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By Elizabeth M. Lynch, July 16, 2017

2010 Nobel Peace Prize recipient, Liu Xiaobo

This past Saturday, China Law & Policy marked the 8th anniversary of its founding.  But a commemorative birthday piece seemed inappropriate with the news that a few days earlier China’s only Noble Peace Prize winner, Liu Xiaobo, died in police custody.

Since the founding of this blog, Liu Xiaobo has been in jail. His crime?  His speech.  And in examining the Chinese government’s cruel response to Liu’s death, it is this speech that this aspiring superpower continues to fear.  Liu Xiaobo was not a murderer, a terrorist, and or even a revolutionary.  He was merely a Chinese activist, academic and public intellectual that for close to 30 years, used his pen to call upon the Chinese government to live up to its commitment to human rights; a commitment that China has agreed to by signing on to certain international treaties; a commitment that was written into the amended Chinese Constitution in 2004.

Liu’s most recent prison sentence wasn’t his first.  In 1989, Liu, who came back to China from a prestigious fellowship at Columbia University to support the students in Tiananmen Square, was sentenced to almost two years in jail for partaking in the movement.  When he was released, Liu lost his university position and his writings were

Liu Xiaobo (with megaphone) at the 1989 protests on Tiananmen Square. Later, Liu would be credited with brokering a peace with the troops to allow the couple of hundred of students left on the Square on June 4 to leave without bloodshed.

banned in China.  In 1996 Liu was  imprisoned for three years, this time in a Re-Education Through Labor camp, for a series of essays criticizing the Chinese government and calling for greater democracy for the Chinese people.  Then, in late 2008, Liu co-drafted a document known as “Charter 08.”  Modeled after Charter 77, the document that sparked the Velvet Revolution in Czechoslovakia, Charter 08, called for greater human rights in China, the end of one-party rule and an independent legal system.  Nothing terribly revolutionary. But for that, Liu was arrested, tried for inciting subversion of state power and, on Christmas Day 2009, sentenced to a harsh term of 11 years.  When he died last Thursday, Liu had only had about two years left on his sentence.  He hadn’t been heard from since his 2009 conviction.

But the silencing of Liu Xiaobo for the past eight years was not enough for the current regime.  When he was awarded the Noble Peace Prize in 2010, the Chinese government vehemently criticized the choice and placed his wife, Liu Xia, under unlawful house arrest, house arrest that continues to today.  The Chinese internet was censored for any mention of Liu and the state-controlled media was not allowed to report on his prize.

Liu Xiaobo and his wife Liu Xia in happier times.

And even though, according to his wife, Liu was diagnosed by prison doctors with hepatitis B as early as 2010, his hepatitis was allowed to fester into liver cancer.  It appears that that Liu was only given proper medical treatment when it was too late – when the antiviral drugs that slows down hepatitis B from becoming liver cancer would no longer work, when embolization of the tumor would no longer be effective and when surgery could no longer be used to save a life.  It was only when the cancer became truly incurable that the Chinese government permitted Liu Xiaobo to go to a hospital – under constant guard – and die with his wife by his side. But even in his dying days, he was still denied dignity; the state-controlled media released pictures of Liu in the hospital, maintaining that the state had only given him the best care.  They would not let him go abroad as he requested, likely fearing that he would use his final breaths to criticize the Chinese government.

The 2010 Nobel Peace Prize ceremony and the empty chair where Liu Xiaobo was to sit.

With his death on Thursday, the Chinese regime rushed to hold a funeral so that Liu’s friends and admirers could not make it.  By Saturday morning, Liu Xiaobo’s wife buried his ashes at sea, likely at the demand of the Chinese government so that it could ensure that a tombstone would not be erected and potentially serve as a pilgrimage site. Liu’s brother was paraded on state-run TV stating that the quick sea burial was the family’s wishes. Even in his death, Liu was used as a propaganda tool, with pictures of his shell-shocked wife standing by the coffin and mechanically lowering his ashes into the ocean.  Since Thursday, 1.4 billion Chinese people have experienced a news blackout on anything related to Liu Xiaobo. International news channels were pulled from the air, the state-run media has been ordered not to report on Liu’s passing and Chinese censors have been in overdrive, taking down posts with RIP and candle emojis as the Chinese people attempt to publicly show their respect to their countryman.

Thousands of mourners in Hong Kong hold a march in honor of Liu Xiaobo. (Photo courtesy of the Guardian)

China is the second largest economy in the world and most believe that it will soon supplant the United States as the Asia regional superpower.  But yet this is how it responds to the death of one critique in its midst.  A man whose only weapons were words and thoughts.  If China still wonders why it can’t successfully project soft power internationally, this is it.  While the Chinese government protests that it treated Liu with utmost care in prison, provided as much medical care as possible at the end, and permitted his family to hold a funeral, it still can’t ignore the fact that it imprisoned – and essentially killed – a man for his thoughts.  The last Noble Peace Prize winner to die in state custody was Carl von Ossietky, the 1935 winner who, in 1938, died in a Nazi concentration camp.  It’s never a good thing to be compared to the Nazi regime.

But even more troubling is that the Chinese regime’s suppression of Liu Xiaobo’s speech – both in life and in death – reflects a government that does not trust its own people.  Is Liu’s words going to cause revolution in the streets?  Probably not.  But yet they cannot be heard.  And in recent years, that distrust has only worsened.  Two years ago, the Chinese government conducted a nationwide crackdown on China’s civil rights lawyers, lawyers who use the legal system to protect people’s legal rights; nothing particularly revolutionary about that tactic.  And any civil society organization that becomes too successful, is shut down.  The Chinese people are left with no outlet to shape their own society and demand that their government live up to its ideals. Instead, the Chinese government distrusts anyone who it believes dissents.  But as Liu Xiaobo noted in the speech that was read at his Noble Prize ceremony, that enemy mentality will be a setback to progress:

Enemy mentality will poison the spirit of a nation, incite cruel mortal struggles, destroy a society’s tolerance and humanity, and hinder a nation’s progress toward freedom and democracy. . . . Freedom of expression is the foundation of human rights, the source of humanity, and the mother of truth. To strangle freedom of speech is to trample on human rights, stifle humanity, and suppress truth.

Impromptu memorial for Liu Xiaobo in Flushing, Queens, NYC (Courtesy of Facebook)

And Liu’s words and thoughts are not just ripe for the Chinese government right now but for all of us.  Especially as the current United States Administration focuses less on human rights.  On Thursday, President Trump issued a pathetic statement on Liu’s death through his press secretary. And only after he gushed about the greatness of China’s president Xi Jinping a mere hours after Liu’s passing.  It wasn’t just China who lost a hero on Thursday, but the world.  And the world needs the ideals of Liu Xiaobo now more than ever.  May you rest in peace Liu Xiaobo and may we find the courage to continue your struggle both in China and in the world at large.

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By Elizabeth M. Lynch, July 5, 2017

Courtesy of Asian Journal

Last week, a local court in Henan, China held that the involuntary commitment of a gay man in a state-run mental hospital was a violation of China’s Mental Health Law.[1]  The court required the hospital to make a public apology and to compensate the man 5,000 yuan (approximately $735)  for his mental anguish.  Across China, and in much of the West, civil rights groups have hailed this decision as historic; a victory against forced gay conversion therapy; a step forward for LGBT rights in China.

But is it?  The very fact that the court decided to hear the case – let alone find in the victim’s favor – is significant.  In China, to get to a trial date, you have to first make it past the Case Filing Division (立案庭), a department within the court system, staffed by judges, that examines, behind closed doors, the papers to see if the case should move forward. More politically-charged cases are often rejected by the Case Filing Division and thus, never make it to court.  But here, this case – a politically-charged case where the plaintiff claimed that he was involuntarily committed because of a diagnosis of “sexual orientation disorder” –  was accepted by the local Case Filing Division and thus, was considered important enough to be heard.  And the fact that a court held against a government-run hospital is a pretty big deal.

Courtesy of LGBTQ Nation

But the Court’s decision is not the sweeping condemnation of forced gay conversion therapy that the headlines make it out to be.  If anything, it shows the weakness of China’s Mental Health Law and the fact that involuntary commitment is still too easy a task with little to no immediate safe guards.

The Court’s Decision Does Not Mention Gay Conversion Therapy

Although the plaintiff raised the issue that he was being involuntarily committed for what he claimed the hospital diagnosis as a “sexual orientation disorder”, those are not the facts as the Court saw it.  Instead, the Court noted that the plaintiff was involuntarily committed for an anxiety disorder, never mentioning the plaintiff’s sexuality.  Further, its decision in favor of the plaintiff had nothing to do with the efficacy, morality or legality of gay conversion therapy.

Instead, the Court focused on Article 30 of China’s Mental Health Law, the provision that limits involuntary commitment to cases where the patient is in danger of harming himself or harming others.  Here, the Court noted the hospital’s written diagnosis which stated that while the plaintiff had suicidal thoughts, he was not going to act on those thoughts.  It was this act – the commitment of the plaintiff when he was not a threat to himself or others and in clear violation of Article 30 – that the Court admonished, not that the plaintiff was forced to undergo a mental health treatment to “cure” his homosexuality.

Under the Mental Health Law, Involuntary Commitment is Still Too Easy & Will Continue to Unlawfully Occur

If anything, this case lays bare the weaknesses of China’s Mental Health Law.  Enacted five years ago, the Law was seen as stopping the involuntary commitment of individuals who did not have a mental disorder, or if they did, not one that needed commitment.  In China, involuntary commitment was all too easy of a way for the police to deal with and silence political dissidents or anyone they considered to be “trouble.”  And initial drafts of the Law continued to permit involuntary commitment  if the individual’s behavior was deemed to be “disturbing public order” or “endangering public safety.”  But, in a victory for mental health advocates, the final version did not  include that basis.  Instead, involuntary commitment was limited to where there is a real possibility of harm to self or others.

But what the Mental Health Law did not change is the deference that the law gives to family members.  Article 28 of the Mental Health Law still permits family members to involuntarily commit an individual that the family member suspects has a mental illness.

Here, after the plaintiff attempted to divorce his wife, she and the plaintiff’s brother brought him to the mental hospital and recommended commitment, as they unfortunately have a right to do under Article 28. As family members, they were immediately declared the plaintiff’s guardians and thus were able to sign the involuntary commitment documents.

And that is the other problem with the current Mental Health Law, the ease by which a guardian is appointed. While the Mental Health Law gives a tremendous amount of power to an individual’s guardian, it provides no method for how that guardian should be appointed.  Instead, it is necessary to look to the General Principles of Civil Law which discusses guardianship for individuals with mental illness.

Unfortunately, the General Principles does little to flesh out the appointment process.  Instead, it makes clear the level of abuse that can occur.   Article 13 of the General Principles requires the appointment of an agent ad litem (a guardian) for mentally ill individuals who are “unable to account for his own conduct.”  But the law does not flesh out what “account for his own conduct means.”  Some individuals with mental illness may still be able to lead a relatively normal life and just need help in certain aspects.  But the General Principles is much more black and white; much more all-or-nothing and do not allow for that gray area that provides for some independence for an individual with slight assistance from a guardian.

Additionally, the General Principles provides no formal or independent process by which a guardian is appointed.  Basically, if a person wants to be a family member’s guardian, she can just declare herself as such (Article 17 of the General Principles pretty much limits guardians to family members although there is a provision for a work unit member).  Based on the General Principles and what happened in the case here, the process for guardianship in China is not an appointment process but rather a declaration one.  And there is no court oversight of this declaration of guardianship. Hence the ability of a soon-to-be ex-wife to declare herself guardian and commitment her gay husband to mental institution in a society that isn’t always the friendliest to LGBT lifestyles.

Finally, although the Mental Health Law does permit the patient to contest his diagnosis and demand a second opinion (see Article 32), that evidently did not happen here.  The Court did note that the commitment was over plaintiff’s objections, but there is not mention if there was a second opinion of his diagnosis as should have happened when the patient contests.  And again, without immediate judicial oversight of the commitment process, an increasingly massive failure of the Mental Health Law, abuse of involuntary commitment will continue.  Here, the plaintiff was only able to escape  after he was able to call a friend who called the police and then the police intervened and freed the plaintiff.  But if he wasn’t able to make that phone call, it is unclear when he would have been released.

What this case shows more than anything is that involuntarily committing – especially a family member – is still too easy and, five years after the passage of the Mental Health Law, is still being to readily abused.

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[1] China Law & Policy was fortunate to review a copy of the four-page decision.  This post is based upon our review of that decision.