By David Bandurski — The scope and reach of the criminal offense of bribery (受贿罪) has never been clear in China. But the lines become even murkier when the charge is applied to one of the country’s most nebulous professions: journalism. Are Chinese journalists “government officials” or “state personnel” to whom stiffer penalties should apply? Or are they performing ordinary service jobs outside the purview of the Criminal Law on bribery involving state officials?
These questions, which we saw in the Meng Huaihu (孟怀虎) case two years ago, have been replayed this month in the trial of Fu Hua (傅桦), a former reporter for Shanghai’s China Business News. They concern us here because they touch on more fundamental questions about press freedom, the role of journalism and journalists in China, and related issues such as the need (as some say) for a press law that might clear up ambiguities about journalists’ rights and obligations.
[ABOVE: Screenshot of news of recent Fu Hua case running on a Chinese website, pictures Fu Hua outside the court in Beijing.]
Anti-bribery laws in China have been “primarily directed to ‘bribe-takers,’ i.e., governmental officials, state personnel (guojia gongzou renyuan) and high ranking company managers and directors.”
At first glance, journalists don’t seem to fit the bill. But despite the many changes that have come to China’s media in the recent two decades — which have, in complicated ways, upset the traditional notion of the press as a “mouthpiece” (喉舌) of the party and government — the idea that journalists are NOT working for the state remains dangerous from the party’s point of view. The notion that the party must control, or “guide,” public opinion is deemed critical to the survival of one-party rule.
If journalists aren’t working for the state in China, who ARE they working for? Not the public, surely.
For now, we’ll let that million-dollar question hang and turn to some coverage of the recent Fu Hua case, which hints at these questions.
Last week, China News Service, the country’s number-two official newswire, ran an interesting play-by-play of goings on inside the courtroom during the Fu Hua case, which was heard earlier this month in Beijing’s Chaoyang District Court.
Interestingly, the article begins with an “editor’s note” that is really a disclaimer of sorts, making it clear that the news service is not taking a position on the case or the arguments presented therein.
For readers who aren’t familiar with the Fu Hua case, a general sketch is provided in the translation below. Basically, it seems Fu Hua did accept cash (5,000 yuan, by his own admission) in exchange for a list of sources for a story about construction problems at an airport in Jilin Province.
But the circumstances of the case are complicated, seemingly involving also a coerced confession Fu Hua later retracted, and Fu has maintained that he “was wrong, but not guilty [under the law].”
Editor’s Note: Our goal in publishing this article is to objectively report the facts and reveal the points on each side [of this case], exploring the legal questions involved. It is not our intent to comment on the administering of justice or punishment for those involved.
On May 12, Fu Hua (傅桦), formerly a reporter for the Beijing bureau of China Business News, sat in the defendants chair at Beijing’s Chaoyang District Court — the crime in question, bribery. He said: “This whole affair has gone on for several years, and I just hope to bring it to an end soon so that I can go on living in peace.”
A Journalist Accepts Money and Is Arrested
In 2003, Fu Hua managed through his old schoolteacher to get in touch with Zhang Guangtao (张广涛), then deputy director of the Civil Aviation Administration in Jilin Province (and now a defendant in a separate case). The latter said he wished to be interviewed. Getting in touch with Zhang Guangtao, as it turned out, was a pivotal point in Fu Hua’s rapid downward slide.
Our reporter learned from the procurator’s office of Beijing’s Chaoyang District that sometime around April 2005, Zhang Guangtao gave Fu Hua a telephone call and said he hoped Fu Hua would look into the Changchun’s Longjiabao Airport [photo here]. Zhang then arranged contact between Li Shen (李申) — who is a defendant in a separate case — and Fu Hua. After this, Li Shen arrived in Beijing and gave Fu Hua materials concerning construction problems at Longjiabao Airport, implying that there were tensions between the official in charge of Longjiabao Airport, Zhang Jun (张军), and Zhang Guangtao, his deputy. They wished to use the publication of a report on construction problems at the airport to impact unfavorably on Zhang Jun, the ultimate goal being to establish Zhang Guangtao as head of the project. Fu Hua then notified his newspaper about the story, saying he had received a “letter from a reader.” He asked to be sent to Jilin to look into the story. The paper agreed and sent another reporter along with him.
According to the procurator’s office of Beijing’s Chaoyang District, Fu Hua phoned his contact, Li Shen, in June 2005 to inform him he was on his way to Jilin. Li Shen set up a meeting with Fu Hua at a Beijing teahouse and provided a number of sources and contact numbers for the story. Saying it would be inconvenient for him to receive Fu Hua once he was in Jilin, Li Shen gave the reporter 30,000 yuan [NOTE: this is the account given by prosecutors, which differs from Fu’s]. Once they had gotten to Jilin, Fu Hua and his colleague interviewed a number of relevant officials and workers and took photographs at the airport site. After they returned to Beijing, they wrote two stories that appeared in the July 14 edition of China Business News: “Lingering Quality and Safety Problems Stick Out: Behind Consignment Delays at Longjiabao Airport” (质量问题安全隐患凸现 龙家堡机场延误交付的背后) and “Corners Can’t Be Cut on Quality and Safety” (质量安全不能打折扣). After the reports came out, Li Shen and Zhang Guangtao were very pleased.
According to the prosecuting attorney who prepared the case [against Fu Hua], at the end of July and beginning of August 2005, Li Shen arranged to meet with Fu Hua in order to discuss the possibility of re-running the articles on the Internet to amplify their effect. Fu Hua said that it was common practice for Websites to charge 1,000 yuan per article for placement online, and Li Shen responded by giving Fu Hua 10,000 yuan. Later, Fu Hua went through his personal connections to get the articles published on several Websites, perhaps paying nothing in exchange.
In April 2007, police in Jilin Province uncovered evidence of the link to Fu Hua while investigating Zhang Guangtao and Li Shen. In June of the same year, police belonging directly to the Jilin Public Security Bureau criminally detained Fu Hua outside the offices of China Business News on charges of accepting bribes (公司、企业人员受贿罪). The police later ascertained that Fu Hua’s employer, the Beijing bureau of China Business News Company Limited, was a state-owned company, that both its place of business and the site of Fu Hua’s accepting of the bribes in question were within Beijing’s Chaoyang District, and that the case fell within the jurisdiction of prosecutors in Beijing. They delivered the case materials to the Beijing Municipal Procuratorate. In October 2007, the Beijing Municipal Procuratorate handed these materials to prosecutors in Chaoyang District, who began their investigation. Fu Hua was released on bail to await trial with restricted liberty on charges of bribery.
In March 2008, prosecutors brought an indictment in the Chaoyang District Court, accusing Fu Hua of bribery for writing two negative news stories about airport construction [in Changchun] after receiving gratitude fees totalling 30,000 yuan.
[The article goes into the details of charges and counter-charges about the amount of money Fu Hua received. Prosecutors insist he accepted 40,000 yuan, a charge Fu Hua apparently confessed to in Jilin under duress, but subsequently denied.]
In May 2009, the court session was opened [in Fu Hua’s case].
In the courtroom, Fu Hua admitted it was true that he had received 10,000 yuan in online public relations fees (公关费) [for placing his reports on Websites], but he again denied having received a 30,000 yuan payment, saying Li Shen had not given him 30,000 during their meeting but only 5,000 yuan.
Why did he withdraw his confession? A report in Jinhua Times quoted Fu Hua as saying that “they (the police in Jilin) told me after they beat me that Zhang Guangtao, the deputy head of Longjiabao Airport, and Zhang Jun, the head of Longjiabao Airport, resented one another. [They said] Zhang Guangtao and Li Shen had been detained, and that one said I was given 80,000 and another said I was given 40,000. If I continued to be uncooperative [they said], they would handle the case according to the higher figure.” Late at night the next day, [Fu Hua] gave in, admitting he “had known about the resentment between the two men, had accepted 40,000 yuan in gratitude fees and had written the negative reports in line with Zhang Guangtao’s wishes in order to get at Zhang Jun.”
The [Jinghua Times] report said that Fu Hua claims that as soon as he arrived in Jilin . . . his confession was extracted through torture. Fearing trouble he didn’t dare check his injuries at the detention jail [immediately following his release]. Once he returned to Beijing he went to the hospital for an expert examination. There the doctor told him he had multiple rib fractures.
Fu Hua said in the courtroom that as a news reporter his reports [on the Changchun airport] were faultless. But he should not [he said] have taken the 5,000 yuan interview fee Li Shen had offered him, as this was “a violation of journalistic ethics.” He said he “was wrong, but not guilty [under the law].”
Can journalists be guilty of accepting bribes?
While prosecutors maintain that Fu Hua is guilty of bribery, his defense lawyer, Zhou Ze (周泽) believes his client’s actions do not constitute bribery. The two sides parried about this in the courtroom, engaging in fierce debate.
The crime of bribery is a special criminal charge concerning the behavior of government employees (国家工作人员).
The first point of contention between the two sides centered on whether or not Fu Hua could be considered a government employee, and whether [as a reporter] he was carrying out public business (从事公务).
Zhou Ze held that according to the “Summary of a Work Forum on the Hearing of Economic Crime Cases at Courts Nationwide” (全国法院审理经济犯罪案件工作座谈会纪要), released by the Supreme People’s Court in [November] 2003, carrying out public business entails carrying out organizational, leadership, supervisory or management roles for government organs, state-owned enterprises, enterprise or institutional units (企业事业单位), or people’s organizations. Public business primarily involves public affairs directly connected with [state] functions and powers, and assigned duties or activities involving the supervision or management of state-owned property, and “those ordinary labor and technical activities, such as those carried out by salesmen or ticket collectors, are not generally regarded as public business.” Zhou Ze argued on this basis that journalists, whose entire work surrounds the gathering of information and writing of articles, or the production of [television or radio] programs, are not engaged in public business, but rather in ordinary service jobs.
The prosecutors argued that the basic factor in determining the issue of the crime of bribery was engagement in public business. Public business [they argued] is executing in accordance with the law a particular [state] function or power, performing a definite post. All public business [they argued] is manifested either directly or indirectly as the handling of the public affairs of the state or society. “The news reports carried out by news reporters amount to conduct in a post, they are public affairs connected with a [state] function or power, and they are one form of engagement in public business.”
“If we say that the interviewing and reporting carried out by the journalist is ‘engagement in public business’ then refusing to grant a journalist a desired interview or otherwise inhibiting a journalist’s work would constitute a crime of obstruction,” Zhou Ze affirmed [in his counter-argument]. Journalists are not government employees (国家工作人员), Zhou Ze said, so naturally they are not subject to the crime of bribery.
“Journalists represent the broad masses of the people in exercising the right to supervision by public opinion, so of course this has the quality of public business,” the prosecution countered.
“In our country the right to report the news and the right to carry out supervision by public opinon [press monitoring] are vested by authority and standing (享有权威地位). News units are registered and approved according to relevant national regulations, and generally the state is their source of capital. The Beijing bureau of China Business News where [the defendant] Fu Hua was employed was established by three separate state-owned insitutions or state-owned enterprises, and from an asset standpoint it is 100 percent state-owned, so of course it is a state-owned company. News reports are a kind of special form of exercise of the right to supervision by public opinion entrusted to news units (新闻单位), they possess a monopoly quality (具有垄断性) and this right is not something that any individual or any organization can simply have or exercise.”
Zhou Ze pointed out that when Fu Hua proceeded to Changchun to carry out his reporting [for the airport stories] he had not yet obtained his [official] press card [issued by the General Administration of Press and Publications]. Therefore, his behavior could not be regarded as an exercise of authority and could not constitute grounds for the crime of bribery.
Prosecutors maintained that the issue of whether or not [the reporter had] obtained a press card was immaterial to the question of whether or not the crime of bribery applied. Most key was whether [he was] engaged in public business or not, whether he was acting in a journalist’s capacity or not. While it is true that Fu Hua did not possess a press card at the time that he reported and wrote the two articles in question, his newspaper has submitted proof that “Fu Hua began work for Shanghai’s China Business News Group in March 2005, working as a reporter in the assets and finance section of the Beijing news center, his principle work being the reporting and writing of news reports.” Both of the bylined reports in question also say “staff reporter Fu Hua.” From this we can see that the newspaper group has confirmed Fu Hua’s status as a journalist.
The following is a portion of an interview with Fu Hua that accompanies the China News Service story at many Chinese portal sites:
Reporter: The Longjiabao Airport has been approved by Jilin Province as a project up to standard, and prosecutors say they have found errors in your original news reports. How do you see this question?
Fu Hua: I won’t offer my comments on this issue. Anyone who can think for themselves and open their own eyes can grasp the situation at a glance. My report was truthful. There were no problems. We went into the airport and took photographs and made recordings. We even interviewed local government departments such as the Development and Reform Commission and the Administration of Work Safety. Go back to the report and it will all be clear.
Reporter: You’ve worked as a judge before, so you must have know what would come of accepting money?
Fu Hua: I was apprehensive about taking the money at the time. I wouldn’t take the money at the time, and Li Shen said, “Look, if you don’t dare take the money, I don’t dare give you the list of sources. How can I trust you if you don’t trust me?” I took the money in order to dispel Li Shen’s doubts, and I thought I would give the money to the newspaper when the time was right. But the newspaper, bowing to pressure, removed the article from the Website, and one opportunity after another just passed right by until things got really troublesome. This was a ticking bomb being passed around like a hot potato, and it eventually exploded in my hands.
Reporter: You gave a few hundred yuan to your colleague [who helped report the story], so why didn’t you let him in on it?
Fu Hua: I didn’t let my colleague know because I thought it might cause them trouble. I wanted to protect them.
Reporter: When you accepted the invitation to pursue the story, did you know what their goal was?
Fu Hua: I knew at the time that the two of them (Zhang Jun and Zhang Guangtao) did not get along. It wasn’t a personal feud, just a difference over the work styles of the other. But I had no idea this would lead to such huge problems.
Reporter: What warning do you think this whole affair sends to you, to the media, to other reporters?
Fu Hua: Even if its a penny, don’t take it!
“Linfen Gag Fee Case Sparks Media Ethics Debate in China,” CMP, October 30, 2008
“Extortion or official bribery? Zhejiang court rules journalist Meng Huaihu must be punished as a public servant,” CMP, April 20, 2007
[Posted by David Bandurski, May 25, 2009, 3:03pm HK]