For law enforcement, one-size cannot fit all

Sometimes you read an interview that leaves you so puzzled that you can’t help but wonder if there was some sort of misunderstanding, or even a fundamental disagreement over the meaning of key terms. Such was the case for me recently when a friend pointed out a July article from the New York Times’ SINOSPHERE blog, recounting an interview with the former dean of the Chongqing University Law School, Professor Chen Zhonglin.

The interview focused on China’s progress towards rule of law and on the crime of ‘picking quarrels and provoking troubles’ [寻衅滋事]. In the last few years, this offense has been invoked aggressively by the police to detain people for such a wide variety of conduct that, for some, its name now immediately suggests a trumped up charge. Consider, for example, it’s use against lawyer Pu Zhiqiang’s provocative internet posts, five young activists’ peaceful sexual harassment awareness campaign, and a Shanghai artist’s playful distortion of the President’s likeness. It is also the charge that was moving forward against Cao Shunli when she died in detention.

The crime is defined in article 293 of China’s Criminal Law and prohibits four types of activity. Of these, all but the last clearly requires a show or use of force, and it is that last and vaguest category that has been applied most expansively:

1) arbitrarily attacking people where the circumstances are heinous;
2) “chasing, intercepting, berating or intimidating” others, where the “circumstances are heinous”;
3) forcibly taking, destroying or occupying public or private property where the circumstances are serious; or
4) making a commotion that causes serious disorder in a public place.

Despite its often whimsically translated name, ‘picking quarrels’ can carry serious penalties of up to 10 years in prison, making it all the more troubling that law enforcement sees few limits on its application. To Professor Chen, however, having a catch-all offense like this is a necessary part of Chinese law so that investigation and punishment can proceed in cases where the existing laws don’t cover the offending conduct.

Another approach, of course, would be to not pursue criminal liability for actions that aren’t crimes. Thankfully, this principle is actually enshrined in the third article of the Chinese Criminal Code:

法律明文规定为犯罪行为的，依照法律定罪处刑；法律没有明文规定为犯罪行为的，不得定罪处刑。

“Where the express text of the law provides that conduct is criminal, it is convicted and punished in accordance with the law; where the law has no express provision that the conduct is criminal, it must not be convicted or punished.”

Chen seems to turn this idea on its head, however, saying that it is precisely because Chinese judges are bound to base convictions only on the statutes, that those statutes must contain vague catch-all offenses that can be applied flexibly.

In making his point, Chen compares Anglo-American common law legal systems to the Continental Civil law family to which China belongs. He argues that when faced with a novel situation, common law judges are empowered to create new law through binding precedent, making it less critical that there be catch-all offenses to deal with new circumstances and crimes. This argument rings false for a number of reasons:

First, although U.S. judges may still maintain more authority than their continental peers to interpret the law and apply crimes by analogy to new situations, the criminal law in the U.S. is now almost entirely statutory. A few jurisdictions have retained some common law offenses based only in case precedent, but courts have stopped “recognizing” new offenses at trial.

Further, the Constitution’s requirements of due process and its prohibition on ex post facto crimes have been interpreted to prevent punishing a defendant who did not have adequate warning of the criminality of his actions at the time they were taken. Crimes that are so vaguely defined that one can’t identify what conduct is prohibited, or are enacted after the conduct occurred, cannot constitutionally be the basis of punishment.

Second, even within the course of the interview, Chen demonstrates that judicial rule-making is alive and well in China to facilitate the law’s adaptation to new situations. He approves of a judicial interpretation by the Supreme People’s Court and Supreme People’s Procuratorate expanding the scope of ‘picking quarrels’ to regulate internet speech. In that document, knowingly spreading false information online and disrupting public order is interpreted as constituting the final ‘commotion’ category of the offense.

The interpretation’s added requirement that the suspect was or should have been aware that information spread online was false seems to be an entirely judicial creation. The relevant Criminal Law articles don’t comment on the veracity of statements made during commission of this offense at all. It’s possible that the court just borrowed this element from criminal defamation provisions, which are also addressed in the same interpretation. Some have even suggested that it demonstrates a de facto compromise in favor of constitutional rights, where the crime’s application was limited to situations where internet content was knowingly false so as not to overly restrict protected speech!

Whatever the reason for the limitation, it is clear that the judiciary was able to interpret the statute quite liberally to respond to new situations on the internet. Of course this type of interpretation is made only by the highest judicial organs, outside of a specific case and would not apply retroactively. Unlike prosecutions of a catch-all crime, this kind of rulemaking gives some warning about what conduct has been criminalized.

It needs to be said that Chinese Criminal Law and its subsequent interpretations are already full of open ended clauses that allow broad expansion of charges. A number of offenses, although notably not ‘picking quarrels’, specifically provide that they include other unlisted conduct that causes the same harm; and lists of aggravating factors often similarly end with ‘other serious circumstances’. The truth is, that the Chinese criminal law is already far too vague and open to subjective interpretation. Chen knows this, and when asked if he thinks ‘picking quarrels’ can be abused he concedes it might be and quotes unclear language in the statute such as in its prohibition against ‘arbitrary’ assault.

Finally, one of the strangest parts of the Chen interview is the suggestion that it is judges, rather than police and prosecutors, who benefit from having an catch-all legal basis on which to hang a conviction. This betrays a fantastically cynical image of the Chinese justice system in which the work of judges is not independent and fair adjudication, not a careful weighing of the evidence, but only identifying legal provisions to justify an inevitable conviction. With China’s 99.9% conviction rate, it must sometimes feel this way.

The appeal to police of a catch-all offense, an offense so vague it can readily be applied to far ranging conduct, has little to do with whether you live in a civil law or common law jurisdiction. Police everywhere desire a free hand to intervene in potentially escalating situations that they view as threats to public safety and order. Conviction on the charge may not even be the ultimate goal, so much as effecting an arrest to remove someone from a situation or to prevent a further crime.

Of course, it is this same flexibility that makes the courts and public wary that such crimes will be enforced arbitrarily, selectively applied to harass ‘undesirables’, or used as a pretext to detain suspects while fishing for evidence of other crimes. In America and other jurisdictions, low level offenses such as loitering, vagrancy, and disorderly conduct, are catch-all crimes that have been used to these ends. The tension between legitimate law enforcement purposes and citizens’ exercise of their rights, is resolved through not infrequent challenges to the constitutionality of such crimes and their enforcement in the courts.

China has been working to increase the credibility of its courts and justice system, and will also have to create mechanisms to address this tension. The re-education through labor (RTL) system which allowed police to detain citizens for periods of years for a wide range of non-criminal misconduct with only minimal review, was abolished in 2013, because it had come to be viewed as redundant and ripe ground for abuse of power. The public security administration penalty system still allows police forces to impose short-term detention of up to 15 days for low level offenses; bypassing improved protections for suspects in the Criminal Procedure Law; and much greater penalties are available in systems for drug and prostitution offenses. The use of a catch-all crime must follow the criminal procedures, but brings stiffer penalties and a criminal record. Another harm of allowing a crime like ‘picking quarrels’ to be used as a catch-all, however, is that it implicates the courts and procuratorate in the circumvention of legislative restraints, undermining their authority.