Liu Xiaobo's case shows harsh Chinese sentencing trend for freedom of expression

Sarah Cook [Asia Research Analyst and Assistant Editor, Freedom House]: "When Chinese democracy activist and author Liu Xiaobo was sentenced to 11 years in prison last week, many around the world appeared stunned by the length of his sentence and absence of due process rights. Such harsh punishment for offering rational, constructive criticism of the government seems more compatible with Soviet times or Burma's ruling junta than the modernized economic world power that China has become.

Unfortunately, Liu's sentencing - in all its injustice and absurdity - is symptomatic of more systemic problems and politicization of the Chinese legal system, particularly in so-called "sensitive" cases. Moreover, in the past two years, signs have emerged that the situation may be getting worse, not better.

Over the past three decades, the Chinese legal system has been built from scratch — thousands of laws have been passed, judges trained, and state-of-the art courthouses built. Under this external facade of modernity, however, lies a system that still falls far short of the rule of law.

The Chinese Communist Party exercises significant influence over the judicial system via its political-legal committees and power to appoint judges, most of whom are party members and subject to its disciplinary procedures. Whether because of direct orders from the local party committee or fear of reprisals from other state actors, judges' autonomy to decide cases based on the law and evidence remains circumscribed.

In recent years, greater space has been granted in commercial cases, disputes between private individuals, and some administrative decisions. Nevertheless, judicial independence remains dramatically curtailed in socio-economic and politically sensitive cases, where lawsuits may be automatically rejected and verdicts are routinely predetermined. Hence the need for no more than a few minutes or hours per trial.

Beyond direct political intervention, multiple other factors may take precedence over the law in judicial decision-making. Corruption remains widespread. In a dynamic that can sway justice in favor of ordinary citizens, public opinion and attention via the internet have also been shown to impact judicial considerations.

Whether this more populist form of justice indicates a move towards the rule of law is debatable, however. As rights attorney Gao Zhisheng reflects in his memoir, "The decisions in favor of these children [in medical malpractice suits] were usually made because of public support and pressure from the media, rather than out of the judges' genuine concern for the children's rights under the law. As for the law, it has not demonstrated the capacity to play a role on its own."

As citizens' awareness of their legally enshrined rights has grown and attorneys like Gao have prompted officials to follow the laws they themselves passed, Party leaders have become nervous. After a decade of emphasizing professionalism and limited judicial autonomy, since 2007, their attitude towards the judiciary has reverted in a more unabashedly political direction. In March 2008, a party veteran with no formal legal training was appointed as chief justice.

Soon after, he issued a new doctrine termed the Three Supremes: Supremacy of the Cause of the Party, Supremacy of the Interests of the People, and Supremacy of the Constitution and Law, in that order of importance. Over the past year, judges throughout the country have been forced to spend hours studying these directives. Although some judges and legal scholars have been struggling to prevent this from reversing the modest improvements of recent years, for the moment, the hardliners seem to be gaining ground.

One way this has manifested has been harsher than usual punishments for citizens seeking to exercise their freedoms of expression, association, and religious belief. The year 2009 saw several "firsts" in this regard. The first Tibetan executed since 2003. The first lawyer sentenced to seven years in prison for defending his clients' rights. The first activist sentenced to prison for publishing information critical of the government's response to the Sichuan earthquake.

Sentences for prisoners of conscience in China are already notoriously long - a recent Freedom House study of internet freedom in 15 countries found that "prison sentences for online violations in China tend to be longer than elsewhere, with a typical minimum of three years and maximums as high as ten, while in other countries most sentences range from six months to four years."

Nonetheless, anecdotal evidence indicates they may be getting longer. In September, a Hunan court sentenced a democracy activist to 13 years for organizing a political party. In March, a retired physics professor from Shandong who had previously spent three years in an labor camp for practicing Falun Gong was this time sentenced to seven in prison. A 7-year sentence imposed on a house church leader last month was reportedly the longest meted out since 2004.

These are a small sampling of the overall population of prisoners of conscience. In October, the US Congressional-Executive Commission on China published a partial list of political prisoners containing over 1,200 names. Beyond the prison system, tens of thousands of people are estimated detained extra-judicially in "re-education through labor" camps, "black jails," and psychiatric hospitals for their political or religious views."

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