencing of] death penalties”. Besides the procedural requirements for ascertaining doubtful evidence, Article 40 paragraph 2 prescribes that “… without sufficient evidence to prove that the accused has reached the age of 18 at the time of the accused crime and that this cannot be ascertained through investigation, it cannot be concluded that the accused is 18-year-old or above.”

But, and this is a big but as in any post about legal reform in China, these two regulations are far from enough to address the injustices in the criminal justice system in China. The current development is seen by many a response to the Zhao Zuohai case, in which a man got death penalty with a suspension of execution for murder (sentenced in 2002), only that on April 30, 2010, the person who were supposed be murdered walked back to the village very much alive. (NYT brief coverage) Coming out of the prison an innocent man, Zhao exposed the torture that had been inflicted upon him to elicit his confession to murder. But Zhao’s tragedy and many similar wrong death penalty cases before him (such as Nie Shubin case, and see a more comprehensive U.S. Congressional Report about this here) reveals more than just illegal practices in soliciting confession, but many other inadequacies in the criminal justice system.

Just for a start:

1. Lack of judicial independence.

Zhao’s case was twice rejected by the Procuratorate and was decided by the Municipal Political Legal Committee – this administrative organ supersedes the judiciary and the prosecutor. According to China News Weekly’s report in March this year, over half of the secretaries of Political Legal Committee at the provincial level are at the same time the head of the Police Department at the same level – the supervised has become the supervisor. In a society where the police directs, if not controls the Courts and the supervision organ, how can one expect the latter to put a check on the police? Prominent Chinese legal scholar, He Weifang, also points out that the head of the police usually enjoys higher position in the Communist Party than the president of the Court or the Procuratorate at the same level, and thus is endowed with more political clout, which the latter incapable of carrying out proper investigation of the police.

Even if we consider the Committe’s intervention in these criminal cases with the purest intention, as such an organ, its main priority, or mindset, is not the rule of law, but the current social political environment. Its considerations are: What is our current policy, hard on crime? The public are furious – maybe this case should reach a decision soon? Indeed, there is a reminiscent of the old practice in China’s legal decision up until the 1980s when there was almost always a line in death penalty cases that says “Not killing the accused cannot quell the public fury” as if it was not the law by which the court arrived at its decision, but by the consideration of public sentiment.

2. Inadequate criminal defense.

The law should broaden and deepen Lawyers’ involvement in criminal investigation procedures, for instance, requiring a defense lawyer’s presence at the time of interrogation unless in special circumstances, and strengthen criminal defense. In Zhao’s case, he was represented by an intern who had not even obtained a license to represent clients at the time of the trial.

3. No presumption of innocence.

China still does not have presumption of innocence before proven guilty stated explicitly in the law. The existing provision in Article 12 of Criminal Procedural Law renders the defendant not to be determined guilty until proven so, but it still doesn’t mean that he/she is innocent. In Zhao’s case, this leads to the suspension of the death sentence whereas he should be released because there were no sufficient evidence to prove him guilty.

Also there is no right to remain silent in China – which is also a reason why the tortures occur. And the traditional mentality that confession is very important, despite the laws, especially these two regulations, stating that case should be decided on evidence.

Towards the end of the post, I just want to put up this notice for those who are interested in China’s criminal justice. No doubt, Professor Cohen would be a much MUCH better in elucidating on this subject.

Friday, June 4, 4:15 p.m.
Fairbank Center Special Guest Presentation

June 4^th and China’s Criminal Justice, Then and Now

Jerome Cohen, Professor, New York University School of Law, and Co-Director of the US-Asia Law Institute
Professor Cohen will discuss the immediate impact of the Tiananmen Square events of June 4, 1989, on China’s fledgling criminal justice system. The subsequent effort to reform the system culminated in the new Criminal Procedure Law of 1996. He will discuss how that law has been implemented and violated until now and the current pressures for further reform of the system.

CGIS South, Belfer Case Study Room (S020), 1730 Cambridge Street, Cambridge