China Scores Low Marks on Human Rights in 14 Democracies

A recent Pew survey finds that China's favorability rating among Americans is at its lowest level since Pew began polling attitudes towards China in 2005. Photo Source: telegraph.co.uk

According to a June report from the Pew Research Center, more than 60 percent of respondents in 14 democratic countries across North America, Europe, and Asia believe that the Chinese government does not respect the personal freedoms of its people. In France, Germany, and Sweden, as many as nine out of ten people surveyed hold this view. The report comes on the heels of a Joint Statement criticizing China’s human rights record, signed by several of the countries surveyed in the poll, that was released at the meeting of the Human Rights Council in Geneva in March.

General attitudes towards China were also starkly negative—in the United States, where 80 percent of people polled think that the Chinese government does not respect the personal freedoms of its people, only 37 percent of those surveyed have a favorable opinion of China. This figure represents the lowest favorability rating since Pew began polling attitudes towards China in 2005.

Unfavorable Five-Year Trend

Negative feelings towards China have risen sharply since 2011, the year before Xi Jinping took over as chairman of China’s Communist Party. The figure below shows that in five major global powers—US, UK, France, Germany, and Japan—survey respondents with unfavorable views of China have increased since 2011.Since Xi has come to power, China’s relations with neighboring countries have likewise deteriorated—Vietnam, Philippines, Malaysia, and Indonesia, for example, have all drawn closer to the US.

Percentage of Respondents with Unfavorable View of China, 2011 and 2016, by Country

Source: Pew Research Center Reports, 2011 and 2016.

These results cast doubt upon Xi’s approach to international affairs, evidenced most recently by China’s decision to refrain from any participation in the South China Sea arbitration case brought against it by the Philippines at the Permanent Court of Arbitration in The Hague. Not only did the PCA reject China’s “nine-dash line” claim to rights over the South China Sea, "the ruling was unanimously in favor of the Philippines on every issue. The result is widely seen as a blow to China’s prestige, and to Xi’s leadership skills as well.

On specific issues, Pew respondents also tended to hold negative opinions of the Chinese economy. Of the ten European countries surveyed, all but one (France), now see the United States as the world’s leading economic power. In 2015, those surveyed in France, Germany, Spain, and the United Kingdom held the opinion that China was the world’s leading economic power. Competing with China-related economic fears, increasing numbers of Americans are “most concerned” with China’s growing military might. (Economic concerns outweigh military concerns, however, though the percentage of those who are most concerned by China’s economic might is dropping.)

The Pew results were not entirely grim for China, however. A majority of people in Australia have a favorable view of China. According to a poll conducted by the Lowy Institute that was released in June, Australians now view China as their best friend in Asia, and 43 percent feel that Australia’s relationship with China is the country’s most important relationship, tied with the percentage who hold that the relationship with the United States is the country's most important relationship. Nevertheless, 86 percent of Australians surveyed in the Lowy poll stated that “China’s human rights record” exerted a negative influence on their views of the country.

Finally, in a finding that might have implications in the American presidential campaign, there is a wide disparity in American views about China based on respondents’ political affiliation and age. Republicans tend to have more negative feelings towards the country than Democrats, and young people tend to view China more favorably than older people.

Could China’s New Oversight Rules Have Avoided Arbitrary Detention of American Citizen?

The United Nations Palais des Nations. On June 29, the UN Working Group on Arbitrary Detention recommended the release of American Sandy Phan-Gillis, who has been detained for over a year without having charges brought against her in court. Photo: www.unog.ch

Dui Hua recently found a copy of Supreme People’s Procuratorate (SPP) regulations that govern oversight of “designated-location residential surveillance” (DLRS), a form of incommunicado detention that the Chinese government frequently uses in sensitive cases involving endangering state security, terrorism, and corruption (known as “three type offenses"). Dui Hua has translated the regulations into English below (Chinese source text available here).

The SPP adopted the regulations on October 13, 2015 with the apparent intention of curtailing abuse of DLRS. During public comment periods leading up to the 2013 revisions to the Criminal Procedure Law (CPL) that established DLRS powers, many commentators heavily criticized DLRS for effectively legalizing the secret, incommunicado detentions that had existed for years in China due to ambiguities and blank spots in the law. In November 2011, the United Nations Working Group on Enforced or Involuntary Disappearances had also objected to the proposed CPL revisions, arguing that they would amount to the legalization of enforced disappearances.

Oversight Regulations Aim to Limit Arbitrary Detention Through On-Site Inspections

Given the importance of DLRS oversight, it is tempting to speculate whether these rules, had they been in place just a few months earlier, might have helped mitigate if not avert the arbitrary detention of American citizen Phan (Sandy) Phan-Gillis—the only American currently in a Chinese detention facility on state secrets charges. On June 29, the UN Working Group on Arbitrary Detention (WGAD) published an Opinion holding that Phan-Gillis’ detention is “arbitrary”, with US State Department officials urging China to consider the WGAD’s recommendation to release Phan-Gillis. Indicating the heightened US-China tensions resulting from the case, Chinese Foreign Ministry spokesman Hong Lei issued a swift reply, referring to the WGAD findings as “irresponsible” and calling for greater respect of China’s “judicial sovereignty”.

Phan-Gillis (pictured left) was initially taken into custody by agents of the Guangxi Zhuang Autonomous Region’s state security bureau on suspicion of espionage on March 19, 2015. She was placed under DLRS until September 2015, when the six-month time limit on this coercive measure expired, and was then transferred to a detention center in Nanning and placed in solitary confinement. In March 2016, Newsweek reported on the one-year anniversary of her detention.

Phan-Gillis has not received access to effective assistance of legal counsel and continues to be held in detention in Nanning, having never had charges brought against her in court. Had the SPP’s new oversight regulations been in place when Phan-Gillis was initially detained, procurators would have possessed clear authority under Article 19 to carry out on-site inspection of Phan-Gillis’ DLRS conditions and to conduct return inspection visits once per week.

Other provisions of the oversight regulations raise the question whether procurators might also have been able to request her release or to otherwise curtail police powers. Article 20 of the regulations, for example, provides local procurators with authority to issue “rectification opinions” on procedural irregularities, several of which apply to the Phan-Gillis case: state security officials failed to notify Phan-Gillis’ family of her placement in a DLRS facility; probably failed to place her in a facility that meets the statutory requirements for DLRS (no one, including the American consular officials who conducted monthly visits, were allowed to visit Phan-Gillis in the detention facility where she is actually housed); and failed to allow her reasonable visits and correspondence with legal counsel and family as provided for under the relevant sections of the CPL, which grant discretion for the detaining authority to allow family and lawyer visits even in so-called “three type offenses.”

Unfortunately, even these minimal oversight mechanisms were not in place at the time of Phan-Gillis’ DLRS confinement. The new rules came into force weeks after the end of her transfer to a detention facility. As it stands, the abuses of discretion that marked the first case of legalized disappearance after passage of CPL revisions in 2013 are eerily similar to those apparent in ongoing cases like Phan-Gillis’. It remains to be seen whether the oversight rules translated below will yield discernible changes in future police application of DLRS procedures.

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Regulations on Oversight of Residential Surveillance in a Designated Location by People’s Procuratorates

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Adopted at the 41st meeting of the 12th Procuratorial Committee of the Supreme People’s Procuratorate on October 13, 2015

Chapter 1: General Principles

Article 1: In order to strengthen and standardize how people’s procuratorates carry out oversight regarding imposition and implementation of designated-location residential surveillance (DLRS), these regulations are hereby enacted in accordance with the relevant provisions of the Criminal Procedure Law of the People’s Republic of China (CPL) and in consideration of the realities of procuratorial work.

Article 2: When DLRS is used against criminal suspects or defendants by public security organs, people’s procuratorates, or people’s courts, people’s procuratorates shall carry out oversight in accordance with law as to the legality of imposition and implementation of DLRS.

Article 3: Oversight of decisions to impose DLRS shall be the responsibility of the investigation-oversight and prosecutorial units of people’s procuratorates; responsibility for oversight of implementation of DLRS shall reside with the criminal enforcement inspectorate units of people’s procuratorates.

Article 4: Designated locations shall possess the conditions for ordinary daily life and rest and shall be separate from places of interrogation; they shall be equipped with surveillance equipment to facilitate monitoring and management; and they shall possess security measures to ensure the security of case handling.

Chapter 2: Oversight of Decisions to Impose Designated-Location Residential Surveillance

Article 5: When a public security organ decides to impose DLRS on a criminal suspect who has no fixed residence, the investigation-oversight unit of the people’s procuratorate at the same administrative level [as the public security organ] shall conduct oversight to determine whether that decision has been made lawfully.

When a public security organ at a higher administrative level has approved a decision to place an individual suspected of endangering state security or terrorist activity under DLRS, the investigation-oversight unit of the people’s procuratorate at the same administrative level as the public security organ that issued approval shall conduct oversight as to whether that decision has been made lawfully.

Article 6: When a people’s procuratorate decides to place a criminal suspect who has no fixed residence under DLRS, the investigation-oversight unit of the people’s procuratorate immediately above shall conduct oversight as to whether that decision has been made lawfully.

When a people’s procuratorate at a higher administrative level has approved a decision to place an individual suspected of serious corruption under DLRS, the investigation-oversight unit of the people’s procuratorate that gave that approval shall conduct oversight as to whether that decision has been made lawfully.

Article 7: When any of the following conditions apply, the people’s procuratorate shall initiate oversight into whether a decision to impose DLRS is lawful:

(i) A criminal suspect or his/her legal representatives, close relatives, or defense counsel believe that the decision to impose DLRS is in violation of the law and file a complaint, report, or petition with the people’s procuratorate;

(ii) When, in the course of its involvement in investigation, review of arrest or indictment requests, review of criminal enforcement, or filing review, the people’s procuratorate discovers that the investigating organ (unit) may have issued a decision to impose DLRS in violation of the law;

(iii) A people’s supervisor believes that a decision to impose DLRS is in violation of the law and files an oversight opinion with the people’s procuratorate;

(iv) Other circumstances requiring initiation of oversight.

Article 8: When initiating oversight of a decision by a people’s procuratorate to place a criminal suspect who has no fixed residence under DLRS, the investigating unit shall furnish the investigation-oversight unit of the people’s procuratorate at the administrative level immediately superior with copies of the case-filing decision, the decision to impose DLRS, and main pieces of evidence within three days.

When initiating oversight of a decision to place an individual suspected of serious corruption under DLRS, the investigation unit of the people’s procuratorate that approved the decision shall furnish the aforementioned documents to its own investigation-oversight unit within three days.

When the people’s procuratorate initiates oversight into a decision to impose DLRS by a public security organ, it may request that the public security organ provide the aforementioned documents.

Article 9: Oversight into decisions to impose DLRS may be carried out in one of the following ways:

(i) Review of the relevant case documents;

(ii) Listening to the investigating organ (unit) present its reasons and factual basis for issuing the decision to impose DLRS;

(iii) Listening to the opinions of the criminal suspect or his/her legal representatives, close relatives, or defense counsel;

(iv) Other ways.

Article 10: In reviewing the legality of a decision to impose DLRS, the people’s procuratorate shall check to see whether the decision satisfies the conditions set out in Articles 72 and 69(3) of the CPL, and further review whether the decision meets the following conditions:

(i) The criminal suspect has no fixed residence in the city or county where the case-handling organ is located;

(ii) The public security organ or people’s procuratorate at the administrative level immediately superior has approved the decision to impose DLRS on an individual suspected of endangering state security, terrorist activity, or serious corruption for whom implementation of residential surveillance in his/her own residence would impede the investigation.

Article 11: The investigation-oversight unit of the people’s procuratorate should issue a decision within seven days of initiating oversight into whether a decision to impose DLRS was lawful.

Article 12: When, having carried out its review, the people’s procuratorate finds that the public security organ’s decision to impose DLRS does not meet the conditions set out by the law, it shall report those findings to the head of the procuratorate and, upon his or her approval, issue a rectification notice to the public security organ and recommend that the public security organ revoke its decision to impose DLRS.

When the procuratorate finds that a decision to impose DLRS issued by itself or the procuratorate at the next lower administrative level does not meet the conditions set out by the law, the investigation-oversight unit of the people’s procuratorate shall report to the head of the people’s procuratorate and, upon his or her decision, notify its own investigating unit or the people’s procuratorate at the next lower administrative level to revoke the decision to impose DLRS. When notifying the people’s procuratorate at the next lower administrative level to revoke the decision to impose DLRS, the procuratorate shall also circulate a notice to its own investigating unit.

Article 13: Upon receiving a rectification opinion from the people’s procuratorate at the immediately superior administrative level, the people’s procuratorate shall immediately carry out the recommendation and report on the steps taken to the investigation-oversight unit of the immediately superior people’s procuratorate.

If the people’s procuratorate believes that the rectification opinion from the immediately superior people’s procuratorate regarding its decision to impose DLRS is in error, it may request a new review by [that same superior] people’s procuratorate within three days of receiving the rectification opinion. The superior people’s procuratorate shall appoint a new procurator to review the case and issue a decision whether to amend its original opinion within five days.

Article 14: Oversight of decisions by the people’s procuratorate to impose DLRS during the indictment phase shall be carried out in accordance with these provisions by the investigation-oversight unit of the same people’s procuratorate.

Oversight of decisions by the people’s court to impose DLRS shall be carried out in accordance with these provisions by the prosecutorial unit of the people’s procuratorate at the same administrative level as the court.

Chapter 3: Oversight of Implementation of Designated-Location Residential Surveillance

Article 15: Oversight of implementation of DLRS is the responsibility of the criminal enforcement inspectorate unit of the people’s procuratorate at the same administrative level as the public security organ that implements the DLRS.

Article 16: Oversight by people’s procuratorates as to implementation of DLRS shall include the following:

(i) Whether legal paperwork, such as the DLRS decision or enforcement notice, is complete;

(ii) Whether the place, term, and personnel are in accordance with regulation;

(iii) Whether the lawful rights of the person under residential surveillance are being protected;

(iv) Whether there is any unlawful behavior, such as interrogation in the designated location, corporal punishment, or abuse of the person under residential surveillance;

(v) Other things that should be monitored in accordance with the law.

Article 17: When carrying out oversight into the implementation of DLRS, the people’s procuratorate may employ the following measures:

(i) Review of relevant legal documents; records of any meetings, correspondence, or outgoings by the person under residential surveillance; and physical examination records;

(ii) On-site inspection of whether the designated location meets the legal conditions;

(iii) Review of relevant surveillance video footage and, if necessary, physical examination of the person under residential surveillance;

(iv) Interviews with the person under residential surveillance, enforcement personnel, investigators, or other relevant personnel in order to ascertain and understand relevant circumstances.

Article 18: Within 24 hours of receiving a copy of a decision to impose DLRS from a public security organ or people’s court, the people’s procuratorate case management unit shall forward the decision to its criminal enforcement inspectorate unit.

When the investigation unit or prosecution unit of a people’s procuratorate issues a DLRS decision in the name of the procuratorate, it shall send a copy of the DLRS decision to its criminal enforcement inspectorate unit within 24 hours and notify it of the address of the designated location.

Article 19: Within 24 hours after receiving a copy of the DLRS decision, the criminal enforcement inspectorate unit of the people’s procuratorate shall appoint procurators to carry out on-site inspection and complete a record of oversight inspection. Monitoring of DLRS implementation should include return inspection visits by roving teams of no fewer than two procurators at least once per week. Inspection of the implementation of DLRS must not interfere with the ordinary work of criminal investigation.

Article 20: When oversight of DLRS implementation by the people’s procuratorate uncovers one of the following, the people’s procuratorate shall issue a rectification opinion to the enforcement or investigating organ in accordance with the law:

(i) Failure of the enforcement organ to appoint enforcement personnel or failure to appoint enforcement personnel in a timely manner upon receipt of the DLRS decision and implementation notice;

(ii) Except when it is impossible to provide notice, failure to notify the family of the person under residential surveillance within 24 hours of implementing DLRS;

(iii) Implementation of residential surveillance in a detention center, administrative jail, prison, holding cell, case-handling area, or other location not meeting the statutory conditions for a designated location;

(iv) Arranging meetings or correspondence between defense lawyers and the person under residential surveillance in ways that violate regulations or illegally restricting the person under residential surveillance from meeting or corresponding with a defense lawyer;

(v) Failure by a new case-handing organ to issue a new DLRS decision in a timely manner when there is a change in the phase of the criminal process;

(vi) Failure of the enforcement organ to lift residential surveillance in a timely manner and notify the person under residential surveillance in a timely manner when the case-handling unit issues a decision to lift or change the DLRS conditions and notifies the enforcing organ of such;

(vii) Demands for payment by the person under residential surveillance or his or her family;

(viii) Other illegality.

When the criminal enforcement inspectorate unit of the people’s procuratorate discovers that the investigation or prosecutorial unit of its own procuratorate has violated one of the above conditions, it shall seek approval from the head of the procuratorate to issue a rectification opinion.

Article 21: When the criminal enforcement inspectorate unit of the people’s procuratorate finds irregularities in enforcement or security risks in the implementation of DLRS, it shall seek approval from the head of the procuratorate to issue a procuratorial recommendation to the enforcement organ or case-handling organ.

Article 22: When a rectification notice or procuratorial opinion has been issued, a copy shall be sent to the procuratorate at the administrative level immediately superior as well as to the unit immediately superior to the enforcement unit or case-handling unit.

Article 23: When a person under residential surveillance dies while under DLRS, the case shall be handled with reference to the Supreme People’s Procuratorate procuratorial procedures for death of a person in custody in a detention facility.

Article 24: When a people’s court or people’s procuratorate assigns judicial police officers to assist the public security organ with implementation of DLRS, the criminal enforcement inspectorate unit of the people’s procuratorate shall carry out oversight of those officers’ assistance with implementation.

Chapter 4: Additional Provisions

Article 25: The people’s procuratorate shall process and provide responses in a timely manner to complaints, reports, or petitions regarding imposition or implementation of DLRS from criminal suspects or their legal representatives, close relatives, or defense counsel.

Article 26: When the investigation-oversight or prosecutorial unit of the people’s procuratorate discovers the possibility of illegality in the implementation of DLRS, they shall report their findings in a timely manner to the criminal enforcement inspectorate unit. When the criminal enforcement inspectorate unit discovers the possibility of illegality in imposing a DLRS decision, it shall report its findings in a timely manner to the investigation-oversight or prosecutorial unit.

Article 27: If, in the course of its oversight of imposition or implementation of DLRS, the people’s procuratorate discovers violations of disciplinary rules or the law by case-handling personnel or enforcement personnel, it shall seek a decision from the head of the procuratorate to send the case in a timely manner to be handled by the appropriate unit; if the wrongdoing constitutes a criminal offense, it shall pursue criminal responsibility in accordance with the law.

Article 28: If there are violations of disciplinary rules or violations of the law by procuratorial personnel overseeing imposition or implementation of DLRS, responsibility shall be pursued in accordance with the relevant provisions; if the wrongdoing constitutes a criminal offense, responsibility shall be pursued in accordance with the law.

Article 29: Oversight of imposition or implementation of DLRS by the people’s procuratorate shall be handled as part of the unified system of duties of the people’s procuratorate. The case-management unit of the people’s procuratorate shall conduct periodic statistical analysis and quality assessment and report results in a timely manner to the relevant units.

Article 30: These measures take effect from the date of promulgation.