Roger writing the LAWmag

China Politburo - Take A $%##@!@@ Hike

As the Peoples' Republic of China hosts the 2008 Olympics games, we are all asked to blink at a regime that continues to stall true justice reform in the world’s most populous nation.

China's political leadership do not  ... ever ... want to see another 1989 when, in the historic Tiananmen Square, hundreds of students were mowed down by machine-gun wielding government troops to ... save a nation?

No.

To stifle free speech and bully the budding John Adams of Chinese democracy.

China flagHow quickly - for the sake of 18 days of sporting news - we are prepared to forget.

China's homogeneous population of some 1.3-billion, is the largest in the world, spread out over the fourth largest landmass. Ninety per cent of Chinese are literate.

Law and order is based on a civil law legal system, largely taken from a communist, more specifically, socialist model of the former Soviet Union, a model which does not extend to it’s people the full gamut of human rights, by a contemporary free and democratic standard.

Imagine for a moment waking up under the shadow of a socialist government.

Ouch!

Nor do the Courts of China have the final statute interpretation authority – a vital component of the check of judicial independence. That still vests in the politburo.

According to the Ministry of Justice of China:

"China has not accepted the jurisdiction of the International Court of Justice and it has not signed any bilateral or multilateral treaty concerning criminal extradition with any other country."

Not wiped out in China is the crime of slavery, although politely raised in the context of a more politically correct term of "human trafficking", for both the sex trade and to thwart immigration.

The USA/CIA Factbook, 2008:

"China is a source, transit, and destination country for men, women, and children trafficked for the purposes of sexual exploitation and forced labour."

Even official Chinese government documents acknowledge the prevalence of "the crimes of abducting women and children."

This notwithstanding, China has a low crime rate for petty crime such as theft ( which the Chinese still refer to by the quaint common law term, larceny).

China also has a culture which by the mere fact of its lineage commands respect – some-4,000 years old, dating back to as far as Hammurabi.

But the legal system and the law, though Buddhist and Confucian in spirit, remain hard, strict, rigid and unforgiving, behooving no-one who fancies life and liberty to tempt by cries of reform.

Mao Zedong, the communist who took over in 1949, was not one to sacrifice a little totalitarianism at the altar of Buddha.

man facing down tanksFifty-five years later, in March of 2004, China amended its Constitution to add the magic words:

"The State respects and protects human rights."

But nothing else.

To quote Kronk from Disney's The Emperor's New Groove: "Riiiiiiiiiight."

Most pundits see these new words of law as a hollow concession to the temporary effect of the International Olympic Committee's award, to the capital city of Beijing, of the 2008 Summer Olympic Games.

Away from the glare and glamour of press conferences, Chinese courts continue to sentence to death and execute thousands of individuals every year (see Requiem For A Death Penalty - MacJustice).

The elite politburo is simply scared-dead of opening up the Pandora's Box of human rights.

When all is said and done, China clearly prefers the hammer and sickle approach to law and order.

The parrot-voices of Chinese justice department officials proudly remind us that under-aged criminals can be sentenced to death. They are only killed when they attain the age of majority (18).

To get to judgment, Chinese courts render judgment based on highly-suspect evidence such as written and unsworn statements, and in closed courts; slingshot justice.

Suspects are presumed guilty so they are referred to as "criminals" while they go through trial.

Assertive advocacy can often lead a plucky defence attorney some jail time.

Long periods of detention without trial is customary as is - surprise! - a high rate of confessions.

It was only in 1979 that Chinese judges were bound to any formal procedure, substandard though they be. With that came a long-awaited stipulation (from DOJ-China):

"...it is prohibited to use torture to coerce confessions or gather evidence through threats, enticement, deceit or other unlawful methods...."

But all that rigidity will be swept under the table while the world watches the 2008 Games.

When a Korean film crew leaked details of the opening ceremonies, the typical response would of been jail. But in the days before the games, a Chinese official:

"... laughed off questions about such a punishment during a news conference earlier this year, saying 'Who is going to deliver such a judgment?'"

The penal code of this last major bastion of communism defines and punishes, as a crime, activities deemed to "undermine the socialist economic order, which includes ...speculation...."

And though it be a civil law system, the penal code of China is not the sole nest of criminal law. Chinese criminal law sports a plethora of sub-laws or regulations which are quickly, and politically amended, and which often contain the pith and substance of totalitarianism.

Where China really out-does itself is in the political perversion of its justice system.

Even though Chinese law strictly punishes trade-mark and other intellectual property "crimes", the country remains one of the world's top violators of intellectual property rights.

That's saying something about China's will to pick and choose which of it’s laws it enforces.

China really sinks its political teeth into the justice system in it’s aggressive prevention, investigation and prosecution of anti-communism "crimes", which their law books refer to as treason, "counter-revolutionism" or inciting "mass revolution".

During the Olympic Games, athletes and tourists alike will be politely prevented from unfurling any type of banner.

Pulling any type of stunt in Tiananmen Square might result in more than a polite bump from China's omnipresent and efficient infantry.

Certain websites, such as those of Amnesty International - remain banned throughout rural China.

As the world goes through the motions of international sporting events, a particular aspect of the opening ceremonies ought to ring ironic. Media invited the opening ceremony rehearsals had to sign confidentiality agreements which included liquidated damages of seven years in prison for breaking the contract. 

One wonders what goes through the mind of Wang Dan, one of the lucky to survive the massacre but having still endured imprisonment from 1990 to 1993 and again from 1995 to 1998, and later exiled.

On this, days after the death of Alexander Solzhenitsyn, how many more are contained in what he coined as ‘gulags’; or the millions of Chinese that are just as effectively hushed right in their kitchens?

Advisory to 2008 Beijing Games tourists:

  • If you are a "westerner" with strong opinions as to the betterment of China, you are persona non grata.
  • If you are Chinese, just keep your mouth shut.

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Posted in Human Rights, International Law
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