Presidents Trump and Xi Jingping at Mar-a-Lago, April 6, 2017 (Photo courtesy of JIM WATSON/AFP/GETTY IMAGES)
To say that the U.S. air strike on Syria overshadowed the Trump-Xi summit last week would be an understatement. The event basically eclipsed the two day conference, pushing the meeting between the leaders of the world’s two largest economies to second page news.
But even without the Syrian air strike, the summit would not have created much news. In fact, in the way Trump and Xi each described the outcome of the meeting – deepening their friendship and making progress in their relationship – it seemed more reminiscent of a marriage proposal in Elizabethan England than a discussion between two powerful countries that have been having a difficult relationship.
But did anything substantive come out of the summit? The South China Morning Post has a great review of the issues discussed – and not discussed – at last week’s summit. But here are some highlights:
At Mar-a-Lago last week (Photo Courtesy of AP Photo/Alex Brandon)
Trump did raise the issue of trade and, according to Secretary of State Rex Tillerson, Trump “underscored the need for China to take concrete steps to level the playing field for American workers, stressing repeatedly the need for reciprocal market access.” But it is unclear if the statement resonated with the Chinese delegation. And, contrary to some pundits’ expectations, Xi did not come to Mar-a-Lago with a peace offering, namely proposing job-creating investments in the United States.
Instead, the two sides announced the 100-Day Plan, a policy to completely overhaul their trade relationship within 100 days. While most countries take years to rebalance a trade relationship, Trump and Xi are going to do it in a mere 100 days. Secretary of Commerce Wilbur Ross correctly noted that this approach would be a “very big sea change” but offered no explanation exactly how all of this can occur in a matter of three-and-a-half months or even why it should; why such a rush to recalibrate the most important trade relationship in the world is a good idea.
While both countries acknowledged North Korea as a growing nuclear threat, no middle ground was met. It appears that Trump continued to warn China that if it did not do more, the U.S. would follow its own course of action, and with the Syrian attack in the backdrop, one can only imagine what Xi was thinking in all this. China’s foreign minister however noted that if North Korea ceases its nuclear program, then military action in the region should also cease. Interestingly, this was the suggestion that Beijing made last month: to halt the joint U.S.-South Korea military drills to induce North Korea to coming back to the negotiating table. The U.S. did not listen and instead continued with the drills.
Just say no to human rights
Neither side mentioned whether human rights was raised during the summit and, given the agendas of these two men, it likely was not. But in a White House-approved statement after the summit, Tillerson again used the vocabulary of the Chinese Communist Party (“CCP”) to describe the U.S.-China relationship: one of “mutual interest.” For the Chinese, this is not rhetoric but words that come with baggage. Mutual interest is often used by China to scold other countries when those countries question China’s domestic policies. Usually used in relation to China’s interest in Tibet and Taiwan, it can also be used in defense of foreign criticism of policies that seek to viciously stamp out civil society. So expect human rights to play a low role in Trump’s policy toward China.
State Visit & U.S.-China Comprehensive Dialogue
Trump – already big in China
Xi invited Trump to a state visit in China this year and Trump said yes. But more importantly, the U.S. and China established a framework by which to hold high-level talks, the U.S.-China Comprehensive Dialogue. Make no mistake, this is not a new idea. Under the Obama Administration, the U.S. and China would periodically host the Strategic and Economic Dialogue, the Human Rights Dialogue and on occasion, the Legal Experts Dialogue. It appears that Trump and Xi are going to replace these dialogues with the U.S.-China Comprehensive Dialogue (date yet to be announced) which will have four tracks: a diplomatic and security dialogue; a comprehensive economic dialogue; a law enforcement and cybersecurity dialogue; and a social and cultures issues dialogue. Again, human rights was not named as a specific issue and if it is unclear if this issue will merely be squished into the social and cultural issue dialogue.
So in the end, not many outcomes from the Trump-Xi summit. Perhaps what is more telling though is what was not said at the summit. No mention of Taiwan, no mention of human rights and no mention of increased Chinese investment in the U.S. to create jobs. But check back in 100 days.
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?
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.
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.
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.
When the Chinese government detained, harassed and disappeared over 280 human rights lawyers and legal activists in July 2015, the international community took notice. These simultaneous, country-wide, nighttime and early morning raids made front page news in the United States, often described as the Chinese government’s attempts to eradicate cause lawyering from its shores.
Although the Chinese government still relies on extra-judicial measures such a illegal detentions, torture, constant surveillance when “free,” and pressures on families, employers and even landlords in an attempt to destroy the lawyer’s life, Plight and Prospects underscores that soon these extra-judicial methods will be unnecessary. Through amendments to the Lawyers Law (amended 2007), the Criminal Law (amended 2015), the Criminal Procedure Law (amended 2012), the National Security Law (passed 2015) and through the annual lawyer licensing procedure, the Chinese government can limit the ability of cause lawyers to practice and still pay lip service to “the rule of law.”
Chinese President Xi Jinping
As Plight and Prospects points out, under President Xi Jinping (pronounced See Gin-ping) there has been a stepped-up effort to enshrine in law methods that will effectively break the cause lawyering movement. But even before Xi took power in 2012, there were already concrete efforts in the Chinese government to use the law to limit human rights lawyers’ advocacy.
Take for example, the Lawyers Law. Amended in 2007 and believed to provide the profession with greater protection to practice law, it has proven to be a double-edged sword. Sure Articles 36 and 37 of the Lawyers Law maintain that the lawyers “rights to debate or a defense shall be protected in accordance with the law,” but Article 49, which lists the examples of lawyers’ conduct subject to punishment, increased the number of categories from four to nine with the 2007 amendments. Added to the Lawyers Law as Article 49(6) was instances where a lawyers “disrupts the order of a court . . . or interferes with the normal conduct of litigation or arbitration.” Vague and unclear, this provision could be used to limit the courtroom advocacy of lawyers who take cases the government just does not like.
Lawyers Liu Wei and Tang Jitian review papers in April 2010
And in 2010, it was. In April 2010, Tang Jitian (pronounced Tang Gee-tee’an) and Liu Wei (pronounced Leo Way), two cause lawyers who had represented a practitioner of the spiritual movement Falun Gong and who both quietly left the courtroom in protest when they were unable to present their client’s defense, were hauled before the Beijing Bureau of Justice for a hearing concerning whether they should be disbarred (seeChina’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law). While Tang and Liu both raised Article 37 – that their ability to practice law was being infringed upon – as a defense, both were permanently disbarred under Article 49(6) for “disrupting the courtroom.” (Id.).
Further attempts to limit the advocacy of human rights attorneys have been proposed more recently by the All China’s Lawyers Association (ACLA), the national bar association that operates under the guidance of the Ministry of Justice. ACLA’s draft revisions to the Lawyers Code of Conduct (proposed in 2014), if adopted, could limit methods of advocacy that lawyers must use when representing vulnerable populations, including the use of the media and internet (draft Article 9), organizing demonstrations or “inflaming” public opinion (draft Article 11), or supporting organizations that do cause lawyering (draft Article 13). These draft provisions are in contravention of Article 35 of the Chinese Constitution which provides for freedom of speech, of the press, of assembly, of association, of procession and of demonstration.
When your home becomes your prison: residential surveillance
The Criminal Procedure Law (CPL) provides another example. Amended in 2012, it was hoped that the amendments would better protect suspects’ rights and ensure a more fair system. But, as Yaqiu Wang at China Change has pointed out, it left one gaping loophole: “residential surveillance at a designated place.” Articles 72 through 77 of the CPL deal with residential surveillance. Although this sounds like a more mellow way to be detained than at a detention center, for those investigations that might involve 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 – the family is informed of the fact that the person is being detained under residential surveillance (required by CPL, Art. 73), but not necessarily of the location of the residential surveillance. The suspect has a right to retain a lawyer (seeCPL, Art. 73, applying CPL, Art. 33). But because “residential surveillance in a designated place” 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)). And it is not hard to place someone under residential surveillance at a designated place. All that the police need is approval from the chief of public security above the county level. (see Ministry of Public Security Implementing Regulations of the CPL, Art. 106). Residential surveillance pending investigation is permitted for up to six months. (CPL, Art. 77).
Whereabouts Unknown: Lawyer Wang Yu
As Plight and Prospects points out, the use of residential surveillance at a designated place has been used with abandon in the current crackdown. The section entitled “Whereabouts Unknown” highlights that eight of the suspects still being held as a result of the July crackdown are held under residential surveillance at a designated place but no one outside of the police, not even their lawyers, know where. Amnesty International researcher William Nee has pointed out that although a legally-authorized form of detention under the amended CPL, it still carries with it the dangers associated with enforced disappearances: held secretly and without access to a lawyer, these suspects in residential surveillance are vulnerable to torture to force a confession.
By being able to point to the law it is using to crackdown on cause lawyers, the Chinese government likely aspires to punt the international critique of a failure to follow a rule of law. It is following a rule of law, it will say. But as Plight and Prospects notes, it is a hollow one where the Chinese government undermines its own Constitution, other provisions of many of the laws it has used in the crackdown, its international treaty obligations as well as the desires of its own people.
It’s not only the South China Sea that is witnessing China’s differing interpretation of international law and its commitments under various treaties. With its draft Foreign NGO Management Law, China is also turning up its nose to various international human rights treaties and bodies. But while the United States sends surveillance planes to bait the Chinese into a skirmish over islands that are not clearly China’s and not clearly the Philippines or Vietnam’s, it remains noticeably silent on the draft Foreign NGO Management Law. (For an interesting take on how to solve the South China Seas issue without resorting to a U.S.-China conflict, see Prof. Jerome Cohen’s analysis here).
As Human Rights in China (HRIC) pointed out in a recent analysis, ignoring the draft Foreign NGO Law’s impact on China’s international human rights commitments comes at a dangerous cost. China is a sitting member of the U.N.’s Human Rights Council, a Council that less than a year ago issued a resolution calling on its members to create an environment where civil society can flourish and admonishing those state’s that passed laws similar to what China has proposed in the current legislation. China’s draft law will do precisely the opposite of creating a flourishing domestic NGO sphere; it will create a vacuum in funding and in knowledge for China’s smaller domestic NGOs that do important work benefiting some of China’s most vulnerable – those left behind by the country’s economic development. The Chinese government has yet to state whether it intends to fill that void with money from its own coffers. But probably not.
In its analysis, HRIC goes on to highlight China’s other violations of various human rights treaties. But its most important impact is noting that these transgressions cannot be ignored. China is not some poor player that struts and frets its hour upon the stage and then is heard no more. It is the world’s second largest economy with influential positions in the United Nations. What it does, and how it interprets its human rights commitments, will inevitably impact the rest of the world. Countries that might not have clamped down on their own civil society for fear of international reprisals, now have cover to do so. With the world’s silence, it becomes all the more apparent that international human rights treaties play second fiddle – if even that – to military interests over a bunch of rocks that might or might not contain large oil and natural gas reserves.
To read HRIC’s analysis – which is a must read – pleas click here.
Last month the New York Times ran a front page story on the Chinese Communist Party’s investigation of former Minister of Public Security Zhou Yongkang. Rarely if ever have the Party’s investigations reached such senior echelons. Does this signal a new Chinese president intent on holding officials responsible under the law or merely a purge to consolidate his power?
Here in part 3 of this three-part series, Prof. Eva Pils, an associate professor of law at the Chinese University of Hong Kong and research fellow at NYU’s U.S.-Asia Law Institute, answers that question, noting that Xi Jinping’s current anti-corruption campaign is far from a promotion of a rule of law.
Read the transcript below of Part 3 of this three-part interview or click on the media player to listen:
Length: 9:20 minutes
To read or listen to Part 1 of this three-part interview series with Prof. Pils, click here.
To read or listen to Part 2 of this three-part interview series with Prof. Pils, click here.
EL: Going back to the government, I want to finish with one last question about the government and its relations to the rights activists. Recently, in late 2013, early 2014, you’re seeing a lot of rhetoric coming from the Chinese Communist Party calling for things like judicial independence, greater respect for lawyers. I think there are some people in the West who have seen this as a positive development, that it is showing that the government wants incremental legal reform and that there is space for that. But my question to you: given this crackdown that has happened, should we see this rhetoric as anything positive? How should we view it and how should you view the rhetoric that’s happening simultaneously with this very severe crackdown on rights lawyers?
EP: Well maybe answering those questions does require looking at least briefly at some of the reform measures and the changes
Former Minister of Public Security, Zhou Yongkang. Now being investigated by the Party for corruption.
under the new leadership. I think the anti-corruption campaign is probably a good example. Personally I think it would be quite a mistake to see that as a new leadership coming in and trying to essentially provide or establish a basis for further-reaching reforms that ultimately end in this end-goal of the democratization or liberalization narrative which is a stable rule of law system with increasing political openness.
Because if you look at what actually happens in the anti-corruption campaign, I believe it would be really hard to deny that people who do end up being investigated for corruption are really those who have somehow lost protection from within the system. It remains a party decision who will be investigated for corruption. So another way and perhaps a more accurate way of seeing what is going on under this so-called anti-corruption campaign is actually a party purge, a party-internal purge that serves the ultimate goal of strengthening and centralizing control under the central leadership, and centralizing control by Xi Jinping.
So that is really very, very far from construction of the rule of law, which of course would also require some moves against corruption; but those would take the form of the use of the judicial process, an open process and a rule of law-based process. All of that I don’t think we are seeing clearly at all. Just think of the fact that high-ranking officials who are targeted are not processed through the judicial system but, rather, just as they used to be before, they are put under some sort of Party detention [known as shuanggui].
Corruption investigation and trial of another senior Party official, Bo Xilai
I think that tells us a lot about this liberalization narrative that you just brought up. I think it’s a very powerful narrative and has been extremely attractive for essentially anyone who has tried to engage China from the outside, including many foundations, governments, institutions, who have tried to strengthen rule of law development in China over the past decade. I think that from the perspective of these institutions and the individuals working with them, there are very powerful reasons – important reasons – for wanting to see this kind of incremental reform process that you mentioned, and to make constructive contributions to this process without at the same time alienating the authorities.
But for the reasons that I just gave, I don’t think that we see, that we have evidence from the ground that this is what is happening. And of course that means also that this powerful, attractive but then somehow also a little bit anesthetizing narrative of gradual liberalization, just doesn’t work.
In China, amongst academic circles, I think you can see that reflected in a shift of vocabulary away from constant uses of the word ‘reform’ or ‘judicial reform’ – sifa gaige [司法改革]. I think that people are sort of becoming more critical of that idea [of reform] because they just reach a conclusion that it does not seem to be working. They’re actually talking more broadly about ‘change’. I think that what I would take away from that shift is that agency in change – legal-political change – does not necessarily lie with the government. Increasingly the momentum has shifted to civil society, including the human rights movement.
EL: Just one last question. What do you see short-term for the future of human rights advocates in China. Not long term just short term. Do we see it getting worse or do you not even want to try to guess?
EP: Well, I think that yes we do see it for the moment things getting worse. I would be very pleasantly surprised if there was some
Can’t keep a good man down – the movement continues even as activists are arrested
loosening or lightening of the pressure. The events of the past couple of weeks and months have sent very strong signals that it is quite likely that more lawyers will be detained. We are now unfortunately finding that human rights defenders when detained can be exposed to very significant levels of violence. Of course you mentioned the terrible case of the death of Cao Shunli.
I think that what is interesting is that despite all this repression, despite the worsening long-term crackdown, you also have a rise in numbers of human rights lawyers. You have more and more lawyers showing solidarity with human rights lawyers and expressing a willingness to be called human rights lawyers, identifying with this human rights cause. What I also find remarkable is that human rights lawyers are amongst the most optimistic people I speak to when I go to China.
EL: I guess the increase in numbers gives us some hope amongst all this despair. I want to thank you Prof. Pils for your time and for letting us know and trying to figure out what’s happening on the ground in China. Thank you
In Part 1 of this interview series with Prof. Eva Pils, an associate professor of law at the Chinese University of Hong Kong and research fellow at NYU’s U.S.-Asia Law Institute, Prof. Pils described the “weiquan” (rights defense) movement in China. Here in Part 2, Prof. Pils continues by discussing the emergence of one of the most significant and organized aspects of the weiquan movement, the New Citizen Movement. What is it these New Citizens want and what is it that causes the government to violently suppress some of the Movement’s leaders? Prof. Pils answered these questions and more when China Law & Policy sat down with her last month.
Read the transcript below of Part 2 of this three-part interview or click on the media player to listen:
Length: 13:38 minutes
To read or listen to Part 1 of this three-part interview series with Prof. Pils, click here.
EL: So just to get a little bit more specific, I want to turn now to focus on Xu Zhiyong who just received in January four years in
Emblem of the New Citizens Movement – calligraphy of Sun Yatsen
prison. He is a part of this “New Citizen Movement.” Can you describe what that movement is a little bit? Where did it emerge from and what its platform is?
EP: So the New Citizen Movement, it emerged in 2012, around May 2012. I think that it can be seen as in some ways a response to the problems that we have just been discussing, the [social] grievances, and also the problem of repression of civil society. In some ways it is also due to changes that have come about because of new communication technologies – the social media – that have enabled a new form of activism to emerge not only in China but also in other parts of the world. Think of the various Occupy movements and the Arab Spring.
That’s I think one the reasons why the New Citizen Movement emerged. Obviously it focuses on the idea of the citizen. When you look at what Xu Zhiyong in particular has provided as an analysis of citizenship, the concept of the citizen, you can see that it is a very strong, richly normative political conception of the citizen; a sort of 18th-century-Europe notion of the individual who has rights against the state. I think that looking at the history of the human rights movement [in China] that we just discussed, you could perhaps also say that Xu Zhiyong, having tried for ten years to introduce beneficial changes in China through case-by-case legal rights advocacy, comes to the conclusion, around 2011- 2012, that now a new method of advocacy has to be tried; that rights advocacy in a way has to move beyond working on individual cases, and become more issue-focused and more explicitly political.
Teng Biao, organizing without organizations
So how do you do that in the context of a political system that very clearly does not allow a political opposition? Like in other places in the world, the answer that seems to be emerging in China right now, as I see it, is to adopt forms of organization that are significantly different from what we’ve seen before. Teng Biao, another very important scholar and rights advocate, has used Clay Shirky’s idea of organizing without organizations to describe what is going on here. The idea is basically that you could achieve a high degree of coordination and initiate various types of actions, civil society actions, without having a visible traditional organizational structure. It’s also that in a new civil society political movement of this kind, you have to be very open. You have to be the opposite of what characterizes, for instance, the rise of the Chinese Communist Party from its sort of underground years, to this moment when it manages to control power.
An example of that [openness] would be, for instance, these so-called gongmin jucan [公民聚餐], the citizen meals that were organized by the New Citizen Movement. The idea was really that you would somehow get people to distribute information about venue and time and so on online. At some of the gongmin jucan, the new citizens meals that I have observed, it really was possible for people who simply had come across this information online to come along and join the meal. It was entirely open towards anyone who wanted to show up. That’s remarkable in the context of a system that, as you just said a while ago, scrutinizes everybody so much and has so much surveillance. But the idea really was that this sort of openness represented a new form of political power that could be used to initiate some sort of change. Along with that of course goes the idea that the activism of the New Citizen Movement must be non-violent.
EL: Just in terms of numbers, what are we looking at in terms…how big would you estimate the movement is if you can even do that? If you can, if you can.
EP: On the numbers, I have to say I don’t know. Of course we have asked those various questions. There is no very clear answer.
A New Citizen Dinner – From left to right: Guo Feixiong, Yang Zili, Xiao Guozhen, and Xu Zhiyong in a dinner gathering in Beijing. Photo Courtesy of Chinachange.org
Perhaps one could say that in 2013 we had in a number of say in around 30 or so different Chinese cities you had a total of a couple hundred people who were essentially initiating and organizing these meals. And by the way the idea was basically that you had a meal being held at the same time in different locations all over China potentially. So you had a couple hundred people. Perhaps that means a few thousand people who would be willing to show up for one or two or more of those who would be in some way supporting the New Citizens Movement. Perhaps it would be good if we had access to (I have not) the list of people signing the so-called gongmin chengnuo [公民承诺] – the citizens pledge – that was issued in 2010 and was kind of an appeal to citizens from all walks of life to essentially pledge to be a good citizen using this political idea that Xu Zhiyong stands for and others stand for.
Something else that perhaps you could consider would be the level of support that Gongmeng [Open Constitution Initiative], the organization co-founded by Xu Zhiyong, got for its activism for educational rights for migrant worker children. As I recall, at the time it was said that in Beijing they would be able to essentially reach tens of thousands of migrant worker parents. So, certainly they were thinking big. They were thinking that they could reach out to potentially everyone. And if you look at the composition of the citizen meals, it wasn’t just lawyers; it was not just scholars, lawyers, people with legal education or that sort of background. It was also people who were petitioners or people who just took an interest in what was going on there.
Education of migrant children – major political issue in China
EL: You raised the issue of education for migrant children as one of the issues, which would require a change to the hukou system. And some of the other things of the New Citizen Movement advocates like more transparency of Chinese officials and their assets. These are in fact the reforms that in the past year the Chinese government has stated that they are looking to examine or to adopt. So it is seems like the Chinese government is sort of listening to the New Citizen Movement or at least their complaints. But then, how do you mesh that with the fact that they’re arresting the advocates of that movement for disrupting public order. What gives here?
EP: I’m not so sure about that analysis. I think that when you look at what the New Citizen Movement has advocated, yes of course you have some similarities to these reform policies announced by the Chinese government. But, I don’t think that is by itself evidence that the government is following suggestions from the New Citizen Movement. For one thing, these reform ideas were around long before the New Citizen Movement even emerged.
But perhaps more important is that you could also see this the other way around, and this is how it was analyzed by people involved in the various movements that you currently have in China. People were saying that in some ways the New Citizen Movement had chosen to talk about causes that the government had already said it had adopted. That might be a way of coming across as a little bit less provocative than if you do what very clearly and visibly was done in the south of China [in the context of] various movements around Guo Feixiong, another very important right advocate who is based in Guangzhou. What you had there was really the use of much more aspiring and much more abstract political slogans: constitutional government, democracy, human rights — in those words.
So you have this very interesting discussion within these smaller sub-movements if you like, these groups within the human rights movement. Some people were critical of the New Citizen Movement, saying that essentially it was not a good strategy to choose government slogans. I remember one person saying basically that you shouldn’t think that the government is that stupid – those are his words – that ‘[you shouldn’t think that] just because you shout the government slogans they won’t come after you’ — they are not going to let you off just because you shout the identical slogans.
President Xi Jinping of China – listening to the New Citizens?
The reason for that [according to my interlocutor was that] as long as you make political demands of any kind they [the Chinese government] will assume that you want a share of the political power and that’s what the government won’t accept. From that perspective, we were seeing an attempt to be a little bit less provocative by using campaign causes that were similar to the government, but that strategy essentially is not really working. And I think that there is a whole lot more to say about the differences between what the New Citizen Movement, what other movements were calling for, and what the government has so far delivered. For instance, when it comes to anti-corruption and so on.
EL: So you wouldn’t say the government is co-opting the movement?
Since the fall, not a month has gone by where there isn’t some Chinese human rights advocate being prosecuted. The charge is usually the vague and broad claim of “disturbing public order.” Activist Xu Zhiyong (pronounced Sue Zhi young) was given four years in January under that charge, one year shy of the maximum. Cao Shunli (pronounced Ts-ow Shun lee), another human rights, died in police custody while being investigated for the same charge.
EL: Thank you for joining us today Prof. Pils. Let’s start with a little bit of background. These human rights lawyers, who are most frequently referred to as “rights defense” or “rights defending” lawyers, when did they first start to emerge and why?
EP: Thank you. I think that they used to call themselves ‘rights defense – weiquan [维权] lawyers’ – but I think that actually over
Bringing back the law – Deng Xiaoping
the past one or two years, they’ve started preferring the term renquan lushi [人权律师] which means ‘human rights lawyers.’ That’s in a way related to how they emerged. They emerged because in the post-Mao era, especially from the 1990s onward, it became possible to use the law to defend rights, for one thing of course because there [now] was law — it was only under the Deng Xiaoping reform and opening policies that law became an accepted tool of government of the Party-State, after it had been completely denounced in essence as a counter-revolutionary idea in the last decade under Mao Zedong
Then the other thing is that there was a period, [from the beginning of the post-Mao era until] the 1990s when the Party-State authorities were essentially encouraging the use of law to address certain kinds of dispute, certain kinds of conflict in society. During that time, weiquan – rights defense – was actually an officially propagated term. As background, one would have to say that rule by law – yifa zhiguo [依法治国] – was an idea that the authorities were making use of in the Deng Xiaoping era in order to claim political legitimacy. That in a way replaced the political legitimacy coming from the idea of a communist revolution that was what political legitimacy was based on in the Mao Zedong era.
I think that this argument [about law as a tool of governance] is quite right, this is how Deng Xiaoping wanted to develop China in the post-Mao era, but also I think that the authorities, perhaps including Deng Xiaoping, didn’t fully realize what they were letting themselves in for when they promoted the idea of [rule by law and] weiquan. Perhaps this was because they were quite good Marxist-Leninists and believed sincerely that law was nothingother than a tool of governance to be used by the ruling power. Whereas of course, from the weiquan or rights defense perspective, [law] is connected to justice and it’s connected also, potentially at least, to political resistance, to the idea of rights, of human rights. I think that it’s a step toward a more explicitly political agenda that the lawyers who used to be referred to as weiquan lawyers have now chosen to call themselves human rights lawyers.
EL: In terms of the political agenda, the agenda of the human rights lawyers in China, in terms of their issues – is there something that unifies them as a single issue or are there different issues? In general, are they located in one area or do you find them throughout the country.
The Jiansanjiang Four – from L to R: Jiang Tianyong, Zhang Junjie, Wang Cheng & Tang Jitian
EP: I think in terms of area, definitely there is a huge concentration in Beijing and also in a couple of other cities, in particular Guangzhou and of course also Shanghai. But when you look at how they work and where they work, it is very important to see that they really work all across the country. In the Jiansanjiang case you mentioned just before [the interview] you have a couple of human rights lawyers going to this extremely remote location in Heilongjiang with the purpose of freeing, or in any case providing legal support to, a couple of people who are extra-legally detained there. That’s an example of what human rights lawyers do regardless of where they are based.
Is there something that unifies them? My impression in having done so many hundreds of interviews over the past couple of years with, I suppose, a few dozen human rights lawyers, [is that] they are very diverse, they are very different in terms of their personalities, their approach to their work, and in some of their convictions. But there are things that do unite them. I think that for one thing, they see themselves as adopting different methods from what many other lawyers are prepared to do. For instance, they reject the idea of wining and dining the officials concerned in their clients case to get results. In that, they’re not different from a group of lawyers called sikepai [死磕派] lawyers, lawyers who are very uncompromising. But what sets them apart from the sikepai lawyers is that they are willing to take on cases that nobody else will want to touch. I suppose one good example for that is the cases of people who practice Falun Gong. And thirdly, they [human rights lawyers] have recently started identifying more clearly around political ideas. They want democracy.
The more things change, the more they remain the same – 25 years after Tiananmen, still cracking down on dissent
EL: Just in terms of the crackdowns that we are seeing and I think you talk a little bit about this in your previous answer. There has always been a crackdown on dissent in the People’s Republic of China, even in the post-Mao era. You see the 1978 Democracy Wall movement, there is a crackdown. You see the Tiananmen protests of 1989, there is a crackdown. Should we be surprised that the same Chinese Communist Party is looking to crackdown on these rights defense lawyers and activists?
EP: No. No, we should not be surprised. I don’t think that the lawyers are surprised either. And I say this, although I just said that initially, in the 1990s, there was this official promotion of and use of the idea of rights defense. There was, I think, for a couple of years, especially around 2003 when you had the famous Sun Zhigang incident, this notion that perhaps rights defense could mean a bold group of courageous lawyers, legal professionals, and legal academics sympathizing with them, persuading the State to introduce incremental reforms. One of [these reforms], for instance, could have been to introduce some sort of meaningful constitutional adjudication — whichever mechanism one would have used — this would have made a potentially very great contribution towards making constitutional rights guarantees more effective in actual people’s lives and actual legal practice in China.
So, [until around 2003] you had that hope — and of course along with that an expectation — that the State would tolerate weiquan. But actually very early on, from the moment almost when they started being successful, these weiquan lawyers also encountered repression. I think we now understand better than perhaps a couple of years ago, that that was really based in a high-level perception that weiquan presented a political challenge and that consequently, it had to be controlled.
So, what has been happening from about 2004 and especially over the past couple of years, has been a tightening of control, and the use of ways of trying to stop lawyers from engaging in weiquan. I don’t think that anyone I have spoken to has been surprised by what has happened.
EL:So in terms of the tightening of control, you mention that the Sun Zhigang case in 2003 is kind of a high point. But then by
Locked Up for Four Years – Human Rights Lawyer Xu Zhiyong
2009, we see a government crackdown with Gao Zhisheng basically being abducted and being held incommunicado. Also in 2009, you see the disbarment of activist lawyers like Tang Jitian and Liu Wei; you see Xu Zhiyong being investigated. Then in 2011, with the Arab Spring, we see another crackdown. Now, 2013, 2014, we are seeing perhaps the worst treatment of advocates. So you were talking about how some of the responses [to weiquan lawyers] is coming from high-level. I think a lot of people see these different crackdowns as separate incidents, just a knee-jerk reaction by the Chinese Communist Party. But should we see it that way or should we see it as part of a larger trend?
EP: I think that it is based in a decision that as I just said was essentially made in 2004 that they would have to be controlled and I think that basic attitude and policy has remained the same also before and after the recent changes in leadership. So I definitely think this is part of a larger trend, yes. I think that also the situation at the moment is worsening.
EL:I think we can guess what it that the Chinese government is so afraid of. But what precisely is it? Is it the issues themselves or is it another power base that could take away power from the Party? What is it that they are so afraid of?
EP: Well, I think from the perspective of the Chinese authorities, or at least from [the perspective of] that part of the Chinese government that is entrusted with the task of stability preservation – of weiwen[维稳], it’s quite clear (and perhaps it is clearer to them than to lots of people outside and inside China) that the human rights movement of which human rights lawyers are of course an important part, stands for political ideas that challenge the Party’s political existence.
“Social Stability” at all costs
There is a perception also amongst the establishment that the current system isn’t viable unless it’s somehow changed. But I think what leads to this attitude of having to crack down on human rights lawyers is that the establishment, the authorities, are completely reluctant to allow any civil society forces to take control of the changes that need to be introduced. So, yes, there may have to be changes; but certainly we, the Party-State, want to stay in control of changes. Another way of putting the same thing, I suppose, is to say that the tizhinei [体制内]forces, the system, the establishment, can’t accept the idea of accountability to people outside of the system; and in a way, it is not institutionally set up to accept that idea. That of course means that the notion, the idea of political opposition, the idea of a free open political discussion of popular grievances, of the forces of social unrest, of the various contentious issues which you have in Chinese society right now is even less acceptable.