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By Elizabeth M. Lynch, May 13, 2014

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.

under the new leadership.  I think the anti-corruption campaign is probably a good example.  Personally I think it would be quite a mistake to see that as a new leadership coming in and trying to essentially provide or establish a basis for further-reaching reforms that ultimately end in this end-goal of the democratization or liberalization narrative which is a stable rule of law system with increasing political openness.

Because if you look at what actually happens in the anti-corruption campaign, I believe it would be really hard to deny that people who do end up being investigated for corruption are really those who have somehow lost protection from within the system.  It remains a party decision who will be investigated for corruption.  So another way and perhaps a more accurate way of seeing what is going on under this so-called anti-corruption campaign is actually a party purge, a party-internal purge that serves the ultimate goal of strengthening and centralizing control under the central leadership, and centralizing control by Xi Jinping.

So that is really very, very far from construction of the rule of law, which of course would also require some moves against corruption; but those would take the form of the use of the judicial process, an open process and a rule of law-based process.  All of that I don’t think we are seeing clearly at all.  Just think of the fact that high-ranking officials who are targeted are not processed through the judicial system but, rather, just as they used to be before, they are put under some sort of Party detention [known as shuanggui].

Corruption investigation and trial of another senior Party official, Bo Xilai

I think that tells us a lot about this liberalization narrative that you just brought up.  I think it’s a very powerful narrative and has been extremely attractive for essentially anyone who has tried to engage China from the outside, including many foundations, governments, institutions, who have tried to strengthen rule of law development in China over the past decade.  I think that from the perspective of these institutions and the individuals working with them, there are very powerful reasons – important reasons – for wanting to see this kind of incremental reform process that you mentioned, and to make constructive contributions to this process without at the same time alienating the authorities.

But for the reasons that I just gave, I don’t think that we see, that we have evidence from the ground that this is what is happening.  And of course that means also that this powerful, attractive but then somehow also a little bit anesthetizing narrative of gradual liberalization, just doesn’t work.

In China, amongst academic circles, I think you can see that reflected in a shift of vocabulary away from constant uses of the word ‘reform’ or ‘judicial reform’ – sifa gaige [司法改革].  I think that people are sort of becoming more critical of that idea [of reform] because they just reach a conclusion that it does not seem to be working.  They’re actually talking more broadly about ‘change’.  I think that what I would take away from that shift is that agency in change – legal-political change – does not necessarily lie with the government.  Increasingly the momentum has shifted to civil society, including the human rights movement.

EL:   Just one last question.  What do you see short-term for the future of human rights advocates in China.  Not long term just short term.  Do we see it getting worse or do you not even want to try to guess?

EP:  Well, I think that yes we do see it for the moment things getting worse.  I would be very pleasantly surprised if there was some

Can’t keep a good man down – the movement continues even as activists are arrested

loosening or lightening of the pressure.  The events of the past couple of weeks and months have sent very strong signals that it is quite likely that more lawyers will be detained.  We are now unfortunately finding that human rights defenders when detained can be exposed to very significant levels of violence.  Of course you mentioned the terrible case of the death of Cao Shunli.

I think that what is interesting is that despite all this repression, despite the worsening long-term crackdown, you also have a rise in numbers of human rights lawyers.  You have more and more lawyers showing solidarity with human rights lawyers and expressing a willingness to be called human rights lawyers, identifying with this human rights cause.  What I also find remarkable is that human rights lawyers are amongst the most optimistic people I speak to when I go to China.

EL:  I guess the increase in numbers gives us some hope amongst all this despair.  I want to thank you Prof. Pils for your time and for letting us know and trying to figure out what’s happening on the ground in China.  Thank you

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. 

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By Elizabeth M. Lynch, May 12, 2014

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

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 18^th-century-Europe notion of the individual who has rights against the state.  I think that looking at the history of the human rights movement [in China] that we just discussed, you could perhaps also say that Xu Zhiyong,  having tried for ten years to introduce beneficial changes in China through case-by-case legal rights advocacy, comes to the conclusion, around 2011- 2012, that now a new method of advocacy has to be tried; that rights advocacy in a way has to move beyond working on individual cases, and become more issue-focused and more explicitly political.

Teng Biao, organizing without organizations

So how do you do that in the context of a political system that very clearly does not allow a political opposition?  Like in other places in the world, the answer that seems to be emerging in China right now, as I see it, is to adopt forms of organization that are significantly different from what we’ve seen before.  Teng Biao, another very important scholar and rights advocate, has used Clay Shirky’s idea of organizing without organizations to describe what is going on here.  The idea is basically that you could achieve a high degree of coordination and  initiate various types of actions, civil society actions, without having a visible traditional organizational structure.  It’s also that in a new civil society political movement of this kind, you have to be very open.   You have to be the opposite of what characterizes, for instance, the rise of the Chinese Communist Party from its sort of underground years, to this moment when  it manages to control power.

An example of that [openness] would be, for instance, these so-called gongmin jucan [公民聚餐], the citizen meals that were organized by the New Citizen Movement.  The idea was really that you would somehow get people to distribute information about venue and time and so on online.  At some of the gongmin jucan, the new citizens meals that I have observed, it really was possible for people who simply had come across this information online to come along and join the meal.  It was entirely open towards anyone who wanted to show up.  That’s remarkable in the context of a system that, as you just said a while ago, scrutinizes everybody so much and has so much surveillance.  But the idea really was that this sort of openness represented a new form of political power that could be used to initiate some sort of change.  Along with that of course goes the idea that the activism of the New Citizen Movement must be non-violent.

EL:  Just in terms of numbers, what are we looking at in terms…how big would you estimate the movement is if you can even do that?  If you can, if you can. 

EP:  On the numbers, I have to say I don’t know.  Of course we have asked those various questions.  There is no very clear answer.

A New Citizen Dinner – From left to right: Guo Feixiong, Yang Zili, Xiao Guozhen, and Xu Zhiyong in a dinner gathering in Beijing. Photo Courtesy of Chinachange.org

Perhaps one could say that in 2013 we had in a number of say in around 30 or so different Chinese cities you had a total of a couple hundred people who were essentially initiating and organizing these meals.  And by the way the idea was basically that you had a meal being held at the same time in different locations all over China potentially.  So you had a couple hundred people.  Perhaps that means a few thousand people who would be willing to show up for one or two or more of those who would be in some way supporting the New Citizens Movement.  Perhaps it would be good if we had access to (I have not) the list of people signing the so-called gongmin chengnuo [公民承诺] – the citizens pledge – that was issued in 2010 and was kind of an appeal to citizens from all walks of life to essentially pledge to be a good citizen using this political idea that Xu Zhiyong stands for and others stand for.

Something else that perhaps you could consider would be the level of support that Gongmeng [Open Constitution Initiative], the organization co-founded by Xu Zhiyong, got for its activism for educational rights for migrant worker children.  As I recall, at the time it was said that in Beijing they would be able to essentially reach tens of thousands of migrant worker parents.  So, certainly they were thinking big.  They were thinking that they could reach out to potentially everyone.  And if you look at the composition of the citizen meals, it wasn’t just lawyers; it was not just scholars, lawyers, people with legal education or that sort of background.  It was also people who were petitioners or people who just took an interest in what was going on there.

Education of migrant children – major political issue in China

EL:  You raised the issue of education for migrant children as one of the issues, which would require a change to the hukou system.  And some of the other things of the New Citizen Movement advocates like more transparency of Chinese officials and their assets.  These are in fact the reforms that in the past year the Chinese government has stated that they are looking to examine or to adopt.  So it is seems like the Chinese government is sort of listening to the New Citizen Movement or at least their complaints.  But then, how do you mesh that with the fact that they’re arresting the advocates of that movement for disrupting public order.  What gives here?

EP:  I’m not so sure about that analysis.  I think that when you look at what the New Citizen Movement has advocated, yes of course you have some similarities to these reform policies announced by the Chinese government.  But, I don’t think that is by itself evidence that the government is following suggestions from the New Citizen Movement.  For one thing, these reform ideas were around long before the New Citizen Movement even emerged.

But perhaps more important is that you could also see this the other way around, and this is how it was analyzed by people involved in the various movements that you currently have in China.  People were saying that in some ways the New Citizen Movement had chosen to talk about causes that the government had already said it had adopted. That might be a way of coming across as a little bit less provocative than if you do what very clearly and visibly was done in the south of China  [in the context of] various movements around Guo Feixiong, another very important right advocate who is based in Guangzhou.  What you had there was really the use of much more aspiring and much more abstract political slogans: constitutional government, democracy, human rights — in those words.

So you have this very interesting discussion within these smaller sub-movements if you like, these groups within the human rights movement.  Some people were critical of the New Citizen Movement, saying that essentially it was not a good strategy to choose government slogans.  I remember one person saying basically that you shouldn’t think that the government is that stupid – those are his words – that ‘[you shouldn’t think that] just because you shout the government slogans they won’t come after you’   — they are not going to let you off just because you shout the identical slogans.

President Xi Jinping of China – listening to the New Citizens?

The reason for that [according to my interlocutor was that] as long as you make political demands of any kind they [the Chinese government] will assume that you want a share of the political power and that’s what the government won’t accept.  From that perspective, we were seeing an attempt to be a little bit less provocative by using campaign causes that were similar to the government, but that strategy essentially is not really working.  And I think that there is a whole lot more to say about the differences between what the New Citizen Movement, what other movements were calling for, and what the government has so far delivered.  For instance, when it comes to anti-corruption and so on.

EL:  So you wouldn’t say the government is co-opting the movement?

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

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

For Part 1 in this series, please click here.

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By Elizabeth M. Lynch, May 11, 2014

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

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

EP:  I think in terms of area, definitely there is a huge concentration in Beijing and also in a couple of other cities, in particular Guangzhou and of course also Shanghai.  But when you look at how they work and where they work, it is very important to see that they really work all across the country.   In the Jiansanjiang case you mentioned just before [the interview] you have a couple of human rights lawyers going to this extremely remote location in Heilongjiang with the purpose of freeing, or in any case providing legal support to, a couple of people who are extra-legally detained there.  That’s an example of what human rights lawyers do regardless of where they are based.

Is there something that unifies them?  My impression in having done so many hundreds of interviews over the past couple of years with, I suppose, a few dozen human rights lawyers, [is that] they are very diverse, they are very different in terms of their personalities, their approach to their work, and in some of their convictions.  But there are things that do unite them.  I think that for one thing, they see themselves as adopting different methods from what many other lawyers are prepared to do.  For instance, they reject the idea of wining and dining the officials concerned in their clients case to get results.  In that, they’re not different from a group of lawyers called sikepai [死磕派] lawyers, lawyers who are very uncompromising.  But what sets them apart from the sikepai lawyers is that they are willing to take on cases that nobody else will want to touch.  I suppose one good example for that is the cases of people who practice Falun Gong.   And thirdly, they [human rights lawyers]  have recently started identifying more clearly around political ideas.  They want democracy.

The more things change, the more they remain the same – 25 years after Tiananmen, still cracking down on dissent

EL:  Just in terms of the crackdowns that we are seeing and I think you talk a little bit about this in your previous answer.  There has always been a crackdown on dissent in the People’s Republic of China, even in the post-Mao era.  You see the 1978 Democracy Wall movement, there is a crackdown. You see the Tiananmen protests of 1989, there is a crackdown.  Should we be surprised that the same Chinese Communist Party is looking to crackdown on these rights defense lawyers and activists?

EP:  No.  No, we should not be surprised.  I don’t think that the lawyers are surprised either.  And I say this, although I just said that initially, in the 1990s, there was this official promotion of and use of the idea of rights defense.  There was, I think, for a couple of years, especially around 2003 when you had the famous Sun Zhigang incident, this notion that perhaps rights defense could mean a bold group of courageous lawyers, legal professionals, and legal academics sympathizing with them, persuading the State to introduce incremental reforms.  One of [these reforms], for instance, could have been to introduce some sort of meaningful constitutional adjudication  — whichever mechanism one would have used —  this would have made a potentially very great contribution towards making constitutional rights guarantees more effective in actual people’s lives and actual legal practice in China.

So, [until around 2003] you had that hope  — and of course along with that an expectation  — that the State would tolerate weiquan.  But actually very early on, from the moment almost when they started being successful, these weiquan lawyers also encountered repression.  I think we now understand better than perhaps a couple of years ago, that that was really based in a high-level perception that weiquan presented a political challenge and that consequently, it had to be controlled.

So, what has been happening  from about 2004 and especially over the past couple of years, has been a tightening of control, and the use of ways of trying to stop lawyers from engaging in weiquan.  I don’t think that anyone I have spoken to has been surprised by what has happened.

EL:  So in terms of the tightening of control, you mention that the Sun Zhigang case in 2003 is kind of a high point.  But then by

Locked Up for Four Years – Human Rights Lawyer Xu Zhiyong

2009, we see a government crackdown with Gao Zhisheng basically being abducted and being held incommunicado.  Also in 2009, you see the disbarment of activist lawyers like Tang Jitian and Liu Wei; you see Xu Zhiyong being investigated.  Then in 2011, with the Arab Spring, we see another crackdown.  Now, 2013, 2014, we are seeing perhaps the worst treatment of advocates.  So you were talking about how some of the responses [to weiquan lawyers] is coming from high-level.  I think a lot of people see these different crackdowns as separate incidents, just a knee-jerk reaction by the Chinese Communist Party.  But should we see it that way or should we see it as part of a larger trend?

EP:  I think that it is based in a decision that as I just said was essentially made in 2004 that they would have to be controlled and I think that basic attitude and policy has remained the same also before and after the recent changes in leadership.  So I definitely think this is part of a larger trend, yes.  I think that also the situation at the moment is worsening.

EL:  I think we can guess what it that the Chinese government is so afraid of.  But what precisely is it?  Is it the issues themselves or is it another power base that could take away power from the Party?  What is it that they are so afraid of?

EP:   Well, I think from the perspective of the Chinese authorities, or at least from [the perspective of] that part of the Chinese government that is entrusted with the task of stability preservation – of weiwen [维稳], it’s quite clear (and perhaps it is clearer to them than to lots of people outside and inside China) that the human rights movement of which human rights lawyers are of course an important part, stands for political ideas that challenge the Party’s political existence.

“Social Stability” at all costs

There is a perception also amongst the establishment that the current system isn’t viable unless it’s somehow changed.  But I think what leads to this attitude of having to crack down on human rights lawyers is that the establishment, the authorities, are completely reluctant to allow any civil society forces to take control of the changes that need to be introduced.  So, yes, there may have to be changes; but certainly we, the Party-State, want to stay in control of changes.  Another way of putting the same thing, I suppose, is to say that the tizhinei [体制内]forces, the system, the establishment, can’t accept the idea of accountability to people outside of the system; and in a way, it is not institutionally set up to accept that idea.  That of course means that the notion, the idea of political opposition, the idea of a free open political discussion of popular grievances, of the forces of social unrest, of the various contentious issues which you have in Chinese society right now is even less acceptable.

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

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By Elizabeth M. Lynch, May 9, 2014

For 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

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

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

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

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.

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By Elizabeth M. Lynch, April 13, 2014

In June 2012, Bloomberg News’ China coverage was considered cutting edge.  It’s China team had published  an investigative piece that unmasked the enormous wealth accumulated and hidden by current Chinese President Xi Jinping and his family.  For its courageous China coverage, Bloomberg won a prestigious George Polk Award here in the U.S.  But back in China, the accolades were less than forthcoming.  Instead, Bloomberg received the Chinese government’s retribution with its website blocked, its journalists experiencing increasing difficulty renewing their visas, and its computer systems penetrated by Chinese hackers.  Evidently it’s coverage hit a nerve.

Fast forward a little over a year and last November, allegations of self-censorship regarding its China coverage engulfed Bloomberg News.   According to unnamed Bloomberg reporters, editor-in-chief Matthew Winkler killed what would have been another investigative piece exposing the deep and corrupting ties between one of China’s wealthiest men and the top leadership of the

Matthew Winkler, Head of Bloomberg News

Chinese Communist Party.  Allegedly Winkler  feared that if the story was published, Bloomberg journalists would be kicked out of China and its China offices effectively closed.   Winkler denied the allegations, informing the New York Times that the piece had in fact not been pulled. Even with these denials, Bloomberg quickly suspended the lead reporter on the story and the executive editor of  Bloomberg’s investigative news division who also was an on its June 2012 China story, Amanda Bennett, left the company shortly thereafter   Coincidence or sign that journalism takes a back seat to business?  Recent events point toward the later.

Should We Be Surprised That Bloomberg’s Priority is Its Bottom Line?  

By early 2014, it appeared that things had died down for Bloomberg’s beleaguered China team.  But in March,  the accusations of self-censorship re-emerged.  First was Peter T. Grauer’s, chairman of Bloomberg News’ parent company Bloomberg LP, admission that some China stories it “should have rethought” when discussing Bloomberg LP’s China business.  Then, only days later, longtime Bloomberg employee and editor-at-large for Asia news, Ben Richardson, vocally departed from Bloomberg and explained to media critic Jim Romenesko that “[he] left Bloomberg because of the way the [November 2013] story was mishandled, and because of how the company made misleading statements in the global press and senior executives disparaged the team that worked so hard to execute an incredibly demanding story.”

Working at a Bloomberg Terminal

But while self-censorship – if that is what is going on Bloomberg – is always disappointing, in Bloomberg’s case, it shouldn’t come as a surprise.  Bloomberg News is only a negligible part of Bloomberg LP, at least revenue-wise.  Instead it is the Bloomberg Terminal, a computer that delivers real-time stock quotes, provides an electronic trading platform, and a widespread instant messaging service, that is king.  Bloomberg Terminals are ubiquitous at investment banks and hedge funds; those organizations would not be able to function without them.

At $20,000 a terminal a year, it is the sale of these terminals that account for the vast majority – around 80% – of Bloomberg’s revenues.  According to Dean Starkman, an editor at Columbia Journalism Review and author of The Watchdog That Didn’t Bark: The Financial Crisis and the Disappearance of Investigative Journalism, Bloomberg News was always meant to play a supporting role.  When Winkler founded the news division in the early 1990s, “Bloomberg was explicit about creating a new model, integrating business and editorial, where the two would work together” Starkman told China Law & Policy in a phone interview. In fact, according to Starkman, it was only in the last five to ten years, with the financial crisis, that Bloomberg News started to get more serious about journalism and rose in prominence.  It was in that period that Bloomberg News won various awards for its coverage in many parts of the world.

But when a company gets 80% of its revenue from a single product it is important that its other lines of business do not hurt that

Trader in Shanghai, not working on a Bloomberg Terminal

product.  Here, Bloomberg’s China coverage most likely violated that business tenet.  After the June 2012 publication, sales of the Bloomberg Terminals in China came to a halt.  But China, unlike the United States which accounts for 37% of Terminal sales and Europe which accounts for 35% of sales, is far from a saturated market.  In fact, China only accounts for a mere 3,000 Bloomberg Terminals (the tiny island of Hong Kong accounts for more than 20,000 Terminals).

To be shut out of China would jeopardize Bloomberg’s ability to increase its revenue, all at the time when its main competitor, Thomson Reuters, is gaining market share.   In 2010, Thomson Reuters sought to take advantage of the financial crisis by creating the Eikon, a cheaper competitor to the Bloomberg Terminal.  Although Eikon had a shaky start, its growth more recently has been phenomenal (but many in the industry still view it as inferior).  In 2013 it tripled the number of Eikon subscriptions to 122,000.  A scary prospect for Bloomberg.

Given that Bloomberg’s cash cow – sales of its Terminal – took a major hit after the publication of the article on Xi Jinping’s family wealth and that its battle with Eikon will be on mainland, it is not surprising that Bloomberg potentially killed another news article that would have hurt its bottom line.

Should We Be Concerned That Bloomberg is a Harbinger?

It’s no secret that the titans of the media world have taken huge hits with the influx of the internet.  The Graham family’s recent sale of the Washington Post to Amazon founder Jeff Bezos is one such example.  For the business side of journalism, it’s not just about the bottom line, it is about survival.  With this mindset, will every media outlet that covers China soften its coverage?

Dean Starkman, editor at the Columbia Journalism Review

“No” Starkman emphatically told China Law & Policy.  “[Bloomberg] is different from other media companies.  Other than Reuters, no other media company has as much to lose in China.”  Even when raising the issue of the New York Times and its Chinese language website which is blocked in China, Starkman was still optimistic.  “The New York Times doesn’t have to be there as a business; it’s just there as a newspaper.  There is no critical need for them to grow in China.”  Bloomberg on the other hand, very much has a need to grow its Terminal business in China.

For Starkman, the decline in ad revenue is precisely the reason why media organizations will be forced to provide hard-hitting coverage of places like China:  “The fact that news organizations rely more on subscribers [for revenue] makes it all the more imperative that. . . their news coverage remains uncompromising.”   By relying on subscribers, the game comes down to credibility – if you publish less than the truth, you will no longer be credible.  For the traditional media outlets like the New York Times and the Wall Street Journal credibility is paramount.  But as Starkman pointed out, if readers doubt Bloomberg News’ articles, it ultimately does not affect their business because they still have Terminals to sell.

For Starkman, it is this need for credibility that could potentially drive newspapers to do more investigative articles, not less.  “Investigative pieces cover something everyone knows about but it hasn’t been documented” Starkman told China Law & Policy.  Corruption in China was one example that he provided; it’s well-known fact but few have been able to document the evidence as powerfully as the New York Times and Bloomberg News.  “As the gap between what everyone knows and what you cover becomes wider, you lose your credibility.”

And it is true.  When it comes to China coverage, the go-to newspaper is increasingly the New York Times.  Why?  Because it is able to provide the in-depth, uncompromised coverage about what is really happening in China.  Part of this of course is resources.  As Bloomberg’s former editor-at-large, Ben Richardson told CNN, these type of investigative pieces are extremely expensive and difficult to produce.  Large media outlets like the New York Times and Bloomberg have these resources.

Another entity that has the money and expertise to publish investigative pieces on China’s corruption would seem to be the Wall Street Journal.  But they have yet to publish anything on China as in-depth as what the New York Times and Bloomberg covered.  Starkman did not blame this on self-censorship but rather a changed model of news reporting where shorter pieces predominate.  As the Columbia Journalism Review has documented, since Rupert Murdoch took control of the Wall Street Journal  in 2007, longer pieces have precipitously plunged.  “What’s the good of covering small incremental things if miss the one big thing”  Starkman mused.

Bloomberg’s apparent self-censorship is disheartening especially for the reporters who likely worked really hard on the piece that appears to have been killed (six months later it still has yet to be published).  But the Bloomberg Incident itself doesn’t signal the death knell for investigative journalism in China.  To maintain its monopoly on China credibility, the New York Times will likely continue its hard-hitting pieces for as long as China allows it to have journalists there.  It is that credibility that impacts the Times‘ bottom line.  Until of course Bloomberg purchases it.

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By Elizabeth M. Lynch, April 7, 2014

Today, the Congressional-Executive Commission on China (CECC) added two new witnesses to it’s April 8 hearing on the recent and severe crackdown on China’s rights activists.  If Prof. Don Clarke of GW Law School and Dr. Sophie Richardson of Human Rights Watch were not enough of a draw, the CECC just added Jewher Tothi, daughter of recently detained Uyghur scholar and activist Ilham Tothi and human rights lawyer, Teng Biao.

For those not in Washington, D.C., the hearing will also be broadcast live on the CECC’s website.

Hearing:  Understanding China’s Crackdown on Rights Activists
Date: April 8, 2014
Time: 3:30 – 5 pm
Location: 418 Russell Senate Office Building
Live webcast can be found by clicking here.

The hearing will also be archived on the CECC’s website.

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By Elizabeth M. Lynch, March 10, 2014

There are those pieces of art that are truly transformative; that can change the way you see the world and remind you of the humanity of this united struggle we call life.  Picasso’s Guernica is one such work.  Now there is Xu Bing‘s (pronounced Sue Bing) recent installation – Phoenix.

Housed in New York’s Cathedral of St. John the Divine, Phoenix is nothing less than iconic.  Back in 2008, Xu, who had just returned to Beijing after 18 years in New York City, was commissioned to create an art installation for a glass atrium in Beijing’s soon-to-be-completed World Financial Center.  It was Xu’s visits to the construction site that proved to be the inspiration for the work.  After seeing the paltry conditions for the migrant construction workers and the primitive construction techniques, Xu used much of the scrap left over from the site to create two massive and powerful phoenixes, an homage to those nameless workers who built one of Beijing’s most modern skyscrapers.

For those who have spent time in China, the materials that create the birds’ gritty skeletons are familiar: faded red, white and blue plastic tarps serves as wings, bamboo poles as the ribs, and old hand cement mixers for the birds’ heads.  But the message of these phoenixes is fresh.  As one of my companions noted, the simplicity of birds’ frames monumentalizes the laborers and workers who built one of Beijing’s fancier skyscrapers and who have largely been left behind.

But this was not a message that Beijing was ready for.  Reflecting how far removed the People’s Republic is from its socialist

The Phoenix Rises (click for larger image)

rhetoric, the real estate mogul who commissioned the work requested that Xu cover the phoenixes’ rough frames  with nothing less than crystals.  Fortunately, Xu, schooled in the Socialist Realism style, refused to change his art.

Since 2010, the Phoenixes, and Xu’s homage to those invisible workers who have literally built China’s new society, have traveled around the world.  But seeing the Phoenixes suspended in flight in the nave of a Gothic cathedral is truly spectacular.  It elevates an amazing piece of art – and the message that infuses it – to an almost sacred and divine realm.  As we walked the nave this past Sunday, studying all the construction site scraps that created the birds,  the choir practiced at the altar, giving the phoenixes an angelic feel.

Phoenix is on display through 2014 and should not be missed.  Admission to Cathedral is free but a suggested donation of $10 is politely requested (and well worth it to help support this piece as well as the Church’s important community outreach and services).

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By Elizabeth M. Lynch, March 3, 2014

The Obama Ladies – Set to Take the Middle Kingdom by Storm

While it might be true that a US President’s visit to China is more “strategic,” this impending trip to China scheduled by the First Lady sounds like a heck of a lot more fun.  With her mother and two daughters in tow (Sasha studies Chinese and practiced with Hu Jintao), this should be a very interesting cultural exchange trip.

While tensions have been rising between the US and China, especially in regards to the South China Sea, this type of good will trip can help to remind the people of the two nations that our relationship is more than just government-to-government; it is people-to-people.

To the Obama ladies – 一路平安 (Yee Lou Ping Ann – Have  a Safe Journey!)

THE WHITE HOUSE

Office of the First Lady

__________________________________________________________________________________________________________________________________________________________________

FOR IMMEDIATE RELEASE

March 3, 2014

First Lady Michelle Obama to Travel to China March 19-26, 2014

Mrs. Obama to Visit the Washington Yu Ying Public Charter School on March 4

The First Lady will travel to China from March 19-26, 2014. She will be visiting Beijing from March 20-23, Xi’an on March 24, and Chengdu from March 25-26. During her trip, the First Lady will meet with Madame Peng, the spouse of China’s President Xi Jinping. She will also visit a university and a high school in Beijing, and a high school in Chengdu. Additional details about the First Lady’s trip will be announced in the coming weeks. Accompanying Mrs. Obama on this trip will be her mother, Mrs. Marian Robinson, and daughters, Malia and Sasha Obama.

During the trip to China, as on previous international trips to Africa, Asia, Europe and Latin America, the First Lady will be focusing on the power and importance of education, both in her own life and in the lives of young people in both countries.

She will also be visiting important historical and cultural sites in China, and will share with students in the U.S. the stories of the students she meets in China, as well as interesting facts about China’s history and culture – emphasizing the importance of students learning from one another globally.

The First Lady is encouraging students and classrooms across the U.S. to follow her trip by signing up for updates throughout the visit. View the First Lady’s message to students here.

PBS LearningMedia and Discovery Education will offer engagement opportunities for young people surrounding the trip, along with resources available for U.S. classrooms that explore the culture, geography, current events and people of China.

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By Elizabeth M. Lynch, February 13, 2014

President Xi waving to the Chinese Olympic team during the Sochi Opening Ceremonies

Last week’s opening ceremonies were full of Russian stereotypes – ballet, nutcrackers, revolution, really bad techno.  But one image that was far from a cliché was the cozy relationship between Russian President Vladamir Putin and his Chinese counterpart, Xi Jinping.  Over at Concurrent Opinions, law professor and China expert Margaret K. Lewis, mused about what appears to be a deepening friendship and what this could mean for China.  Will Xi be wearing a tracksuit anytime soon?  Read Lewis’ post here.

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By Elizabeth M. Lynch, February 10, 2014

CL&P issues a correction

Yesterday, China Law & Policy published a post regarding New York Times reporter Austin Ramzy and the circumstances surrounding his effective expulsion from China this past January.  After the post went up, some readers emailed me to comment that my analysis may be wrong, in particular my examination of Article 14 of the Regulation on News Coverage by Permanent Offices of Foreign Media Organizations and Foreign Journalists (“Foreign Media Regs”).

Here’s the background.  On January 27, 2014, Ministry of Foreign Affairs (“MOFA”) spokesperson Qin Gang addressed the Ramzy situation stating that by not changing the status of his visa (presumably to a tourist or some other non-journalist visa) when he re-applied for a new press card with MOFA, Ramzy was in violation of the regulations.

As I wrote yesterday, Qin Gang’s assessment is correct under Article 14 of the Foreign Media Regs) if Ramzy’s prior press card with Time Magazine was “canceled.”  Article 14 reads:

The cancellation of the Certificate for Permanent Office of Foreign Media Organization in China and the Press Card (R) shall be made public.

The Journalist Visa of a resident foreign journalist whose Press Card (R) is cancelled automatically becomes invalid ten days after the date of cancellation.

A resident foreign journalist whose Press Card (R) is cancelled shall, within ten days from the date of cancellation, present the relevant certifying documents to the public security authority of his place of residence to apply for the alteration of his visa or resident permit.

I concluded that Ramzy, who was permitted to apply for a New York Times press card in June 2013, did not have a canceled press card,

When obtaining press cards were a bit easier: Edgar Snow’s press card for Beijing

making Article 14 inapplicable.  But a few emails came in, including from individuals with experience with press cards in China, that based on their experiences, it was more likely that Ramzy’s Time Magazine press card was canceled in order to apply for the New York Times press card, making Article 14 applicable.  Fox News also highlighted this reading of the Foreign Media Regs.

I stand corrected and I thank the readers who wrote to me.  Under Article 14 of the Foreign Media Regs, it does appear that when a foreign journalist in China switches employers and tenders her prior press card, that card is effectively canceled and to be in line with the Foreign Media Regs, the journalist presumably has to apply for a change in visa status.

But the reason why I still continue to hedge and question if Ramzy was in fact in violation of the law, as opposed to just these regulations, is because when read in conjunction with China’s Exit-Entry Administration Law (“Exit-Entry Law”), Ramzy’s situation is a little less clear.  The Foreign Media Regs do not address what happens when the prior press card is canceled but the journalist is waiting on a new press card to be issued.  But the Exit-Entry Law permits an individual to stay until the expiration of a residency permit even when an application for a new one was denied (see Exit-Entry Law, Arts.29 & 32).  Additionally, the Regulations on Exit-Entry Aministration for Foreign Nationals (“Exit-Entry Regs”), which further define the Exit-Entry Law, acknowledge that there will be times when the visa and residence permit process is delayed.  In those situations, the foreign national can rely on the “acceptance notice” from the Public Security Bureau (“PSB”) to lawfully reside in China until her visa or residency permit is processed (Exit-Entry Regs, Arts. 13 & 18).

Qin Gang, stepping up the game!

The Exit-Entry Regs do not apply to MOFA in its review of press cards, but did it take a page from the Exit-Entry Reg’s play book?  Did MOFA reassure Ramzy and the New York Times that with MOFA’s acceptance of the application, Ramzy could continue to reside in China on his Time Magazine visa and resident permit until the new press card was processed?  Article 21 of the Foreign Media Regs leaves it within the discretion of MOFA to determine the penalty, if any, for a violation of the Foreign Media Regs.  Unfortunately, emails to the executive and managing editors of the New York Times for clarification were not answered.

But at any rate, what the Ramzy incident reflects is that journalism just got a heck of a lot harder in China, especially for any news agency that seeks to cover sensitive issues.  Back at the beginning of January, Jill Abramson, the New York Times‘ executive editor, seemed to think things had blown over in China, that the earlier problems in securing journalist visas for their reporters had mostly been resolved.  But Abramson spoke too soon because with the Ramzy incident, the Chinese government just stepped up its game.

This is not the first time that the Chinese government has cited to law to provide a veneer of legality in its efforts to suppress criticism (or

Rights Attorney, Xu Zhiyong, recently sentenced to 4 years

more aptly suppress criticism that is not directed by the Party).  Chinese public interest lawyers and activists have been treated in a similar fashion.  Liu Xiaobo is likely the last activist the West will see tried for “subversion of state power” and since the lawless abduction of civil rights attorney  Gao Zhisheng, the recent prosecutions have been “in accordance with law.”  The Chinese government has become increasingly sophisticated in how it handles what it perceives as threats to its one-party rule.   In January, rights lawyer Xu Zhiyong was tried and found guilty for disturbing public order.  Back in 2010, civil rights lawyers Tang Jitian and Liu Wei were disbarred on highly technical regulations that govern the legal profession.  By turning to more administrative and technical punishments, the Chinese government can state that it is merely following the law, a defense it has come to realize the West finds a bit harder to counter.

Similarly, the Chinese government now appears to be using the same strategy with foreign journalists and the visa application process.  It’s a labyrinth of regulations, making it easy for the Chinese government to point to a violation.  With the Ramzy incident, foreign media outlets in China can no longer rely on the assurances of MOFA or even how things were done in the past.

Ramzy might have been the sole casualty of the New York Times-China feud for the 2013 cycle.  But his forced departure is a game-changer and should be a warning to the U.S. government and U.S. media outlets that they too need to step up their game; things are far from “blown over.”