As Australian writer Yang Hengjun awaits a verdict after being tried in China on charges of espionage, a conviction seems likely. Harder to predict is the sentence he will be given. By Linda Jaivin.

Yang Hengjun and China’s rule of law

The Australian ambassador to China, Graham Fletcher, barred from observing Yang Hengjun’s trial in Beijing.
The Australian ambassador to China, Graham Fletcher, barred from observing Yang Hengjun’s trial in Beijing.
Credit: Reuters / Carlos Garcia Rawlins

Held in windowless cells by the Chinese government for the past 26 months, the Australian citizen Yang Hengjun has not seen much sunlight, nor breathed much fresh air. Despite near zero cases of Covid-19 in Beijing, his jailers nonetheless insisted that Yang wear full personalised protective equipment, including a mask and goggles, to go to the Beijing Second Intermediate People’s Court on May 27, where he was tried on charges of espionage.

Since being snatched from Guangzhou airport on January 19, 2019 by agents of China’s Ministry of State Security (MSS), Yang has been subjected to solitary confinement, hundreds of interrogations, wrist and ankle shackling, continuous exposure to artificial light and long periods during which he was denied both the consular visits or phone calls to which he was legally entitled as well as contact with his wife and family. The once healthy 56-year-old began to suffer from hypertension, kidney problems and dental disease.

In a post-trial message to his family and supporters, Yang maintained his innocence, and called the prosecutor’s case against him “groundless”. He revealed he’d pleaded for his interrogation records to be excluded from consideration, as they were obtained under torture. He said he’d been too tired and disoriented to speak for more than a few minutes in his own defence during his trial but was encouraged that the court had agreed to include in his case file some 100 pages of evidence he’d previously submitted. He hoped the court would make the “right decision”, he said, not one guided by “political pressure”, “bad international relations” or other extra-legal considerations.

Whatever guides its hand, though, history suggests the court’s judgement will almost certainly come down against him: conviction rates in the courts of the People’s Republic of China are upwards of 99 per cent.

The timing or nature of Yang’s sentence is less predictable. Another Australian, the actor Karm Gilespie, was in detention for seven years before being brought to trial on charges of drug-smuggling. He then waited five more years for his sentence, which was handed down only last year: the death penalty. The espionage charges Yang is facing can incur a prison term of between three years and life. Or, where there has been “grave harm to the state and people”, the death penalty. Supporters of Cheng Lei, another Australian detained in China on similar grounds, will be closely watching the outcome of Yang’s trial.

The stakes are high, and so is the level of secrecy surrounding his case. Yang’s lawyer, Mo Shaoping, is not even allowed to say what his client’s case is about because it involves state secrets. The Australian government, which has made vigorous representations on Yang’s behalf, remains in the dark. Guards prevented the Australian ambassador, Graham Fletcher, from entering the closed court; media and other would-be observers were similarly shut out.

Yang claims he doesn’t know what he’s accused of having done. Previously he’s said his interrogators appeared to be fishing for something to peg on him. That suggests Australia’s worsening relationship with the People’s Republic of China may be at least one part of the puzzle. There are some parallels with the detention of Canadians Michael Spavor and Michael Kovrig, who were arrested in China more than two years ago, shortly after Canada detained a high-ranking Huawei executive, Meng Wanzhou, in connection with an extradition request by the US. The “two Michaels” were tried in March this year; they are also awaiting their own verdicts.

Yang’s background may provide another clue to his prosecution. He worked for the MSS – the same agency that arrested him in 2019 – for 11 years. That was before he moved to Hong Kong to work in private enterprise, and then on to Australia, where he acquired citizenship in 2002, earned a PhD, and became a best-selling writer of Chinese-language spy novels and a popular blogger on political topics.

Some are asking whether his years in the MSS provided him with sensitive information of concern to the ruling Communist Party of China (CPC). But that wouldn’t explain why he was allowed to travel freely in China, mix with high-level cadres and speak openly about his ideas as a self-described “democracy pedlar” for years before his arrest.

Ever since becoming China’s president, Xi Jinping has overseen a fierce and enduring crackdown on the country’s civil society, which had grown over the previous decades of the post-Mao Reform Era. Workers’ rights activists, feminists, citizen journalists and advocates for rights guaranteed by the PRC’s own constitution have been harassed, imprisoned and otherwise silenced.

Yang’s political writings were likely to have tested the limits of official tolerance. Yet it’s implausible this case is based solely on his publicly expressed opinions. He was never a firebrand, belonging more to a broad consensus of pro-Reform intellectuals alarmed by the creeping authoritarianism of the Xi era. In any case, given his Australian passport, if his writings were the problem, it would have been far simpler for the Chinese government to ban access to them on the mainland and refuse him a visa.

In 2011, there was a mysterious incident involving Yang when he was back in China and the Public Security Bureau detained him for several days. Pro-democracy uprisings were sweeping across the Arab world, and the CPC was on high alert lest Chinese activists start their own “Jasmine revolution”.

When Yang returned to Australia, he wrote a secret letter of 20-odd pages and entrusted it to close friend Feng Chongyi, a professor in the faculty of arts and social science at the University of Technology Sydney. Feng, who describes the letter as containing “very sensitive information”, told me that depending on the sentence handed to Yang, he may finally reveal its contents. The letter, he suggested, holds a clue to Yang’s plight.

In a statement released to supporters after his trial, Yang wrote: “This isn’t a crime of ideology. The charges are about espionage. But who did I work for? If this is a crime, and if I’m a criminal, then who did I work for? I didn’t work for Australia or the US. I’m only writing for people. Writing for rule of law, democracy and freedom.”

The phrase “rule of law” appears 10 times in Yang’s post-trial message. He speaks again and again of how he has advocated the rule of law in his writings and professes himself “worried” about the judgement to come, not just for himself but for “how people will perceive the rule of law in China as a result”. He promises that if released he will “keep writing to help China, to promote rule of law and to help China to be strong, prosperous and respectable”. The final paragraph states that the “rule of law is the paramount national security concern. Without rule of law, no nation can be secure”.

There has been a subtle change in politico-legal rhetoric since Xi came to power. Chairman Mao once likened himself to a monk with an umbrella, wufa wutian, a pun that can mean either “no hair, no sky” or utterly lawless. His successors, beginning with Deng Xiaoping in 1978, spoke often of fazhi, “rule of law”, the phrase used by Yang. They instituted the PRC’s first civil codes and otherwise set up a system under which, in theory, if not always in practice, everyone was accountable to the law.

Xi, by contrast, speaks of yifa zhiguo, “rule by law”, which sees law as a tool of governance, to be used by the powers that be as they see fit. Yang’s use of the phrase strongly signals that the charge of espionage is a fabrication, an example of the law as bludgeon rather than guiding principle.

Feng agrees. He also notes that, at the time of Yang’s arrest, the CPC was obsessed with the threat of  “colour revolutions”. Although Yang wasn’t the most radical of critics, Feng argues that his popularity made him a danger.

With tensions already running high with Australia, the diplomatic cost of detaining an Australian was of less concern. It could even have seemed like a useful way to put pressure on Canberra, even if there was no obvious quid pro quo as in the case of the Canadian “two Michaels”.

Others suggest the key might lie in Yang’s activities or meetings in the US; he was, after all, apprehended returning to China from there. Did something happen there that incited concern on the part of Beijing?

“There is nothing more liberating than having one’s worst fears realised,” Yang wrote in another, pre-trial message, assuring his family, “I have no fear now.” He added: “I will never compromise”.

This article was first published in the print edition of The Saturday Paper on Jun 5, 2021 as "Next, sentence".

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Linda Jaivin is the author of 12 books.

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