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Revealing State Secrets: China's Justice system goes under the microscope
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posted Monday, 27 February 2006
If you are accused of a crime in China, and you desire to maintain your freedom, there are a number of things that you can do.
You can hire a slick lawyer. You can offer to make a large cash donation to the judge. You can even sit back and trust in the Chinese justice system (no laughing, please). All of which might of which might help if you are charged with an 'ordinary' crime, like petty theft, murder, or committing genocide in a foreign country.
However, if you are charged with "endangering state security", it is likely that there will be little that you can do, or say, to change the outcome. At least according to John Kamm, the head of the US based pressure group 對話基礎會 (the Dui Hua Foundation).
An Enviable Conviction Rate?
Speaking before the Hong Kong Foreign Correspondents club, Kamm accused China of being a 'serial jailer of dissidents' with a policy of 'arbitrary guilt' when it came to state security conviction.
The accusation came during a speech titled: “Crimes Without Victims, Prisoners Without Names”, made last Tuesday. In which Kama pointedly noted that somebody accused of "endangering state security" in China, one of the charges commonly leveled against dissidents, has only a 1 in 100 chance of escaping conviction.
Kamm, whose foundation regularly reports on human right abuses in China, also lambasted Beijing for the harsh sentencing of dissidents. Voicing that somebody convicted by Beijing, for "endangering state security", had almost a 70 percent chance of received a sentence of 5 or more years.
Statistically, approximately 25 percent of non-security related convictions in China result in a penally of 5 or more years.
Endangering State Security?
Officially the crime of “endangering state security” is defined by five clauses under Article 4 of China's “State Security law”.
Although totalling 5 clauses, a significant number convictions for “endangering state security” are made under just two; Clause 1 or 3. Many are made under both.
Common charges of “endangering state security”, made under article 4, include:
Clause 1
Under Beijing's current interpretations of this law, any individual who disagrees with the government's handling of an incident, or calls on the government to amend any of its practices or procedures, can be detained under Clause 1 on charges of 'Subversion'.
An individual can also be sentenced under Clause 1 for highlighting differences of opinion about events, or for contradicting the governments account of an event, regardless of whether they actively call for any changes to be made in the Chinese system, or to the state line on that event. This is often demarcated as 'Inciting Subversion'.
In broad terms, clause 1 can be applied to any individual who advocates any social, historical, or political view which differs from that of the state, or who calls for any kind of reform.
Those sentenced under Clause 1 include
Clause 3
While current interpretations of Clause 1 allow anybody who disagrees with the state to be sentenced under the accusation that they are committing, or inciting, subversion, Clause 3 allows any individual to be imprisoned for revealing or possessing any information that has previously been censored or withheld from viewing by the state. Or for revealing accurate information about any event or incident which has been distorted by the state.
An individual can be sentenced for “revealing state secrets" under clause 3 regardless of whether they were aware that the information was secret, or whether the information was considered to be secret at the time that the individual revealed it (it can be applied retrospectively).
Controversially, such information does not have to be related to security, and can include anything that has been deemed to be 'secret' by the state under Article of “Law of the People's Republic of China on Guarding State Secrets”
Non security related items that have been classified as secret, in the past, include the number of casualties from natural disasters and the planned retirement of Jiang Zemin, (for which New York Times worker was, ZhaoYan was reportedly detained).
Those sentenced under Clause 3 include
What is a State Secrets?
The nature of a 'state secret' is defined under Article 8, Clauses 1-7, of the “Law of the People's Republic of China on Guarding State Secrets”. Readers should note that Clause 7 is a catchall.
Unusually, in China, state secrets can also include publicly available information taken from books or newspapers.
As such, in 1999, Rebiya Kadeer, an ethnic Uighur, was detained under Article 4, Clause 3, for attempting to mail several local newspaper articles, on Uighur issues, to her husband in the US.
Currently, there are believed to be approximately 3,500 dissidents in Chinese jails, who were sentenced for in China under charges of “endangering state security”.
A Wider Trend?
Although some would argue that it is a separate issue, it has been pointed out that China's high trial- conviction ratio for “endangering state security” is not an anomaly, at least as far as the Chinese justice system is concerned. In reality, it is generally consistent with the rest of the Chinese legal system, a fact which Kamm neglected to include in his address.
Indeed, the overall trial-conviction rate in China is, on average, over 95 percent for most charges. Regardless of their relation to state security.
Further more, the actual arrest ratio, given China's broad interpretation of “endangering state security”, is fortunately very low. With only a fraction of so-called dissidents ever being identified and brought to trial.
In this light, critics have also pointed out that China's trial-conviction ration, both for civil and security issues, is roughly in line with that of its neighbors. With critics voicing that both Japan and Korea having similar trial-conviction rates to China in their criminal and security courts, and arguing that, while some considerable flaws are known to exist in the Chinese system; including the fact that 70 percent of trials are conducted without defense lawyers present, a high conviction rate isn't always an indicator of an 'bad' system.
Defense?
Proponents of the Chinese, Japanese and Korean systems often put this high conviction rate down to a combination of a lower rate of criminality among the population; which makes for fewer court cases and for simpler convictions for those cases that do occur, and reliable investigation and 'pre trial screening'; by which fewer innocent people are brought to trial unnecessarily.
More over, they have leveled that these countries have a more 'robust' approach to justice that ensures fewer criminals escape justice, when they are brought to trial, than in 'more liberal' western countries.
As such, proponents of the Asian justice system have accused western countries, particularly the US, of taking the maxim 'let the guilty go free, rather than convict the innocent' to an extreme level that denies justice to many victims, and of having 'sloppy systems' that allow criminals, with slick lawyer, to escape punishment based on legal technicalities, and to abuse 'reasonable doubt' clauses so as to confuse juries. With critics citing cases in the west were murderer cannot be tried because the body of their victim was never found, even though ample motive, intent and opportunity are present, and cases where vital evidence was ruled 'inadmissible' because of 'over protective' privacy laws or procedural barriers that 'put the rights of the accused on too high a pedestal'. Thus pushing down western conviction rates, particularly for sexual crimes.
Outside of this though, it has been statistically shown that high trial-conviction rates are common in courts that apply “civil law” (trial by magistrate) such as those in China, but lower in those that apply “Common Law” (Trial by Jury) such as those in the US.
A fact which is true regardless of the legal system behind them, and which can be noted in countries such as America and Britain, which use both systems in tandem for their civil and criminal justice systems.
This alone accounts for much of China's conviction rate. A fact compounded significantly by the flaws that do exist in the Chinese system.
Comparison?
In comparison to Chinese courts which have a 95 percent plus conviction rate (raising to 99 percent in some jurisdictions), many US criminal courts have a 90 percent conviction rate. Though this is often due to “plea Bargaining” where a defendant pleads guilty to a lesser crime in order to avoid conviction for a more serious crime, or in order to receive a lesser sentence; A practice which has often been criticized for 'funnelling the innocent into a guilty plea rather than risk conviction for a more serious offense', but which provides one of the foundations of the US justice system and has been credited with speeding up the progression of cases through the courts.
Similarly, many of the charges that do not end in convictions in the US relate to 'conspiracy' (conspiracy to aid, commit or conceal a crime, in conjunction with the primary defendant). A common charge in the US , which is difficult to prove. Often results in multiple charges being laid, but fewer convictions being reached. Particularly in incidents where a 'not guilt' plea is entered, necessitating a jury trials.
In the past, US 'Conspiracy' laws (which exists in only in a very limited form in China, Japan and Korea) have been accused of being a tool to compel witnesses to testify against friends and family, lest they be charged as accomplices to their crimes.
As of 2003, US conviction rates for jury trials without plea bargains were:
You can hire a slick lawyer. You can offer to make a large cash donation to the judge. You can even sit back and trust in the Chinese justice system (no laughing, please). All of which might of which might help if you are charged with an 'ordinary' crime, like petty theft, murder, or committing genocide in a foreign country.
However, if you are charged with "endangering state security", it is likely that there will be little that you can do, or say, to change the outcome. At least according to John Kamm, the head of the US based pressure group 對話基礎會 (the Dui Hua Foundation).
An Enviable Conviction Rate?
Speaking before the Hong Kong Foreign Correspondents club, Kamm accused China of being a 'serial jailer of dissidents' with a policy of 'arbitrary guilt' when it came to state security conviction.
The accusation came during a speech titled: “Crimes Without Victims, Prisoners Without Names”, made last Tuesday. In which Kama pointedly noted that somebody accused of "endangering state security" in China, one of the charges commonly leveled against dissidents, has only a 1 in 100 chance of escaping conviction.
| “99 percent of all people tried for endangering state security [in China] are found guilty. In 2004, only five people were acquitted. This is the highest conviction rate of all crimes tried by Chinese courts.” John Kamm, 對話基礎會(the Dui Hua Foundation), US |
Kamm, whose foundation regularly reports on human right abuses in China, also lambasted Beijing for the harsh sentencing of dissidents. Voicing that somebody convicted by Beijing, for "endangering state security", had almost a 70 percent chance of received a sentence of 5 or more years.
| “These are the longest sentences for any of the broad categories of crime for which statistics are available. “ John Kama |
Statistically, approximately 25 percent of non-security related convictions in China result in a penally of 5 or more years.
Endangering State Security?
Officially the crime of “endangering state security” is defined by five clauses under Article 4 of China's “State Security law”.
| Article 4) Any organization or individual that has committed any act endangering the State security of the People's Republic of China shall be prosecuted according to law. "Act endangering State security" as referred to in this Law means any of the following acts endangering the State security of the People's Republic of China committed by institutions, organizations or individuals outside the territory of the People's Republic of China, or, by other persons under the instigation or financial support of the afore-mentioned institutions, organizations or individuals, or, by organizations or individuals within the territory in collusion with institutions, organizations or individuals outside the territory: (1) plotting to subvert the government, dismember the State or overthrow the socialist system; (2) joining an espionage organization or accepting a mission assigned by an espionage organization or by its agent; (3) stealing, secretly gathering, buying, or unlawfully providing State secrets; (4) instigating, luring or bribing a State functionary to turn traitor; or (5) committing any other act of sabotage endangering State security. State Security Law of the People's Republic of China |
Although totalling 5 clauses, a significant number convictions for “endangering state security” are made under just two; Clause 1 or 3. Many are made under both.
Common charges of “endangering state security”, made under article 4, include:
- Subversion
- Inciting others to commit subversions
- Separatism - Often the advocacy of independence for Tibet, Taiwan, Hong Kong or East Turkestan (新疆/Xinjiang)
Clause 1
Under Beijing's current interpretations of this law, any individual who disagrees with the government's handling of an incident, or calls on the government to amend any of its practices or procedures, can be detained under Clause 1 on charges of 'Subversion'.
An individual can also be sentenced under Clause 1 for highlighting differences of opinion about events, or for contradicting the governments account of an event, regardless of whether they actively call for any changes to be made in the Chinese system, or to the state line on that event. This is often demarcated as 'Inciting Subversion'.
In broad terms, clause 1 can be applied to any individual who advocates any social, historical, or political view which differs from that of the state, or who calls for any kind of reform.
Those sentenced under Clause 1 include
- Freelance Journalist Wang Jinbo: sentenced to 4 years for 'attempting to subvert the power of the state' after writing an article explaining why he felt that the 1989 student demonstrations 'were not counterrevolutionary'.
- Freelance Journalist Lu Xinhua: Sentenced to 4 years 'attempting to subvert the power of the state' after revealing official corruption and calling on Beijing to tackle it.
- Freelance Journalist Zhang Honghai: Sentenced to 8 years for 'attempting to subvert the power of the state' after allowing two essays, "Be a New Citizen, Reform China" and "What's to Be Done?", to be posted on his internet discussion forum. Both documents called for official reforms.
Clause 3
While current interpretations of Clause 1 allow anybody who disagrees with the state to be sentenced under the accusation that they are committing, or inciting, subversion, Clause 3 allows any individual to be imprisoned for revealing or possessing any information that has previously been censored or withheld from viewing by the state. Or for revealing accurate information about any event or incident which has been distorted by the state.
An individual can be sentenced for “revealing state secrets" under clause 3 regardless of whether they were aware that the information was secret, or whether the information was considered to be secret at the time that the individual revealed it (it can be applied retrospectively).
Controversially, such information does not have to be related to security, and can include anything that has been deemed to be 'secret' by the state under Article of “Law of the People's Republic of China on Guarding State Secrets”
Non security related items that have been classified as secret, in the past, include the number of casualties from natural disasters and the planned retirement of Jiang Zemin, (for which New York Times worker was, ZhaoYan was reportedly detained).
Those sentenced under Clause 3 include
- Journalist Shi Tao: Sentenced to 10 years after emailing a foreign acquaintance the abstract form an official briefing document which instructed newspaper staff to manipulate public opinion in certain key areas, and to spy on colleague that maintained ties to foreign media outlets.
- East Turkestan Information Center journalist Abdulghani Memetemin: Sentenced to 10 years after translating news stories between Chinese and Uighur, and for providing a foreign agency with information on human rights abuses committed by Han forces occupying East Turkestan (新疆/Xinjiang).
What is a State Secrets?
The nature of a 'state secret' is defined under Article 8, Clauses 1-7, of the “Law of the People's Republic of China on Guarding State Secrets”. Readers should note that Clause 7 is a catchall.
| Article 8) In accordance with the provisions of Article 2 of this Law, state secrets shall include the following: (1) secrets concerning major policy decisions on state affairs; (2) secrets in the building of national defence and in the activities of the armed forces; (3) secrets in diplomatic activities and in activities related to foreign countries as well as secrets to be maintained as commitments to foreign countries; (4) secrets in national economic and social development; (5) secrets concerning science and technology; (6) secrets concerning activities for safeguarding state security and the investigation of criminal offences; and (7) other matters that are classified as state secrets by the state secret-guarding department. Law of the People's Republic of China on Guarding State Secrets |
Unusually, in China, state secrets can also include publicly available information taken from books or newspapers.
As such, in 1999, Rebiya Kadeer, an ethnic Uighur, was detained under Article 4, Clause 3, for attempting to mail several local newspaper articles, on Uighur issues, to her husband in the US.
Currently, there are believed to be approximately 3,500 dissidents in Chinese jails, who were sentenced for in China under charges of “endangering state security”.
A Wider Trend?
Although some would argue that it is a separate issue, it has been pointed out that China's high trial- conviction ratio for “endangering state security” is not an anomaly, at least as far as the Chinese justice system is concerned. In reality, it is generally consistent with the rest of the Chinese legal system, a fact which Kamm neglected to include in his address.
Indeed, the overall trial-conviction rate in China is, on average, over 95 percent for most charges. Regardless of their relation to state security.
Further more, the actual arrest ratio, given China's broad interpretation of “endangering state security”, is fortunately very low. With only a fraction of so-called dissidents ever being identified and brought to trial.
In this light, critics have also pointed out that China's trial-conviction ration, both for civil and security issues, is roughly in line with that of its neighbors. With critics voicing that both Japan and Korea having similar trial-conviction rates to China in their criminal and security courts, and arguing that, while some considerable flaws are known to exist in the Chinese system; including the fact that 70 percent of trials are conducted without defense lawyers present, a high conviction rate isn't always an indicator of an 'bad' system.
Defense?
Proponents of the Chinese, Japanese and Korean systems often put this high conviction rate down to a combination of a lower rate of criminality among the population; which makes for fewer court cases and for simpler convictions for those cases that do occur, and reliable investigation and 'pre trial screening'; by which fewer innocent people are brought to trial unnecessarily.
More over, they have leveled that these countries have a more 'robust' approach to justice that ensures fewer criminals escape justice, when they are brought to trial, than in 'more liberal' western countries.
As such, proponents of the Asian justice system have accused western countries, particularly the US, of taking the maxim 'let the guilty go free, rather than convict the innocent' to an extreme level that denies justice to many victims, and of having 'sloppy systems' that allow criminals, with slick lawyer, to escape punishment based on legal technicalities, and to abuse 'reasonable doubt' clauses so as to confuse juries. With critics citing cases in the west were murderer cannot be tried because the body of their victim was never found, even though ample motive, intent and opportunity are present, and cases where vital evidence was ruled 'inadmissible' because of 'over protective' privacy laws or procedural barriers that 'put the rights of the accused on too high a pedestal'. Thus pushing down western conviction rates, particularly for sexual crimes.
Outside of this though, it has been statistically shown that high trial-conviction rates are common in courts that apply “civil law” (trial by magistrate) such as those in China, but lower in those that apply “Common Law” (Trial by Jury) such as those in the US.
A fact which is true regardless of the legal system behind them, and which can be noted in countries such as America and Britain, which use both systems in tandem for their civil and criminal justice systems.
This alone accounts for much of China's conviction rate. A fact compounded significantly by the flaws that do exist in the Chinese system.
Comparison?
In comparison to Chinese courts which have a 95 percent plus conviction rate (raising to 99 percent in some jurisdictions), many US criminal courts have a 90 percent conviction rate. Though this is often due to “plea Bargaining” where a defendant pleads guilty to a lesser crime in order to avoid conviction for a more serious crime, or in order to receive a lesser sentence; A practice which has often been criticized for 'funnelling the innocent into a guilty plea rather than risk conviction for a more serious offense', but which provides one of the foundations of the US justice system and has been credited with speeding up the progression of cases through the courts.
Similarly, many of the charges that do not end in convictions in the US relate to 'conspiracy' (conspiracy to aid, commit or conceal a crime, in conjunction with the primary defendant). A common charge in the US , which is difficult to prove. Often results in multiple charges being laid, but fewer convictions being reached. Particularly in incidents where a 'not guilt' plea is entered, necessitating a jury trials.
In the past, US 'Conspiracy' laws (which exists in only in a very limited form in China, Japan and Korea) have been accused of being a tool to compel witnesses to testify against friends and family, lest they be charged as accomplices to their crimes.
As of 2003, US conviction rates for jury trials without plea bargains were:
- 46% Rape
- 69% Murder
- 54% All other criminal felonies.
View Comments/Add a Comment (3)
1. dave left...
Friday, 3 March 2006 10:31 pm :: http://daveinchina.com
During the initial SARS scare - much of the delay in reporting the actual
number of SARS cases was due to doctors worrying that they would be
'revealing state secrets.'
2. ACB left...
Friday, 3 March 2006 10:49 pm :: http://angrychineseblogger.blog-city.com
too right.
3. China Law Blog left...
Thursday, 11 May 2006 1:22 pm
I often blog about how China's courts are getting better, but I always am
sure to mention this does NOT include those cases in which Beijing's
policies are at stake. This is why.