Posts tagged: weiquan

Reform or Regression? The Corruption Inquiry of Zhou Yongkang

Prof. Eva Pils

Prof. Eva Pils

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

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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.

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

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

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

EP:  Thank you very much.

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This concludes Part 3 of this three-part interview series with Prof. Pils. 

For Part 1, please click here.

For Part 2, please click here

Wagging the Dog? The Chinese Government Response to the New Citizen Movement

Prof. Eva Pils

Prof. Eva Pils

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

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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

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

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

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

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?

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?

EP:  Oh no, no, no.  I don’t think so.

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To read Part 3 of this three-part interview, please click here.

For Part 1 in this series, please click here.

A Thorn in the Government’s Side – China’s Human Rights Advocates

Prof. Eva Pils

Prof. Eva Pils

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.

Who are these human rights advocates and lawyers?  And why has the Chinese government become increasingly harsh?  To put this all in is 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.  In 2006, Prof. Pils wrote the seminal article on human rights lawyers in China, Asking the Tiger for His Skin: Rights Activism in China. This summer, Prof. Pils will continue her work with a book on rights activism entitled China’s Human Rights Lawyers: Advocacy and Resistance.  Last month, as more human rights advocates and lawyers were being detained, Prof. Pils sat down with China Law & Policy.

Read the transcript below of Part 1 of this three-part interview or click on the media player below to listen:

Length: 14:49 minutes

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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

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 nothing other 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

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

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

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

“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.

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For Part 2 of this three-part interview series with Prof. Pils, please click here.

A Rose By Any Other Name….. Violence & Repression Under Xi Jinping

roseFor Tang Jitian (pronounced Tang Jee tee-an), a human rights advocate and disbarred criminal defense lawyer, 2013 should have been a banner year.  The new Criminal Procedure law took effect ostensibly providing for greater rights for defendants and their lawyers; the Supreme People’s Court’s new President, Zhou Qiang, highlighted the pressing need for the judiciary to respect criminal defense attorneys; and the Third Plenum of the Party’s Central Committee released its resolution, calling on the Party to “give rein to the important function of lawyers in safeguarding citizens’ and legal persons’ lawful rights and interests.”  To cap it all off, in December, the government abolished the much reviled Re-Education Through Labor (“RETL”), an administrative punishment unsupervised by the court system that often resulted in hard labor sentence of up to three years.

But for Tang Jitian, 2013 and the early months of 2014 have proven to be anything but positive.  Instead, human rights advocates have experienced one of the worst  years since 2008 according to the 2013 Annual Report published by the non-profit Chinese Human Rights Defenders (“CHRD”).  Under the leadership of China’s new president, Xi Jinping (pronounced See Gin ping), there have been more than 220 criminal detentions of human rights defenders, as documented by CHRD’s report, a three-fold increase from the previous year.  The number of detentions that have not gone through the legal process if even greater.

What makes Xi’s crackdown different – and more ominous – than previous ones is its veneer of legality and its attempt to mask the increased levels of violence.

China's new president - Xi Jinping

China’s new president – Xi Jinping

Nothing exemplifies that better than what happened to Tang Jitian in China’s Heilongjiang province this past March.

Whac-A-Mole: RETL is Replaced By Other Administrative Detention

As a human rights attorney, Tang has represented some of China’s most vulnerable, in particular adherents of the spiritual movement Falun Gong.  The Chinese government has categorized Falun Gong as a cult not necessarily as a result of any of its practices, but rather as an easy way to target a movement that was able to amass a large number of dedicated followers in a short amount of time.  It was Tang’s zealous advocacy of a Falun Gong practitioner that led to his disbarment in 2010.

On some level, one cannot be a human rights lawyer in China without understanding the particular plight of Falun Gong practitioners.  And that is why Tang ended up outside of a Jiansanjiang (pronounced Gee-en san jee-ang) detention Center where several Falun Gong practitioners were being detained in a “Legal Education Center.”

Re-Education Through Labor Camp before they were formally abolished

Re-Education Through Labor Camp before they were formally abolished

While the Chinese government may have eliminated the RETL system, it did not get rid of all forms of administrative punishment.  In its place popped up  drug rehabilitation centers to house many of RETL’s drug addicts and legal education centers to deal with RETL’s Falun Gong practitioners as well as citizen petitioners, people the government has deemed “troublemakers.”  The ability to detain individuals without proper legal procedures has been too powerful of a tool for a government with an obscene infatuation with “social stability” to give it up so easily.   For these detained individuals, it is of little consolation if the prison they find themselves in is called a labor camp or a legal education center.  In the end they are still deprived of their liberty without any legal review or access to lawyers and often with little to no contact with their families.

When the Lawyers Become the Victims

It was this discrepancy that Tang and three other human rights lawyers – Jiang Tianyong, Wang Cheng and Zhang Junjie (the Jiansanjiang Four) – sought to bring attention to by trying to serve as attorneys to the Falun Gong practitioners being held at the Jiansanjiang Legal Education Center.  However, before the Jiansanjiang Four could lodge formal complaints on behalf of their clients, the police raided their hotel room and detained the four attorneys.

Zhang Junjie would be released five days later; Tang Jitian and Jiang Tianyong were held in detention for 15 days.  None ever went

The Jiansanjiang Four - from L to R: Jiang Tianyong, Zhang Junjie, Wang Cheng & Tang Jitian

The Jiansanjiang Four – from L to R: Jiang Tianyong, Zhang Junjie, Wang Cheng & Tang Jitian

before a judge but again the law allows for this form of administrative punishment as well.  In March 2006, China’s Public Security Administrative Punishment Law (“Admin Punishment Law”) – a law that gives free rein to the police to detain individuals for up to 15 days – went into effect.  Under the law, the police essentially serve as prosecutor, judge and jury.  Although there is an appeal process, as Joshua Rosenzweig notes, “it’s possible to request that a detention be postponed pending the outcome of such a challenge [appeal], but, again, police have discretion to decide this based on whether they think the individual will continue to be a harm to society. So, basically one has little option but to serve one’s time in jail first and pursue remedies later.”

Each of the Jiansanjiang Four were held under the Admin Punishment Law.  Tang and Jiang were given the maximum punishment of 15 days for “using cult activities to endanger society.”  It was Tang and Jiang’s attempts to represent Falun Gong practitioners – the very reason for their profession and protected by the Lawyers Law – that was punished.

Under the Veneer of Legality, Increase Levels of Violence

Five to 15 days might not seem like a long time, but for someone being tortured, it is an eternity.  While being held by police, each of the Jiansanjiang Four experienced repeated beatings and each needed to go to the hospital upon their release.  This is what makes the Admin Punishment Law dangerous – without any supervision or the ability to appeal the sanction, the police have free rein to do what they want with these “troublesome” human rights advocates.

Tang Jitian receiving diagnosis at the hospital AP Photo/Alexander F. Yuan

Tang Jitian receiving diagnosis at the hospital
AP Photo/Alexander F. Yuan

This type of violence against human rights advocates is becoming increasingly common under President Xi Jinping.  While beatings are the most common, denial of services, including food and medical treatment has also become prevalent and at times with dire consequences.  Tang Jitian suffers from spinal tuberculosis.  According to Boxun, while at a Beijing hospital after his detention, Tang was initially informed that surgery was necessary to avoid paralysis.  But a few days later, the head of the hospital visited Tang’s room to inform him that the surgery was not possible at the hospital and suggested that he leave.  Tang’s TB, at least the spinal portion, is going untreated.

For Cao Shunli, another human rights advocate who had been criminally detained since September 2013, it was her medical condition mixed with possible beatings that eventually killed her.  On March 14, 2014, while still in police custody, Cao died of as a result of her tuberculosis.  Her family claims that her TB was left untreated and that she was physically abused in police custody.  To this day, Cao’s body has not be release to her family for proper burial.

But while China conducts one of its worst crackdowns on human rights advocates, it is still able to obtain a seat on the United Nations’ Human Rights Council, a body responsible for enforcing many of the international human rights standards which the Chinese government violates with abandon.  One wonders how many other human rights advocates must die before the world wakes up.

Fuzzy Jurisdiction & Four Years: The Xu Zhiyong Verdict

By , January 28, 2014
Fuzzy Jurisdiction

Fuzzy Jurisdiction

On Sunday, in a verdict that surprised no one,  the Beijing No. 1 Intermediate Court found human rights lawyer Xu Zhiyong guilty of gathering crowds to disrupt public order (Criminal Law Article 296).  The Court sentenced Xu to four years, only one year shy of the maximum.

The Court’s verdict which runs close to twenty pages when converted to a word document, details the prosecutor’s evidence that formed the basis of the Court’s decision.  The length of the document itself belies a Court confident in its decision on a case that they know the world was watching.

There is certainly much to be parsed out in the decision but one thing that is interesting are the jurisdictional issues that China Law & Policy raised last week prior to Xu’s trial.  Namely, why Xu – who is being accused of the same crimes as many of the other defendants – was being tried in an higher level court, Beijing’s No. 1 Intermediate Court, while his compatriots are being tried in the lower level Haidian People’s Court.

The verdict attempts directly answers this question and in doing so present a frightening future for defendants:

对于被告人及其辩护人在庭前及庭审中对管辖及分案审理所提的异议,经查,本案事实涉及北京市海淀区、朝阳区及西城区等属于不同法院管辖的区域,北京市人民检察院第一分院对许志永一案向我院提起公诉后,北京市高级人民法院依照《中华人民共和国刑事诉讼法》第二十六条之规定,指定由我院管辖。鉴于公诉机关在起诉书中明确指控了犯罪事实,并附有案卷材料及证据,符合《中华人民共和国刑事诉讼法》第一百八十一条的规定,我院依法应当受理并开庭审判。对于共同犯罪案件是否并案审理,人民法院、人民检察院、公安机关依法均可以在各自职责范围内决定。被告人及其辩护人所提上述异议不能成立,本院不予支持。

The Court acknowledges defense counsel’s two jurisdictional-based objections: (1) that the Intermediate Court should not hear the case and (2)

Xu Zhiyong, awaiting trial in the detention center

Xu Zhiyong, awaiting trial in the detention center

Xu’s case should be tried with the other defendants.   According to the Court, its jurisdiction is based upon Article 26 of China’s Criminal Procedure Law (“CPL”), a provision that permits a higher level court to re-assign cases to other courts when jurisdiction is unclear.  According to the Court, because the Haidian District, the Chaoyang District and the Xidan District People’s courts all had jurisdiction over the case (presumably because some of the public demonstrations accorded in each of those districts), the prosecutor filed his case with the Intermediate Court and the Beijing Municipal Higher People’s Court determined that the Beijing No. 1 Intermediate Court could hear the case, thus giving it jurisdiction.

The verdict pays no mind to defense counsel’s objections; it does not explain what these objections were let alone why the Court rejected them. By flat out ignoring these objections, the Court seems to imply that as long as the law was followed by the prosecutor and the courts, then the decision will be permitted regardless of defense counsel’s arguments.  Unfortunately, this does seem to be what Article 26 says although neither the Interpretation of the Supreme People’s Court on the Implementation of the CPL (“SPC Interpretation”) nor the Interpretation of the Supreme People’s Procuratorate on the Implementation of the CPL (“SPP Interpretation”)  explicitly permit the prosecutor to file a criminal case with a higher level court.  Although at the same time, it does not forbid it.

It doesn't matter how loud defense counsel gets, his objection is never heard

It doesn’t matter how loud defense counsel gets, his objection is never heard

While there might be a basis in law to permit the Intermediate Court to have jurisdiction, what there appears no basis for is the Court’s cursory denial of defense counsel’s request to try the other defendants with Xu.  In a two sentence analysis, the Court states that under the law it is within the discretion of either the Court, the prosecutor or the public security organs to decide whether joint defendants should be tried separately.  The Court fails to cite any provision of any law or regulation that states that premise.

As for defense counsel’s objection – which convincingly cited to Article 13 of the SPP Interpretation requiring all cases to be joined before a higher court if one is to be heard there – the Court conclusory stated that defense counsel’s objection was “untenable” (不能成立) and therefore the Court was right to reject it.  The verdict provides no reason or explanation as to why the objection was untenable.  Given that defense counsel was able to sight to regulation for its argument and the Court here cites to no law, defense counsel’s objection seems worlds more tenable than anything the Court provided.

But that would be for a trial that was based on rule of law, something that is missing here where the Court rules by executive fiat regardless of laws of regulations.  For all the Chinese Communist Party’s recent rhetoric about the need to have a “strict adherence to legal procedure,” the CCP again chose to ignore that procedure in the one case where it felt like its power was being threatened.

 

Why an Intermediate Court? The Impending Criminal Trial of Activist Xu Zhiyong

By , January 21, 2014
Xu Zhiyong in better days - on the cover of Chinese Esquire in 2009

Xu Zhiyong in better days – on the cover of Chinese Esquire in 2009

On Wednesday, the Beijing Municipal No. 1 Intermediate People’s Court will hear the trial of rights-defending lawyer Xu Zhiyong (pronounced Sue Zhi-young).  His alleged crime?  Disturbing public order, a charge that the Chinese government has used with abandon since China’s new president Xi Jinping rose to power at the end of 2012

Xu was not always the Chinese government’s Enemy No. 1.   Early in his career, Xu was celebrated for his ground-breaking work.  In 2003, Xu, along with rights-defending attorneys Teng Biao and Yu Jiang, successfully pushed for the abolishment of China’s custody and repatriation system, a form of extrajudicial detention that resulted in abuse and on one occasion the death of a college student.   In 2008, Xu, through his legal assistance organization the Open Constitution Initiative (“OCI” or in Chinese “Gongmeng”) represented parents whose children were poisoned by contaminated powdered milk, keeping the issue in the press and obtaining some form of justice for the parents.  These cases, in addition to investigations into the use China’s “black jails” – extrajudicial, ad hoc and secretive holding cells used to house government-defined trouble makers – brought both domestic and international fame.  In 2008, Xu was featured in China’s Economic Observer and by 2009, he would grace the cover of China’s Esquire magazine.

But Xu’s success also brought the attention of the Chinese government at a time when it was beginning to look less and less favorably upon the rights-defending movement.  In July 2009, Xu was detained on charges of tax evasion.  After being held for almost a month, Xu was freed on bail and his organization was fined a stunning 1.46 million RMB.  Such was the end of OCI.

Fortunately for the Chinese people it was not the end of Xu Zhiyong or his rights-defending work.  Instead, Xu looked to take his ideas and create

Emblem of the New Citizens Movement - calligraphy of Sun Yatsen

Emblem of the New Citizens Movement – calligraphy of Sun Yatsen

a more organized grassroots movement.  Working with other rights-defending lawyers, journalists, activists and average citizens, the movement called on the Chinese people to uphold the rule of law and seek to protect their civil rights.  By May 2012, Xu named this movement “New Citizens Movement” (in Chinese, Xin Gongmin Yundong) and called upon the new citizens to unite and help to establish a rule of law, protect constitutionally-guaranteed rights, end corruption in government and change the role of the Chinese people from subjects to full-functioning citizens.  Xu’s essay describing the movement was quickly removed from the internet.

Although many describe Xu’s approach as moderate, it is still too radical for the Chinese government, especially a Chinese government with a new president eager to solidify his power.  Over the past year, the Chinese government has detained over 100 activists, many of whom are New Citizens.

In July 2013, Xu’s time had come; the police detained him and various other activists and in August 2013, formally arrested him for disturbing public order.   In its December 2013 indictment, the Beijing police charged Xu with organizing and being the ringleader of protests held in Beijing calling on the government to require that senior government officials disclose their financial holdings and assets (see video below of one of the protests).

The fact that the Chinese Communist Party has recently initiated such a pilot program of asset disclosure is irrelevant.  Last Friday, Xu appeared before the Beijing Municipal No. 1 Intermediate Court where he learned that his trial is set for Wednesday, that he will not be permitted to call witnesses, and will not be permitted to cross-examine the prosecution’s witnesses.  As protest, Xu will remain silent during Wednesday’s trial.

There are many things to question about Xu’s impending trial, but one aspect that jumps out as out of the ordinary is the fact that Xu’s trial will not be held in a basic trial court.  Instead, the intermediate court has jurisdiction; many of the other defendants arrested and charged for the same crimes will have their case heard in the Haidian Basic People’s Court.   Why is Xu different?  Why is his case being heard by a higher court?

Beijing's No. 1 Intermediate Court

Beijing’s No. 1 Intermediate Court

According to the China’s amended Criminal Procedure Law (“CPL”), an intermediate court automatically has jurisdiction if the case involves charges of endangering state security or involves terrorist activities, or if the case has a penalty of life imprisonment or death  (see CPL, Article 20).  Here, the charges do not involve state security or terrorism and the penalty is a maximum of five years imprisonment.

However, according to the Supreme People’s Court’s Interpretation on the Implementation of the Amended CPL (“SPC Interpretations”), even when a case does not involve state security, terrorism, a life sentence or the death penalty, the lower court can ask the intermediate court to hear the trial if (1) the case is large or complex, (2) is a novel and difficult case, or (3) is a case that is significant and thus would provide general guidance to other case (see SPC Interpretations, Article 15).

If Article 15 of the SPC Interpretations is the basis of the Intermediate Court’s jurisdiction, then the Intermediate Court must issue a written decision accepting the transfer and submit that decision to the lower court and the prosecutor.  Article 15 does not require that the written decision be provided to defendant or his attorney (see also SPC Interpretations, Article 14: Higher people’s courts deciding to try a first-instance case within the jurisdiction of a lower people’s court, should send down a written decision to change jurisdiction to the court below, and notify the procuratorate at the same level in writing”).

Unfortunately, none of the articles about Xu trial – either in Chinese or English – explain why his case is being heard by the Intermediate Court and not, like the other defendants accused of the same crimes, by the Haidian Basic Court.

But regardless of the reason why the Intermediate Court is hearing Xu’s case, the SPC Interpretations are fairly clear that where a case involves

Xu Zhiyong, awaiting trial in the detention center

Xu Zhiyong, awaiting trial in the detention center

multiple defendants and the case is elevated to a higher court for one defendant, then all defendants should be tried by the higher court (see SPC Interpretations, Article 13: “For multiple crimes by a single person, joint crimes or other cases that need to be joined for trial, if one person or crime belongs to the jurisdiction of the higher level court, the higher level court has jurisdiction of the entire case”).

New Citizens activist and rights-defending lawyer Xiao Guozhen speculates that the police and prosecutors sought to separate the trials so that the statements of the other participants can be used against Xu in his trial.  According to Xiao, in a trial with multiple defendants, one co-defendant cannot serve as a witness.  But when the trials are separated, the other defendant’s statements and confessions can be used in the trial against Xu.  But this all supposes that the other accused will speak out against Xu.

Hopefully Wednesday we will know although as Prof. Jerome Cohen points out, the authorities has done all that it can, such as using one of the smallest courtrooms in the courthouse for Xu’s trial to guarantee that the trial is all but closed to the public.  Another violation of the amended CPL.

Xu Zhiyong on the Disappearance of His Volunteer Song Ze

By , July 23, 2012

Seeing Red in China, a blog that often posts translations of Chinese activists’ work, has just posted two must read translations (see hereand

Beds in a vacant black jail - Caijing investigation.

here).

Both concern the recent abduction and detention of Song Ze, a volunteer attorney at the Open Constitution Initiative.  Like most recent college graduates, Song Ze is an idealist young man who wants to use his education to better society.  That is what brought him to the Open Constitution Intiative and helped him to become an advocate to those petitioners illegally subjected to one of China’s black jails.  As Xu Zhiyong recollects in his essay exclusively written for Seeing Red in China, Song Ze’s advocacy brought him to the cries of Hu Yufu, an 80 year old petitioner desperate for medical attention but denied access to a hospital by his jailers.  Hu Yufu died only a few days after Song Ze first heard his story.  Relying on China’s rule of law, Song Ze assisted the family in bringing a lawsuit against the local Party for their father’s death.

As with all stories where a young idealist lawyer relies on the Chinese government’s promises of rule of law, it was that advocacy that caused Song Ze to be abducted and detained for “provoking disturbances.”  As recounted by his lawyer, Liang Xiaojun, Song Ze has been detained beyond the 37 days allowed by law and has yet to be charged or arrested.  Liang’s account demonstrates a criminal justice system that still has a long way to go before it follows its own laws.  Even citation to the law does not matter:

The officer in charge of the case was there. Upon hearing my request to meet Song Ze, he asked who had sent me and how, while recording information about me on a notepad. Then he left the room with the approval form. When he returned shortly, he told me the lieutenant, whose signature was required, was unavailable, and I couldn’t meet Song Ze on that day. He told me to come back tomorrow.

I argued that, according to China’s Lawyers Law, meeting with client required no approval. He said, the new criminal procedure law wouldn’t take effect until next year, and it was good for a lawyer to obtain approval

Song Ze’s current whereabouts are now unknown.  As Liang points out in his essay, this has become permissible under Article 73 of China’s amended Criminal Procedure Law.  Liang suspects that “residential surveillance” in an undisclosed location will become the tool of choice of the police so as to avoid even the limited protections afforded criminal defendants.

Xu Zhiyong and Liang Xiaojun‘s essays not only reflect the absurdity of China’s legal system where the police do as they please, but they also reveal what is becoming a battle for China’s future.  When the heavy hand of the Party falls on a young, idealistic volunteer, the Chinese Communist Party sends a strong warning signal to China’s other Song Zes: your idealism could silence you and cause you to become a case in and of yourself.

Tiananmen 23 Years Later: An Unknown History?

For the great majority of young mainland Chinese, the events of the Tiananmen Massacre have never entered their consciousness; they have never seen the photographs and news reports about it, and even fewer have their family or teachers ever explained it to them. They have not forgotten it; they have never known anything about it.”

So ends Chan Koonchung’s The Fat Years, an allegorical novel set in the near-future Beijing, where China is the only prosperous nation left after the great global economic meltdown of 2008. Most of its citizens are happy – unnaturally so – and fully satisfied with the materialism of their new lives.

But there is a small group of misfits- led by Fang Caodi – that is searching for a missing month from 2008 where martial law was imposed so that the government could bring on the fat years. All remnants of that month have been erased from society’s collective memory: newspapers published during that month no longer exist and no one ever speaks of it. It’s as if it never occurred. Fang and his posse go all over the country, trying to find any evidence of that missing month and trying to find more people like them: people who remember. They find almost no one but then hatch a plan to kidnap a high level government official and interrogate him. They find out about a government intent on guaranteeing that the mistakes of its pass are forgotten and only China’s glorious future is remembered.

Make no mistake, Chan is not talking about a missing month in 2008. What Chan is discussing are the seven weeks that led up to the June 4, 1989 Tiananmen massacre, where martial law was imposed, high-level Chinese officials ordered the army to open fire on its own people, and hundreds of unarmed student protestors were estimated to have been killed.

On Monday the world will mark the 23rd anniversary of the Tiananmen massacre. But Mainland China will not. Every year, the anniversary of Tiananmen, known as Liu Si in Chinese, is forgotten on mainland China, unless you count the Chinese government’s stepped up security of Tiananmen Square and random detention of activists as a commemorating event.

Around June 1, 1989, over a million students converge on Beijing's Tiananmen Square

For 23 years, there has been no public mention of the Tiananmen massacre and aside from hushed whispers among older Chinese, in particular the Tiananmen Mothers who bravely try to keep the murder of their children alive, there is little private discussion of the event. The Chinese government’s 23 years of silence concerning Tiananmen isn’t just denial. It’s been a concerted and fairly effective effort to erase Tiananmen, and the government’s bloody actions on the night of June 3, 1989, from China’s collective memory.

Mainland Chinese born after 1989 largely do not know anything about the events surrounding those seven weeks 23 years ago nor the bloody repression on the night of June 3 into the early morning hours of June 4. To the extent that they have heard anything about it – from a professor who might have supported the students in 1989 or from a family member who was there – their recollections are muddied at best.

Chan’s The Fat Years is a warning: that the Chinese must not forget the past; that they must continue to remember. But that warning is mixed with the reality that perhaps some Chinese do want to forget, especially the young. Compared to 1989, times have never been better. Why rock the boat? Why be bothered with your parent’s history?  And that is Chan’s second note of caution to the Chinese: do not be lulled into acceptance by materialism.

But those messages will not be heard in China.  In keeping with their efforts to annihilate Tiananmen from collective memory,the Chinese government has banned The Fat Years. In the introduction to the English translation, Julia Lovell notes that the book has still

A rickshaw driver ferries two dying students on he morning of June 4, 1989

made its way around dissident circles in Beijing. But dissidents in Beijing are a small, insular group; the vast majority of Chinese will remain unaware.  The fact that today’s dissidents and rights activists still remember Tiananmen is one weakness in the Chinese government’s goal and might explain the two-year crackdown on activists.

For the first few years after the Tiananmen massacre, the question was, how long will the Chinese government refuse to investigate the murder of hundreds of Chinese students. Twenty-three years later, now the question is, will the Chinese ever know their own history? As time passes, memories fade, Tiananmen mothers die, and the Chinese Communist Party remains in power, the answer seems to be leaning toward no.

That is why we must never forget June 4, 1989 and continue to memorialize and investigate the events. As censorship increases in China, the western world is ironically becoming the repository of China’s modern history. Eventually, the Chinese people will demand that they be allowed to learn their own history; eventually they will be free to decide for their own what aspects of their history that they want to commemorate and what they want to forget.  Eventually, the West’s repository of knowledge will be accessed by the Chinese.

Chan’s The Fat Years should not be read for its literary style. At many points the narrative really slows down and “near future Beijing” is actually 2013, making it difficult for the current English reader of translation to find it even slightly believable. It also appears to peter out toward the end with the main characters just fading from the page. But for the ideas that the book presents about modern day China and its potential future, it is an important read.  Especially today, on this anniversary of the Tiananmen massacre.

Rating: ★★★☆☆

The Fat Years: A Novel, by Chan Koonchung (Nan A. Talese, 2012), 336 pages.

A BBC news report from the early morning of June 4, 1989

What is Up with Chen Guangcheng?

Chen Guangcheng, entering a Beijing Hospital with US Ambassaor Gary Locke and State Dep't Legal Advisor Harold Koh

More often than not, I am my friends’ go-to China person; something in the news pops up with China, I get the questions.  So I wasn’t surprised on Saturday when over some carrot cake at the Chelsea Market a friend of mine had questions about Chen Guangcheng: if he cared so much about human rights in China, why would he leave?  What is up with the Chinese government, keeping a blind man trapped in his own home?  How did things get so messy between the U.S. government and Chen?

It’s been almost a month since Chen fled the home that illegally became his prison. So what exactly is up with Chen’s escape and to answer some questions – what does it all mean?

Chen’s Escape Has Propelled Human Rights to the Top of the US-China Agenda

My friend’s question on Saturday caught me off guard – does Chen really care about human rights in China if he fled to the protection of the U.S. Embassy, ostensibly to seek asylum and leave China.

To ask a man with a wife and two children to be a martyr for his cause is asking too much.  As this blog has recounted previously, since Chen’s release from prison (oddly convicted of a traffic disturbance) did not result in freedom.  Instead, for the past year and a half, Chen and his family have been subjected to illegal house arrest and at times, physical torture by his captures.

It is true that by departing China, Chen’s ability to change China’s current system will be much reduced if not extinguished.  But his heroic flight has perhaps done more to highlight the Chinese government’s recent illegal oppression of dissent than anything else.  Over the past year and a half, this blog has increasingly written about the Chinese government’s crackdown on China’s nascent rights defending (weiquan) lawyers. Aside from people already interested in the issues, these posts – and the acts of repression which they have focused on – have received little attention.

Chen’s escape and his subsequent stay at the U.S. Embassy  altered this focus. With Hillary Clinton arriving for the Strategic and Economic

Inspiring Architecture? The US Embassy in Beijing

Dialogue (S&ED), the focus of U.S.-China relations shifted to human rights.  For one week, as the world watched, the U.S. and China’s relationship was thrown back to a 1980s-Cold War paradigm, when ideology played a more governing role.  For one week, the Western media’s attention finally focused on the repression of rights defending lawyers, and the lip service the Chinese government gives “rule of law” when it comes to civil rights and civil liberties.

It is amazing that a single man’s act, that one blind man’s heroic act, can still change the dialogue in U.S.-China relations.  It is a hopeful reminder that in this globalized world, individuals still matter; that one man’s quest for freedom is still “news.”  And don’t think Chen’s act was not a heroic one.  Not only was a blind man able to find his way to Beijing, but imagine if he wasn’t; imagine if he was caught.  Likely his fate would match that of Gao Zhisheng, a rights defending lawyer who, while in government custody, remains missing.

The U.S. Government’s Actions Supported Human Rights

Some have criticized the U.S. government – or more aptly, the Obama Administration – for its dealings with the Chinese government over Chen.  Initially, the U.S. Embassy worked out a deal with the Chinese government whereby Chen would stay in China, study law at a university in a coastal city away from the thugs of his hometown, and be left alone with his family.  This was what Chen initially wanted.

But once he left the safety of the embassy for a Beijing hospital, Chen began to reconsider his options.  As Prof. Jerome A. Cohen recounted to CNN, the promised U.S. Embassy official was unable to stay with Chen at the hospital and once he began speaking other rights defending lawyers – friends he hadn’t been able to speak to for a year – he began to more clearly understand the increased oppression of rights defending lawyers in China.  Chen was scared; Chen realized that without full information, he misjudged the situation.  That’s when he vocally requested that he be able to leave China for the United States.

Were some in the U.S. Embassy a touch too naive to rely on the Chinese government’s promises?  Most likely.  But being naive is not the same as turning one’s back to human rights.  It was Secretary of State Hillary Clinton’s decision to allow Chen into the U.S. Embassy in the first place.  Chinese citizens cannot just willy-nilly enter the U.S. Embassy; even American citizens are allowed limited access to their embassy (which resembles a high-security prison).  As the N.Y. Times has recounted, embassy officials were notified of Chen’s flight to Beijing and on April 25, Secretary Clinton gave the authorization to sneak Chen into the embassy compound.  Secretary Clinton knew full well that by providing that approval, a throw-down with the Chinese government on the issue of human rights was certain and the ultimate outcome unclear. It is unfortunate – although not all together shocking given the current acrimonious status of politics – that Washington D.C. cannot view this moment as a proud one for America and its ideals; that the web of support that both parties have built for a human rights network in China over the years enabled Chen to come to our door.   Instead, it appears that what could otherwise be a proud moment for Americans, is becoming a political tug-of-war.

Who is Driving the Bus? The Chinese Central Government’s Lack of Control

Beep Beep! Who drives this bus??

What is perhaps the most shocking of all from this whole situation is the Chinese central government’s lack of control of local governments. Chen’s persecution has largely been conducted by the local government in his hometown, with local government officials still seething after his attempt to bring a lawsuit against them for forced abortions.  But even when Chen fled to Beijing, his safety could not be guaranteed, hence his changed desire to leave for the United States.  Many of his relatives left in their villages are being persecuted by local officials.  It makes one wonder – who really drives the bus in China?

Imagine a United States where Governor George Wallace could ignore federal law, have his way and continue segregation in his home state of Alabama.  Likely you can’t.  It’s unfathomable to think that a national government is unable to enforce its own laws, and in the case of China, that a supposed authoritarian dictatorship cannot control lower level party members.

Chen’s case reflects a center weaker than anyone previously thought.  And that is what is most frightening and should give people pause.  Does China really have the power to become a rising superpower or will it revert to its warlord past, where each city is governed by its own power broker and the central government remains impotent?

While China’s weakness appears to manifest itself often in human rights issues, it should not be just a concern for human rights advocates.  Anyone working in or with China – business people, government officials – should be troubled.  A weak center, especially as China undergoes an important leadership transition this year, does not bode well for China.

Prof. Jerome Cohen – The Fixer

On a final note, I want to focus on Prof. Jerome Cohen and his role in all of this.  As a research fellow for two years, I had the privilege of working

Prof. Jerome A. Cohen

with Prof. Cohen at NYU’s U.S.-Asia Law Institute.  In that time, I got to know a kind, brilliant man who never ceased to amaze me.  It was Prof. Cohen who first identified the ingenuity and necessity of Chen’s unschooled, “barefoot lawyer” approach in 2003 and deservedly catapulted him to the world stage.

While my two years with Prof. Cohen were filled with inspiring moments, I have never been more proud of him than I was with his handling of the Chen Guangcheng situation.  While this is all purely based on hearsay, it appears that it was Prof.  Cohen who got the U.S. and China out of what was becoming a crisis situation.  Prof. Cohen’s lifetime of experience with China, including high-level delegations soon after Nixon’s visit to China in 1972, allowed him to realize that all that was needed was a practical solution where everyone could save face: a scholarship for Chen to study law at NYU’s U.S.-Asia Law Institute and invitation for his wife and children to join him.

Now we wait and see.  The United States has approved Chen’s visa application and just yesterday he applied for his Chinese passport.  Although the Chinese government could renege on the deal, that looks increasingly less likely and ultimately not in their best interest.  It’s never a satisfying moment when one of your citizens essentially seeks protection from a foreign government for human rights abuses, but on some level, the Chinese government is likely happy that Chen, who has long been a rabble rouser and a cause célèbre for other Chinese rights defenders and foreign friends, is leaving the country.  Unfortunately for Chen and his family, he will likely never be able to return to his home country.

Chen Guangcheng to Study in United States – China to Agree

U.S. DEPARTMENT OF STATE

Office of the Spokesperson

For Immediate Release                                                                                       May 4, 2012

2012/707

STATEMENT BY VICTORIA NULAND, SPOKESPRSON

Chen Guangcheng

The Chinese Government stated today that Mr. Chen Guangcheng has the same right to travel abroad as any other citizen of China. Mr. Chen has been offered a fellowship from an American university, where he can be accompanied by his wife and two children.

The Chinese Government has indicated that it will accept Mr. Chen’s applications for appropriate travel documents.  The United States Government expects that the Chinese Government will expeditiously process his applications for these documents and make accommodations for his current medical condition.  The United States Government would then give visa requests for him and his immediate family priority attention.

This matter has been handled in the spirit of a cooperative U.S.-China partnership.

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