PBLJ is the second oldest law journal at UCLA and focuses on a diverse range of legal and policy issues in the Pacific Rim, looking to both the Asia-Pacific and the Americas. In the past, PBLJ has featured articles on topics as varied as intellectual property regimes, climate change and migration in the Pacific, corporate governance, and affordable housing policy in China.
Volume 33, Issue 2, 2016
Don’t Ask, Don’t Sell: The Criminalization of Business Information-Gathering in China and the Case of Peter Humphrey
The case of Peter Humphrey and Yu Yingzeng, convicted in China on August 2014 on charges of unlawful acquisition of personal information of citizens (PIC), raises important issues about Chinese law. A narrow but important issue is how Chinese law draws the line between lawful and unlawful acquisition of information, a practice routinely carried out by businesses and individuals. This article examines the trial transcript and judgment in the Humphrey/Yu case and finds that it sheds regrettably little light on what remains a murky question. The judgment ignored the issue entirely, finding in effect that the collection of PIC was per se unlawful.
A broader issue is whether the Chinese legal system can be counted on to operate in a fair and impartial manner. This article presents the results of a study of all reported cases in Shanghai (ninety-two cases) involving the same provision of the Criminal Law that was the basis of the Humphrey/Yu conviction. It finds that the Humphrey/Yu sentences are outliers relative to other cases with comparable facts. In particular, Humphrey’s sentence of thirty months’ imprisonment was by far the heaviest sentence ever meted out by Shanghai courts on this charge, even though the circumstances seem conspicuously less serious than those of many other cases where lesser sentences were imposed, thus lending support to the theory of selective prosecution.
Balancing judicial independence against judicial accountability is a classic problem, but the debate has often taken place without reference to specific legal cultures and traditions, and there is compelling reason to believe that the “right” balance may be different in different societies. Thailand is in transition, so the models of established Western democracies may be ill-suited to the problems and issues of the Thai judiciary. Moreover, independence and accountability are not ends in themselves, but means to the same end: that of fair, impartial, and effective justice. Independence can help, primarily by bolstering the “judicial courage” exercised by judges called upon to rule in difficult cases. Accountability can help as well, primarily by bolstering the “integrity” judges demonstrate in their performance on the bench. In light of this, the structural solutions for the judiciary under a new Thai constitution should be crafted in light of (1) the history, tradition, and culture of the Thai judiciary, (2) the degree of courage and integrity already manifested among Thai judges, and (3) those structures and mechanisms that can leverage the Thai judges’ strengths and ameliorate, or at least mitigate, their weaknesses. Until Thailand has a new constitution, the courts there will be seriously handicapped in playing their critical roles of providing fair and impartial adjudication and of protecting human and other legal rights. When, indeed if, constitutional checks and balances are put in place, the stage will be set for a calming of the turmoil in Thailand. But that can only happen if the judiciary is sufficiently empowered and independent to play that constitutional role, while showing both sufficient integrity to avoid corruption and sufficient restraint not to overreach into the political realm. In other words, the individual judges must exhibit both this courage and this integrity in their rulings. And the structure of the judiciary—the mechanisms for protecting the judges (to promote independence), and for policing them (to promote accountability)—will be important in facilitating that result, restoring public confidence in the legal and political system, and ultimately strengthening the rule of law in the Kingdom of Thailand.
People Should Be Masters in Both Political and Cultural Areas: Toward a New “Free Speech Clause” in China
This article tries to challenge—more accurately, to supplement—the “politico-centered” view in understanding China’s free speech. Unlike the conventional view that only treats Article 35 as China’s free speech clause and mainly focuses on political speech, this article argues that China’s “free speech clause” includes not one, but three articles: 35, 41 and 47. While Articles 35 and 41 guarantee the right to political speech, Article 47 explicitly safeguards citizens’ right to cultural construction. The underpinning of this new interpretation is the dual constitutional ideal embedded in the Chinese Constitution: the Chinese people should be masters in both political and cultural areas. All speech, both political and cultural, that could further this dual ideal should be protected. Also, by tracing the development and changes of above three clauses in China’s three earlier Constitutions (the 1954 Constitution, the 1975 Constitution, and the 1978 Constitution) as well as the newly discovered 1953 Draft, this article shows that this unique understanding of free speech can be found throughout the evolvement of the Chinese Constitution; it also explains how China’s “free speech clause” has been shaped over time and why it has taken its present form.