Ai Weiwei appeared in Western headlines again after Xinhua reported Beijing police saying he was under ‘house surveillance’ and under investigation for tax evasion. (I should mention that while searching for materials for this post, I was struck by the lack of search results on Google on ‘Ai Weiwei’ from China. Why? I would venture to say, therein lies the true essence of Google’s struggles in China in search; but we have already made this argument in the past.)
Anyways, the Western media all seems to be colluding in characterizing the ‘house surveillance’ as simply Ai Weiwei went ‘missing,’ in the sense that the Chinese government is a irrational kidnapping criminal. By the way, the Chinese people have picked up on this behavior of the West (in Chinese here). Why spare no effort in understanding Chinese law and explain legal procedures behind this detention? In this post, I’d like to share key passages from China’s Criminal Procedure Law governing this ‘house surveillance’ as well an Op-Ed from China Daily writer, Mo Nong, called, “Ideological bias clouds Western views.”
(Also, note, some recent articles on this blog about Ai Weiwei.)
Below is China’s Criminal Procedure Law in English on the U.S. Congressional – Executive Commission on China(CECC) web site. The highlights are mine based on what I thought pertinent to this ‘house surveillance.’ (By the way, ‘residential surveillance’ and ‘house surveillance’ are the same.)
Article 64 When detaining a person, a public security organ must produce a detention warrant.
Within 24 hours after a person has been detained, his family or the unit to which he belongs shall be notified of the reasons for detention and the place of custody, except in circumstances where such notification would hinder the investigation or there is no way of notifying them.
Article 65 A public security organ shall interrogate a detainee within 24 hours after detention. If it is found that the person should not have been detained, he must be immediately released and issued a release certificate. If the public security organ finds it necessary to arrest a detainee when sufficient evidence is still lacking, it may allow the detainee to obtain a guarantor pending trial or place him under residential surveillance.
Article 66 When a public security organ wishes to arrest a criminal suspect, it shall submit a written request for approval of arrest together with the case file and evidence to the People’s Procuratorate at the same level for examination and approval. When necessary, the People’s Procuratorate may send procurators to participate in the public security organ’s discussion of a major case.
Article 67 The chief procurator shall make the decision on a People’s Procuratorate’s examination and approval of the arrest of a criminal suspect. Major cases shall be submitted to the procuratorial committee for discussion and decision.
Article 68 After a People’s Procuratorate has examined a case with respect to which a public security organ has submitted a request for approval of arrest, it shall decide according to the circumstances of the case either to approve the arrest or disapprove the arrest. If it decides to approve the arrest, the public security organ shall execute it immediately and inform the People’s Procuratorate of the result without delay. If the People’s Procuratorate disapproves the arrest, it shall give its reasons therefor; and if it deems a supplementary investigation necessary, it shall at the same time notify the public security organ of the need.
Article 69 If the public security organ deems it necessary to arrest a detainee, it shall, within three days after the detention, submit a request to the People’s Procuratorate for examination and approval. Under special circumstances, the time limit for submitting a request for examination and approval may be extended by one to four days.
As to the arrest of a major suspect involved in crimes committed from one place to another, repeatedly, or in a gang, the time limit for submitting a request for examination and approval may be extended to 30 days.
The People’s Procuratorate shall decide either to approve or disapprove the arrest within seven days from the date of receiving the written request for approval of arrest submitted by a public security organ. If the People’s Procuratorate disapproves the arrest, the public security organ shall, upon receiving notification, immediately release the detainee and inform the People’s Procuratorate of the result without delay. If further investigation is necessary, and if the released person meets the conditions for obtaining a guarantor pending trial or for residential surveillance, he shall be allowed to obtain a guarantor pending trial or subjected to residential surveillance according to law.
There has been few instances of Western press talking about Chinese criminal procedure law, and the magic ’37 days’ has been tossed around. Below is a quote from Adrian Searle’s article in the U.K. based Guardian:
It is, as I write, 37 days since Ai Weiwei disappeared, arrested by the Chinese police on 3 April in Beijing as he was about to board a scheduled flight for Hong Kong.
The 37 days come from a cursory reading of the highlights above: “after three days of detention . . . extension can be applied for 30 days . . .and People’s Procuratorate disapproves or approves in 7 days.” The Guardian report was published on May 9, 2011, which meant this 37 days would would have been up.
While I am no lawyer, after reading the last sentence above (in article 69), it seems the Chinese police are legally holding Ai Weiwei under ‘residential surveillance,’ even beyond the 37 days.
Searle’s article went on to say:
There is no currently no news on Ai’s condition, only rumour, including an unconfirmed and appalling graphic report, by a disaffected Xinhua journalist writing under a pseudonym, that Ai has been tortured, and has begun to confess to his supposed crimes.
. . .
A world expert in Chinese law at New York University, [Jerome A.] Cohen has pointed out that Ai’s detention is illegal even under Chinese law.
As we all know, the truth is Ai Weiwei was not tortured. Some ‘disaffected Xinua journalist under a pseudonym’ is somehow credible source? And how credible is this “world expert in Chinese law” Jerome A. Cohen?
The louder the Western media and ‘human rights’ activists call for Ai Weiwei’s release while preempting China’s judicial system, the less credible they become in the eyes of the Chinese. And, that, is articulated by a China Daily writer, Mo Nong, in an Op-Ed titled, “Ideological bias clouds Western views.”
“Ideological bias clouds Western views”
Updated: 2011-04-14 08:02
By Mo Nong (China Daily)
Ideological confrontation is the default mode for some Westerners and Western media when it comes to issues of human rights. For these people, it has become an intuitive reaction to point their fingers at China when anyone they consider a dissident is detained or arrested on legal grounds.
The detention of artist Ai Weiwei is no exception.
They were so eager to criticize China that they were too impatient to wait for the completion of the necessary judicial procedure and reacted before the relevant Chinese public security department announced why Ai was detained.
Instead, they started their customary verbal condemnation of China without any hesitation, asserting that the detention of Ai was for political reasons.
These Western media, and even some government representatives, continue to maintain that the Chinese government is persecuting Ai because of his political views even after the relevant Chinese judicial department announced that Ai was detained because of economic offences.
Ai’s case is still under investigation and it is quite natural and compatible with the rules for the public security department to remain cautious until it has completed its investigation.
However, our Western counterparts seem to know all the details of this case already and have judged it to be a political incident.
Whether Ai has violated the laws of the country is of no importance to these Westerners, who delight in voicing their opinions about China’s treatment of those they choose to consider political dissidents.
No matter what crime these people commit, they expect the Chinese government to exempt them from any penalties because of their Western-bestowed identity as political dissidents. It’s a pity that in their enthusiasm to condemn the Chinese government they don’t even stop for a moment to think that they may be branding economic offenders and petty lawbreakers as political dissidents.
The message behind such logic is clear. Despite the increasingly close economic cooperation between China and Western countries, some Westerners still harbor a Cold War mentality and consider China an enemy, at least, ideologically.
With such a mentality, they consider anyone who criticizes the political system of China and the Chinese authorities as they do, heroes or heroines, regardless of what these people have done, or how they behave, or what effect their activities will have on the future of this country and its people.
These Westerners always set themselves up on the moral high ground and therefore believe they are entitled to point their fingers at China, whether or not they have any facts to support their assertions.
The Westerners who stubbornly stick to their Cold War mentality need to escape their time warp, stop mouthing the outmoded ideological views of the past and study the realities of China today. They need to lend their ears to different voices in this country, not just those that mimic them.
On the question of Ai Weiwei, they need to be patient. They need to be sober-minded enough to understand that Ai’s political discrepancy with the Chinese government is one thing; his alleged involvement in illegal economic activities is another.
China has established its socialist legal system after decades of progress. Everybody, including Ai, is equal in the eye of the Chinese law. It is up to the Chinese judiciary to decide whether Ai is guilty, and should be duly punished or exonerated.
Giving up ideological blinkers and descending from the moral high ground is a prerequisite for normal political discourse. Ideological confrontation will benefit neither China nor the West in any way.
The author is a senior writer with China Daily.