In 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
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)
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 “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)
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.
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.
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.
Qian Gang over at the China Media Project took a hit for the team earlier this month when he read through the recently-published (and likely dull) volume of Chinese president Xi Jinping’s speeches. As Qian notes, glaringly absent from “A Primer of Important Speeches by General Secretary Xi Jinping” (“the Primer“) is Xi’s ground-breaking 2012 speech that proclaimed the importance of the Chinese Constitution in ruling China.
Bye, Bye, Bye: A Disappearing Constitution
In December 2012 – with less than a year in power – Xi Jinping (pronounced See Gin-ping) commemorated the 30th anniversary of China’s 1982 Constitution with a speech extolling the virtues of that Constitution. In that speech, Xi explained that it is the Constitution which must be used to constrain the government and the Chinese Communist Part (“CCP” or “the Party”): “[n]o organization or individual has the privilege to overstep the Constitution and the law.” Appearing to upend prior leader’s commitment to the Party as paramount to the Constitution, Xi highlighted that “[r]ule of the nation by law means, first and foremost, ruling the nation in accord with the constitution; the crux in governing by laws is to govern in accord with the constitution” (emphasis added).
But the currently-published Primer excludes this speech. Was this intentional Qian wonders? As Qian points out in his post, in China, anything this important is intentional. In a society long trained to be hyper-sensitive to a leader’s speech, back in December 2012, Xi’s speech seemed like a watershed. An inspiration. The editors at the Guangdong-based newspaper, Southern Weekend, sure thought so. Only a few weeks after Xi’s 2012 speech, the editors sought to follow his lead, titling the paper’s 2013 New Year’s editorial “China’s Dream, the Dream of Constitutionalism.”
Either the Southern Weekend editors read the tea leaves wrong or, more likely, not everyone in the CCP leadership supported Xi’s call for constitutionalism. “China’s Dream, the Dream of Constitutionalism” never saw the light of day. Instead, Guangdong propaganda officials quickly stepped in, changing the title and watering down the article to one that was effectively a paean to the Party-controlled system of governance.
Hello, Is it Me You’re Looking For? The Constitution Re-emerges
Xi Jinping says Hello Again to the Chinese Constiution
With the suppression of the original Southern Weekend New Year’s editorial and the exclusion of Xi’s 2012 speech from the recently-published Primer, constitutionalism would appear to be dead in China, right? Wrong. Just last week, in a speech commemorating the 60th anniversary of the founding of the National People’s Congress (“NPC”), Xi again raised the banner of constitutionalism, stating that the Constitution was China’s most basic document and that ruling the nation must be done in accordance with that Constitution.
Did Xi just not get the hint? Hardly. As Qian Gang, in a new blog post at China Media Project points out, what we are seeing is a rhetorical power play at the highest levels of the CCP. Xi’s recent pronouncement demonstrates that he wants to continue with this idea that the Constitution is crucial to the CCP’s governance. But then there are others – others that might have had influence on the final cut of speeches from Xi’s Primer – who are just not that into constitutionalism. Likely demonstrating the power of this other group, the Global Times, a conservative government-run newspaper, ran an editorial in its English edition noting that “…the popularity of constitutional governance in the public sphere has only brought negative results in recent years. We propose replacing the concept with the rule of law” (the Chinese version of the editorial is slightly different, putting Xi’s concept of constitutionalism in a historical context).
If you are dying to know what happens to the Constitution in current Party rhetoric – does it stay or does it go – you only have to sit tight for a
Another CCP Plenary is to Occur in October with Rule of Law as the Topic of Conversation
month. In October, the CCP will hold the fourth plenary session of the CCP’s 18th Central Committee and the central agenda item is rule of law. As the CCP recognized in its announcement, the rule of law is “vital for the Party’s governance, people’s happiness and the nation’s stability.” Expect the Xi camp to call on that rule of law through the Constitution; expect there to be opposition. How public this battle will be is anyone’s guess. Evidently the rhetorical use of the Constitution is causing divisions within the leadership.
But Does the Constitution Make A Difference in China’s Political-Legal System?
But Xi is far from a constitutional convert, at least not in the Western sense. Even with this rhetorical debate at the upper echelons of the CCP, Xi’s constitutional dream is far from a free society that promotes individual’s civil rights. Rogier Creemers, a post-doctoral research officer at Oxford’s Programme in Comparative Media Law and Policy, explained this to China Law & Policy. The State is merely a reflection of the society which it governs and according to Creemers, “the [Chinese] State is there to restore the Chinese nation back to its collective greatness. One of the key ways in which the CCP justifies its rule is that it knows best how to generate [that] development. In that sense, law should not be used to constrain the State in its search for national rejuvenation, but to consolidate the progress that has been made on the road towards it. In the economic realm, that means law very often is the outcome of years of policy experimentation, while in the criminal realm, it means vast powers for the State to deal with those who would oppose it, where necessary.”
What is Rule of Law in China?
Thus, even for Xi, use of the Constitution is very top down and is not necessarily that divergent from the official concept of “rule of law.” The Global Times, in its Chinese version of the editorial makes that clear. To the Global Times, constitutionalism should be constructed as a neutral term, more in line with what the CCP has determined is the rule of law (“宪政本来是个中性词，与依法治国混用未尝不可”). China-watcher Shannon Tiezzi, in the Diplomat, perfectly put her finger on what this rule of law is: “the rule of the CCP through the law. The CCP still controls the legal system, but uses it as one of many available tools to enforce edicts from the center.”
Xi, even with his rhetoric of the Constitution, follows that Party line. Hence his focus on the idea that the Constitution guarantees that no Party member can act outside of the confines of that document (think Bo Xilai and Zhou Yongkang, both powerful party members that have been taken down by Xi). But that enforcement still emanates from the center; there is no place for grassroots to help with Xi’s crackdown on government corruption. Activists Xu Zhiyong (pronounced Sue Zher-young), Liu Ping (pronounced Leo Ping), Wei Zhongping (pronounced Way Jung-ping), and Li Shen (pronounced Lee Shen) know this first hand. In attempt to fight corruption, all publicly demanded that government officials disclose their assets. All four have been sentenced to prison terms from three to six years under Xi’s rule.
For Xi, the elements of the Constitution that call for individual rights are to be ignored, which fits with Creemer’s contention of the purpose
Activist Liu Ping in a photo before she was sentenced to six and a half years in prison
of the State in China. In fact, Xi’s reign has witnessed one of the largest crackdowns on human rights activists since likely 1989. As the non-profit Chinese Human Rights Defender‘s has noted, since March 2013 – just three months after Xi’s Constitution speech – in addition to the four mentioned above, over 70 rights activists, lawyers and citizens have been detained, arrested, imprisoned or just “disappeared.” Their crimes? Usually the minor charge of “gathering a crowd to disrupt order in a public place” or “provocation and causing a disturbance,” charges distorted by public security forces beyond their original meaning. The real issue? These activists often call upon the government to protect their constitutional rights.
Rule of law in China “is about delivering economic outcomes and a certain ideal of virtuous behavior by agents of the State” Creemer stated. Nothing in Xi’s rhetorical use of the Constitution diverges from that concept.
Does use of the Word Constitution Mean this Type of a Government?
But the Party is nervous about Xi’s continued use of the word, hence the Global Timeseditorial which criticizes the “liberals -自由派” (likely the rights activists who have been thrown in jail) who seek to “distort” this Party-mandated perception of the rule of law and putting others on guard to avoid such “traps.” But can the idea of constitutionalism be raised without giving life to those provisions of the document Xi and the Party would rather ignore – freedom of speech, of association, of religion? Is Xi’s conception of the Constitution – which would limit official corruption and provide for greater economic development – enough to satisfy the masses? Or will the Chinese people continue to demand that the Chinese dream be a Western-style constitutional one?
For those who are regular readers of China Law & Policy, you likely have noticed that we haven’t posted a piece in two weeks. That is due to the fact that China Law & Policy is doing some upgrades behind the scenes that is requiring a lot more of our time and will also require us to stop blogging for another week or so. But soon things will be faster, better and brighter here at China Law & Policy providing for a better experience for our readers.
In the meantime, while the summer rolls on, more rights attorneys are being prosecuted in China, Zhou Yongkang is now officially in trouble, and there has been a serious step-up in foreign prosecutions in China on criminal and anit-trust issues. A few weeks ago, George Washington law professor Don Clarke did any fun podcast on these as well as on rule of law in China generally with the boys over at Sinica. So in the meantime, you can listen to it by clicking here to get to the Don Clarke Sinica webcast.
Hopefully we will be back to blogging on a regular basis by the end of next week!
With the hoopla surrounding actor Huang Haibo’s six month sentence under China’s Custody & Education (“C&E”) system – an administrative punishment outside of the court system – on June 9, 2014, Beijing News ran an article examining that system. Included with the article was a telling diagram that highlighted the lack of a legal basis for C&E. The article effectively called for the repeal of C&E.
For an explanation of C&E and the current debate, see China Law & Policy’s previous post here.
That article is no longer available on the Beijing News website. However, it can still be found here. Additionally, below, China Law & Policy translates the portion of the article that was an interview with Tian Wenchang (pronounced Tea-en When-chang), one of China’s most famous attorneys and the current director of the Criminal Law Committee of the All-China Lawyers’ Association. In the short interview, Tian persuasively argues for C&E’s abolishment.
Beijing News [BJN]: As one of the people pushing [for reform], why do you want think to do this?
Tian Wenchang [TWC] (Director of the Criminal Law Committee of the All-China Lawyers’ Association): The fact is that after Reeducation through Labor (“RTL”) was abolished, people forgot about Custody & Education (C&E). But because a case relating to C&E recently emerged, society is once again examining C&E, questioning whether it is legitimate and whether it should still exist.
BJN: What do you consider to be the biggest problem with C&E?
TWC: The biggest problem is with C&E is the same as with RTL: administrative agencies can deprive individuals their liberty without due process, so lots of problems appear in implementing it.
BJN: What kinds of problems?
TWC: For example, for sex workers and their clients, after undergoing an administrative punishment [under the Public Security Administrative Punishment law], public security bureaus are able to decide on their own whether the individual should also receive a C&E sentence. There are no specific standards to guide this decision. For example, six months to two years of custody, how is this term determined; it’s very possible that there are variations in the implementation. Without due process and public transparency, it’s easy for there to be a hidden agenda.
BJN: Six months to two years, is that too heavy a punishment for prostitution and solicitation?
TWC: Under the Public Security Administrative Punishment Law, [the police] are able to keep someone in custody for 15 days for a prostitution-related offense. But under C&E, the maximum sentence may be up to two years. This is often more severe than the punishment under the criminal law. Whether this [disparity] is fair or not is pending discussion.
Repealing C&E Will Likely Take A Long Time
BJN: Based on your observation, do local public security bureaus often use C&E as a form of punishment?
TWC: My understanding is that in the overwhelming majority of provinces in the country, C&E is not used very often. But this does not mean that the public security bureaus do not have the right [to use C&E]. So long as they have this right, there will be problems.
BJN: What is the relationship between C&E and RTL?
TWC: Because both are systems that restrict personal liberty, in essence they are the same. It is only the people targeted and the length of the punishment that are different. Furthermore, both are systems that don’t go through the judicial process and instead the administrative agencies unilaterally make the decision. In looking at the legal principles governing C&E, the public security bureaus don’t have a problem; rather the C&E-related legal provision are not in line with the current law. As a result, they must be repealed.
BJN: How likely do you think are the proposals to abolish C&E?
TWC: It will be like RTL which took a long time to repeal; I think repealing C&E will be like that.
Unfortunately, it took the detention of a famous male actor for the Chinese media to criticize an unlawful detention system that has long been used against low-income female sex workers. Last month, actor Huang Haibo (pronounced Hwang Hi-bwo), affectionately known as China’s clean-cut “son-in-law,” was detained after he was found with a prostitute in his upscale Beijing hotel room.
Prostitution is illegal under China’s criminal law (Crim. L. Arts. 358-59), but neither Huang nor the sex worker was formally arrested. Neither was charged with a crime. Neither ever saw the inside of a courtroom. But both received a six-month sentence under China’s “Custody and Education” (“C&E”), another punishment in China’s myriad administrative detention system where the police serve as prosecutor, judge and jury. Under C&E, the police can unilaterally detain sex workers and their clients for anywhere from six months to two years.
C&E continues even though last November, the Chinese government herald its abolishment of another administrative detention punishment: the notorious “Re-education Through Labor” (“RTL”). Now, with the detention of one of China’s most famous actors, the spotlight is on C&E. China’s media, including the state-run media, is calling for its abolishment. But will C&E go to the same way as RTL?
C&E’s Dubious Legal Status
It’s not surprising that C&E, formally in existence since 1991, has not garnered much press prior to the detention of Huang Haibo. It is a punishment that is reserved exclusively for sex workers and their clients and according to Asia Catalyst‘s seminal report on the topic, the punishment has largely fallen upon lower-income women who often have no other career options, not your usual feel-good story that mainstream media prefers.
But the Beijing police diverged from the usual pattern when, on May 15, 2014, it went after Huang Haibo and presumably a high-end
Potential Victim of China’s Custody & Education System (Photo Sim Chi Yin for The New York Times)
prostitute. Immediately following the May 15 detention, the Beijing police – through their Weibo account (China’s version of Twitter) – alerted the world to Huang’s detention. At first, the police gave Huang and his cohort a lighter sentence of 15 days administrative detention under the more generic Public Security Administrative Punishment Law. But on May 30, 2014, the Beijing police unilaterally decided to continue Huang’s detention, sentencing him and his cohort to six months in C&E which falls under the regulation entitled Measures for the Management of C&E Centers (“C&E Management Measures”).
It was that six-month sentence – a much more serious deprivation of liberty than the prior 15 days – that caused popular uproar with various editorials questioning C&E’s legal status. But even prior to the Huang Haibo incident, back in early May, many China human rights lawyers, including Pu Zhiqiang (pronounced Poo Zhir-chee-ang), recently arrested for “creating disturbances and illegally obtaining personal information,” signed a petition calling for C&E’s abolishment stating that under Chinese law, C&E is illegal.
Recent editorials, including an interview with the director of the Criminal Legal Affairs Committee of the All-China Lawyers’ Association, Tian Wenchang (pronounced Tee-an When-chang), have echoed the arguments found in that May petition which received scant attention at the time. Almost every editorial notes the non-transparent nature of C&E. There is no impartial judge that the individual can appeal to; there is no lawyer. Instead, under the C&E Management Measures, the police have complete power to determine if C&E is appropriate and the length of the sentence. While there is an appeal mechanism, the first step is to ask the police to reconsider the sentence (Art. 20). Only after that reconsideration can the individual seek to bring a lawsuit against the state. But without a lawyer, that rarely happens.
An RTL camp in Shijiazhuang, Hebei province. (File photo/CFP)
Similar factors – the unilateral decisions of the police and absolutely no judicial oversight – pushed the public to call for RTL’s abolition. But those due process violations alone were not enough to overturn RTL. Also instrumental was the fact that RTL was not based in law. According to the China’s Legislation Law, the law that sets the basic ground rules on how all other laws and regulations are to be written, “[o]nly national law may be enacted in respect of matters relating to. . . (v) . . . compulsory measures and penalties involving restrictions of personal freedom. . . .” (Art. 8). Thus, only the National People’s Congress (“NPC”) or the NPC’s Standing Committee is entitled to make “national law.” And any attempted to deprive an individual of his or her liberty must be based on laws passed by the NPC or its Standing Committee.
In the case of RTL, the three sets of rules that governed the system – the 1957 Decision, the 1979 Supplemental Decision and the 1982 Trial Rules – were instituted by the State Council and the Ministry of Public Security, not by the NPC or its Standing Committee. As a result, RTL was in violation of legal procedure. Making its abolishment legally necessary.
Similar arguments are being made in regards with to C&E. C&E was first established by the 1991 Measure on the C&E of Prostitutes & Their Clients which was in fact passed by the NPC’s Standing Committee. In that document, the Standing Committee delegated to the State Council the right to draft the C&E Management Measures, the measures which deal with the deprivation of individuals’ liberty. But again, the China’s Legislation Law, this time Article 9, clearly does not permit the NPC or its Standing Committee to delegate the right to draft regulations pertaining to the deprivation of liberty. As a result, the State Council’s 1993 C&E Management Measures are without legal effect, making the whole C&E system in violation of the law.
Will C&E Go the Way of RTL?
There are certainly strong if not convincing legal claims for C&E’s abolition. But one thing to factor in is the amount of money which the
Cha-ching! Women in a Custody & Education Center (Photo from Weibo)
public security bureaus (“PSB”) make off of C&E as highlighted in the Asia Catalyst report. Under C&E, detainees are required to work and although the Management Measures imply that the detainees be paid (Art. 13), they very rarely are. Instead, the income goes to the local PSB’s coffers.
Another source of income: the detainees themselves. Ironically, the Management Measures require that the detainees completely cover the costs of their own detention (Art. 14); RTL did not contain such a provision. As the Asia Catalyst report documents, these costs are substantial and likely inflated – six months in a C&E costs an individual between 5,000 to 10,000 yuan (US $820 to $1,639). Also inflated are the costs of goods. According to the Asia Catalyst interviewees, goods are several times more expensive than on the outside.
With the free labor and the ability to charge detainees for their custody, C&E centers are an important profit center to local PSBs. It’s the local PSB’s profit-motive that will make abolishing C&E more of a challenge. As the Asia Catalyst report points out, local PSBs did not fare so well when China became a market economy and have had to find ways to support themselves. One way is through C&E centers.
Allegedly the woman found with Huang Haibo – a Chinese “any one”?
And on some level, the Chinese government and local PSBs have to recognize that sex workers and their clients do not garner the same level of societal sympathy as those who were getting caught up in RTL. Tang Hui (pronounced Tang Hway), a mother of an 11 year old girl who was raped and sold into prostitution, became the poster-child for the dangers of RTL. After her daughter’s rapists, kidnappers and pimps were given a slight slap on the wrist, Tang protested. But that protest is what landed her in an RTL camp. When she got out, she sued, receiving a tremendous amount of public support and highlighting the dangers of RTL. Similarly, in 2003, when China abolished Custody & Repatriation, another form of administrative detention, the public was aghast that an innocent college student, Sun Zhigang (pronounced Son Zher-gang) could get caught up in such a system and end up dead in police custody.
Tang and Sun were China “any ones” – anyone could be a grieved mother; anyone could be a young
Will public attention to C&E pass once Huang Haibo is freed?
college student. Anyone could have been entrapped by such an unjust system. But here, with C&E, the individuals involved are sex workers, and lower-income, less-educated sex workers. Although C&E has the same abuses as RTL, most Chinese do not fear that they will find themselves entangled in the C&E system. There is a high likelihood that the public spotlight that is currently on C&E will fade once Huang Haibo is freed.
But at the very least the Huang incident has caused the international media to focus on the C&E
system. Supposedly the Chinese Communist Party was intent on repealing RTL because it is an obvious roadblock to its ability to ratify the UN’s Convention on Civil and Political Rights, a treaty which forbids the deprivation of liberty without due process of law and court oversight. But C&E – now that it has been exposed more publicly as a result of the Huang Haibo incident – needs to be abolished before China can ratify that treaty.
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.