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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, June 2, 2017

Bird’s eye view of Tiananmen Square

On Sunday, the sun will rise once again on Tiananmen Square, much like it did on the same Sunday 28 years ago.  But unlike that Sunday – June 4, 1989 – Beijing will not awaken to its city occupied by the Chinese military nor the streets surrounding Tiananmen Square littered with the dead bodies of unarmed civilians.

Instead, life will go on in China with no official acknowledgement of the anniversary of that fateful day 28 years ago when the Chinese government ordered its military to open fire on its own people. The exact number of people killed the night of June 3, 1989 into the early morning hours of June 4 is only known to the perpetrators of the massacre: the Chinese Communist Party (“CCP”). But whether it was a few hundred or a few thousand does not diminish the fact that peaceful protests were squashed with such a violent – and unnecessary – crackdown.

Hundreds of thousands gather on Tiananmen Square, June 2, 1989 (Photo courtesy of CNN.com)

Contrary to the CCP’s interpretation of events, the protests in Beijing were not counter-revolutionary attempts to undermine the CCP. And contrary to the Western media’s perceptions at the time, it was not an effort to bring Western democracy to China.  Instead, the protests were deeply rooted in China’s own history and tradition, a tradition of students conducting patriotic demonstrations in an effort to strengthen their country.

In 1989, those efforts were directed at the nepotism and corruption that was beginning to plague the CCP, the economic turmoil brought on by inflation, the lack of personal freedoms and government censorship.  While students started the protests, eventually, much of the populace joined in, with workers going on strike to support the movement.  By mid-May, the protests would draw over a million people on a daily basis. Neither the May 19 declaration of martial law nor the pleading by sympathetic leaders for protesters to clear the square stopped the protests.  And on June 3, 1989, Deng Xiaoping gave the order for the army to fire on the civilians.

Tanks roll onto Tiananmen Square, June 4, 1989

For a brief time after the crackdown, the CCP did acknowledge the event. Not to celebrate the brave men and women who gave their lives to better their country, but to condemn them. Slowly, however, the CCP’s policy changed and instead of trying to change the narrative of that night, the CCP chose to forget it.  Today, the Tiananmen massacre is largely scrubbed from the Chinese internet, it is not allowed to be discussed openly and many of the children born after 1989 do not know of the truth of that night.

But every year, there are still those in China willing to risk their freedom to commemorate the violent crackdown on Tiananmen Square.  A few years ago it was Chinese netizens reposting the image of the Tank Man – the Chinese citizen stopping a line of tanks, a banned picture on the Chinese internet – standing in front of a line of large, yellow rubber ducks.  The picture spread on the Chinese internet until the Chinese authorities got wind, and censored “yellow rubber duck.”  This year, it is four men who produced a Chinese rice wine with a label that references “6*4”, a shorthand for the June 4 crackdown, and calls on people to “never forget.”  While the bottle has been smuggled out of China by a sympathetic Chinese official, those four men are currently facing charges of inciting subversion of state power.

As much as the CCP may try, China will not forget the brave men and women who lost their lives on June 4, 1989.  For there are still enough Chinese people who are willing to put their safety on the line to ensure that that does not happen.

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By Elizabeth M. Lynch, June 19, 2016

Director Wang Nanfu did not intend to make the movie that became Hooligan Sparrow, the opening feature at this year’s Human Rights Watch film festival.  But it’s hard to avoid creating such a tour de force when you become enmeshed in the absurdity that is the life of a Chinese rights activist.

In spring 2013, Wang Nanfu (pronounced Wong Nan-foo) returned to her homeland of China to make a documentary about women’s rights activist Ye Haiyan, also known by her online name “Hooligan Sparrow.”  Since 2006, Sparrow has worked with China’s sex workers, providing educational materials on safe sex and advocating on their behalf, particularly for those who work in low-cost brothels that charge only a few U.S. dollars.  To bring greater exposure to sex workers’ plights, in 2012, Sparrow engaged in a bold campaign: working for a day in one of these low-cost brothels and providing sex for free.  Her campaign worked and soon she was on TV talk shows, explaining to Chinese society the discrimination that these sex workers face.  This is what Wang Nanfu intended to cover.  But when she arrived in China, Sparrow was on to a new justice campaign: ensuring that the pimping of schoolgirls to government officials on Hainan Island would be prosecuted.

In early May 2013, the principal of a local school on Hainan Island took six of his female students – ages 11 to 14 – to hotels where they were forced into sex with him as well as with a government official.  Although the story sparked outrage online, the local police initially claimed that the two men did not have sex with the girls, even though the parents uploaded pictures to the web which provided ample evidence that the two men did.

Sparrow with her sign: Principal: Get a room with me, leave the schoolchildren alone!

Sparrow and a group of other activists, including noted human rights lawyer, Wang Yu, leapt into action, immediately traveling to Hainan to protest outside of the girls’ school and demand the arrest of the principal and the government official on charges of rape.  Realizing that a trial in the media – especially the social media – is increasingly the only way to achieve justice in China, Wang captures Sparrow’s genius as Sparrow comes up with a slogan that she knows will go viral: “Principal, get a room with me, spare the schoolchildren!”  Almost immediately the picture of Sparrow holding that sign gets picked up by hundreds of netizens, and in a show of solidarity, many post selfies holding signs with the same slogan.  By the end of May, Sparrow’s campaign finds success and the two men are charged with “sex with underage prostitutes,” a charge though that is less severe than the crime of rape. For Sparrow, that charge is not enough, and she and Wang Yu continue their fight to eradicate the lesser crime of “sex with underage prostitutes,” arguing what people in China and the rest of the world know to be true: that any sex with a minor – be it paid or not paid – is not consensual and is rape.

This intense incident, with plainclothes police physically jostling the protesters, is only the start of what becomes an increasingly powerful condemnation of the current Chinese Communist regime.  Although Sparrow was successful in her protest – with the legal system prosecuting the principal and the government officials – the Chinese government, as Wang Nanfu skillfully documents, views Sparrow as anything but a success.  Instead, the full power of the regime comes down on Sparrow, and hard.  But, as Wang Nanfu beautifully captures, Sparrow is more than an activist.  She is also a single mother to a 12 year old daughter.  It is watching Sparrow’s relationship with her daughter – and the concern any mother would have for her child – that makes Hooligan Sparrow into more than a documentary about a rights activist and her movement.  It captures the human toll that such advocacy has on both the activist and her family. When Sparrow is unlawfully detained on trumped up charges in what appears to be a way to punish her for her Hainan protests, her daughter is largely left to fend for herself.  Once freed, government-hired thugs hold a protest outside of Sparrow’s home, calling her a prostitute and demanding that such a loose woman move from their neighborhood.  Sparrow’s daughter hears all of this.

Sparrow’s daughter, trying to get homework done while her mother gets arrested.

But slander against her mother is not the end.  Sparrow is eventually evicted from her apartment, a tactic that Chinese authorities increasingly use against human rights activist.  Why detain activists in violation of the law when you can put pressure on landlords to evict them and make their life one on the run?

What Wang Nanfu documents next is Sparrow and her daughter’s constant movement, looking for a place to live.  In one city, Sparrow is able to rent an apartment but the local school will not accept her daughter because of Sparrow’s activism.  Yet again, Sparrow is forced to move.  With each move their possessions become less and less until all they have is one backpack each.

The next city Sparrow moves to, the authorities already know she is coming, and in one of the movie’s most harrowing scenes, the film goes dark and only confused sound is heard as Wang Nanfu and Sparrow’s daughter run up the stairs to try to get into the apartment before their pursuers  can capture them.  In the black background, you hear Sparrow yelling at the authorities, unclear if there has already been a physical altercation but knowing if there was one, Sparrow was not going to win.

Sparrow can never win and that is one of the absurdities about the current regime that Hooligan Sparrow captures perfectly.  In any other society, Sparrow’s successful advocacy would be celebrated.  But in China, even when the regime adopts the exact measures advocated for, the rights advocate must still be persecuted.  In other words, if your cause is successful, it is that success that will be your downfall.  Which makes one wonder, how will Chinese society ever become more just if this is the catch-22 that rights advocates constantly find themselves in?  The Chinese Communist Party’s mantra is largely maintaining the status quo; reform that brings greater justice to society’s vulnerable is hardly a priority.  Even President Xi Jinping’s campaign against official corruption did not capture the corrupt government officials having sex with minors, a much more common occurrence than just an isolated incident in Hainan.

Director Wang Nanfu

But it is Hooligan Sparrow‘s poignant portrayal of the unnecessary suffering of Sparrow’s brave daughter that resonates the most.  How can a government do this to an innocent child?  To be on the run, to be rejected from schools, to be a social outcast at the age of 12?  It isn’t Sparrow that is the hooligan in all of this.  That title clearly belongs to the current regime.

To understand China today, Hooligan Sparrow is a must see.  Wang Nanfu has created a master documentary, one that rejects the staid interviews of the past and instead gets in the center of the action.  It is through her own brave film making that we can begin to understand the trauma of being a rights activists in China.  But it is also through Wang’s artful storytelling that one can also see their humanity, providing hope that Sparrow – and all the activists like her – will continue to go on.

Rating:

Next Showing: Washington, D.C. – June 23 & 26, 2016 at the AFI Docs Film Festival; showing in New York again in July and to be shown on PBS’ POV on  October 17, 2016.  Coming to a theater near you before then?  Check the film’s website here.

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By Elizabeth M. Lynch, May 15, 2016

Public struggle session during the Cultural Revolution

Tomorrow will mark an important anniversary in China, an anniversary that will neither be celebrated nor condemned by the Chinese Communist Party; an anniversary that can only be acknowledged privately, by the millions who lost much; an anniversary that is not admitted to by the perpetrators who destroyed so many.  For May 16, 2016 is the 50th anniversary of the start of China’s Great Proletarian Cultural Revolution, a decade-long, and ultimately senseless, political movement that shutdown Chinese society and resulted in the deaths of at least 1.5 million people, with tens of millions more publicly persecuted.

The Cultural Revolution began as a way for Mao Zedong to re-assert his leadership and consolidate his power.   Only eight years prior, in 1958, Mao launched what history would also determine a worthless campaign – the Great Leap Forward. Less than 10 years after establishing the People’s Republic of China, Mao was gung-ho to move China to the next stage of communism – complete collectivization of farming and industry.  China was nowhere near ready, resulting in one of the worst man-made famines of the 20th century, with over 30 million dying of starvation and other related disease.  With that debacle,  Mao, and with him, Mao Zedong Thought, were marginalized.  For a brief period in the early 1960s, more pragmatic communist leaders like Liu Shaoqi (pronounced Leo Sh-ao Chee) and Deng Xiaoping, took control.  Under their leadership, China pulled back from complete collectivization and permitted some economic liberalization, allowing society to get back on its feet.

Mao Zedong uses the Cultural Revolution to regain power and legitimize his ideology

But China’s development was short-lived.  On May 16, 1966, Mao, at a Party meeting, came out of his semi-retirement and announced the start of the Cultural Revolution.  In a notice to the Party – as well as to the Chinese people – Mao warned:

Those representatives of the bourgeoisie who have sneaked into the Party, the government, the army, and various spheres of culture are a bunch of counter-revolutionary revisionists. Once conditions are ripe, they will seize political power and turn the dictatorship of the proletariat into a dictatorship of the bourgeoisie. Some of them we have already seen through; others we have not. Some are still trusted by us and are being trained as our successors, persons like Khruschev for example, who are still nestling beside us.

What ensued were ten years of political purges, including the mysterious deaths of two of Mao’s rivals – Liu Shaoqi and Lin Biao (pronounce Leen Bee-ow), as well as criticisms, abuse and murder of millions of innocent Chinese people as Mao sought to rid China of its “bourgeoisie” elements.  Mao permitted Chinese society to resort to violence, carte blanche, to achieve his objectives.  Anyone who had a family history of privilege, no matter how far back or how minor, was a target.  As were intellectuals or anyone who did not appropriately parrot the words of Mao.  These “counter-revolutionaries” would be subject to public humiliation, physical abuse and, at times, death by the hands of their families, neighbors and fellow countrymen.  Many would also take their own lives.  Schools were disbanded, work was minimal and “struggle sessions” constant.  While the most violence erupted in the late 60s to early 70s, the Cultural Revolution was not over until Mao died on September 9, 1976.

OLYMPUS DIGITAL CAMERA

Although the Cultural Revolution is not fully taught in schools in China and government-supported amnesia is the status quo, stories of that bleak time still emerge.  The author Yu Hua has probably done the most to keep these memories alive.  “To Live,” one of his many books about ordinary people trying to get through the insanity of the Cultural Revolution, is a best seller in China and was made into a celebrated motion picture by the famed director Zhang Yimou.

But more recently, ordinary citizens are demanding that the Cultural Revolution not be forgotten.  Last month, on the eve of the Tomb Sweeping holiday in China, where families return to grave sites to pay their respect to their dead relatives, retired Chinese Supreme People’s Court judge, Cai Xiaoxue, explained in a blog post that he cannot.  During the onset of the Cultural Revolution, his mother, a teacher, was constantly interrogated by her colleagues, not permitted to return home and in June 1966, died in their custody.  Judge Cai’s family did not find out about her death until a month later, by which time her ashes were nowhere to be found.  In 1969, after undergoing constant and public humiliations, writing various self-criticisms, and being fired from his post at the publishing house because he was a “capitalist roader,” Judge Cai’s father took his own life.  Fifteen-year old Cai is the one who discovered the body and who, the next day, was required to attend a struggle session against his dead father.  He was forced to sit in the front row.

Today, Judge Cai has no ashes to honor on Tomb Sweeping Day.  His father’s ashes also were never returned.  But he has purchased a plot where all he was able to bury were his father’s writings and his mother’s clothes.  On the tombstone are carved only two words: Never Forget (勿忘).  According to Judge Cai, only by remembering the horror can China ensure that that nothing like the Cultural Revolution happens again.

President Xi Jinping, trying to be more Mao than Mao?

What makes Judge Cai’s story – and this 50th anniversary of the Cultural Revolution – particularly significant is that the current leadership has recently resorted to some of the methods used by Mao and the Red Guards.  Like Mao, current Chinese President and General Party Secretary, Xi Jinping, is intent on consolidating his power to a single man rule.  Through a campaign against corruption, Xi has rid the leadership of those he perceives as major threats (think Bo Xilai and Zhou Yongkang).  And these officials are dealt with outside of the legal system, through the Party disciplinary committee, with a court of law merely an afterthought and rubberstamp.  Public, forced confessions and self-criticisms – now on TV – have made a comeback.  And, for the past few years, deaths of dissidents while in police custody appear to be a yearly occurrence – Cao Shunli in 2014, Zhang Liumao in 2015, and now, this Friday, environmentalist Lei Yang (although he likely could not be called a dissident).

Never forget the horror of the Cultural Revolution

Will Xi Jinping return to the levels of violence that existed during the Cultural Revolution?  Likely not.  But even some regression, no matter how small, is a dangerous step.  As Judge Cai’s blog post reveals, the Chinese people suffered tremendously during the Cultural Revolution.  They do not need to do so again.

For another poignant story similar to Judge Cai’s, see the New York Times’ re-telling of the loss of Chen Shuxiang’s father and the mere $380 he received in compensation for his death.

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By Elizabeth M. Lynch, October 18, 2015

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.

But as the Leitner Center and the Committee To Support Chinese Lawyers‘ new and seminal report Plight and Prospects: The Landscape for Cause Lawyers in China reveals, in some ways, these arrests and detentions are the least of the human rights lawyers’ worries. Instead, Plight and Prospects makes clear that over the past five years, the Chinese government has quietly and methodically used a more effective means to limit the space for cause lawyers: the law.

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 (see China’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 (see CPL, 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.

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By Elizabeth M. Lynch, August 14, 2015

Owen Bennett Jones, on his new and insightful BBC radio show, NewsHour Extra, discussed the recent assault on China’s rights-defending lawyers.  Featuring Dr. Li Ling of NYU’s U.S.-Asia Law Institute, Prof. James Feinerman of Georgetown Law School, Prof. Eva Pils of Kings College London, barrister Philip Riches, and yours truly, the discussion proved lively if slightly pessimistic regarding the current crackdown on China’s rights-defending activists and their future under the current Chinese Communist regime.

Rights-defending lawyers Yu Wensheng and Teng Biao both give their assessments of the recent crackdown.

To listen to the show (55 minutes total), please click here: http://www.bbc.co.uk/programmes/p02yg6z4

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By Elizabeth M. Lynch, August 4, 2015

China’s President Xi Jinping, leading a major crackdown on China’s human rights attorneys.

For the past few years, the Chinese government – under the leadership of Xi Jinping (pronounced See Gin-ping) – has methodically targeted China’s human rights lawyers and advocates.  On a yearly basis, dozens of human rights lawyers, known in Chinese as weiquan (pronounced way-choo-ann) lawyers, are detained, some disappeared, and a few tried and convicted usually on the trumped up and amorphous charge of “picking quarrels and provoking troubles” (Art. 293 of China’s Criminal Law).  By focusing its energy on key civil rights advocates such as Xu Zhiyong (currently serving a four-year prison term for picking quarrels), Pu Zhiqiang (currently awaiting trial on picking quarrels) and Cao Shunli (died in police custody on a charge of picking quarrels), the Chinese government hoped the weiquan movement would cease from growing.

But it did not.  By the beginning of 2014, the number of Chinese lawyers who self-identified as part of the weiquan movement number around 200 (see Eva Pils, China’s Human Rights Lawyers: Advocacy and Resistance).  And this number does not include non-lawyer advocates.  These lawyers and advocates have taken on a variety of issues: disability discrimination, sexual harassment in public places, product safety, persecution of the religious group Falun Gong, and official corruption just to name a few.  While their causes are broad, their approaches are similar: use of the weiquan lawyers’ network; bold courtroom tactics; and use of the media – both traditional and social – to call on the government to abide by its own laws and protect individual rights.  It is these tactics and this message that the Chinese Communist Party (“CCP”) considers a threat to its rule.

Attorney Wang Yu

In the early hours of July 9, 2015, the Chinese government tried a new approach to rid itself of the weiquan movement.  Beginning with the detention of Wang Yu, a weiquan lawyer known for representing persecuted Falun Gong practitioners, public security authorities instituted a well-orchestrated, nationwide campaign where over 200 weiquan lawyers and advocates were apprehended and brought to various police stations throughout the country for interrogation.  According to Amnesty International, as of August 3, 2015, 232 advocates had been targeted in the past month with 27 still in police custody or just “missing.”  Their transgressions?  Zealously advocating for China’s most vulnerable.  Likely though the police will charge them with “picking quarrels” or “inciting subversion of state power.”

Not only is this crackdown unrivaled in its scale, it is also filled with a vitriol not seen since the days of the Cultural Revolution or the weeks after the Tian’anmen massacre. Wang Yu and her law firm, the Fengrui Law Firm, have been lambasted in the state-controlled media with the claims that Fengrui is nothing more than a “criminal gang” in “serious violation of the law (see also China Law Translate‘s translation of the infographic appearing in China’s Legal Daily).  Never before has a group of lawyers received such a public and broad rebuke.

Obama & Xi to meet in DC in September.

The Chinese government’s unprecedented and alarming attack on its weiquan lawyers comes only weeks before President Xi Jinping’s first state visit to the United States.  Many have called on President Obama to cancel the visit because of the detention of these lawyers.  But that would be a mistake.  Instead, President Obama should take Xi’s visit as an opportunity to highlight the United States’ commitment to public interest lawyering by inviting many of the country’s various public interest lawyers to a meeting with President Xi.  And not just the American Civil Liberties Union and the Center for Constitutional Rights, two organizations that repeatedly sue the federal government for its civil rights transgressions.

Everyday throughout the United States, legal services attorneys challenge the power of the state while simultaneously accepting the state’s funding.  In New York, to advance the rights of individuals with disabilities, MFY Legal Services, Inc. sued New York State for warehousing adults with mental disabilities in adult homes instead of integrating them in the larger community as demanded by the Americans with Disabilities Act.  In California, the Public Interest Law Project, working with local legal services organizations, has repeatedly sued various city governments for their failure to zone for  and finance the development of affordable housing, a requirement under California law.  The National Center for Law and Economic Justice sued various New York City agencies for failing to ensure that public benefits information was accessible to the visually-impaired.

Affordable housing, mental health issues, disability discrimination, these are all issues that China is currently grappling with and is why President Obama should highlighting the role that United States legal services attorneys have played in bringing these issues to the forefront and protecting these individuals’ rights in this country.  Even though these cases appear to challenge the government’s authority, in the end this approach is necessary to provide an escape valve for growing societal pressures.

Finally, if China wants to ensure that it remains hospitable to international business, it cannot round up weiquan lawyers, refer to them as a criminal gang, deny them access to lawyers (even though such a right is guaranteed by China’s Criminal Procedure Law), and detain them on trumped up charges. A functional legal system cannot be limited to just to business disputes.  A  legal system is only as strong as the protections it affords society’s weakest.  It is part of the reason why some of the legal services cases mentioned above were co-counseled with corporate law firms.  It is why the recent letter from New York City Bar Association President, Debra Raskin, to President Xi condemning his government’s recent round-up of public interest lawyers is essential.

State visits are highly choreographed affairs where words and actions matter.  Too often this means that words that directly criticize are not said.  But here, by inviting Xi Jinping to a session with U.S. public interest lawyers and their supportive corporate law brethren, such as Ms. Raskin, President Obama could get the message across that the Chinese government’s current behavior is not just in violation of its own law and international law, but is also self-defeating.  Individual claims must be heard; this is why the United States and every state government continues to fund legal services organizations that directly challenge them.

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By Elizabeth M. Lynch, June 3, 2015

An early photo of Wang Nan, late 1980s

Wang Nan (pronounced Wong Nan) is a 45 year old Beijinger.  Born in 1970, he has seen his city radically change under China’s economic miracle.  In fact, as a photojournalist, he has documented China’s unfathomable rise and has been fortunate enough to partake in it.  Wang Nan and his wife live more than comfortably in their renovated, Western-style apartment, where his photos from around the world line the walls.  He knows he has been lucky, and he will tell you that immediately when you meet him; even with his world travels, he is still a fairly humble man.  His 11-year-old daughter worships him even when he sings off key on their Sunday morning car rides to visit his mother.  His 78-year-old mother, like all mothers, criticizes him as soon as he arrives – his hair is too long, he’s too skinny, he spoils his daughter – her granddaughter – too much.  But like all mothers, she is proud of her son.  And Sunday is her favorite day of the week.

But Wang Nan is not 45 years old.  He has not shared in China’s economic miracle.  He does not have a daughter.  And he never sees his mother.   For Wang Nan never made it past the age of 19.   Instead, in the early morning hours of June 4, 1989, on the corner of Nancheng Street and Chang’an Boulevard – the Boulevard of Eternal Peace – a People’s Liberation Army’s bullet ripped through this high school student’s head.

As Louisa Lim recounts in her powerful book The People’s Republic of Amnesia, Wang Nan’s heart was still faintly

June 4, 1989, the aftermath of the Tian’anmen Crackdown

beating when doctors found him unconscious, bleeding from the head.  They wanted to take him to the hospital, but the soldiers forbade it.  Frantically, the doctors used their last bandage to cover his wound and stayed with him until he died two hours later.  With the sun rising on that June 4 morning 26 years ago and desperate to hide the bodies, the soldiers dug a shallow grave in the lawn of the nearby school and dumped Wang Nan’s body  there along with two other civilians.  There it would lie until a few days later, when the stench was overwhelming  and the dirt was beginning to wash away, the health department came to collect the bodies.

Wang Nan’s mother, Zhang Xianling (pronounced Zhang See-ann Ling), one of the founders of the Tian’anmen Mothers, has never been allowed to visit the spot where her son took his last breath.  Every June 4, she is held under house arrest, with police standing guard at her apartment door, refusing to let her leave or for anyone else to come in.  In a symbol of tormented anguish, she will communicate with the outside world on the anniversary of her son’s death by holding a photo of him out of her apartment window.

Zhang Xianling with a picture of her son, Wang Nan, killed on June 4, 1989

Twenty-six years later, as Lim poignantly recounts in her book, it is this impediment to remembrance and the Chinese Communist Party’s (“CCP”) complete control of the history surrounding June 4th that is perhaps the greatest tragedy of all.  And as Lim points out, it is not just the parents who lost children that are not permitted to remember.  Bao Tong (pronounced Bow (rhymes with pow) Tongue), director of China’s Office of Political Reform in 1989 and right-hand man to his mentor Zhao Ziyang, believed that Deng’s economic reform must be coupled with political reform, otherwise corruption would prevail.  After the Tian’anmen crackdown, it was those thoughts that were blamed for the student protests and resulted in a seven year prison sentence for Bao.  In 2005, when Zhao Ziyang passed away, the police, which constantly stand guard at his apartment, refused to let Bao attend the funeral.  When his elderly wife attempted to go, the police pushed her to the ground, causing her to break a bone.

It is this recounting of the people’s history and the ghosts that still haunt them, that makes The People’s Republic of Amnesia one of the most important and moving books about the Tian’anmen crackdown.  Lim also does an excellent and unbiased job of describing the precise events that lead up to the crackdown making the book a must read for anyone who wants to understand China’s history and the current leadership’s obsession with “social stability” and complete control.

But Lim not only tells the stories of those who witnessed the crackdown, but also those for whom June 4, 1989 has no significance, namely the babies born after 1990.  In one study that Lim conducted, only 15 out of 100 Chinese college students were able to identify the infamous Tank Man photo, a photo that epitomizes the Tian’anmen crackdown and that is perhaps one of the world’s greatest symbols of courage.  She follows a college student who goes to Hong Kong to try to understand Tian’anmen, but when he returns to China, he just seems confused and deflated.  And then there is the Patriot, a Chinese car salesman who goes to Beijing to participate in the government-sponsored protests against the Japanese.  Their failure and inability to know about the Tian’anmen crackdown demonstrates the true effectiveness of the CCP’s re-writing of the Chinese people’s history.

Or does it?  Yes, there is a generation of Chinese who have not heard of the Tian’anmen massacre.  And then there are others who choose not to care.  But to assume that the CCP can so easily erase this dark moment in China’s history is to deny the Chinese people their conscience.  There is still a generation of Chinese – those born in the late 1960s and early 1970s – who know about Tian’anmen because they were alive when it happened.  When this generation comes to power and can change the history, will they?  Yes they might be busy making money now, but they have yet to ascend to leadership roles that would enable them to disclose the truth and recognize the bravery of those who died on June 4, 1989.

Tens of thousands march in Hong Kong last year to commemorate the 25th Anniversary of the Tian’anmen Massacre

There are the 11 Chinese college students, currently studying in various universities in the United States, the United Kingdom and Australia, who wrote an open letter to the Chinese people to communicate what happened on June 4, 1989.  The government-controlled Global Times responded with an op-ed condemning these students.  Like the students of 1989, these students have chosen to jeopardize their futures in China in an attempt to get the CCP to acknowledge June 4.

And then there are those – like the doctors who tried to help Wang Nan as he laid dying or the medical intern who, knowing the danger, gave Zhang Xianling her son’s last effects, or the individual who took out an ad in 2007 in a Chengdu newspaper stating “Paying tribute to the strong(-willed) mothers of June 4 victims” – who, when confronted with the choice, will do what is morally right, not what is politically expedient.

For these people, the world must continue to remember June 4, 1989, so that when the Chinese people themselves can commemorate this anniversary on their own terms, the memory will still be there.

Rating:

The People’s Republic of Amnesia: Tiananmen Revisited
By Louisa Lim
(Oxford University Press, 2014)
211 pages

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By Elizabeth M. Lynch, March 15, 2015

While the rest of the world celebrated International Women’s Day (March 8) with gender equality marches, women empowerment conferences, and female-oriented concerts, the Chinese government opted for a decidedly different approach: detaining a number of Chinese women activists.

On March 6 and 7, 2015, in various cities across China, public security officials rounded up at least 10 women, each of whom sought to mark International Women’s Day with a nation-wide campaign highlighting the increase in sexual harassment on public transportation.  Their goal?  To pass out leaflets and stickers calling for the end of such sexual harassment and for the police to take some action against sexual harassment on public transportation.

One of the five detained, Wu Rongrong, founder and executive director of the Weizhiming Women’s Center in Hangzhou

While five of these 10 women have been released, five were officially criminally detained on Friday allegedly under the Chinese government’s increasing catch-all for ideas and speech it does not like: “picking quarrels and provoking trouble.” (Article 293(4) of China’s Criminal Law).

“It is extremely alarming that these five young women have been criminally detained for ‘picking quarrels and provoking trouble’” Dr. Leta Hong Fincher, author of Leftover Women: The Resurgence of Gender Inequality in China, wrote in an email to China Law & Policy.  “The women were merely planning to commemorate International Women’s Day by raising awareness about sexual harassment on public transportation – hardly an issue that would threaten the central government’s power or social stability in any way.”

In fact, the Chinese government itself has noted the growing problem of sexual harassment – including groping, rubbing and pictures taken under one’s skirt – on public transportation.  Unfortunately, instead of stepping up law enforcement of this quality-of-life crime, the Chinese government has largely left it to women to combat this harassment, urging female riders to forgo wearing mini-skirts or “hot pants” and looking to have women-only subway cars during rush hour.

Another of the detained, Wei Tingting (right), 27 and director of Ji’ande, an LGBT rights organization based in Beijing

“The detention of these women reveals the hollowness of [the] Chinese government claims of commitment to gender equality, particularly as China prepares to co-host the 2015 Global Women’s Summit at the United Nations, and the world marks the 20^th anniversary of the Fourth World Conference on Women in Beijing” Dr. Hong Fincher wrote to China Law & Policy.

But if you think detaining people for leafleting an issue we can all get behind is scary, here is the real frightening part: these five women – Wu Rongrong, Zheng Churan, Wei Tingting, Wang Man and Li Tingting – never actually committed a crime, even under Chinese law.  By detaining these women prior to March 8 – when they were going to distribute their stickers and pamphlets – the women never caused a public disturbance as required by Article 293 of China’s Criminal Law.  Pu Zhiqiang, Cao Shunli, Xu Zhiyong, all detained, arrested or jailed for “picking quarrels and provoking troubles,” were at least able to partake in their “public disturbance” before the authorities took them away.  These women did not.  At most, in their attempt to make this a nation-wide campaign, they amassed an online following, all eager to partake in the March 8 events.

One of the detained, Zheng Churan, 25, and staff member of Yirenping based in Guangzhou

But, as Jeremy Daum at China Law Translate has noted, the Supreme People’s Court (SPC) and Supreme People’s Procuratorate’s (SPP) Joint Interpretation of Article 293 (July 2013) makes it clear that causing a disturbance by picking quarrels must happen in some kind of public venue – a bus station, a market, a train station, a park, or “other public venue.” In prosectuting an Article 293(4) case, the courts are required to analyze the totality of the circumstances, including the type of public venue, the number of people attending the event, etc.  (See Article 5 of the Joint Interpretation of Article 293).

Further, as Daum has highlighted, even the SPC’s and SPP’s controversial Joint Interpretation on Internet Speech Crimes (Sept. 2013), which does interpret Article 293(4) of the Criminal Law, would only apply in situations where the individual has spread rumors on the internet or other online network.  The only public prosecution under Article 293(4) involving the internet – the case of blogger Qin Houhou – is precisely this situation.  In addition to being charged with violating Artcile 293(4) – the picking quarrels provision – Qin was also charged and convicted of criminal slander.

Another detained activist, Li Tingting, 25 and Beijing-based manager of the LGBT program at the Beijing Yirenping Center

By criminally detaining these women, the Chinese police have stepped up this game, making a formal arrest and prosecution more likely.  While prosecution under Article 293(4) usually has a maximum prison sentence of five years, that sentence can be extended to 10 years where the defendant organizes others to commit the disturbance multiple times.  Given that these women likely were the organizers of the event, a 10 year prison term is a possibility.  Even though the current charge is groundless under Chinese law.

On Friday, the U.S.’s Ambassador to the United Nations, Samantha Power, tweeted her disgust with the Chinese government’s detention of Wu Rongrong, Zheng Churan, Wei Tingting, Wang Man and Li Tingting.  But the United States, and the rest of the world, must maintain this rhetoric.

Fifth detained activist, Wang Man, Beijing-based coordinator for the Global Call to Action Against Poverty (GCAP).

Twenty years ago, in Beijing China, Hillary Clinton ignored Chinese pressure to soften her remarks at United Nation’s Fourth World Conference on Women.  Instead, she rocked the world by forcefully stating that ” human rights are women’s rights, and women’s rights are human rights, once and for all.”  It’s time that Secretary Clinton, a potential presidential candidate, renew that sentiment and call for the release of these women – innocent even under Chinese law.

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By Elizabeth M. Lynch, January 1, 2015

President Xi Jinping taking his cue from the Queen

For the second year in a row, China’s president, Xi Jinping (pronounced See Gin-ping) has taken a page from democracy’s playbook addressing the Chinese people directly in an annual New Year message broadcasted throughout the country. Think the Queen’s annual Christmas message but without the pearls, British accent or lavender dress.

This year, Xi spoke with more confidence about the direction of his rule: deepen reform, continue the corruption crackdown and rule the country in accordance with law. Expect 2015 to bring more corruption inquiries against Chinese Communist Party members both high and low. But what should be made of “rule the country in accordance with law ” (依法治国)? According to Xi, rule the country in accordance with law should “safeguard the rights of people” and “maintain social justice.” But since taken power, Xi has made it clear that this “safeguarding” and “maintaining” is to come from the Party itself, not from the people.

Rights activist & Lawyer Teng Biao

Unlike the U.S. President’s weekly radio address, there is no opposition party response because in China, there is no meaningful opposition party. But if anything comes close to countering Xi’s speech it would be Teng Biao’s (pronounced Tongue Beow) recent op-ed in the Washington Post. Teng, a Chinese human rights lawyer, notes the hollowness of Xi’s mantra of “rule in accordance with the law” in light of the fact that civil rights activists and lawyers have repeatedly been persecuted, prosecuted and in the case of citizen activist Cao Shunli (pronounced Tsow Shun-lee), killed in custody.

Teng also highlights the limitation of reform in China. Contrary to Xi’s speech, legal reform – or at least the version Xi seeks to implement – is not about the people’s rights. Rather it is a way to enhance the Party’s legitimacy. Even the anti-corruption campaign is not about officials following the law; it is a necessity for the Party to maintain its power. But ultimately, if these reforms are to have true success, they will have to undermine the Party’s rule.

Good Times! Facebook founder Mark Zuckerberg with Chinese Censor Extraordinaire, Lu Wei

While Teng warns of Xi’s empty promises, the question still remains, does anyone – especially business leaders – care. China has become a huge market force that cannot be ignored. Mark Zuckerberg, founder and CEO of Facebook appears to be toying with the idea of entering the Chinese market even though under Chinese law he would be required to conduct the Chinese government’s censorship of Facebook in China. In early December, Zuckerberg appeared to be making nice with China’s censorship regulator Lu Wei (pronounce Lou Way), meeting him in Facebook’s California office and  informing Lu that he has been reading the collection of Xi’s speeches (including conveniently leaving a copy on his desk).   But could Zuckerberg’s feelings for Xi be mutual? In his New Year speech, Xi used the internet slang “dian zan” (点赞) (pronounce dee-ann zan) to give the Chinese people “thumbs up.” But dian zan – literally meaning to “click praise” – is specific to the social networking age and came into being to refer to the “Like” button in facebook. While a dian zan – like – button is also used by China’s Weibo users, could Xi’s reference be a signal that he will be opening a Facebook account in 2015?

Watch Xi’s New Year 2015 Address With English Subtitles: