China Attempts Economic Globalization Without Human Rights

By , March 14, 2017

In July 2015, the Chinese government detained close to 250 lawyers, paralegals and activist in a nationwide crackdown on China’s nascent civil rights movement.  The crackdown was unprecedented in its scope, with lawyers and activists simultaneously abducted from their homes and often in the dead of night.  It seemed to signal the nadir for China’s rights activists but, as China Human Rights Defenders‘ (“CHRD”) Annual Report reflects, it was far from rock bottom.  In 2016, the world witnessed the fallout from these arrests and a regime even more intent than ever on stamping out China’s civil rights movement.  But while that fallout continues domestically, internationally, China is seeking to play a more important role and reshape the current global order.  But the United States and western Europe – intent on pursuing more isolationist policies – ignores China’s domestic turmoil at its peril.

Map reflecting the national crackdown of Lawyers and support staff, July 2015 – October 2015 (courtesy of China Human Rights Lawyers Concern Group)

2016: Things Just Got More Serious – Rights Lawyers & Activists Charged with National Security Crimes

As CHRD’s 2016 Annual Report demonstrates, the Chinese government  views these civil rights activists’ work – even activities as seemingly innocuous as bringing a lawsuit to test China’s commitment to its own laws – as a threat to its power.  In 2016, these activists were not detained nor charged with the relatively minor crimes such as disturbing public order or unlawfully organizing a protest; instead, these arrested activist were charged with the more serious crimes that implicate national security issues and carry much heavier sentences.  Look at what happened two years prior.  In January 2014, Xu Zhiyong, an influential civil rights lawyer and activist, was convicted of  “gathering crowds to disturb public order” (Criminal Law (“CL”), Art. 296)and sentenced to a prison term that was considered extreme at the time: four years.  Fast forward to 2016 and  Zhou Shifeng, one of the alleged “ringleaders” of the lawyers detained in July 2015, was convicted of subversion of state power (CL, Art. 105) and sentenced to seven years in prison.

And Zhou is not the only one.  As CHRD portrays in a powerful chart in its Annual Report, in 2016, 16 rights activist were convicted of crimes relating to national security.  Compare this to only three in 2015.

Graphic courtesy of CHRD’s Annual Report

These more drastic charges of national security means that the police and prosecutors can all but abandon most due process rights enshrined in the amended Chinese Criminal Procedure Law.  As the CHRD Annual Report notes, a national security investigation allows the police to unilaterally hold a suspect under “residential surveillance in a designated location.”  With residential surveillance in a designated location, a location that is often unknown to the person’s family and lawyers, the police can legally hold a suspect for six months and, because the person is being investigated for a national security crime, the police can also lawfully deny access to an attorney.  (For a case analysis of the laws surrounding residential surveillance in a designated location, see Codifying Illegality? The Case of Jiang Tianyong).  Without access to a lawyer, contact with the outside world and likely subject to torture, CHRD’s 2016 Annual Report notes an uptick in a disturbing trend: televised forced “confessions” of rights activists before any trial.

2016: The Passage of Laws that Specifically Target Civil Society

China’s Foreign NGO Law is no lighthearted 1940s Hollywood movie.

But if these long prison sentences are not enough to squelch future rights activists, the Chinese government has adopted a series of laws to further restrict civil society.  China’s Foreign NGO Law, passed in 2016 and went into effect on January 1, 2017, is an attempt to cut civil rights activists from contact with international civil rights organizations, especially those that provide financial support.  In fact, as CHRD notes, in many of the recent prosecutions of  rights activists, accepting foreign funding has been used as evidence of the activists’ subversion of state power.  Foreign NGOs that the police believe engage in behavior that “endangers national security” are blacklisted.  Presumably any Chinese person who interacts with these blacklisted foreign NGOs will likely be suspected of national security violations.

Similarly, the Charity Law makes it near impossible for many Chinese civil rights organizations to raise money domestically if they are not officially registered with the Ministry of Civil Affairs.  Most likely those organic civil society groups that have been most effective but also have been viewed by the Chinese government – or more aptly the Chinese Communist Party – as a threat to its rule, will not receive permission to register with the Ministry of Civil Affairs.  As the stakes get higher, these organizations will likely cease to exist, eliminating an important channel that exposes societal discontent in an authoritarian regime.

(image courtesy of WCCF Tech)

But if those laws prove insufficient to completely eradicate any form of civil society not controlled by the government, in November 2016, the Chinese government passed its National Cyber Security Law which will provide for unprecedented surveillance of its citizens.  Under the Cyber Security Law, the government has the right to restrict the internet to protect national security and social public order (Art. 58).  Although implementation of the law has yet to be seen, presumably it can be used to shut down any online communication the Chinese government deems a security or public order threat. And as its recent prosecution on national security charges show, the Chinese government will likely view any efforts for civil rights activists to organize over social media to be a national security threat.

China’s Domestic Human Rights Conflicts With its Idea of “Economic Globalization”

President Xi at the 2017 World Economic Forum in Davos, Switzerland (photo courtesy of Forbes)

While CHRD’s Annual Report reflects a deteriorating human rights situation, China’s star on the global stage has only risen, especially as the United States has elected an isolationist president.  China’s most recent zenith came on January 17, 2017, when President Xi Jinping was granted the honor of delivering opening remarks at the Davos World Economic Forum, the world’s orgy to capitalism and globalization.  In his speech, Xi  called on the world to maintain its longstanding policies of “economic globalization,” implicitly distinguishing this concept from the liberal world order that created it.

For sure, Xi’s speech, calling on continued free trade, a policy that allowed China to quickly develop as an economic power, was a success at Davos.  Especially as the United States and some parts of Europe retreat in their commitment to the world order they helped to put in place after World War II.  But what Xi misses in his exclusive focus on “economic globalization” is that it does not exist in a vacuum.  Economic globalization is only one aspect of the current liberal world order.  Liberal political systems,  liberal economics, more inter-connectedness among people of different countries cannot be eliminated from the post-World War II world order that brought the free trade Xi celebrates.  All of these elements together is what has brought peace to much of the Western World and East Asia for close to 65 years, a peace that has been essential to China’s economic rise.

Setting up the post World War II order at Yalta in 1945

But Xi’s assault on Chinese civil society undermines these other essential elements  of the world order.  With the Chinese government’s constant attack on civil rights activists, this aspect of Chinese society lose the ability to impact China’s policy.  Some of the issue Xi raised in his Davos speech – environmental protection and income inequality – are issues that the Chinese government was forced to confront because of pressure from its domestic civil society. But the Chinese government now seeks to cut off that important channel  of protest.

But perhaps most dangerous is the Chinese government’s current vilification of anything foreign and its intent to keep its people separate from the rest of the world.  The peace that much of the West and East Asia has experienced can be traced to the interconnectedness among people.  But the Foreign NGO Law and the Chinese government’s persecution of activist who are connected to foreign organizations destroys that vital connection.  The National Cyber Security Law only further exacerbates the internationally-isolated internet that already exists in China, keeping Chinese netizens separate from their compatriots in other countries.

Captain America, time to go back in your box! (image courtesy of Marvel Comics)

As the United States and some of Western Europe recede from the liberal world order to deal with their own domestic political turmoil, there will be space for other countries to step into positions of greater leadership on the global stage.  China has demonstrated that it wants to.  But with its continued assault on civil society and its increased xenophobia, are we sure this is what we really want?

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China Human Rights Defenders’ 2016 Annual Report, entitled “They Target My Human Rights Work as a Crime,” can be found on their website here.

Parallels in Authoritarianism: Trump and the Chinese Communist Party

By , January 31, 2017

President Donald J. Trump (courtesy of whitehouse.gov)

For years, the Chinese Communist Party (CCP) was in denial about the extent of its air pollution problem, often referring to smog-infested days as perfect “blue sky” ones.  Then, in July 2008, @BeijingAir, a U.S. Embassy-created twitter account, began tweeting accurate pollution data throughout the day. Beijing was furious, claiming sole legal authority to monitor and publish air quality numbers.  But the U.S. Embassy stood its ground, and slowly, the CCP began to acknowledge that pollution levels were dangerously high. By January 2013, the Beijing government began reporting accurate, hourly data and by the end of 2013, climate change, pollution levels, and green technology had become important parts of the CCP’s platform.

Fast forward four years, and it is now the United States that is censoring tweets about climate change. Instead of the transparency that has long been a bedrock of the United States’ political system and that we encourage in other, less democratic nations, President Donald Trump appeared to take a page from the CCP’s playbook: he ordered that the Badlands National Parks remove tweets about increased CO2 omissions and climate change, statements he disagrees with.

In fact, in much of the first week of Donald Trump’s presidency, the parallels to authoritarian regimes, specifically the CCP, have become all too real.  It has become clear that Trump is not going to be the rational businessman that people had hoped for; he is not going to surround himself with advisers who temper his rash decisions. That is not how authoritarian leaders behave.

Upending Society – Trump, America’s Mao Zedong?

Chairman Mao Zedong

Mao Zedong came to power as a revolutionary, a populist and as a man intent on turning over the old world order.  Those tendencies – among other things – help to explain why China was enveloped in disarray for most of Mao’s 27-year reign. Similarly, these are the same impulses found in Trump, his campaign and thus far his presidency, as noted China scholar Orville Schell pointed out two weeks ago at an Asia Society event.  Trump’s preeminent goal is not necessarily to  advance the United States economically or even to advocate a coherent, ideological policy platform; rather his motivating impulse is to upset the current world order: “I think there is a bit of an outsider, troublemaker, turner-over of old orders, putting fingers in the eyes of the establishment in Donald Trump” Schell noted.

It is the disarray and the upending of society that appeals to Trump.  “If you don’t destroy, you can’t construct” was a favorite saying of Mao as he took China on the pointless path of a continuous revolution. Understanding that aspect of Trump is important in figuring out how to deal with his presidency.  Appealing to economic logic when he calls for a 20% tariff on Mexican goods and calling on American values when he institutes a ban on Muslim immigration is not going to resonate with Trump.

Projects That Are Ideological, Not Beneficial

Rural residents and victims of China’s Great Leap Forward

Part of an authoritarian regime is the dedication to ideological-based projects, even at the expense of economic or social progress. For Mao, the Great Leap Forward (1958-1962) stands out.  In order to prove that China had made the “great leap” to an industrialized, rich, communist society, Mao ordered the complete collectivization of farms, factories, and most of society. Harebrained ideas of digging crops deeper, smelting steel in backyard furnaces, and building useless irrigation projects, resulted in one of the greatest man-made famines in history. Within a year, the leadership knew that the program was a failure. But the CCP ignored this fact and continued the campaign, committed to the ideological line.

In his first week, Trump has already called for an ideological project that most agree will hurt America more than it will help: building a wall between the United States and Mexico. But most undocumented immigrants over-stay their legally-obtained visa, not walk across the border. Trump ignores this fact and instead has proposed building a border wall that will cost between $10 billion (Trump’s estimate) and $38 billion (MIT’s estimate) and distract America from dealing with more compelling issues.  While he demands Mexico pay for the wall, the only proposal Trump has offered is a 20% tariff on Mexican goods, a tariff that will likely be borne by the American consumer.

Some of the wall that already exists between Mexico and the U.S. (courtesy of NBC News)

Because the emphasis is on ideology and not practicality, ideological projects are neither particularly well-thought out nor properly executed.  During the Great Leap Forward, Mao decided that China would double its steel production.  To meet this goal, Mao instituted “backyard furnaces:” every item made of metal – doorknobs, farm tools – was smelted down. But as Mao would find out, smelted down metal produces inferior quality pig iron that cannot be used, let alone sold abroad as steel.

Similarly, Trump’s January 27, 2017 executive order, to ban immigration of Muslims from certain countries, gave no thought to its legality or to its implementation.  Signed after 4 pm on a Friday and to take immediate effect, the world was left unprepared. Immigration officials, who had no prior notice of the precise contents of the executive order, were left largely in the dark, and when refugees, green card and visa holders arrived, chaos ensued.

But logical arguments and exposing impracticalities are likely not going to cause Trump to change his mind.  His campaigns are about ideology and like Mao, expect Trump to double down when confronted with facts and the failure of their implementation. Much like he did on his twitter feed on Monday regarding Friday’s executive order.

Of Purges & Sycophants

As part of his purge, Liu Shaoqi, was often publicly criticized during the Cultural Revolution

From Mao to Xi Jinping (pronounced See Gin-ping), Chinese politics have been roiled with political purges.  It is a way for the current leader to eliminate threats to his power, maintain his authoritarian control and ensure that those remaining quickly fall in line. During the Cultural Revolution (1966-1976), Mao purged Liu Shaoqi (pronouced Leo Shao-chi) and Deng Xiaoping, two senior officials who had gained support among the Party for their economic reforms. Liu eventually died in prison but Deng was able to survive, and in the early 1990s, implemented those economic reforms that caused Liu his life.

Current President Xi Jinping has also purged those he considered a threat to his rule, using the Party-controlled legal system to do so.  In 2012, photogenic, ambitious and popular politician Bo Xilai (pronounced Bwo See-lie), long considered competition to Xi and his power base, was arrested and tried on charges of corruption, receiving a life sentence.  In 2015, Zhou Yangkang (pronounced Joe Yongkong), the former head of China’s powerful Ministry of Public Security and a supporter of Bo, received the same fate. A life sentence in a Chinese jail is a good way to eliminate perceived rivals

Former Acting Attorney General Sally Yates

Under Trump’s rule, New Jersey governor Chris Christie was the first to go, even before Trump officially took office.  While the reason is unclear, some saying his son-in-law didn’t get along with Christie while others maintaining that Christie’s honest advice was too much for Trump, it wasn’t the most practical move to remove the head of your transition team – and all of his staff – in the midst of executing the transition plan.

But on Monday, Trump carried out his first purge of his Administration: the firing of Acting Attorney General Sally Yates who, like the courts, questioned the legality of his executive order and called on the Justice Department staff to decline to defend it.  Reminiscent of CCP use of inflammatory rhetoric for its purges, Trump issued a similar factional statement, stating Yates’ “betrayal” of the Justice Department and that she is “weak on borders and very weak on illegal immigration.”

But these purges are not just about eliminating threats and consolidating power, it is also to ensure that those remaining toe the party line.  Before the Great Leap Forward, Premier Zhou Enlai (pronounced Joe N-lie) had fallen out of Mao’s favor.  Desperate to get back in his graces, Zhou became an ardent supporter of Mao’s Great Leap Forward even though he quickly became aware that the program was a failure with hundreds of thousands starving to death. But, fearful of a purge, Zhou never revealed the truth to Mao, afraid to challenge him. Instead, Zhou remained committed to the program and ordered that Mao’s irrational demands be fulfilled: that China immediately pay off its international debt through grain export.

Pence and Mattis watch Trump sign Friday’s executive order.

Most Republicans did not speak out against Friday’s executive order that essentially banned Muslims from a select list of countries from legally entering the United States.  Even those who had previously condemned Trump’s call for a for a Muslim ban – Vice President Mike Pence, Speaker Paul Ryan, newly appointed Secretary of Defense James Mattis – have yet to utter a word.  But speaking up may mean falling out of Trump’s favor. And like Zhou Enlai before them, they appear to prioritize their position in Trump’s inner circle over everything else.

This is why Trump’s cabinet appointees’ statements to the Senate – that climate change is real, that water boarding is torture – cannot necessarily be relied upon.  Once in office, will they be like Pence and Mattis, willing to fall in line with Trump’s extreme views and carry out his orders?  And now that Trump has appointed Steve Bannon, his chief strategist, confidant and heretofore intelligence novice, to the National Security Council, while simultaneously downgrading the director of national intelligence and the chairman of the joint chiefs of staff to a need to know basis, is Trump messaging to his cabinet that ideology takes precedent over expertise – that in red versus expert, red wins?

Attack on the Press                                                                                                    

Press Secretary Sean Spicer on January 21, 2017 discussing the size of the crowds at Trump’s inauguration (courtesy Getty Images)

Calling the press “the opposition party,” lecturing reporters on what they “should be writing,” referring to journalists as “the most dishonest human beings on earth,” are all a part of the Trump Administration’s strategy on how to interact with the media, or more aptly, how to crush it.  Eerily, it is also the strategy of the CCP, in its efforts to ensure that freedom of the press never takes hold in China: “the ultimate goal of advocating the West’s view of the media is to hawk the principle of abstract and absolute freedom of the press, oppose the Party’s leadership in the media, and gouge an opening through which to infiltrate our ideology” (translation of the CCP’s Document No. 9 courtesy of Chinafile).

With its attacks on the media, the question remains just how far the Trump Administration will go in trying to clamp down on the press. The CCP offers a frighteningly effective alternative, with its arrest and prosecution of journalists on trumped up charges, its random detention of reporters critical of the government, its toying of the visa process – and for some outright repulsion from China – for foreign journalists when the CCP does not approve of their coverage of China.

But even in light of the Trump Administration’s censure, the U.S. press continues to try to serve its role as a watchdog of the government. But if the Trump Administration steps up its campaign against the press à la the CCP, who is going to win that battle?

(courtesy of China Digital Times)

Creating a Ministry of Truth

Throughout his campaign and now, in the first week of his Administration, Trump has been accused of telling lies and at times, trying to censor the truth.  But alternative realities are nothing new to an authoritarian regime.  The Chinese government is a master at it.  Referring to hazardous pollution as mere fog?  Trying to hide from your people and the world that SARS is spreading and hitting epidemic proportions? Blaming the recent downturn in the economy on mysterious foreign forces?  Having web pages just disappear? All alternative realities that the CCP uses to maintain its authoritarian control.

Insisting that your inauguration crowd was larger than President Barak Obama’s when the pictures clearly depict otherwise?  Pretending that your executive order is not a ban on Muslim immigration? Claiming that you lost the popular vote because millions of people voted illegally?  Having web pages just disappear? These are all alternative realities the Trump Administration has offered in just the past week alone.

Lies and alternative realities come with a real danger – that people will start to believe them or will never know the truth.  Take for example the Chinese government’s censorship of the its violent crackdown in 1989 on the students protesting in Tian’anmen Square. For the first few years after the Tiananmen massacre, the question was, how long will the Chinese government refuse to investigate the government-sponsored murder of hundreds of Chinese students. Twenty-eight years later, the question now is, will the Chinese ever know their own history?  Most below the age of 30 have never seen the photo of “tank man” let alone have any idea about what happened on that fateful night in June 1989.

Conclusion

Protests erupt on Saturday at San Francisco International airport (courtesy of AP Photo/Marcio Jose Sanchez)

To be clear, America is not China.  This is not how things have to progress nor necessarily how they will. But what we see with the Trump Administration is a start.  And even a start is dangerous. But at the same time, many of America’s most revered democratic institution – the courts, its lawyers, the media, the American people – have spontaneously stood up to try to protect this country and its people.

But for the past week, Congress has been too slow to realize that the Trump government is no ordinary administration: this is a president and an administration that in its first week in power is more reminiscent of an authoritarian regime than a democratic one.  The ordinary tactics of politics – the give and take, the horse trading – are not going to suffice; bolder steps need to be taken.  Like the U.S. Embassy in Beijing, politicians need to constantly and publicly pressure and oppose the Administration if they want to ensure that America stays true to her democratic ideals.

恭喜发财!Happy Year of the Rooster!

By , January 26, 2017

On Saturday, the world will awake to the crow of the rooster as most East Asian countries mark the beginning of a new year: the year of the rooster.  But this is not just any old rooster; instead, it is the year of the fire rooster and it is that fire rooster that is causing many Chinese Feng Shui masters to predict that 2017 will be a tumultuous year.

Asian lunar new year, also known as the Spring Festival in China, doesn’t just usher in a new animal in the 12 animal zodiac, it also brings forth a new element.  In addition to being associated with an animal, each year is also associated with one of the five astrologic elements (metal, wood, water, fire and earth).  For 2017, that element is fire.  But at the same time, each zodiac animal is independently associate with one of the five elements.  And a rooster is metal.

So, you have a metal animal in a fire year.  According to Feng Shui master Raymond Lo, this just produces all sorts of ugly as fire conquers metal, making for a destructive relationship and causing disharmony in the year to come.  For Lo, “it will not be surprising that there will be serious explosions, fire disaster and war in 2017.”  Noted Feng Shui master Joey Yap is also on the same wavelength, remarking that with a metal rooster in a fire year, 2017 will be “dominated by challenges, fierce competition and scarcity of resources.”  As if on cue, the PBS Newshour just ran a story that water may soon become unaffordable for one-third of Americans.

But just because the world might be going to pot doesn’t necessarily mean that your life will.  How you fare in the fire rooster year is dependent on how your birth sign deals with the rooster. Check out your personal horoscope here (note you may have to do a Bazi test to determine the strength of your birth year element.  You can do that here – note that birth date is entered day-month-year).

But it might not all be bad.  In past fire rooster years, good things have happened. In 1897, aspirin was invented; 1957 saw the production of West Side Story as well as the formation of band the Quarryman with John Lennon and Paul McCartney, essentially the predecessor to the Beatles.

For those having a baby in year of the rooster, expect a faithful, reliable yet ambitious child, quick to speak and express his opinions. But budget a lot for clothes.  Roosters are known to dress up and be meticulous about their appearance.  Elton John, Bette Midler, Kate Middleton – all roosters

Whatever Year of the Fire Rooster may bring, may you celebrate the new year with family, friends and good food!  To all our Chinese friends who celebrate the new year, 新年快乐 (sin knee-an k-why le)!

Happy Lunar New Year! (courtesy of the Int’l Business Times)

Codifying Illegality? The Case of Jiang Tianyong

By , January 20, 2017

Jiang Tianyong

For the Chinese state, human rights lawyer Jiang Tianyong (pronounced Gee-ang Tee-an Young) never seems to learn his lesson.  In 2009, after taking on a slew of politically sensitive cases such as representing Falun Gong practitioners and ethnic Tibetans prosecuted following the 2008 Tibet riots, the Beijing Bureau of Justice declined to renew Jiang’s lawyers license.

But lack of a law license did not stop Jiang from continuing to advocate for some of China’s most vulnerable. Instead, Jiang played an active role in ensuring that blind activist Chen Guangcheng‘s cruel house arrest remained in the public eye. Again the Chinese state came for Jiang.  In February 2011, after meeting with fellow advocates to discuss Chen Guangcheng’s case, Jiang was abducted by local police, beaten, psychologically tortured and held incommunicado for two months.  (For Jiang’s own description of his two month ordeal, click here). Jiang was released, but only after he promised to give up his advocacy work, stop associating with his current friends, cut off ties with foreigners and refrain from making comments on social media disparaging the Chinese Communist Party (CCP).

Jiang, on the left, with other human rights attorneys and advocates, protesting in Heilongjiang

But even in light of these guarantees, Jiang’s advocacy did not cease. Nor did the Chinese state’s reprisals, which became increasingly violent. In May 2012, Jiang attempted to visit Chen Guangcheng in a Beijing hospital.  After Jiang was denied entry, state security officers took him away, beat him and then placed him under surveillance. In 2013, when Jiang exposed Sichuan province’s largest “black jail,” a secret and unlawful detention center, he was again beaten by local police.  When, in 2014, Jiang went to Heilongjiang province to protest the detention of Falun Gong practitioners in a “legal education base,” Jiang was administratively detained for 15 days and subject to various beatings while in police custody.

Not surprisingly, Jiang, who has yet to give up his advocacy, is back on the Chinese government’s radar, this time with much more serious charges that could land this civil rights attorney in prison for life.  But there is one thing that should make this time different from Jiang’s prior detentions: the implementation of China’s new Criminal Procedure Law (“CPL”), amended in 2012.  When these amendments passed, they were herald as more protective of criminal suspects’ rights, much needed in a system with a 99.9% conviction rate. In October 2016, the Supreme People’s Court (“SPC”), Supreme People’s Procuratorate (“SPP”), and the Ministry of Public Security (“MPS”) doubled down on the 2012 amendments, issuing a joint opinion, reaffirming each agency’s commitment to a more fair criminal justice system.

But as Jiang’s case highlights, these are just  paper promises.  For Jiang, some of the provisions of the CPL are outright ignored.  But more dangerously, the Chinese police have placed Jiang under “residential surveillance at a designated location,” a form of detention that was added to the CPL with the 2012 amendment.  In the case of Jiang, this amendment is being used to keep him away from his lawyers and, with his precise whereabouts unknown to the outside world, in a situation where torture while in custody is highly likely.  So much for better protecting criminal suspects’ rights.

Why Is Jiang Under Residential Surveillance at a Designated Place?

On November 21, 2016, Jiang went missing.  According to the Legal Daily, Jiang was picked up by the Changsha police after using someone else’s identity card to purchase a train ticket home to Beijing. After being taken into custody, Jiang is now suspected of harboring state secrets, a crime that carries a three to seven year prison sentence depending how serious (Crim. Law Art. 282) and of providing those state secrets abroad, a crime that results in a sentence anywhere between five years to life depending on the severity (Crim. Law Art. 111).

However, according to an advocate close to the investigation, the police notice eventually issued to Jiang’s family also lists suspicion of inciting subversion of state power, a national security crime that the Chinese government has increasingly used to silence its civil rights lawyers.  That charge can carry a sentence of anywhere between three years to life (Crim. Law Art. 105), and where inciting subversion involves foreign entities, the punishment shall be heavier (Crim. Law Art. 106).

Jiang Tianyong’s wife, Jin Bianling, calling on the Chinese government to inform her of her husband’s whereabouts. Photo courtesy of Hong Kong Free Press

For close to a month, Jiang’s whereabouts were unknown; unknown to his lawyers and to his family.  And while this might seem illegal, China’s amended Criminal Procedure Law (“CPL”) forgoes many of the protections intended to make the system more fair when the crime of endangering national security is potentially involved. When a suspect is taken into custody, Article 83 of the CPL requires that the police inform the suspect’s family within 24 hours except for those crimes that endanger national security or involve terrorism.  Here, Jiang is suspected of subverting state power and passing state secrets abroad, two crimes that certainly endanger national security.  And as a result, the police did not inform Jiang’s family that he had been taken into custody.

In what is increasingly necessary when a civil rights lawyer lands in the exclusive control of the police and his whereabouts are unknown, Jiang’s family and friends resorted to the one tool they had left: pressuring the foreign press to repot that Jiang had gone missing.  With the story of Jiang’s abduction splashed across the international press, on December 16, 2016, the Chinese government, through the government-controlled Legal Daily newspaper informed the world that Jiang not only had been taken into custody but that he was placed in “residential surveillance in a designated place.”

Residential Surveillance in a Designated Place – likely not here.

One of the major amendments to the CPL included what China terms  a “compulsory measure” but in reality is a new form of detention: “residential surveillance” (Articles 72 through 77 of the amended CPL).  Residential surveillance might sound like a more mellow form of detention but when applied, it provides carte blanche for police to interrogate – and usually torture – a suspect without any interference from the outside world.

For any residential surveillance that occurs outside of the suspect’s hometown, or if the suspect is being investigated for crimes of “endangering state security,” “terrorism” or “serious crimes of bribery,” residential surveillance does not occur at one’s home. (CPL, Art. 73) Instead, it occurs at an undisclosed location and while the family is required to be informed that their relative is under residential surveillance at a designated place (CPL, Art. 73), the family is not necessarily informed as to the precise location of the place.

And this is why Jiang shouldn’t be expecting any care packages in the near future from his family; they have no idea where he is.  In fact, according to a source close to the investigation, Jiang’s family first learned about his residential surveillance through the Legal Daily article on December 16, 15 days after he was placed in that form of detention.  True that the amended CPL  does a great job at severely circumscribing suspects rights once they are under residential surveillance, but the one thing that the Chinese government still gives these suspects is reuiring the  police to provide a written notice to the suspect’s family within 24 hours of placing the suspect under residential surveillance, regardless of the type of crime involved, national security or not. (CPL, Art. 73; see also Ministry of Public Security Implementing Regulations of the CPL Art. 109)  But here, according to an advocate close to Jiang’s case, Jiang’s family was not provided official notification until December 23, 2016, 22 days later.

Under the residential surveillance provisions of the amended CPL, the police are given so much power over the suspect, power that is largely illegal in other forms of detention and for other crimes. But even with this power, the police still feel the need to violate the clear language of CPL Article 73 and withhold notice to Jiang’s family.

Jiang Can Be Held for Up To Six Months and Without Access to a Lawyer

Empty chairs at empty tables – No lawyer for Jiang anytime soon

Jiang should also not be expecting any visits from a lawyer for the six months that residential surveillance at a designated place is permitted. (CPL, Art. 77)  And that’s another way that, by slapping a national security charge on a suspect, the Chinese government is able to circumscribe rights otherwise enshrined in the amended Criminal Procedure Law.

Because “residential surveillance in a designated place” usually presupposes a possible state security, terrorist, or serious bribery charge, the requirement that a meeting with the lawyer take place within 48 hours (CPL, Art. 37) is suspended for those possible charges.  (CPL, Art. 37).  Instead, any meeting must be approved by the police. (CPL, Art. 37).   Which fits with the rules that the suspect must follow when in residential surveillance: only with permission of the public security agency can the suspect meet or correspond with someone else. (CPL, Art.75(2)).  That permission must be granted unless the investigation would be obstructed or national secrets may be leaked (Ministry of Public Security Implementing Regulations of the CPL Art. 49)

Changsha police notice informing Jiang Tianyong’s lawyer that he cannot meet with Jiang due to crimes endangering national security (click for bigger image)

Although the regulations strongly favor meeting with a lawyer, in practice, civil rights attorneys held on charges that involve endangering national security are rarely given approval to meet their attorney.  Jiang is no exception.  According to an advocate with close ties to Jiang’s case, on December 27, 2016, Jiang’s lawyer requested permission to meet with his client.  On December 29, 2016, Changsha police denied this request, stating  that  “Jiang Tianyong was accused of crimes of endangering state security, and a meeting with lawyers would obstruct the investigation or possibly divulge state secrets.”

Codifying Illegality?

Jiang’s case makes clear that the 2012 CPL amendments have done little to curb the power of the police and that the Chinese government’s recent pronouncements that it needs to do better to protect suspects’ rights, is nothing more than window dressing. As long as the police unilaterally, and without due process, decide to investigate the suspect for crimes involving national security, all rights are essentially lost: the suspect can be held incommunicado for up to six months without access to a lawyer.  That kind of situation – with no one watching – all but guarantees torture and abuse.  Ironically, it is potential charges of endangering national security where these protections are needed most.

But, starting with the 2015 crackdown on lawyers and now continuing with Jiang Tianyong, the Chinese government has demonstrated that it will use the label of “endangering national security” to forgo the rights that it says it is committed to providing criminal suspects.  In late 2015 and early 2016, the Supreme People’s Procuratorate issued two sets of rules ostensibly to curb the police’s abuse of residential surveillance in a designated location.  But, as others have noted, the new rules seem to be designed more to ensure that everything looks good on paper than to guarantee criminal suspect’s rights and access to due process.  The case of Jiang Tianyong appears to prove that even those new regulations have had no effect.

As the rest of the world marks the seventh annual Day of the Endangered Lawyer next Tuesday, Jiang Tianyong, one of China’s great civil rights attorneys, languishes in an unknown place, likely subject to constant interrogation and torture, and without any access to a lawyer.  His rights deprived all because the Chinese police are able to claim that it is investigating him for endangering national security.  But the only thing that is being endangered by making a mockery of the protections of the amended Criminal Procedure Law is the actual rule of law.

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Thank you to China Law Translate for providing free of charge most of the translations of China’s laws used in this article. 

Trump’s Call with Taiwan: A Hard Rain’s A-gonna Fall?

By , January 2, 2017

U.S. President-elect Donald Trump (left) and Taiwanese President Tsai Ing-wen

Every four years, leaders from around the world call the newly-elected president of the United States, congratulating him on winning his country’s election.  Although a quaint custom, there is a lot of backroom dealing that goes on before the two leaders talk: staff has to ensure that it isn’t a prank, that translators are on hand if necessary, and that an agenda and time is appropriately set.

But one thing that never happens is a congratulatory phone call between a U.S. president-elect and the President of Taiwan.  That is because for the past 40 years, the U.S. has not recognized Taiwan as a separate country; to take an official phone call from the President of Taiwan signals a possible change in the United States’ “one-China policy,” potentially inciting the anger of the People’s Republic of China (“Mainland China,” “China” or “PRC”), and potentially undermining the tense status quo between Mainland China and Taiwan.

Hotline Bling! President-elect Trump on the phone (photo courtesy of CNN.com)

And that is why President-elect Donald Trump’s decision, on December 2, to accept a phone call from Tsai Ing-wen, the current president of Taiwan, was such a shock and front page news across the globe.  Although originally downplayed by his transition team, Trump doubled-down only a few days later where, in an interview with Fox News, he stated that he doesn’t “know why we have to be bound by a One-China policy unless we make a deal with China having to do with other things. . . .”

But if Trump is sincerely thinking that such a policy shift would benefit Taiwan or thinking that this is a good way to strong arm Mainland China on other issues, he will likely be proven dead wrong. Toying with China about Taiwan is not going to give the U.S. the upper hand in its relations with China. For almost 70 years, the Chinese Communist Party (CCP) has tied its legitimacy to the eventual reunification of Taiwan with the Mainland. For the U.S. to make overtures that it might abandon the one-China policy goes to the heart of the CCP’s rule.  Because of this, the CCP will not respond lightly – nor necessarily in accordance with what we think might be rational – to President-elect Trump’s public insinuations of a shift in the one-China policy.

The Creation and Evolution of the One-China Policy

1971 PRC Propaganda Poster: “We will definitely liberate Taiwan!”

The one-China policy is not the brain child of the United States.  Rather, it is a concept created in 1949, after the Chinese Civil War, by the leaderships of both Mainland China and Taiwan.  Up until 1949, Mainland China, of which Taiwan was a part, was called the Republic of China (“ROC”) and was ruled by the Kuo Mintang party (“KMT”), under the leadership of Chiang Kai-shek.  But on October 1, 1949, the CCP gained control of Mainland China, establishing the People’s Republic of China (“PRC”) and the KMT and its supporters fled to the island of Taiwan.

On Taiwan, Chiang Kai-shek and the KMT re-established the Republic of China. Both the CCP and the KMT agreed there was only one China, a China that includes the Mainland and Taiwan; both agreed that eventually the Mainland and Taiwan would be re-united. Where the two states differed was to which was the legitimate leader of this phantom one-China.  For the KMT, the ROC in Taiwan was the legitimate China with the mainland consisting of renegade provinces that would eventually be re-united under KMT rule.  For the CCP, the opposite held true: it was the PRC that was the legitimate government, Taiwan was a wayward province that would eventually be re-united with the mainland under CCP rule.

U.S. President Jimmy Carter and Chinese President Deng Xiaoping sign the accords where the US switches recognition to the PRC

Because of the CCP and KMT’s one-China concept, the rest of the world had to choose “one China” to recognize and establish diplomatic ties. Neither Taiwan nor the Mainland would allow a country to recognize both Chinas. Like most things during the Cold War, the choice was political.  Between 1949 and the early 1970s, almost all western, democratic countries recognized the ROC on Taiwan as China and most communist countries recognized the PRC on the mainland as legitimate China.

By the early 1970s, things began to change and in 1979, the United States switched its formal diplomatic recognition to the PRC.  As a result, the United States cut off all official diplomatic relations with Taiwan, closing its embassy in Taipei.

But only official diplomatic ties were severed.  The United States continued to maintain strong economic and military ties with Taiwan.  In fact, to show that the United States was not completely abandoning Taiwan, in 1979, Congress passed the Taiwan Relations Act.  The Act didn’t just create the American Institute in Taiwan (“AIT”), a non-profit organization, funded by the U.S. government and serving as a de facto embassy in Taipei, it also, by committing the U.S. to make available “defense articles and defense services,” tied U.S. military support to the island.  Since the passage of the Act, the United States has sold over $30 billion in defensive military arms to Taiwan; $14 billion of that has been under the Obama Administration.

For Mainland China, the One-China Policy Is Not A Joke

For Mainland China, the belief that Taiwan is an indispensable part of China and will eventually be re-united is sacrosanct. It is the line the CCP has been propagating to its people since 1949 and which the majority of the Chinese people believe. Enshrined in preamble to the PRC Constitution is the notion that Taiwan is an inalienable part of the PRC and will be re-united with the Mainland. Every time relations between Taiwan and another country gets too cozy, the CCP, through the state-run media, vehemently criticizes the offending nation for interfering in their internal affairs.

As China’s economy continues to lag, the CCP’s promise of constant economic property for its people is undermined, making its nationalist promises of a one-China even more necessary to fulfill. For the CCP, failure to fulfill that promise threatens its rule.  And the CCP has no interest in relinquishing its rule.

But for the Taiwanese people, the concept of one China has evolved especially as the KMT has lost its complete control of the island’s political system.  From 1949 to the early 1990s, Taiwan was a one-party country, with the KMT and its allegiance to the one-China policy, in control.  However, starting in the mid 1990s, a new political party emerged on Taiwan, the Democratic Progressive Party (“DPP”).  The DPP rejects the idea of a one-China.  It even rejects the idea of a two-China.  Instead, it maintains that Taiwan has become a separate country and culture, distinct from Mainland China.  For the DPP, there is only one China, the Mainland, and then there is Taiwan.

Taiwanese protesters who oppose the One China Policy

In 2000, when DPP candidate Chen Shui-bian won the presidency, the CCP grew fearful.  With the increased stature of the DPP in Taiwan and the fact that it can win national elections, China has built up its military to be capable of dealing with Taiwan if the country should ever publicly repudiate the one-China policy and change its laws to establish the independent country of Taiwan.  After Chen won a second term in 2004, the CCP decided to make its intentions more clear.  In 2005, the CCP passed a new law – the Anti-Secession Law – exclusively about the Taiwan situation.  While it continues to call for the peaceful reunification of the Mainland with Taiwan, Article 8 of the Anti-Secession Law makes it clear that China will use force if Taiwan declares its independence.  In 2015, the CCP passed the National Security Law, a sweeping law that seeks to expand and reinforce China’s international reach.  Article 11 mentions sovereignty over Taiwan.

While the Taiwanese people have elected a DPP president in 2000, 2004 and then again with current President Tsai in 2015, the Taiwanese repeatedly prefer to maintain the status quo in their relationship to the Mainland.

The Trump Call Is More Than A Phone Call

Taiwanese protesters supporting the One China Policy

It is within this powder keg – two entities armed to the teeth, one voting in an “independence party” and the other feeling insecure with its economic slowdown – that President-elect Trump decided to accept Taiwan President Tsai’s call, feigning ignorance that the call was somehow not monumental. Not surprisingly, China’s reaction was quick and angry.  But in ways, less so toward the U.S. than to Taiwan. In an op-ed in the state-run Global Times, the CCP reminded Taiwan that it would not hesitate to “punish” Taiwan and that Taiwan must pay the price if it breaks the status quo.

True the one-China policy is increasingly a rotten deal for Taiwan, especially as China seeks to use its might to squeeze Taiwan out of important international organizations and meetings, including meetings held recently by the U.N. and Interpol. And there might be reasons to re-calibrate some of the customs surrounding the one-China policy.  Currently, the Taiwan Travel Act, which would permit officials from the Taipei Economic and Cultural Representative Office (Taiwan’s de facto embassy in the U.S.) to conduct official business with the U.S. government, is pending before Congress. Additionally, last year Congress passed, and President Obama signed into law, a bill requiring the U.S. State Department to develop a strategy to obtain observer status for Taiwan at Interpol.  When President Tsai travels to Latin America this month, the Obama Administration has agreed, regardless of China’s protests, to grant her a “transit visa”, allowing her to meet with people while on U.S. soil. The U.S.’ continued advocacy to ensure Taiwan’s inclusion as an important international entity is not only a benefit to Taiwan but also a benefit to the rest of world as it permits an East Asian state with an democratically-elect government and vibrant civil society to serve as a counter-example to China.

But President-elect Trump’s December 2 call with President Tsai does not come off as a well thought out and effective means to bolster Taiwan’s place in the world.  Based on his follow-up interview with Fox News, the call appears to have been solely a strategy to anger Beijing in an attempt to work out a better trade deal for the U.S.  But Taiwan – and the one-China policy – is too essential of an issue for the CCP to simply bargain for as if this is a mere business deal.

If Trump continues to carelessly trifle with the one-China policy, it will be Taiwan and its people that will bear China’s initial wrath. But with the U.S.’ ostensible obligation under the Taiwan Relations Act to support Taiwan defensively, it could very well be American lives that are also at stake.

For a thoughtful rebuke of President-elect’s phone call with President Tsai, please read former American Institute in Taiwan senior official and China expert Richard Bush’s “Open Letter to Donald Trump on the One-China Policy”: https://www.brookings.edu/blog/order-from-chaos/2016/12/13/an-open-letter-to-donald-trump-on-the-one-china-policy/

China Ready for Market Economy Status? Not According to the CECC

By , October 17, 2016

Seal of the CECCIn its 15 year history, perhaps no other annual report is as consequential as the one the Congressional Executive Commission on China (CECC) released on October 6, 2016 and in the midst of China’s push to be granted Market Economy Status.  China believes that with its December anniversary of its World Trade Organization (WTO) entry, it has a legally-mandated right to be granted Market Economy Status, a status that comes with significant trade benefits.  But the CECC’s 2016 Annual Report paints a different picture, revealing a Chinese government, under the leadership of Xi Jinping (pronounced See Gin-ping), intent on consolidating the Chinese Communist Party’s (CCP) power at the expense of a rule of law.

In 2001, Congress created the CECC after the U.S. normalized its trade relations with China.  Prior to normalization, Congress reviewed U.S. relations with China every year to determine if most favored nations status should continue to be granted to China.  Inevitably, this annual review focused on China’s human rights record and legal development.  However, with China’s accession into the WTO, a yearly Congressional

Photo Courtesy of china.org.cn

Courtesy of china.org.cn

vote on trade relations with China was no longer possible.  As a result, in agreeing to China’s entry into WTO, the CECC was created to monitor China’s human rights, review its legal development, and maintain a political prisoners database.  Part of the CECC’s mandate is to issue an annual report concerning these issues

For certain, since the CECC’s creation, China has made great progress in creating a more vibrant and reliable legal system.  The 2016 Annual Report highlights some of these positive developments.  In 2016, the Chinese government instituted reforms to its household registration system (hukou), a system that has long kept rural residents in a second-class citizen status; it eliminated its one-child policy in favor for a two-child policy; it passed an Anti-Domestic Violence Law that recognizes psychological abuse in addition to physical violence and applies to non-married couples; it passed a Charity Law that could make it easier to create non-profits in China; with reforms to the court acceptance system, Chinese courts have accepted more sensitive cases, including China’s first gay marriage case; and in the past year, the central and local governments have increased funding to legal aid.

Zhongze Women's Found, Guo Jianmei, given the International Women of Courage Award by Michelle Obama and Hillary Clinton, March 2011. (Photo Courtesy of Roshan Nebhrajani/Medill DC/Flickr)

Zhongze Women’s Found, Guo Jianmei, given the International Women of Courage Award by Michelle Obama and Hillary Clinton, March 2011. (Photo Courtesy of Roshan Nebhrajani/Medill DC/Flickr)

But as the CECC’s 2016 Report makes clear, this progress is heavily overshadowed by the government’s suppression of anything it deems a threat to its rule.  In 2016, China continued its prosecution of  civil rights lawyers on charges of “subverting state power” for zealously advocating for their clients on what the CCP determined to be a sensitive issue. Ironically, less than a month after the passage of the Anti-Domestic Violence Law, in January 2016, Beijing police ordered the shutdown of the Beijing Zhongze Women’s Legal Counseling and Service Center, a women’s rights organization instrumental in getting the Anti-Domestic Violence law passed.  And while China passed the Charity Law in an effort to encourage the non-profit sector, the passage of the Foreign NGO Management Law in April, seeks to limit the interaction of domestic NGOs with foreign ones, rendering illegal many of the effective relationships that have developed over the past decade and has resulted in an increasingly vibrant civil society in China.  In addition to passing the restrictive Foreign NGO Management Law, in 2016, the CCP increased its anti-Western rhetoric, equating those who seek political reform as being pawns of “hostile foreign forces.”

Images of Hong Kong bookseller Gui Minhai

Images of Hong Kong bookseller Gui Minhai “confessing” to his crimes (Photo Courtesy of Hong Kong Free Press)

The CCP continues to censor the internet by blocking its citizens from accessing certain western media websites, including the New York Times, the Wall Street Journal and Bloomberg News. Domestically, it issues pronouncements on how Chinese journalists should be reporting certain news items and detains those who do not follow orders.  In 2016, in a throwback to the Cultural Revolution, the CCP increased its use of public confessions, having dissidents admit to their “crimes” on state television. These televised “confessions” included statements by foreign NGO worker Peter Dahlin, lawyer Wang Yu and the abducted Hong Kong booksellers Gui Min Hui, Cheung Chi-ping, Lan Wing-Kei and Lui Bo.

Beware of Foreign Forces  (Photo Courtsey of DoD/U.S. Army Staff Sgt. Sean K. Harp/Released)

Beware of Foreign Forces (Photo Courtsey of DoD/U.S. Army Staff Sgt. Sean K. Harp/Released)

The CECC’s 2016 Annual Report makes clear that the Chinese government’s retreat on the rule of law front is not happening in a vacuum.  Instead, as the 2016 Annual Report notes, the CCP’s efforts come at a time when China is experiencing its slowest growth rate in 25 years.  Will that slow growth mean that the CCP will double down?  That next year will only see a further retrenchment of the CCP’s Cultural Revolution ideology of public confessions, suppression of dissent and the suspicion of anyone who is in contact with “foreign forces”?  All at the expense of the rule of law and the Chinese people?  Given this past year’s developments, the answers to these questions seem to point to yes.

Happy Birthday China Law & Policy!

By , July 15, 2016

Seven years ago today, China Law and Policy (“CL&P”) was born.  With Chinese language skills, a knowledge of Chinese history and an understanding of law, our goal was to offer a nuanced perspective on China, in particular its legal development and how that development shapes the rest of the world.

In the past seven years, many of our blog posts have focused on the growth, and recent retraction, of China’s human rights attorneys. We believe that legal development does not happen in a vacuum.  While the most recent crackdown on human rights lawyers appears limited to just these lawyers, it is not.  It reflects a ruling party ideology that is uncomfortable with – if not completely hostile to – a rule of law.  Especially when that rule of law seeks to constrain the unbridled actions of the Chinese Communist Party, or more aptly, the actions of its chief, President Xi Jinping.  The western public should not be surprised that China has no interest in abiding by the Permanent Court of Arbitration’s South China decision if it willy-nilly violates its own domestic laws, holding human rights attorneys in detention without access to lawyers and charging them with subversion.

As a result, CL&P’s mission is even more important now than when we first started.  But since it is CL&P‘s birthday, it is time to take stock.  Our reach continues to grow.  We have over 5,500 followers over all of our platforms (twitter, facebook, email and RSS feed) and our posts continue to be cited by journalists, Congress, academics and other bloggers.  Our most popular posts this year deal with issues that China is grappling with in its relationship with the rest of the world.  Our post on the expulsion of French journalist Ursula Gauthier was by far the most popular post this year.  But Anatomy of a Crackdown: China’s Assault on its Human Rights Lawyers, was a close second.  Also in the top five were our analysis of China’s first gay marriage case and our review of Wang Nanfu’s movie, Hooligan Sparrow, a documentary on the life, times and adversity of feminist advocate Ye Haiyan.  Our annual Lunar New Year greeting, a playful post in our “Just for Fun” category, again rounded out the top five.

Where is the cake? Happy birthday China Law & Policy!

While CL&P continues to thrive, I will admit that over the past few months, balancing this blog with other life events has been a challenge.  Hence, a decrease in the level of posting.  But going forward my commitment remains strong to continue this blog and to find even more voices to publicize through our podcasts and guest blogging program.  So if you are interested in writing for CL&P or you have an idea for a blog post or podcast, please reach out: elynch@chinalawandpolicy.com.

Again, this year, I want to thank everyone who reads this blog and who has given me much needed comments, edits and information. But in particular, I want to thank a few individuals who have provided support, encouragement, and ideas that have sustained me through this year:  Jerome Cohen, Amala Lane, Jeremy Daum, Andrea Worden, Edward Wong, Eva Pils, Tom Cantwell, Madhuri Kommareddi, Elise Brown and Jerome Lynch.

Finally, I want to thank the hundreds of Chinese public interest lawyers who continue to fight for the rights of China’s most vulnerable, even in the wake of the Chinese government’s efforts to end their work and obliterate their lawyering.  From your practice of law and your tenacity I have learned much that I seek to apply in my work as a legal services attorney. I continue to be humbled by all that you do.

Thank You and Happy Birthday to China Law & Policy!

ABA’s International Human Rights Award – What Does it Mean?

By , July 12, 2016

Lawyer Wang Yu, ABA’s inaugural International Human Rights Award recipient.

On the one-year anniversary of the Chinese government’s widespread crackdown of the country’s civil rights attorneys, the American Bar Association (ABA) finally made good.  After its tepid response last summer to the Chinese government’s detention of over 300 lawyers and advocates, on Friday, the ABA boldly awarded its inaugural International Human Rights Award to Chinese civil rights attorney Wang Yu (pronounced Wong U).

But Wang Yu won’t be in San Francisco on August 6 to accept her award.  For Wang Yu and 23 other advocates are still being held by the Chinese government, many charged with the very serious crime of subverting state power, which can carry a life sentence.  All because of their representation of some of society’s most vulnerable: the poor, religious minorities, child sex victims, intellectuals that the state has deemed an enemy such as Ilham Tohti.  In other countries, this type of representation would be celebrated.  But in China, it is seen as a threat to the Chinese Communist Party’s (CCP) rule.  Ironically, the rights these advocates fought for on behalf of their clients – the right to meet with their attorney (only 6 of the 24 have had access to an attorney), the right to a fair trial, the right to a speedy trial in accordance with Chinese law – are being denied to them as they are isolated in prison.

Wang Yu, in front of a Chinese court, with a sign stating “Return my right to see my clients”

Arrests and persecution of China’s civil rights lawyers have been ongoing since Xi Jinping ascended to power in 2012.  But what makes the July 9 Crackdown unprecedented is its scope and its public nature.  Prior arrests and prosecutions, such as that of Xu Zhiyong, have not received the public attention and the vilification that the July 9 Crackdown has received.  Soon after the mass round-up of advocates, the state-run Legal Daily ran an infographic calling these lawyers a “criminal syndicate” and heavily suggesting that these lawyers are mere conduits of foreign money and ideas as opposed to their motivation coming from their own intrinsic sense of justice. (Translation of the infographic courtesy of China Law Translate)

But what the Chinese government doesn’t get with its July 9 Crackdown is that it is its own lack of transparency, unbridled corruption and squelching of citizens’ rights that ensures that this movement will continue.  Chinese civil rights advocates might be weakened but they are far from dead; to think otherwise does not give these advocates the credit they are due.  As long as the CCP continues on its course of one-party rule with little space for public disagreement, their rise is inevitable.  Wang Yu became a civil rights lawyer after the police mistreated her in a railway station and then bizarrely charged her with “intentional assault.”  Cao Shunli (pronounced Tsao Shun-lee) was just a civil servant until she was fired from her job for alerting her supervisors to the corruption of the local housing lottery.  After that, she became a rights activists only to die in police captivity in 2014.  Tang Jitian (pronounced Tang Gee Tea-an) was a prosecutor for seven years before he could no longer stand the daily injustice and corruption endemic in the system.  He then took the test to become a criminal defense lawyer to represent those whose rights were being trampled by the state.

For sure the ABA’s awarding of its International Human Rights prize falls on the CCP’s increasingly deaf ears.  But that doesn’t mean we should remain silent as the CCP dismantles a rule of law society.  For Wang Yu, and the advocates imprisoned with her, the ABA’s award is important recognition of their work, recognition that their own government refuses to bestow even as it adopts a few of the changes they have called for to make China a more just society.

Who Is the Hooligan? A Review of Wang Nanfu’s New Documentary

By , June 19, 2016

Director Wang Nanfu did not intend to make the movie that became Hooligan Sparrow, the opening feature at this year’s Human Rights Watch film festival.  But it’s hard to avoid creating such a tour de force when you become enmeshed in the absurdity that is the life of a Chinese rights activist.

In spring 2013, Wang Nanfu (pronounced Wong Nan-foo) returned to her homeland of China to make a documentary about women’s rights activist Ye Haiyan, also known by her online name “Hooligan Sparrow.”  Since 2006, Sparrow has worked with China’s sex workers, providing educational materials on safe sex and advocating on their behalf, particularly for those who work in low-cost brothels that charge only a few U.S. dollars.  To bring greater exposure to sex workers’ plights, in 2012, Sparrow engaged in a bold campaign: working for a day in one of these low-cost brothels and providing sex for free.  Her campaign worked and soon she was on TV talk shows, explaining to Chinese society the discrimination that these sex workers face.  This is what Wang Nanfu intended to cover.  But when she arrived in China, Sparrow was on to a new justice campaign: ensuring that the pimping of schoolgirls to government officials on Hainan Island would be prosecuted.

In early May 2013, the principal of a local school on Hainan Island took six of his female students – ages 11 to 14 – to hotels where they were forced into sex with him as well as with a government official.  Although the story sparked outrage online, the local police initially claimed that the two men did not have sex with the girls, even though the parents uploaded pictures to the web which provided ample evidence that the two men did.

Sparrow with her sign: Principal: Get a room with me, leave the schoolchildren alone!

Sparrow and a group of other activists, including noted human rights lawyer, Wang Yu, leapt into action, immediately traveling to Hainan to protest outside of the girls’ school and demand the arrest of the principal and the government official on charges of rape.  Realizing that a trial in the media – especially the social media – is increasingly the only way to achieve justice in China, Wang captures Sparrow’s genius as Sparrow comes up with a slogan that she knows will go viral: “Principal, get a room with me, spare the schoolchildren!”  Almost immediately the picture of Sparrow holding that sign gets picked up by hundreds of netizens, and in a show of solidarity, many post selfies holding signs with the same slogan.  By the end of May, Sparrow’s campaign finds success and the two men are charged with “sex with underage prostitutes,” a charge though that is less severe than the crime of rape. For Sparrow, that charge is not enough, and she and Wang Yu continue their fight to eradicate the lesser crime of “sex with underage prostitutes,” arguing what people in China and the rest of the world know to be true: that any sex with a minor – be it paid or not paid – is not consensual and is rape.

This intense incident, with plainclothes police physically jostling the protesters, is only the start of what becomes an increasingly powerful condemnation of the current Chinese Communist regime.  Although Sparrow was successful in her protest – with the legal system prosecuting the principal and the government officials – the Chinese government, as Wang Nanfu skillfully documents, views Sparrow as anything but a success.  Instead, the full power of the regime comes down on Sparrow, and hard.  But, as Wang Nanfu beautifully captures, Sparrow is more than an activist.  She is also a single mother to a 12 year old daughter.  It is watching Sparrow’s relationship with her daughter – and the concern any mother would have for her child – that makes Hooligan Sparrow into more than a documentary about a rights activist and her movement.  It captures the human toll that such advocacy has on both the activist and her family. When Sparrow is unlawfully detained on trumped up charges in what appears to be a way to punish her for her Hainan protests, her daughter is largely left to fend for herself.  Once freed, government-hired thugs hold a protest outside of Sparrow’s home, calling her a prostitute and demanding that such a loose woman move from their neighborhood.  Sparrow’s daughter hears all of this.

Sparrow’s daughter, trying to get homework done while her mother gets arrested.

But slander against her mother is not the end.  Sparrow is eventually evicted from her apartment, a tactic that Chinese authorities increasingly use against human rights activist.  Why detain activists in violation of the law when you can put pressure on landlords to evict them and make their life one on the run?

What Wang Nanfu documents next is Sparrow and her daughter’s constant movement, looking for a place to live.  In one city, Sparrow is able to rent an apartment but the local school will not accept her daughter because of Sparrow’s activism.  Yet again, Sparrow is forced to move.  With each move their possessions become less and less until all they have is one backpack each.

The next city Sparrow moves to, the authorities already know she is coming, and in one of the movie’s most harrowing scenes, the film goes dark and only confused sound is heard as Wang Nanfu and Sparrow’s daughter run up the stairs to try to get into the apartment before their pursuers  can capture them.  In the black background, you hear Sparrow yelling at the authorities, unclear if there has already been a physical altercation but knowing if there was one, Sparrow was not going to win.

Sparrow can never win and that is one of the absurdities about the current regime that Hooligan Sparrow captures perfectly.  In any other society, Sparrow’s successful advocacy would be celebrated.  But in China, even when the regime adopts the exact measures advocated for, the rights advocate must still be persecuted.  In other words, if your cause is successful, it is that success that will be your downfall.  Which makes one wonder, how will Chinese society ever become more just if this is the catch-22 that rights advocates constantly find themselves in?  The Chinese Communist Party’s mantra is largely maintaining the status quo; reform that brings greater justice to society’s vulnerable is hardly a priority.  Even President Xi Jinping’s campaign against official corruption did not capture the corrupt government officials having sex with minors, a much more common occurrence than just an isolated incident in Hainan.

Director Wang Nanfu

But it is Hooligan Sparrow‘s poignant portrayal of the unnecessary suffering of Sparrow’s brave daughter that resonates the most.  How can a government do this to an innocent child?  To be on the run, to be rejected from schools, to be a social outcast at the age of 12?  It isn’t Sparrow that is the hooligan in all of this.  That title clearly belongs to the current regime.

To understand China today, Hooligan Sparrow is a must see.  Wang Nanfu has created a master documentary, one that rejects the staid interviews of the past and instead gets in the center of the action.  It is through her own brave film making that we can begin to understand the trauma of being a rights activists in China.  But it is also through Wang’s artful storytelling that one can also see their humanity, providing hope that Sparrow – and all the activists like her – will continue to go on.

Rating: ★★★★★

Next Showing: Washington, D.C. – June 23 & 26, 2016 at the AFI Docs Film Festival; showing in New York again in July and to be shown on PBS’ POV on  October 17, 2016.  Coming to a theater near you before then?  Check the film’s website here.

To Never Forget? China’s Cultural Revolution

Public struggle session during the Cultural Revolution

Public struggle session during the Cultural Revolution

Tomorrow will mark an important anniversary in China, an anniversary that will neither be celebrated nor condemned by the Chinese Communist Party; an anniversary that can only be acknowledged privately, by the millions who lost much; an anniversary that is not admitted to by the perpetrators who destroyed so many.  For May 16, 2016 is the 50th anniversary of the start of China’s Great Proletarian Cultural Revolution, a decade-long, and ultimately senseless, political movement that shutdown Chinese society and resulted in the deaths of at least 1.5 million people, with tens of millions more publicly persecuted.

The Cultural Revolution began as a way for Mao Zedong to re-assert his leadership and consolidate his power.   Only eight years prior, in 1958, Mao launched what history would also determine a worthless campaign – the Great Leap Forward. Less than 10 years after establishing the People’s Republic of China, Mao was gung-ho to move China to the next stage of communism – complete collectivization of farming and industry.  China was nowhere near ready, resulting in one of the worst man-made famines of the 20th century, with over 30 million dying of starvation and other related disease.  With that debacle,  Mao, and with him, Mao Zedong Thought, were marginalized.  For a brief period in the early 1960s, more pragmatic communist leaders like Liu Shaoqi (pronounced Leo Sh-ao Chee) and Deng Xiaoping, took control.  Under their leadership, China pulled back from complete collectivization and permitted some economic liberalization, allowing society to get back on its feet.

Mao Zedong uses the Cultural Revolution to regain power and legitimize his ideology

Mao Zedong uses the Cultural Revolution to regain power and legitimize his ideology

But China’s development was short-lived.  On May 16, 1966, Mao, at a Party meeting, came out of his semi-retirement and announced the start of the Cultural Revolution.  In a notice to the Party – as well as to the Chinese people – Mao warned:

Those representatives of the bourgeoisie who have sneaked into the Party, the government, the army, and various spheres of culture are a bunch of counter-revolutionary revisionists. Once conditions are ripe, they will seize political power and turn the dictatorship of the proletariat into a dictatorship of the bourgeoisie. Some of them we have already seen through; others we have not. Some are still trusted by us and are being trained as our successors, persons like Khruschev for example, who are still nestling beside us.

What ensued were ten years of political purges, including the mysterious deaths of two of Mao’s rivals – Liu Shaoqi and Lin Biao (pronounce Leen Bee-ow), as well as criticisms, abuse and murder of millions of innocent Chinese people as Mao sought to rid China of its “bourgeoisie” elements.  Mao permitted Chinese society to resort to violence, carte blanche, to achieve his objectives.  Anyone who had a family history of privilege, no matter how far back or how minor, was a target.  As were intellectuals or anyone who did not appropriately parrot the words of Mao.  These “counter-revolutionaries” would be subject to public humiliation, physical abuse and, at times, death by the hands of their families, neighbors and fellow countrymen.  Many would also take their own lives.  Schools were disbanded, work was minimal and “struggle sessions” constant.  While the most violence erupted in the late 60s to early 70s, the Cultural Revolution was not over until Mao died on September 9, 1976.

OLYMPUS DIGITAL CAMERA

OLYMPUS DIGITAL CAMERA

Although the Cultural Revolution is not fully taught in schools in China and government-supported amnesia is the status quo, stories of that bleak time still emerge.  The author Yu Hua has probably done the most to keep these memories alive.  “To Live,” one of his many books about ordinary people trying to get through the insanity of the Cultural Revolution, is a best seller in China and was made into a celebrated motion picture by the famed director Zhang Yimou.

But more recently, ordinary citizens are demanding that the Cultural Revolution not be forgotten.  Last month, on the eve of the Tomb Sweeping holiday in China, where families return to grave sites to pay their respect to their dead relatives, retired Chinese Supreme People’s Court judge, Cai Xiaoxue, explained in a blog post that he cannot.  During the onset of the Cultural Revolution, his mother, a teacher, was constantly interrogated by her colleagues, not permitted to return home and in June 1966, died in their custody.  Judge Cai’s family did not find out about her death until a month later, by which time her ashes were nowhere to be found.  In 1969, after undergoing constant and public humiliations, writing various self-criticisms, and being fired from his post at the publishing house because he was a “capitalist roader,” Judge Cai’s father took his own life.  Fifteen-year old Cai is the one who discovered the body and who, the next day, was required to attend a struggle session against his dead father.  He was forced to sit in the front row.

Today, Judge Cai has no ashes to honor on Tomb Sweeping Day.  His father’s ashes also were never returned.  But he has purchased a plot where all he was able to bury were his father’s writings and his mother’s clothes.  On the tombstone are carved only two words: Never Forget (勿忘).  According to Judge Cai, only by remembering the horror can China ensure that that nothing like the Cultural Revolution happens again.

President Xi Jinping, trying to be more Mao than Mao?

President Xi Jinping, trying to be more Mao than Mao?

What makes Judge Cai’s story – and this 50th anniversary of the Cultural Revolution – particularly significant is that the current leadership has recently resorted to some of the methods used by Mao and the Red Guards.  Like Mao, current Chinese President and General Party Secretary, Xi Jinping, is intent on consolidating his power to a single man rule.  Through a campaign against corruption, Xi has rid the leadership of those he perceives as major threats (think Bo Xilai and Zhou Yongkang).  And these officials are dealt with outside of the legal system, through the Party disciplinary committee, with a court of law merely an afterthought and rubberstamp.  Public, forced confessions and self-criticisms – now on TV – have made a comeback.  And, for the past few years, deaths of dissidents while in police custody appear to be a yearly occurrence – Cao Shunli in 2014, Zhang Liumao in 2015, and now, this Friday, environmentalist Lei Yang (although he likely could not be called a dissident).

Never forget the horror of the Cultural Revolution

Never forget the horror of the Cultural Revolution

Will Xi Jinping return to the levels of violence that existed during the Cultural Revolution?  Likely not.  But even some regression, no matter how small, is a dangerous step.  As Judge Cai’s blog post reveals, the Chinese people suffered tremendously during the Cultural Revolution.  They do not need to do so again.

For another poignant story similar to Judge Cai’s, see the New York Times’ re-telling of the loss of Chen Shuxiang’s father and the mere $380 he received in compensation for his death.

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