Politics

The Complexities of China’s Struggle For Justice   – The Diplomat


The struggle for justice is not over in China, even though the non-transparency of Xi Jinping’s regime often makes it difficult to discern. The decade of Xi’s rule has moved the country from authoritarianism to techno-totalitarian repression. Yet, at the same time, the Communist Party and its judiciary, building on legislation and institutions introduced since 1979, have repeatedly promised to “strive to help people feel fairness and justice in every judicial case.” This effort to “walk on two legs,” as Chairman Mao Zedong might have put it, inevitably produces contradictions in practice and makes accurate generalization difficult.

The Chinese Communist Party (CCP) has long been aware of significant popular dissatisfaction with its administration of criminal justice. Local courts have generally not been held in high regard. Dissatisfaction often turns to fear when, to achieve urgent political, economic, and social goals, the party decides to suspend even the pretense of respecting the limited protections of the country’s regular punishment system and instead launch a “mass movement.” Such campaigns mobilizes police, prosecutors, legal administrators, and judges to join forces to suppress perceived anti-social behavior.

The CCP is well aware that such “campaign-style” justice is an overt departure from the rule of law, and it is familiar with the inherent dangers of such campaigns and their potential costs to public support for its monopoly on power. On April 2, 2018, for example, despite the need for stricter compliance with China’s environmental laws, Xi Jinping announced that “[we] should not have a campaign-style approach to pollution control.”

Nevertheless, in the very same year, the party, as part of its continuing and massive anti-corruption drive, launched a Special Campaign to Crack Down on Organized Crime. Law scholars and lawyers, both inside and outside China, expressed concerns that, due to the well-known problems that have plagued the CCP’s “campaign-style” law enforcement, many miscarriages of justice would inevitably occur. Unfortunately, their concerns were apparently justified, although the public has been denied relevant statistics on this score despite the proliferation of data proudly marshaled at the 2021 national awards ceremony that marked the campaign’s conclusion.

In order to vindicate their role in “taking out tigers, swatting flies, and hunting foxes” as part of Xi Jinping’s overarching anti-corruption effort, the special campaigners moved swiftly. Within two weeks, five provinces announced that they had each arrested more than 1,000 organized crime suspects. Shandong province even established a quota system requiring the prosecutors’ office in each local district to prosecute at least one such case within the year; failure to do so would result in negative performance ratings.

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During the three-year campaign, police reportedly cracked down on 246,000 cases, prosecutors issued 36,000 indictments implicating multiple defendants, and trial courts decided 32,900 cases involving 225,500 defendants. The limited public reports available on sentencing information suggest that those found to be members of “organized criminal gangs” or “gang-like groups” received much longer prison sentences than their pre-campaign counterparts had. Moreover, the confiscation of assets from convicted campaign targets even became a major source of non-tax income for some local governments.

Although a few organized crime defendants were reportedly acquitted prior to the campaign’s start, at the campaign’s end the CCP’s self-assessed “grade report” was silent about acquittals (the overall conviction rate in China is generally north of 99 percent), nor was any mention made of the exoneration of wrongly-convicted defendants.

Yet, on and off the internet, the “special campaign” promptly generated considerably more domestic criticism than previous efforts to suppress corruption had. Not only was there concern about the imposition of an arbitrary quota for arrests, but there was also opposition to the branding of many private businesses as criminal organizations.

China’s national legal institutions plainly anticipated the negative consequences of the “special campaign” and, while implementing the campaign, made efforts to mitigate them. In 2019, the annual work report of the Supreme People’s Court (SPC) for 2018 for the first time prioritized providing protections to the legal rights and interests of entrepreneurs. Subsequently, in multiple documents the SPC emphasized the importance of not treating ordinary commercial disputes as crimes.

Similarly, the Supreme People’s Procuratorate (SPP) admonished the nation’s prosecutors to proceed, but by “arresting fewer, prosecuting with caution, and detaining with caution.” The SPP even published in detail for the benefit of its subordinate units a report on a typical case involving conduct that should not be deemed to constitute “organized crime.” By the end of the campaign, the SPP was cooperating with the All-China Federation of Industry and Commerce to develop not only alternatives to criminal detention for business executives but also opportunities for companies caught up in criminal investigation to avoid prosecution if they agreed to establish mechanisms to assure compliance with campaign norms.

Beginning in 2018, the SPC, the SPP, and central government law enforcement ministries jointly issued more than 10 documents to regulate the investigation, prosecution, and adjudication of organized crime cases. Their common theme was that ordinary business operations should not be mistaken for criminal organizations, and legitimate business assets should not be seized as criminal gains.

Nevertheless, as illustrated by the revelation of a case not previously discussed in English language media and only incompletely summarized in Chinese press and social media reports, the “special campaign” produced anticipated injustices.

In 2018, in the city of Heihe in Heilongjiang province on the Russian border, a businessman named Liang Ming, the head of a private company, was convicted of multiple crimes, together with six relatives and six associates. These included operating a criminal “gang-like group” as well as the favorite police catch-all offense of “picking quarrels and provoking trouble.” Liang received the unusually harsh sentence of 20 years in prison while his 12 co-defendants received sentences ranging from almost 12 years to 18 months.

The case centered on one or more physical altercations in which Liang and his group had allegedly been involved with representatives of a real estate development company that had repeatedly failed to repay loans extended by Liang’s company. The trial court’s initial judgment was immediately reported in China’s national news media as Heihe’s first in the “special campaign” crackdown against criminal organizations.

Yet Liang’s case eventually turned out to be newsworthy for very different reasons. When defendants appealed their convictions from the district court to the local intermediate court, the appellate court refused to affirm the convictions but remanded the case for a new trial. Although the second trial resulted in convictions for all the defendants, they were not found guilty of organized crime because the lower court did not believe that they had formed an organized gang-like group. The prosecutors appealed that determination while the defendants appealed against their convictions. This time the appellate court affirmed the district court’s revised disposition of the case.

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That did not end the matter, however. The defendants, their families, and their lawyers refused to accept the situation and petitioned the High Court of Heilongjiang province for relief. Within eight months of the filing of their complaints, the High Court decided to reopen the case and ordered another intermediate court – different from the one previously involved – to deal with it. The new intermediate court quickly reversed the existing judgments and ordered a new district court – different from the one originally responsible – to conduct yet another retrial.

At that retrial, even the prosecutors – again, different from those initially involved – claimed that the original prosecution had not been supported by sufficient evidence. On January 26, 2022, the court concluded that, because of unclear facts and insufficient evidence, no organized crime group had been formed and indeed that none of the defendants’ activities was criminal. The prosecutors did not appeal, and the matter ended.

Thus, after almost four years of litigation and long stretches in the extremely uncomfortable confinement of criminal detention before being granted the Chinese equivalent of bail, all 13 defendants succeeded in reversing their convictions, a monumental result for a system notorious for rarely granting acquittals. Moreover, viewed against the background of a Chinese exoneration process that is too seldom successful and that usually takes years, if not decades, this case is notable for the speed with which the petitioners were vindicated.

The faster pace may well be attributed, at least in part, to a 2021 interpretation of the Criminal Procedure Law by the SPC that provides for the possibility of retrials by courts different from those that decided the original convictions. Similar provisions, requiring that a prosecutors’ office different from the original one review retrial petitions and complaints, can be found in the SPP’s documents. Changing the venue for retrials allows fresh eyes to review claims of error, without as much of the pressure and prejudice that are often exerted by the local police, prosecutors, judges, and party and government officials initially involved.

To be sure, the lengthy prosecution inflicted all sorts of irreparable harm upon the accused. Undoubtedly, arrest, indictment, criminal detention, and repeated judicial hearings severely interfered with both their professional and personal lives, damaged their reputations, and exacted a significant emotional as well as economic cost. Understandably, the defendants’ appetites for justice were apparently whetted by their exoneration, and they promptly applied to obtain the limited financial redress made available by the Chinese system of state compensation for the victims of unjust convictions. Their application seems to be on the verge of final approval, although the amount of compensation received may not be significant when compared with the harm suffered.

Of course, since their company has apparently not yet been repaid the long overdue loans – totaling more than 20 million renminbi (over $3 million) – that were the cause of the dispute that led to the imposition of criminal sanctions, the defendants may now be contemplating a lengthy and arduous process of civil litigation. Any effort to use the courts to obtain repayment may prove challenging in light of the borrower’s long record of resisting previous court orders to pay its debts and a report that the borrower’s major representatives have themselves now been criminally detained.

What should we make of this rare insight into contemporary “campaign justice” in China?

The first point to note is the non-transparency of the process. China’s trial courts now decide well over a million criminal cases a year (around 1,256,000 in 2021) and, as part of an effort to improve public knowledge and evaluation of the court system, hundreds of thousands of these criminal court judgments are now made available in an official online network. Yet, despite the various judicial decisions in the complex processing of the Heihe case, none of the judgments has appeared in the online collection – a reflection of the broader problem of “missing” cases in Chinese court databases. After the initial press report of the original campaign conviction, only a perusal of WeChat revealed by chance three scattered news stories, and these failed to give a full picture of the case.

Undoubtedly of great importance was the role of defense lawyers in this case. In many sensitive Chinese criminal cases, defendants are not allowed to choose their own lawyers, and even those who are assigned to the case by the government are heavily restricted in terms of access to their clients as well as efforts to obtain evidence and in courtroom activities. It is difficult to imagine that defendants would have eventually been vindicated in this complex case without the assistance of lawyers. Yet we only know that lawyers took part in the defendants’ first appeal because it was reported that the Heihe City Justice Bureau, for the first time in a local organized crime case, had sent officials to monitor their conduct in the courtroom. And it was reported that in the retrial pursuant to reopening of the case “all the lawyers argued for not guilty verdicts.”

It plainly took courage for lawyers to undertake a defense in such a case, even if assigned by the Judicial Bureau to do so. If the Bureau became dissatisfied with their performance, as experience has too often demonstrated, it might have disqualified them from participation in the case, suspended or terminated their licenses to practice law, closed their law firms, and even subjected them to criminal prosecution.

Yet the unfolding of this case also required courage on the part of all the officials involved, not only those who fostered the proceedings that led to exoneration. Political-legal suppression campaigns also jeopardize the campaigners themselves. Acting under high pressures such as prosecution quotas, local officials zealously carry out the CCP’s will during these mass movements. But if it is eventually determined that their handling of a case resulted in wrongful conviction, police, prosecutors, and judges can be held accountable under the lifetime responsibility system to which they are subject.

Indeed, the most recent report from Heihe tells us that the head of the police in the district where the case originated and a deputy head of the city-wide police that joined in the initial investigation have both been removed from office. Moreover, the head of the city police has himself been placed under the investigation of the local supervisory commission, a step that does not augur well for his career or perhaps even personal security.

Here perhaps is the most intriguing (literally) aspect of this case. It now appears that these local police may well have been acting not in mistaken, but good faith, campaign overzealousness but out of corrupt motives. Liang Ming wisely made an effort to use whatever channels were open to him, in addition to the formal judicial process, for voiding the unjust convictions.

In December 2019, Liang reported both the city and district police chiefs to the anti-organized crime office of the local Communist Party discipline and inspection commission that is the alter ego of the government’s supervisory commission – a powerful anti-corruption body created in 2018. He claimed that these officials had been accepting bribes from the borrower company and functioning as a protective umbrella for local gangs, including the borrower company. This appears to be what stimulated the sanctions against the police officials and what eventually resulted in the judicial freeing of Liang Ming and his group. The police officers charged with responsibility for implementing the special campaign to stamp out corruption and organized crime were themselves apparently found to be instruments of the very evil they were supposed to eradicate.

Certainly this appears to be as shocking as it must have been embarrassing to party leaders. However, veteran observers of the Chinese criminal process should not be surprised. It has long been a tactic of powerful business interests involved in commercial disputes to mobilize the local public security bureau to criminally detain and sometimes prosecute parties who resist their demands. Bribery need not be the principal motivation of corrupted police, prosecutors, or judges. They sometimes cooperate because of personal relationships or at the request of political superiors.

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The Heihe case was, of course, only one of many thousands prosecuted during the three-year “special campaign.” Although we do not have access to all those cases or to the CCP’s analysis of this experience, immediately following the campaign’s conclusion the Standing Committee of the National People’s Congress enacted the nation’s first “Anti-Organized Crime Law.” It went into effect on May 1, 2022 and, like legislation that has sometimes followed previous campaigns, it constitutes a distillation and codification of what the party learned from the campaign that preceded it.

This is not the place for a discussion of the new law, but for our purposes it is useful to call attention to Article 5, which, drawing upon similar admonitions in the Chinese Constitution and the Criminal Procedure Law, provides: “Anti-organized crime work shall be conducted in accordance with the law, respect and safeguard human rights, and protect the lawful rights and interests of citizens and organizations.”

Penetrating the mysteries of China’s opaque system of justice is a daunting and uncertain task. An energetic sociologist of law permitted to do unfettered fieldwork in Heihe might someday unearth a more accurate explanation than available today. At this point, however, the principal takeaway from the long and convoluted Heihe case is this: Even in the midst of “campaign justice” conducted by an increasingly totalitarian Communist Party that openly declares its domination of the legal system and loudly rejects basic international rule of law precepts such as independence of the judiciary, there are many judges, prosecutors, lawyers, law professors, scholars, and legislative and administrative officials who are motivated by legal education and values and who strive to vindicate the promise of the party itself to “help people feel justice and fairness in every judicial case.” The struggle continues.



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