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.

Just For Fun – The Getty Center’s Cave Temples of Dunhuang

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One of the cave replicas at the Getty’s Dunhuang exhibit

For close to 1,000 years, Dunhuang, an oasis town in western China, served as the crossroads of the world, with art that reflected its cosmopolitan nature.  Much of that art is found in the Mogao Caves located just outside of the town and reflect the development of Buddhist art in China from 400 AD to approximately 1400 AD.  Fast-forward to today and Dunhuang is a virtual unknown to most Americans.  Its hypnotic cave art completely forgotten by the world at large.

But starting this Saturday, the Getty Center will change this status quo, bringing the jewels of Dunhuang to North America in a magical exhibit that is not to be missed.  Cave Temples of Dunhuang: Buddhist Art on China’s Silk Road contemplates the Getty’s 25-year history conserving this amazing art and supporting the Dunhuang Academy, a Chinese-based organization created in 1944 to preserve the Buddhist cave art of Dunhuang.

A westernized figurine in one of the earlier caves

A westernized figurine in one of the earlier caves

Cave Temples of Dunhuang is broken down into three parts.  The first portion is a perfect replica of three caves – Cave 275, Cave 285 and Cave 320.  Surrounded by imposing Buddhist statues and with walls covered with Buddhist art, together these caves show the development and siniciziation of Buddhist art.  In Cave 275, western artistic influence is apparent, with one statute displaying clear Western features.  Cave 285 includes Hindu deities as part of the Buddha’s court.  But by Cave 320, the art is clearly Chinese.  It is also the height of Chinese art.

After visiting the caves, you are escorted to the second part and it is likely this part that will serve as the biggest draw.  It is probably the reason why the Getty is extending its weekend hours.  Instead of physically replicating the caves, the Getty commissioned yU+co to create a 3-D, immersion copy of one of the Mogao Caves.  After donning 3-D glasses, you are escorted to a dark room and soon, you are flying around Cave 45, stopping periodically on a statute or painting on the ceiling, with the narrator explaining the religious significance of each piece.  It is a fun way to see this art and an amazing experience.  It is also likely the way of the future for museums shows.  Or at least those that can afford it.

But it is the third part – the most traditional – that truly showcases the gems of this exhibit.  After 1400, the Mogao Caves were largely closed, forgotten and covered by sand.  But in the early 1900s, western explorers re-discovered this area.  With China in the throes of dynastic decline and revolution, these explores absconded with some of the best art – paintings on silk, ancient manuscripts, instructions on how to paint the caves – all of which had been perfectly preserved in a sealed up cave known as the Library Cave.  These masterpieces largely sit in storerooms of British and French museums.  The British Museum, which has the most artifacts from the Library Cave, has none of these pieces on permanent display.  The French museums also rarely show their Dunhuang pieces.  While these museums argue that exposure to the light would destroy these delicate artifacts, one wonders if, in 2016, that is still the real reason why only a select few are permitted to see these amazing pieces of art and important relics of world history.

How did all those tiny Buddhas get to the ceiling? The Getty explains

How did all those tiny Buddhas get to the ceiling? The Getty explains

Fortunately, the Getty was able to borrow many of the treasures of the Library Cave and has displayed these for visitors to see.  The Diamond Sutra, the world’s oldest printed book, is on display, as are writings reflecting the various religions practiced in Dunhuang – Hebrew scripture, a Christian psalm translated into Chinese.  But the paintings on silk are truly mesmerizing, with bold colors and patterns that hold your attention.  One painting on silk seems more like an art deco piece of the 1920s than a piece from 700 AD, making one realize that some conceptions of beauty never go out of style.  Once the Getty closes this show and returns the art, these are pieces that will likely never see the light of day again which is truly a travesty.  This alone is a reason to see this show.  But the final part of Cave Temples of Dunhuang ends with an explanation of how these caves were built, the lives of the artisans and how exactly they did all of this, allowing the visitor to better understand the people who commissioned

1920s Art Deco or 700s Tang Dynasty?

1920s Art Deco or 700s Tang Dynasty?

and built these caves.

Through Cave Temples of Dunhuang: Buddhist Art on China’s Silk Road, and the care that went into creating such a breathtaking show, the Getty Center’s dedication to preserving this important world cultural site and sharing its beauty is clear. And unlike its British and French museum counterparts, the Getty understands that this important art must been seen by the world at large.  Cave Temples of Dunhuang also does a wonderful job of explaining the religious and historical significance of the art and perfectly captures why Dunhuang is still an important site.  If you are in Los Angeles this summer, be sure to put this at the top of your list.  You won’t regret it.

Rating: ★★★★★

Cave Temples of Dunhuang: Buddhist Art on China’s Silk Road
May 7, 2016 – September 4, 2016
The Getty Center
1200 Getty Center Drive
Los Angles, CA 90049
***During the Exhibit, the Getty will stay open late on Fridays, Saturdays and Sundays***
Note that tickets for the physical and immersion caves are timed but the exhibit of artifacts can be seen at any time.

Just For Fun – Restaurant Review: Tasty Noodle House

By , February 21, 2016
San Gabriel's Tasty Noodle House

San Gabriel’s Tasty Noodle House

The thing about Chinese food in California is the vegetables.  With cities like Los Angeles and San Francisco only a stone’s throw away from major agricultural areas, “fresh” takes on a whole new meaning there.  When you mix that with the fact that Chinese cuisine really plays up vegetables and lets them stand on their own, you can find some of the best Chinese food in America.

And some of the best Chinese food in America is exactly what I found last Friday night in a tiny little restaurant called Tasty Noodle House located in a nondescript strip mall in San Gabriel valley, just outside of LA proper.

With three other friends, one who is a vegetarian, we ordered large with a total of eight dishes.  While the waitress told us at dish six that we over ordered, the food is so amazing that, by the time we were done with our meal, not a single scrap was left. Some of this had to do with the fact that we were starving after a day of hiking, but also Tasty Noodle House goes light on the oil, allowing the flavors of the food to stand on its own.  But even without the heavy oil, the food is authentic and the place is perfectly Chinese – a bathroom that can only be found by walking through the narrow kitchen and Mandarin soaps on the flat screen TV.

The first dish to arrive was the sautéed green beans.  Ordinarily, this is a dish with pork but Tasty Noodle House does a different take: thick, succulent string beans, flavored with garlic and ginger with tiny little shrimps.  The ginger addition and shrimp were a pleasant surprise and really made this into a light, delicious dish.

Amazing Scallion Pancakes

Amazing Scallion Pancakes

But what came next is what I would term a little piece of heaven: the scallion pancakes.  These were thin little things, perfectly crispy and soft, and with only a hint of scallion, not the overpowering flavor that usually fill the pancakes in less refined Chinese restaurants.  These pancakes also did not have the grease of a takeout joint and instead appeared to replace traditional Chinese cooking oil with what my dining companions could only conclude was butter.  While not traditional, this addition of butter made these pancakes irresistible.

But the highlight of the meal was the Sichuan eggplant (鱼香茄子).  This is by far the best Sichuan eggplant I have had in a long while.  The tough purple skin was not to be found on this eggplant, allowing the eggplant itself to take on the flavors of the sauce which was exploding with flavor.  Although slightly oily than other dishes, this was eaten quickly by my dining companions.  If you like eggplant, this is a must order dish.

World's best Sichuan Eggplant? Yes!

World’s best Sichuan Eggplant? Yes!

And while Tasty Noodle House does amazing things with its vegetables, its meat dishes are not to be overlooked.  Because we were only ordering one meat dish, the waitress informed us that the best meat dish on the menu is by far the sliced lamb pan fried.  She was right.  The lamb, a good, lean cut, was delicately balanced by the very fresh vegetables that also came with the dish.  All too often lamb dishes in Chinese restaurants are nothing more than a vehicle for cumin, with the cumin overpowering all other flavors.  But not at Tasty Noodle House.  Instead, the chef truly understands subtlety and allows the flavors to work with each other.

Finally, while Tasty Noodle House has pretty amazing dumplings for a restaurant that is not a dumpling house.  These are not store bought dumplings either.  The waitress informed us that all dumplings are made on site, even the skin of the dumpling is made there.  We ordered the leeks and fish boiled dumplings and the filling to dumpling skin ratio was almost perfect, with the filling bursting with fish meat and skin adding only a supporting role.

Our other dishes were also all pretty amazing but these few stand out as truly spectacular. Tasty Noodle House is one of the best Chinese restaurants in America with an all around amazing menu.  This isn’t a place that specializes in one dish or a place where the heaviness of Sichuan’s “mala” flavoring is overly relied on to mask otherwise

Cumin Lamb!

Cumin Lamb!

flavorless dishes. The chef – from the Dalian region of China – truly understands how to play with flavors, allowing each to play its role in the carnival of flavors in your mouth.

Tasty Noodle House is a small space, with about 7 tables.  I would recommend going during off hours to ensure that your wait is not too long.  But if it is, that just means you will be even more hungry and will order more.  And that over ordering will not break the

Plates almost all clean

Plates almost all clean

bank.    For my three friends and me, the total bill with tip came to about $84.  Note that Tasty Noodle House does not serve alcohol and from what I could see from others, does not allow BYOB.  But you don’t need it here.

I will be returning to LA in the spring and rest assured, there will be another trip to Tasty Noodle House so I can order the rest of the menu.  I can’t wait to see what else the chef has in store.

 

Rating: ★★★★★

Tasty Noodle House
27 W Las Tunas Dr.
San Gabriel, CA 91776
(626) 284-8898

恭喜发财!Happy Year of the Monkey!

By , February 4, 2016

Happy Year of the Monkey!

If last year’s Year of the Sheep was a little too sleepy for you, have no worries because Monday, February 8 ushers in the more exciting, flamboyant, roller-coaster ride known as Year of the Monkey.

For those born under the monkey sign, you are considered clever, energetic, playful, rarely embarrassed and the life of the party. With the desire to lead, sometimes the monkey can be self-centered and bossy, and at times arrogant. Monkeys always believe that they are right. Which can be dangerous as such a winning personality can often convince others to follow along even if it isn’t the best idea. But with a monkey, you will always have a lot of fun. Some famous monkeys: Julius Cesar, Danny De Vito, Elizabeth Taylor, Tom Hanks, Delta Burke, Will Smith, Eleanor Roosevelt and Leonardo Da Vinci. Maybe not all party animals but certainly influential.

2016 – the Fire Monkey!

But what does the Year of the Monkey mean for the world at large? To understand that, we need to understand a little bit more about Chinese astrology, or what Feng Shui master Raymond Lo has called a “fascinatingly accurate system.” The year’s animal sign only tells us so much. What also matters is the internal “element sign” of the animal and how it matches up with the element for that year. Each one of the 12 zodiac animals has an internal element from the five Chinese elements (wood, fire, earth, metal and water). For monkeys, the internal element is always metal. But each year also consists of an element. 2016 is fire. Hence, 2016 is known as the Fire Monkey.

And here in lies the rub. According to Raymond Lo, fire, the element for 2016, and metal, the internal element of the monkey, are in conflict, so 2016 will be no barrel of monkeys. Instead, expect international conflicts and clashes, but not to the level of 2014 and 2015. Because fire sitting on metal is also considered a “setting sun,” bringing optimism and warmth, expect conflicts to peter out quickly and end with successful treaties and agreements.

Happy New Year!

How will you do this year?  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 at the very least, to ensure that the good luck of the New Year stays with you all year, here are some things to avoid on February 8 and the 15 days after, when the “Spring Festival” is ultimately concluded with the Lantern Festival: avoid sweeping (to avoid sweeping away your good luck), no collection of debts, avoid borrowing money (if you start the year borrowing money, you will be doing that all year long), do not use scissors or knives on the first day, don’t do laundry and never chop wood.

So to all our East Asian friends, we wish you a happy, healthy and prosperous New Year! For our Chinese friends: Xin Nian Kuai Le! (pronounced Sin Nee-an Kuai Le!). To kids in New York City’s public schools, enjoy your first (hopefully of many) Lunar New Years off!

China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer?

By , January 20, 2016

Will these fake gay marriages in China become real?

For China’s LGBT community, Tuesday, January 5, 2016 proved to be a historic day: the first case challenging the ban on gay marriage was accepted by a Chinese court. While it might not sound like a triumph, in a legal system ultimately run by the Chinese Communist Party, getting a case officially “accepted’ is usually considered a major step forward on the road to victory.

Or is it? Does this “case acceptance” signal a regime that is ready to accept gay marriage? Or is there something more? Given the recent criticism of the attorney who is handling the case, likely not.

In China, A Court “Accepting” Your Complaint is Not Given

In the United States, filing a court case is exclusively a technical affair. You bring your summons, complaint and filing fee to the court’s clerk office. The clerk, almost always a non-lawyer, might examine the papers to ensure you signed the summons and the complaint, that you brought enough copies and that the check is the right amount, but as long as your ducks are in a row paper-wise, the clerk will accept your case, give it an index number and then spin the wheel to assign a judge. Your case is now in the system and will be heard by a judge. All substantive and procedural arguments – that your claims are bogus, that you sued the wrong person, that you are outside the time frame to file the suit or that you don’t have enough evidence – will be raised by the other side, through a motion and hearing before the trial judge.

Let’s file a case!

But since the early 1990s, China has been different from the U.S. (see Nanping Liu & Michelle Liu, Justice without Judges: The Case Filing Division in the PRC (2011). Under China’s Civil Procedure Law (which governs cases between two private entities) and China’s Administrative Procedure Law (which governs lawsuits brought against a government agency or actor), filing a case, even if your papers are technically proper, is insufficient to get it in the court system. Instead, the Case Filing Division (立案庭), staffed by judges, would examine some of the substantive and procedural aspects of your case – does the plaintiff have an interest in the matter, is there a specific defendant, are there specific facts, claims and causes of action and is the case brought in proper court, geographically (Civil Procedure Law, Art. 108; Administrative Procedure Law, Art. 41). All of these issues, which in the United States would be raised in a motion to dismiss, would be determined by the judges in the Case Filing Division, behind closed doors and generally with no argument from either side. If the Case Filing Division rejects your case, it does so with a mere cite to the law and with little to no explanation.

It was this lack of transparency that proved problematic in more politically-charged cases. With a Party-controlled legal system, the Party was able to use the Case Filing Division to reject cases (or just have them sit there without ever issuing a decision) so as to ensure that certain issues would never have a public airing by reaching a courtroom. While some experts estimate that only 1 to 2% of cases are rejected by the Case Filing Division, in a country the size of China, that amounts to tens of thousands of cases a year. So for a more controversial case to make it through the Case Filing Division, that was a good sign.

Recent Changes to the Case Filing System

Coat of arms for the Supreme People’s Court

But starting in May 2015, that calculus may no longer apply. Likely sensing that denying access to the courts is not the best way to raise the people’s confidence in their court system, in early 2015, the Supreme People’s Court (“SPC”) made reform of the Case Filing Division a major focus of its agenda. On May 1, 2015, new regulations on case filing took effect.

Under the new regulations, the Case Filing Division no longer “reviews” any of the merits of the case. Rather it’s role is just to “register” the complaint after the Division ensures that the complaint is compliant with the technical aspects of the law. Decisions whether to register the complaint are encouraged to be made “on the spot” (SPC Case Filing Regs, Art. 2 & 8). If more time is needed, then the Division must follow the statutory deadlines of responding to the request. If any review demonstrates that the complaint does not meet the technical requirements, the Case Filing Division shall issue a written statement explaining all the deficiencies (so no more piece meal requests for more information from the party that was usually used to needless delay the decision on whether to accept the case), and affording the party the opportunity to amend the complaint so as to meet the case filing standards (SPC Case Filing Regs, Art. 7).

It’s under these new regulations that China’s first gay marriage case was accepted by the Furong district court in the city of Changsha in central China. According to a press release from the Chinese non-profit, Yirenping[1], plaintiff Sun Wenlin (pronounced Swen When-leen) sought to bring a complaint against Furong District’s Civil Affairs Bureau which, in June, denied his and his boyfriend’s application for a marriage certificate. After facing difficulty finding a lawyer to take his case, Sun finally found one, the noted civil rights lawyer Shi Fulong (pronounced Shi Foo-lung). On December 16, 2015 Shi attempted to file his client’s complaint. Although not accepted on the spot, after amending it at the suggestion of the Case Filing Division to add his boyfriend as co-plaintiff, on January 5, 2016, Furong court accepted Sun’s lawsuit. A decision must be rendered within six months.

Case Accepted, But Far From Won – Civil Rights Lawyer Shi Fulong Criticized

Lawyer Shi Fulong

Since Sun’s case was accepted, the Chinese state-run media has openly – and often positively – covered this milestone. Not the usual M.O. for a politically-charged case against a government agency. But does this mean that China is ready to permit gay marriage?

Highly unlikely. For the Chinese state-run press, the positive focus has been the success of the new case filing system; that even a case that seeks to permit gay marriage is now accepted by the courts. And for sure, that is something that should be celebrated.

But more recently, in questioning the ethics of attorney Shi Fulong in taking the case, the Chinese press has signaled that the case will not be won. Given the current climate, namely the wholesale detention, arrest and suppression of China’s civil rights lawyers, the fact that there was still a lawyer to take this politically-charged case is shocking. But Shi Fulong is not one to avoid hard cases. Shi has represented Falun Gong practitioners, people fighting the illegal taking of their land, and in July 2015, during the mass detention and disappearance of hundreds of civil rights lawyers, signed a petition calling for their release.

It’s within this current crackdown that Shi bravely agreed to represent the gay couple. But that has not been without its potential cost. Last week, China’s state-run Legal Daily criticized him for continuing to represent his clients. In an op-ed by Hao Tiechuan, a Party member, former government official and law professor, the Legal Daily cites to various provisions of China’s Constitution and the Marriage Law to argue that, contrary to the complaint’s statements, the law is clear that marriage is only between a man and a woman. But unfortunately for lawyer Shi Fulong, the op-ed does not leave the case alone on its legal merits. Rather, it attacks the professional ethics of Shi in taking the case and continuing to represent the parties. The editorial argues that Shi has disrespected the law and filed a baseless lawsuit, all in violation of China’s Lawyers Law. Violations of the Lawyers Law could lead to a monetary fine and suspension or disbarment.

While alarming, on some level Shi Fulong is lucky that the op-ed does not cite more although he is certainly bordering on the danger zone. Likely in an attempt to contain China’s civil rights lawyers, in the past couple of years, the Chinese’s government has sought to penalize and contain the zealous advocacy that is required of lawyers, especially civil rights lawyers. In the Supreme People’s Court’s (SPC) recent Court Reform Plan, issued in February 2015, the SPC makes it a point to penalize what it considers false lawsuits. Paragraph 58 specifically commands the SPC to “[e]stablish record and discipline systems for good faith litigation. Punish false lawsuits, malicious lawsuits and unreasonably entangling litigation acts in accordance with law. . . .”

But what the SPC aspires to contain, recent amendments to the Criminal Law criminalizes. Effective November 1, 2015, China’s Criminal Law, Article 307(1), now provides up to a three year prison term for “[t]hose raising a civil lawsuit on concocted facts and seriously obstructing judicial order or seriously infringing on the lawful rights and interests of others. . . .”

For both of these admonitions, “false litigation” and “lawsuits on concocted facts” are left undefined. Meaning it will be in the discretion of the court – or more realistically the Chinese government and Communist Party – to determine what these terms mean. Which indicates that there will be a certain political determination involved.

What would Thurgood Marshall say about what is happening in China?

But as a civil rights lawyer, Shi Fulong’s job is to challenge the current law and push it to its limits. It was this type of lawyering that in 2003, caused China to eliminate the archaic and unjust custody and repatriation system. In the words of civil rights attorney and U.S. Supreme Court justice Thurgood Marshall, civil rights lawyers should “do what you thinks is right and let the law catch up.” Here though, by citing to the Lawyers Law and questioning Shi’s ethics in pursing this case, the state-run media seeks to further squash any hope that China’s civil rights lawyers can independently push Chinese society – or more apt, the Chinese government – forward. But I guess we have to remember that the world in which this was possible in China – namely 2000 to 2005 – has long since died. Fortunately for the Chinese people, there are still lawyers willing to wage this battle. And hopefully for Shi, the Legal Daily op-ed is as bad as it gets.

 

[1] Yirenping’s press release is on file with China Law & Policy.

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