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The Great Stonewall of China

Author: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies
April 15, 2006
Wall Street Journal


Given the Bush administration’s long list of foreign policy priorities, and widespread American concern about U.S.-China business and security problems, Chinese President Hu Jintao may believe his government’s repressive criminal justice system will get light scrutiny during his forthcoming visit to Washington. He is likely to be disappointed.

The U.S. has too much at stake to ignore abuses in China’s courts—and American business counts on Beijing realizing its promise to develop a genuine rule of law. The Bush administration has rightly spoken out on behalf of victims of a system that is out of sync with China’s economic and social progress. Reformers within the ranks of the Communist Party and government who are struggling to bring the judicial system up to world standards have welcomed this international support.

China ’s conservative leaders have increasingly relied on criminal and administrative punishment to suppress rising demands for social justice, honest government, political participation and religious freedom, especially among those who feel left behind by the country’s rapid modernization. In these circumstances, and except for a belated effort to rein in a death penalty process that is notoriously out of control, the nation’s leaders have refused to approve a host of urgently required reforms. Actually, the leadership is badly divided about law reform as well as other important aspects of political reform. This lack of consensus extends not only to proposed constitutional, legislative and regulatory innovations but even to the handling of individual criminal cases.

Nothing better illustrates the current stalemate at the top than the pending case of Zhao Yan, an able Chinese staff member of the Beijing Bureau of the New York Times. Mr. Zhao was detained on Sept. 17, 2004, by the Ministry of State Security—China’s version of the Soviet KGB. He was detained for allegedly leaking state secrets to a foreign organization, a charge that could result in a long prison sentence, possibly even the death penalty.

Mr. Zhao was suspected of informing the Times, before other media learned of it, that former President Jiang Zemin was about to step down from his remaining post as head of the Military Affairs Commission. The newspaper published the report, which turned out to be accurate, and reportedly infuriated at least one top leader. But the Times denied that Mr. Zhao had been one of its sources.

Although this case, like others said by the police to involve “state secrets,” has been almost totally non-transparent (for a long period Mr. Zhao was denied access to a lawyer or anyone else), it became clear that the investigators had turned up no significant evidence to support their suspicion. The only item cited to “prove” his involvement was a brief memo written by him about a leadership power struggle that had nothing to do with the report in question and that had been illegally seized from the Times’s files.

Yet by any interpretation of China’s ambiguous and flexible criminal procedure code, the time limit for continuing to detain Mr. Zhao was about to expire. At that point, the police, rather than release him for lack of evidence, resorted to a familiar technique for extending their custody of a suspect. They charged him with another offense, defrauding a friend, not normally a matter of concern for the secret police. This started the clock running again.

At long last, under a hail of criticism from abroad but under evident command from on high, the police recommended prosecution on both the state secrets and fraud charges; and the procurator issued an indictment on both counts. Yet, once again, the case encountered long and unexplained delays, this time in holding the trial. Finally, on March 17, the last working day before the ultimate deadline for a timely trial, the Beijing Intermediate Court issued a surprise decision approving an unusual request by the procurator to withdraw the indictment on the ground that it needed to supplement investigation of the fraud count. Amazingly, the court order said nothing about the impact of this decision on the state secrets count.

Defense counsel immediately asked the judge in charge whether the court’s decision also meant withdrawal of that count, and he was told that it did. Under Chinese law this should have resulted in Mr. Zhao’s release, or at least a more relaxed restraint under house arrest or bail. Yet nothing has happened in the intervening weeks, despite defense efforts to highlight the apparent lack of legal authority to continue holding Mr. Zhao.

The matter is obviously out of the realm of the courts. Yet in this case the political leadership seems to be in extraordinary disarray, incapable of agreeing upon what it should tell the judiciary to do, as it normally does in important cases. When the Foreign Ministry was asked for clarification, it claimed to be uninformed and surprised. Later its spokesman would only say that the foreign press had misconstrued the situation in predicting that the court order would lead to Mr. Zhao’s release. Since then, there has been nothing but a wall of silence.

President Hu will soon be exposed to potential questioning by sophisticated American audiences. This time they may not accept the Chinese leadership’s customary hypocritical response that “the case is under consideration by the judicial authorities” and therefore discussion would not be appropriate. Or will Zhao Yan join the ranks of so many other forgotten Chinese prisoners because our officials, media, business representatives, think tanks and universities allow President Hu to stonewall?

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