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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, May 5, 2016

One of the cave replicas at the Getty’s Dunhuang exhibit

For close to 1,000 years, Dunhuang, an oasis town in western China, served as the crossroads of the world, with art that reflected its cosmopolitan nature.  Much of that art is found in the Mogao Caves located just outside of the town and reflect the development of Buddhist art in China from 400 AD to approximately 1400 AD.  Fast-forward to today and Dunhuang is a virtual unknown to most Americans.  Its hypnotic cave art completely forgotten by the world at large.

But starting this Saturday, the Getty Center will change this status quo, bringing the jewels of Dunhuang to North America in a magical exhibit that is not to be missed.  Cave Temples of Dunhuang: Buddhist Art on China’s Silk Road contemplates the Getty’s 25-year history conserving this amazing art and supporting the Dunhuang Academy, a Chinese-based organization created in 1944 to preserve the Buddhist cave art of Dunhuang.

A westernized figurine in one of the earlier caves

Cave Temples of Dunhuang is broken down into three parts.  The first portion is a perfect replica of three caves – Cave 275, Cave 285 and Cave 320.  Surrounded by imposing Buddhist statues and with walls covered with Buddhist art, together these caves show the development and siniciziation of Buddhist art.  In Cave 275, western artistic influence is apparent, with one statute displaying clear Western features.  Cave 285 includes Hindu deities as part of the Buddha’s court.  But by Cave 320, the art is clearly Chinese.  It is also the height of Chinese art.

After visiting the caves, you are escorted to the second part and it is likely this part that will serve as the biggest draw.  It is probably the reason why the Getty is extending its weekend hours.  Instead of physically replicating the caves, the Getty commissioned yU+co to create a 3-D, immersion copy of one of the Mogao Caves.  After donning 3-D glasses, you are escorted to a dark room and soon, you are flying around Cave 45, stopping periodically on a statute or painting on the ceiling, with the narrator explaining the religious significance of each piece.  It is a fun way to see this art and an amazing experience.  It is also likely the way of the future for museums shows.  Or at least those that can afford it.

But it is the third part – the most traditional – that truly showcases the gems of this exhibit.  After 1400, the Mogao Caves were largely closed, forgotten and covered by sand.  But in the early 1900s, western explorers re-discovered this area.  With China in the throes of dynastic decline and revolution, these explores absconded with some of the best art – paintings on silk, ancient manuscripts, instructions on how to paint the caves – all of which had been perfectly preserved in a sealed up cave known as the Library Cave.  These masterpieces largely sit in storerooms of British and French museums.  The British Museum, which has the most artifacts from the Library Cave, has none of these pieces on permanent display.  The French museums also rarely show their Dunhuang pieces.  While these museums argue that exposure to the light would destroy these delicate artifacts, one wonders if, in 2016, that is still the real reason why only a select few are permitted to see these amazing pieces of art and important relics of world history.

How did all those tiny Buddhas get to the ceiling? The Getty explains

Fortunately, the Getty was able to borrow many of the treasures of the Library Cave and has displayed these for visitors to see.  The Diamond Sutra, the world’s oldest printed book, is on display, as are writings reflecting the various religions practiced in Dunhuang – Hebrew scripture, a Christian psalm translated into Chinese.  But the paintings on silk are truly mesmerizing, with bold colors and patterns that hold your attention.  One painting on silk seems more like an art deco piece of the 1920s than a piece from 700 AD, making one realize that some conceptions of beauty never go out of style.  Once the Getty closes this show and returns the art, these are pieces that will likely never see the light of day again which is truly a travesty.  This alone is a reason to see this show.  But the final part of Cave Temples of Dunhuang ends with an explanation of how these caves were built, the lives of the artisans and how exactly they did all of this, allowing the visitor to better understand the people who commissioned

1920s Art Deco or 700s Tang Dynasty?

and built these caves.

Through Cave Temples of Dunhuang: Buddhist Art on China’s Silk Road, and the care that went into creating such a breathtaking show, the Getty Center’s dedication to preserving this important world cultural site and sharing its beauty is clear. And unlike its British and French museum counterparts, the Getty understands that this important art must been seen by the world at large.  Cave Temples of Dunhuang also does a wonderful job of explaining the religious and historical significance of the art and perfectly captures why Dunhuang is still an important site.  If you are in Los Angeles this summer, be sure to put this at the top of your list.  You won’t regret it.

Rating:

Cave Temples of Dunhuang: Buddhist Art on China’s Silk Road
May 7, 2016 – September 4, 2016
The Getty Center
1200 Getty Center Drive
Los Angles, CA 90049
***During the Exhibit, the Getty will stay open late on Fridays, Saturdays and Sundays***
Note that tickets for the physical and immersion caves are timed but the exhibit of artifacts can be seen at any time.

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By Elizabeth M. Lynch, February 4, 2016

Happy Year of the Monkey!

If last year’s Year of the Sheep was a little too sleepy for you, have no worries because Monday, February 8 ushers in the more exciting, flamboyant, roller-coaster ride known as Year of the Monkey.

For those born under the monkey sign, you are considered clever, energetic, playful, rarely embarrassed and the life of the party. With the desire to lead, sometimes the monkey can be self-centered and bossy, and at times arrogant. Monkeys always believe that they are right. Which can be dangerous as such a winning personality can often convince others to follow along even if it isn’t the best idea. But with a monkey, you will always have a lot of fun. Some famous monkeys: Julius Cesar, Danny De Vito, Elizabeth Taylor, Tom Hanks, Delta Burke, Will Smith, Eleanor Roosevelt and Leonardo Da Vinci. Maybe not all party animals but certainly influential.

2016 – the Fire Monkey!

But what does the Year of the Monkey mean for the world at large? To understand that, we need to understand a little bit more about Chinese astrology, or what Feng Shui master Raymond Lo has called a “fascinatingly accurate system.” The year’s animal sign only tells us so much. What also matters is the internal “element sign” of the animal and how it matches up with the element for that year. Each one of the 12 zodiac animals has an internal element from the five Chinese elements (wood, fire, earth, metal and water). For monkeys, the internal element is always metal. But each year also consists of an element. 2016 is fire. Hence, 2016 is known as the Fire Monkey.

And here in lies the rub. According to Raymond Lo, fire, the element for 2016, and metal, the internal element of the monkey, are in conflict, so 2016 will be no barrel of monkeys. Instead, expect international conflicts and clashes, but not to the level of 2014 and 2015. Because fire sitting on metal is also considered a “setting sun,” bringing optimism and warmth, expect conflicts to peter out quickly and end with successful treaties and agreements.

Happy New Year!

How will you do this year?  Check out your personal horoscope here (note you may have to do a Bazi test to determine the strength of your birth year element.  You can do that here – note that birth date is entered day-month-year). But at the very least, to ensure that the good luck of the New Year stays with you all year, here are some things to avoid on February 8 and the 15 days after, when the “Spring Festival” is ultimately concluded with the Lantern Festival: avoid sweeping (to avoid sweeping away your good luck), no collection of debts, avoid borrowing money (if you start the year borrowing money, you will be doing that all year long), do not use scissors or knives on the first day, don’t do laundry and never chop wood.

So to all our East Asian friends, we wish you a happy, healthy and prosperous New Year! For our Chinese friends: Xin Nian Kuai Le! (pronounced Sin Nee-an Kuai Le!). To kids in New York City’s public schools, enjoy your first (hopefully of many) Lunar New Years off!

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By Elizabeth M. Lynch, January 20, 2016

Will these fake gay marriages in China become real?

For China’s LGBT community, Tuesday, January 5, 2016 proved to be a historic day: the first case challenging the ban on gay marriage was accepted by a Chinese court. While it might not sound like a triumph, in a legal system ultimately run by the Chinese Communist Party, getting a case officially “accepted’ is usually considered a major step forward on the road to victory.

Or is it? Does this “case acceptance” signal a regime that is ready to accept gay marriage? Or is there something more? Given the recent criticism of the attorney who is handling the case, likely not.

In China, A Court “Accepting” Your Complaint is Not Given

In the United States, filing a court case is exclusively a technical affair. You bring your summons, complaint and filing fee to the court’s clerk office. The clerk, almost always a non-lawyer, might examine the papers to ensure you signed the summons and the complaint, that you brought enough copies and that the check is the right amount, but as long as your ducks are in a row paper-wise, the clerk will accept your case, give it an index number and then spin the wheel to assign a judge. Your case is now in the system and will be heard by a judge. All substantive and procedural arguments – that your claims are bogus, that you sued the wrong person, that you are outside the time frame to file the suit or that you don’t have enough evidence – will be raised by the other side, through a motion and hearing before the trial judge.

Let’s file a case!

But since the early 1990s, China has been different from the U.S. (see Nanping Liu & Michelle Liu, Justice without Judges: The Case Filing Division in the PRC (2011). Under China’s Civil Procedure Law (which governs cases between two private entities) and China’s Administrative Procedure Law (which governs lawsuits brought against a government agency or actor), filing a case, even if your papers are technically proper, is insufficient to get it in the court system. Instead, the Case Filing Division (立案庭), staffed by judges, would examine some of the substantive and procedural aspects of your case – does the plaintiff have an interest in the matter, is there a specific defendant, are there specific facts, claims and causes of action and is the case brought in proper court, geographically (Civil Procedure Law, Art. 108; Administrative Procedure Law, Art. 41). All of these issues, which in the United States would be raised in a motion to dismiss, would be determined by the judges in the Case Filing Division, behind closed doors and generally with no argument from either side. If the Case Filing Division rejects your case, it does so with a mere cite to the law and with little to no explanation.

It was this lack of transparency that proved problematic in more politically-charged cases. With a Party-controlled legal system, the Party was able to use the Case Filing Division to reject cases (or just have them sit there without ever issuing a decision) so as to ensure that certain issues would never have a public airing by reaching a courtroom. While some experts estimate that only 1 to 2% of cases are rejected by the Case Filing Division, in a country the size of China, that amounts to tens of thousands of cases a year. So for a more controversial case to make it through the Case Filing Division, that was a good sign.

Recent Changes to the Case Filing System

Coat of arms for the Supreme People’s Court

But starting in May 2015, that calculus may no longer apply. Likely sensing that denying access to the courts is not the best way to raise the people’s confidence in their court system, in early 2015, the Supreme People’s Court (“SPC”) made reform of the Case Filing Division a major focus of its agenda. On May 1, 2015, new regulations on case filing took effect.

Under the new regulations, the Case Filing Division no longer “reviews” any of the merits of the case. Rather it’s role is just to “register” the complaint after the Division ensures that the complaint is compliant with the technical aspects of the law. Decisions whether to register the complaint are encouraged to be made “on the spot” (SPC Case Filing Regs, Art. 2 & 8). If more time is needed, then the Division must follow the statutory deadlines of responding to the request. If any review demonstrates that the complaint does not meet the technical requirements, the Case Filing Division shall issue a written statement explaining all the deficiencies (so no more piece meal requests for more information from the party that was usually used to needless delay the decision on whether to accept the case), and affording the party the opportunity to amend the complaint so as to meet the case filing standards (SPC Case Filing Regs, Art. 7).

It’s under these new regulations that China’s first gay marriage case was accepted by the Furong district court in the city of Changsha in central China. According to a press release from the Chinese non-profit, Yirenping[1], plaintiff Sun Wenlin (pronounced Swen When-leen) sought to bring a complaint against Furong District’s Civil Affairs Bureau which, in June, denied his and his boyfriend’s application for a marriage certificate. After facing difficulty finding a lawyer to take his case, Sun finally found one, the noted civil rights lawyer Shi Fulong (pronounced Shi Foo-lung). On December 16, 2015 Shi attempted to file his client’s complaint. Although not accepted on the spot, after amending it at the suggestion of the Case Filing Division to add his boyfriend as co-plaintiff, on January 5, 2016, Furong court accepted Sun’s lawsuit. A decision must be rendered within six months.

Case Accepted, But Far From Won – Civil Rights Lawyer Shi Fulong Criticized

Lawyer Shi Fulong

Since Sun’s case was accepted, the Chinese state-run media has openly – and often positively – covered this milestone. Not the usual M.O. for a politically-charged case against a government agency. But does this mean that China is ready to permit gay marriage?

Highly unlikely. For the Chinese state-run press, the positive focus has been the success of the new case filing system; that even a case that seeks to permit gay marriage is now accepted by the courts. And for sure, that is something that should be celebrated.

But more recently, in questioning the ethics of attorney Shi Fulong in taking the case, the Chinese press has signaled that the case will not be won. Given the current climate, namely the wholesale detention, arrest and suppression of China’s civil rights lawyers, the fact that there was still a lawyer to take this politically-charged case is shocking. But Shi Fulong is not one to avoid hard cases. Shi has represented Falun Gong practitioners, people fighting the illegal taking of their land, and in July 2015, during the mass detention and disappearance of hundreds of civil rights lawyers, signed a petition calling for their release.

It’s within this current crackdown that Shi bravely agreed to represent the gay couple. But that has not been without its potential cost. Last week, China’s state-run Legal Daily criticized him for continuing to represent his clients. In an op-ed by Hao Tiechuan, a Party member, former government official and law professor, the Legal Daily cites to various provisions of China’s Constitution and the Marriage Law to argue that, contrary to the complaint’s statements, the law is clear that marriage is only between a man and a woman. But unfortunately for lawyer Shi Fulong, the op-ed does not leave the case alone on its legal merits. Rather, it attacks the professional ethics of Shi in taking the case and continuing to represent the parties. The editorial argues that Shi has disrespected the law and filed a baseless lawsuit, all in violation of China’s Lawyers Law. Violations of the Lawyers Law could lead to a monetary fine and suspension or disbarment.

While alarming, on some level Shi Fulong is lucky that the op-ed does not cite more although he is certainly bordering on the danger zone. Likely in an attempt to contain China’s civil rights lawyers, in the past couple of years, the Chinese’s government has sought to penalize and contain the zealous advocacy that is required of lawyers, especially civil rights lawyers. In the Supreme People’s Court’s (SPC) recent Court Reform Plan, issued in February 2015, the SPC makes it a point to penalize what it considers false lawsuits. Paragraph 58 specifically commands the SPC to “[e]stablish record and discipline systems for good faith litigation. Punish false lawsuits, malicious lawsuits and unreasonably entangling litigation acts in accordance with law. . . .”

But what the SPC aspires to contain, recent amendments to the Criminal Law criminalizes. Effective November 1, 2015, China’s Criminal Law, Article 307(1), now provides up to a three year prison term for “[t]hose raising a civil lawsuit on concocted facts and seriously obstructing judicial order or seriously infringing on the lawful rights and interests of others. . . .”

For both of these admonitions, “false litigation” and “lawsuits on concocted facts” are left undefined. Meaning it will be in the discretion of the court – or more realistically the Chinese government and Communist Party – to determine what these terms mean. Which indicates that there will be a certain political determination involved.

What would Thurgood Marshall say about what is happening in China?

But as a civil rights lawyer, Shi Fulong’s job is to challenge the current law and push it to its limits. It was this type of lawyering that in 2003, caused China to eliminate the archaic and unjust custody and repatriation system. In the words of civil rights attorney and U.S. Supreme Court justice Thurgood Marshall, civil rights lawyers should “do what you thinks is right and let the law catch up.” Here though, by citing to the Lawyers Law and questioning Shi’s ethics in pursing this case, the state-run media seeks to further squash any hope that China’s civil rights lawyers can independently push Chinese society – or more apt, the Chinese government – forward. But I guess we have to remember that the world in which this was possible in China – namely 2000 to 2005 – has long since died. Fortunately for the Chinese people, there are still lawyers willing to wage this battle. And hopefully for Shi, the Legal Daily op-ed is as bad as it gets.

[1] Yirenping’s press release is on file with China Law & Policy.

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By Elizabeth M. Lynch, December 28, 2015

French journalist Ursula Gauthier

In recent years, the Chinese government has taken a passive-aggressive approach with the foreign press, keeping many foreign journalists on pins and needles during the annual accreditation renewal process. But with the impending expulsion of French journalist Ursula Gauthier, the Chinese government has opted for a different approach: downright aggressive.

On December 26, 2015, the Ministry of Foreign Affairs (MOFA) confirmed that it denied Gauthier’s application to renew her press card (official English version here), effectively resulting in her expulsion from China since her journalist visa – set to expire on December 31 – cannot be renewed without a valid press card. MOFA found Gauthier “no longer suitable to continue working in China” because her November 18, 2015 article in the French newsmagazine, L’Obs, “championed acts of terrorism and the slaughter of innocent civilians . . .”

In response, Western social media is ablaze with criticism of the Chinese government, calling its accusations against Gauthier unfounded and an attempt to censor the foreign press. And while these critiques may be true, the question still remains: are MOFA’s acts legal under Chinese law. Unfortunately, with laws and regulations that are increasingly vague and broad, the answer is yes.

Gauthier’s Article: Why the Chinese Government’s Panties Are All in a Bunch

Shanghai’s skyline lit up in memory of the lives lost in Paris in the Nov. 13, 2015 attacks. (Photo courtesy of CNN)

As L’Obs‘ Beijing correspondent, Gauthier witnessed the Chinese government and people’s outpouring of sympathy for the French people as a result of the November 13, 2015 terror attacks in Paris. Chinese students left bouquets of flowers at the French Embassy; President Xi Jinping expressed his condemnation of such “barbarous actions;” and Shanghai lit up its Oriental Pearl TV Tower in the French tri-colors of blue, white and red.

But at the November 15, 2015 G20 Summit in Antalya, Turkey, the Chinese government sought to transform its feelings of sympathy into ones of action. Stating that there can be “no double standards,” MOFA spokesperson, Wang Yi, called on the global community to support China’s anti-terrorism efforts in its far-western province of Xinjiang (pronounced Sin Gee-ang).

In the past few years, hundreds of innocent Chinese citizens have been violently killed in Xinjiang in mass attacks, usually perpetrated by members of the Uighur minority, a Muslim, Turkic-speaking population that dominates the province. Some of that violence has spilled to other parts of China most notably the 2013 suicide attack at Tiananmen Square and a 2014 rampage in a Yunnan bus station.

While this violence cannot be denied, there is significant doubt as to how many of these attacks are attributable to international terrorist organizations – as the Chinese government claims – or are merely the natural result of a Muslim population increasingly frustrated at the Chinese government’s restrictive policies concerning the practice of their religion.[1] The Chinese government references the East Turkestan Islamic Movement, an international separatist movement, as the perpetrators of these domestic attacks. But some Western scholars debate the group’s existence. Although the Islamic State (ISIS) has issued a call for recruits in Mandarin, it is unclear the extent of ISIS’s impact in Xinjiang. And by essentially sealing off independent foreign reporting from Xinjiang, the Chinese government does nothing to ensure that there is greater understanding as to what is really happening in the region.

2013 car bomb at Tiananmen Square (courtesy of the Daily Mail)

With this backdrop, on November 18, Gauthier published an essay in L’Obs highlighting that the Chinese government’s call for the international community to join its fight against terrorism was misplaced (rough English translation here). In “After the Paris Attacks, China’s Solidarity is Not Without Ulterior Motives,” Gauthier rejects the Chinese government’s claim that the current wave of violence in Xinjiang is the result of global terrorism. Instead, Gauthier maintains that much of the violence is likely the result of the Chinese government’s repressive policies toward Uighurs.

For Western readers, Gauthier’s sentiment is neither shocking nor new. Arguably, it has become par for the course. After almost every terrorist attack in the West, articles appear questioning the impact of the government’s policy toward the ethnic minority. After the January 2015 Charlie Hebdo attacks, plenty of articles questioned whether the attacks were also the result of France’s harsh policies toward its Muslim population and difficulty integrating into French society (see here, here and here). After the 2004 murder of Dutch film director Theo Van Gogh, Ian Buruma wrote an entire book analyzing the impact of Dutch immigration and assimilation policies on the murderer’s mindset. Gauthier’s article, while a bit more stinging, was in a similar vein.

But in series of op-eds in the Global Times and the English language version of the China Daily, the state-controlled press criticized Gauthier for having a “double standard” and, by not focusing on the death of innocent Chinese victims in the Xinjiang attacks, devaluing the lives of Chinese people vis-a-vis the French. If the Chinese government left its criticism of Gauthier’s piece at this, it would not necessarily be out of the ordinary or irrational. It wasn’t until after the non-stop press coverage of the Paris attacks and the outpouring of sympathy on social media did it come out that a mere day earlier dozens had been killed by an ISIS-inspired attack in Lebanon. In the U.S., part of the Black Lives Matters movement is to highlight the double standard by the U.S media in covering stories that impact the white population over the black population.

But the state-run media did not leave it at that. Instead, it ratcheted up its rhetoric. On December 2, 2015, at a MOFA press conference, spokesperson, Hua Chunying, publicly criticized Gauthier. Over the next few weeks, MOFA met with Gauthier at least three times, demanding that she apologize for her essay. In addition, Gauthier’s address was leaked online even though in some of the responses to the Global Times op-ed, people were threatening her life. On December 26, MOFA denied her application to renew her press card, maintaining that she advocated terrorism and violence, an accusation no where evident in a reading of her November 18 piece.

China’s Recent Attempts to Use the Press Accreditation Process to Censor Foreign Journalists

Regardless of the validity of the Chinese government’s accusations against Gauthier, by denying her press card and thus her ability to report from China, the Chinese government has effectively silenced her. This is not the first time the Chinese government has used the press accreditation process as a form of retribution or an attempt to censor foreign journalists. But even in light of this fact, Gauthier’s case is shockingly different, with the Chinese government, after a ruthless campaign against her, publicly admitting that its decision to effectively expel Gauthier was a direct result of her reporting.

For resident journalists in China, the journalist visa (“J-1 visa”) and the press card are only good for a year, expiring every December.  Beginning in November, every resident foreign journalist begins the renewal process, first re-applying with MOFA for a new press card and then, once obtaining the press card, renewing her J-1 visa with the Public Security Bureau’s (PSB) Exit/Entry Department.  For those who change employers in the middle of the year, the process to renew the press card with the name of a new employer, begins earlier in the year when the employment change occurs.

Aside from the 2012 expulsion of Al Jazeera English’s Melissa Chan, who, unlike Gauthier, did not receive any public condemnation, all of the foreign reporters forced to leave China in the past three years have departed due to an alleged paperwork snafu.[2] These reporters were not denied their press credentials. Instead, MOFA ignored their applications due to irregular or improper paperwork. Conveniently, MOFA did not discover these paperwork issues until the eve of – or in some cases, after the expiration of the reporter’s visa.

Philip Pan, New York Times Asia Editor now based out of Hong Kong

All three of these reporters, Philip Pan, Chris Buckley and Austin Ramzy, were with the New York Times causing most in the West to speculate that these departures were not a simple paperwork issue.[3] Instead, the commonly held belief is that each departure was the Chinese government’s retaliation against the New York Times for its Pulitzer Prize-winning series that exposed the depth of former Premier Wen Jiabao’s finances and the profits his family has acquired over the years.

But it appeared that the Chinese government’s abuse of the foreign journalist accreditation process reached its peak in January 2014, with New York Times reporter Ramzy’s departure. In fact, in its 2015 survey, the Foreign Correspondents Club of China (FCCC) noted that there was a decrease in complaints from its membership regarding the visa and press card renewal process, with 93% of respondents stating that they were issued their J-1 visa within the stipulated time period.[4]

By the middle of 2015, it appeared that the Chinese government was mellowing in its attempt to censor the foreign press through the accreditation process. After Xi’s visit to the United States in September 2015, Chris Buckley, after a three year wait, was finally able to obtain a J-1 visa and return to China. Similarly, also after Xi’s visit, new New York Times China correspondent, Javier Hernandez was able to obtain his J-1 visa after waiting since at least early 2015.

Chris Buckley, New York Times reporter now based in Beijing after a three year wait in Hong Kong.

But the situation with Gauthier isn’t just a step back – it’s a whole new approach. In the past, the Chinese government was coy with its reasons to deny a press card or a J-1 visa. With Chan in 2012, it merely stated that its decision was in accordance with law. With Pan, Buckley and Ramzy, MOFA used the excuse of a paperwork error that it was unaware of for months even though it’s in the business of processing such applications. But with Gauthier, the Chinese government is not attempting to hide its reasons for denying her a press card. It has explicitly tied its decision to her November 18 essay.

Can MOFA Deny a Press Card for Reporting it Does Not Like?

While MOFA itself has not explained the basis in the law for tying press accreditation to a specific article, an interesting piece published by Beijing Youth Daily heavily hints at the source. The Beijing Youth Daily piece notes that Gauthier, like all foreign journalists, is subject to MOFA’s “Regulations of the People’s Republic of China on News Coverage by Permanent Offices of Foreign Media Organizations and Foreign Journalists” (Foreign Media Regs) (official English translation here). Article 21 of the Foreign Media Regs gives MOFA the power, in serious circumstances, to revoke a foreign journalist’s press card when the journalist violates the Foreign Media Regs.

The Foreign Media Regs, which is more about the process of setting up a foreign media office and obtaining a press card, do not delineate which topics are off limits for foreign journalists. There is no mention about reporting on Xinjiang, Uighurs or even terrorism. But, as the Beijing Youth Daily post notes, Article 4 requires foreign journalists to “abide by the laws, regulations and rules of China, observe the professional ethics of journalism, conduct news coverage and reporting activities on an objective and impartial basis,” and “not engage in activities which are incompatible with the nature of the organizations or the capacity as journalists.”

It is this provision, which if necessary, MOFA will likely cite to for its authority to deny Gauthier her press card as a result of her November 18 article. By “championing terrorism,” MOFA has essentially stated that Gauthier has not reported “on an objective and impartial basis,” thus violating Article 4 of the Foreign Media Regs and granting MOFA the authority – through Article 21 – to deny her press card application.

Under Article 4 of the Foreign Media Regs, MOFA does not have to criminally prosecute Gauthier for a crime or even give her any form of due process (such as appealing the decision). Under the Foreign Media Regs, MOFA is the judge and jury of violations of the Regulations and with Article 4’s broad strokes, it is easy to find a foreign journalist in contempt of the Regulations. So for those foreign journalists who thought the worst was over in terms of the annual visa renewal process, think again. While Article 4 has been on the books for a while, China is now not afraid to use it. Welcome to Foreign Press Accreditation Process Version 2.0.

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[1] For example, in 2015, certain cities in Xinjiang forbade fasting during Ramadan for civil servants, teachers and students. In 2014, Shaya County in Xinjiang forbade men from wearing beards in public and called on the public to report them. In 2015, taking a cue from the French laws, the capital of Xinjiang forbade women from wearing burqas in public.

[2] While not expelled from China, in November 2013, after waiting over eight months for his journalist visa, former South China Morning Post reporter Paul Mooney was denied accreditation.  MOFA merely stated that its decision was in accordance with the law. Because Mooney was applying for accreditation from the United States for his new employer Reuters, this is not an expulsion from China. However, it was a denial and thus, does not fit into the category of “paperwork snafu.” Many in the Western press speculate that Mooney’s press card denial was the result of his hard-hitting reporting on China’s human rights violations.

[3] Pan’s departure from China is the least reported on and thus the least understood. However, if Pan had been denied a press card or J-1 visa, this fact would have been reported in the press. As a result, it is highly likely that Pan’s application was simply not processed due to some other reason such as a paperwork issue.

[4] The FCCC’s “2015 Annual Working Conditions Report” is on file with China Law & Policy.  To obtain a copy, please email fcccadmin@gmail.com.

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By Elizabeth M. Lynch, December 8, 2015

In the interest of full disclosure, I knew Val Wang back in the late 1990s when we both lived in Beijing.  That’s part of the reason why I picked up her new memoir, Beijing Bastard: Coming of Age in a Changing China.  Who of our friends made it into the book and which of our exploits were featured?  In essence, I wanted to take a walk down memory lane when time had no meaning and we partied hard.

Wang’s arrival in Beijing in the late 1990s was not certain; infact, far from it.  Growing up Chinese-American, Wang’s parents had major ambitions for her and she was constantly being compared – usually not positively – to her Saturday Chinese school classmates.  Wang wasn’t the typical Chinese-American child and fought her parent’s culture; whereas others went to medical school after graduating from college, Wang was just confused and without a plan.  Still rebelling against her Chinese parents, Wang ironically chose to go to China to get away from it all, find herself and grow up.

But Beijing Bastard is more than just Wang’s coming-of-age story.  It captures a city on the cusp of change, where ancient homes were being torn down – both day and night – to pave the way to make Beijing the global, glitzy, Starbucks-filled city that it is today.  I remember visiting Wang at her compound, in an area of Beijing known as Maizidian’r (pronounced my-zi-dee-r).  Her apartment compound was the last group of buildings along a barely-paved street.  From there, the street quickly opened up to dusty dirt fields and farmers with donkey-pulled carts still roamed the area. But that was Beijing back in in 1999.

The character “chai” to signify that this hutong home is set to be destroyed

Or at least, one part of it.  As Beijing Bastard wistfully recounts, changes were decimating the old parts and old ways of Beijing.  Much of Wang’s memoir intertwines with her family’s history in Beijing and her uncle’s attempt to save one of her great Aunt Mabel’s courtyard homes.  During the late 1990s and early 2000s, the Beijing government destroyed much of Beijing’s old homes in the hutongs (pronounced who-tongs), homes that had been around since the early Qing dynasty (1644-1911).  Interestingly, as Wang details, before destroying these homes, the Beijing government sought to compensate the original owners.  Even in a communist country, where many of these courtyard homes had been occupied by multiple families since the Cultural Revolution (1966-1972), the Beijing government still felt the need to make all of this legal, find the rightful owners and pay them for the destruction of their centuries-old homes. Wang follows her uncle’s quest to ensure that great Aunt Mabel, living in America, would be properly compensated.  But in describing his quest and the homes that were to be destroyed, Wang poignantly portrays what will really be lost: the old architecture, the closeness of neighbors, the history of families.

But Wang does not limit her analysis of Beijing’s disappearing past just to its hutongs.  Another story that weaves throughout her memoir is that of a family of Peking Opera stars.  The grandfather, a superstar in his day, now is relegated to holding court about Peking Opera from his bed.  Unfortunately, he has taught this dying art form to his two sons and like their father both are frustrated and angry that Peking Opera is an art that Beijing prefers not to preserve.

The ancient art of Peking Opera

One wonders just how much of Beijing’s old ways have been lost to history.  It must be more than just the hutongs and the opera. Back then, Beijing was singularly focused on becoming “modern.”  But then at the same time, is it fair for a group of expats to lament the lost charm of homes that offered no privacy, where bathrooms were public and houses were drafty?  When Wang visits her hairdresser at her hutong home, the hairdresser can’t wait to move to a modern apartment on the edge of town.  Is it fair for an expat, who only spends a few years in Beijing, to wish for a lifestyle that she gets to leave?

Beijing Bastarddoes a great job of capturing a city when it still had a small town feel and was not the global city that it is today.  The stories of Wang family’s courtyard home and of the opera singers are both highlights. But even some of the tidbits about her self-discovery – who she is as a Chinese American, as the daughter of her parents, as Val Wang – are insightful.  While there are some points that meander but overall, if you want to get a glimpse of what what Beijing was like before the 2008 Olympics, Beijing Bastard is a good read.

Rating:

Beijing Bastard: Coming of Age in a Changing China, by Val Wang (Gotham Books 2014), 338 pages

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By Elizabeth M. Lynch, December 1, 2015

It all started in 1992 with Deng’s Southern Tour

Why the New York Times  put the news that the renminbi is now a part of the IMF’s global currency reserve below the fold is beyond comprehension.  Make no mistake, this news is huge.  As an IMF-designated global currency, the renminbi now joins the likes of the U.S. dollar, the British pound, the Japanese yen and the Euro as a currency of influence, stepping up China’s power on the global stage.  And all of this happened in a little over 20 years.  In the early 1990s, China was still an economic backwater and  was destined to stay that way with the re-entrenchment of conservative socialist values after the 1989 Tian’anmen protests and subsequent crackdown.  Any attempts at reforming China’s economy were rejected by the conservative party ideologues then in power.  But in 1992, in a courageous move, Deng Xiaoping single-handedly took on these conservative forces by launching a grassroots “Southern Tour” to win the hearts and minds of the people for economic liberalization.  The success of Deng’s tour assured China’s course to capitalism.  Fast forward to 2015, China has the second largest economy in the world and the renminbi is declared a global currency reserve.  To achieve this stature – and to raise millions out of poverty – in the spanse of twenty-odd years is phenomenal.

Money, money, must be funny!

China’s economic miracle cannot be denied.  But at the same time, the IMF’s designation comes with the imprimatur that China offers a stable business environment, akin to the U.S., the U.K., Europe,and  Japan’s environments.  But with its Party-controlled economy and a Party-captured legal system, it still seems dubious to place China on the same level as these other economies.  Does China’s increased global status reflect a country ready to let go and allow the economy and the legal system to operate on its own?  Or is it just another necessary notch in the Chinese Communist Party’s belt of success?

For now these questions cannot be answered.  But make no mistake, China’s ascendancy to a global reserve is a game-changer.  And while China Law & Policy hopes to explore these issues in future posts, for now, the New York Times‘ analysis, which discusses many of these questions, is a must read (should have been above the fold!).

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By Elizabeth M. Lynch, November 22, 2015

Movies in China

China’s movie market is big, real big. Five years ago, it was merely the eighth largest film market in the world. Today, it is the second and will likely surpass the United States as the world’s largest movie market within the next three years. Money-wise, China’s 2015 box office is on course to gross over 40 billion RMB ($6.25 billion). Needless to say, it is a high-stakes market and not just for the Chinese film industry.   With the U.S. and European markets saturated, Hollywood only has China to turn to for increased profits.

It is within this competitive environment that the National People’s Congress recently issued its draft Film Industry Promotion Law (“Draft Film Law”) for public comment (English translation courtesy of China Law Translate). Much in the law is designed to take advantage of China’s exploding film market and encourage the growth of the Chinese film industry: towns and villages are encouraged to build more theaters (proposed Art. 39); tax incentives and state funding are to be provided (proposed Arts. 37 & 38),and domestic film companies are encouraged to seek foreign investment and cooperation (proposed Art. 41).

But in China right now, money isn’t everything. Instead, the encroachment of “Western values” consumes the current leadership. And nothing says Western values quite like a Hollywood movie. Add that fear to the fact that in China, films have long been an important propaganda tool to promote socialist values and the hegemony of the Chinese Communist Party (“CCP”). This is the reason why Article 20 of the Draft Film Law forbids movies that “violat[e]…the basic principles of the Constitution” and “harm national honor or interest.”

So under President Xi Jinping, with his aggressive assault on Western values (see Document No. 9, Draft Foreign NGO Law, restrictions on foreign TV over the internet), what will this Draft Film Law mean for U.S. film companies?

The Foreign Film Quota – May Be Gone But So Not Forgotten

Recent U.S. film import – The Hunger Games: Mockingjay Part 2

There are two major restrictions that limit U.S. film companies from making a killing in China: (1) foreign film imports are limited to 34 a year and (2) the foreign studios are only allowed to keep 25% of the Chinese box office revenue. Is this 34-film quota a violation of China’s WTO obligations – you betcha as the WTO determined in 2009. But even in light of the WTO decision, China continued its quota system.  In 2012, the United States, with the movie industry desperate for China, entered into the U.S. – China Film Agreement which increased the number of imports and gave 80% of those imports to U.S. studios, putting to rest the WTO dispute. Currently, China permits 34 foreign films to be shown domestically, 14 of which must be 3D or Imax.

While some have stated that these quotas might be abolished when the U.S.-China Film Agreement expires in 2017, the Draft Film Law sneaks into the law a de facto quota. Article 32 of the draft states that domestic films must compass at least 2/3s of the movie theater’s total screening time. Essentially, foreign films will be limited to at most 1/3 of all screen time (although interestingly, the section of the draft law that deals with violations of the law does not address what happens if a theater dedicates more than a 1/3 of its film time to foreign films). So on some level, China’s “abolishment” of the quota system is irrelevant if Article 32 stays in the final version of the law. And there is no talk, even with the Draft Film Law, that the box office revenue limit of 25% is going out the window anytime soon.

The Cost of Censorship: The Film Industry as the Frontlines?

Coproduction with James Bond

But U.S studios have another way to obtain a greater share of the Chinese film market: participating in a “coproduction” with a Chinese partner. These coproduction are outside of the 34-film quota, with no limit and permits U.S. studios to attain 43% of the Chinese domestic box office. Coproudctions are subject to approval of the China Film Coproduction Corporation, a state-owned company that is ultimately controlled by the government State Administration of Press, Publication, Radio, Film and Television (SAPPRFT). Approvals can be obtained by filming at least one scene in China (think of the coproduction Skyfall with scenes filmed in Shanghai and Macau) or having at least one Chinese actor (co-production Transformers: Age of Extinction with Chinese actress Li Bingbing), a minimum of one-third of the movies’ total investment must be from the Chinese companies, and it must portray China in a positive light (coproduction of the 2010 version of The Karate Kid had to remove scenes where Chinese kids were the bullies) (for more info on coproductions, see this US-China Economic and Security Review Commission (USCESRC) report, p. 8).

To further take advantage of coproductions, Hollywood studios are anxiously watching the future of Dreamworks’ Oriental Dreamworks, created in 2012 as a Shanghai-based joint venture and set to release its first movie, Kugfu Panda 3, in 2016. The Draft Film Law encourages this type of relationship (draft Art. 41) because the Chinese film industry is still years behind Hollywood and needs its technical assistance. These coproductions provide that knowledge and technology. As the USCESRC report (see p. 9) notes, filming of the Avatar sequel, a coproduction, provided the Chinese side with sophisticated 3D technology as well as how to use that technology cost-effectively.

President Xi Jinping, not a fan of Hollywood values

But coproductions do not necessarily offer a win-win situation with U.S. studios avoiding the quota system and Chinese companies receiving Hollywood’s technology and know-how. In the end, these coproductions are still subject to the censorship whims of the Chinese government. True draft Article 20 delineates what content is forbidden but “harming national honor and interests” is anything but specific. While draft Article 12 implies that there will be a proper “film evaluation system” to provide some clarity to the censorship parameters, this is all being proposed while the Chinese government constantly discusses the need to contain foreign forces and influence. And there is likely little coincidence that the Draft Film Law was issued only a mere weeks after President Xi Jinping’s speech on the arts was finally released in the state-controlled media. In his speech, Xi makes clear that the Chinese film industry cannot merely be led by the market; economic benefit takes a second seat to the movie industry’s social purpose. Further, Xi highlighted that the Chinese movie sector, while it must take advantage of the foreign film industries’ technology and skill, should not be “chasing the foreign.”

This uncertain censorship environment will negatively impact U.S. film studio’s investment in costly coproductions. Unlike Chinese studios, U.S. studios take many years to produce a movie and at significantly higher cost than their Chinese counterparts would ever invest. As Rogier Creemers has pointed out, China’s post-production censorship, if it continues to be capricious, could result in U.S. investors eventually walking away from the field:

“[Because of censorship] [r]egulations and obligations can shift significantly in a very short space of time, and the possibility for media enterprises to influence this policy is relatively limited. Making a film, especially one involving significant technical effects or animation, takes a long time from start to finish, and it’s difficult to see how investors would be willing to part with their money if there’s no guarantee that their project will be permitted on the market two or three years from now.”

As a result, it may be U.S. film studios that are the first businesses to feel the  tightening yoke of the Chinese government’s censorship as well as its current obsession with containing foreign forces. No longer can U.S. businesses ignore what is happening in China’s civil society space – with the mass round up of China’s civil rights advocates and the squelching of any opinion that counter’s the Chinese government’s narrative. For this is what Hollywood does without even knowing it – undermining CCP rule. For example time travel which the Chinese censors have banned because it could be perceived as undermining CCP rule. Will it be the U.S. film studios to be the first industry to finally recognize that the Chinese government’s mindset cannot just be contained to just its crackdown on domestic dissidents but will also impact their bottom line?

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By Elizabeth M. Lynch, November 11, 2015

There are scenes from Hou Hsiao Hsien’s (pronounced Hoe See-ow See-en) new movie – The Assassin – that are breath-taking. As the camera silently holds the scene, you are transported – even if just for a moment – to the actual place: fog rises slowly off a lake on a cold fall morning; a group of itinerant government officials march on horseback to their new assignment, tiny against China’s karst mountains; in bright blues and reds, a grandfather sips his evening tea as the sun fades. It is these sublime scenes that justify Hou’s best director award at this year’s Cannes because, as one of my film companions noted, “the cinematography is quietly masterful” but at the same time, mind-blowing.

But if it is a simple story line that is your favorite part of a movie, you will be sorely disappointed. Every beautiful scene is matched with some ill-described plot development. The film opens in 9^th century China with the return of Nie Yinniang to her family home after studying to become an assassin. For some reason – which never becomes clear – at a young age, Nie Yinniang was sent away to a nunnery where it turns out, the nun who took her in was trained in wuxia (martial arts and pronounced woo see-ya) and decided to use her talent to kill people. The nun instructs Nie Yinniang to avenge her family’s pride and assassinate Tian Ji’an. At some point, the movie attempts to explain why her family’s pride must be avenged, but as post-film conversations proved, none of us fully got that part.

Nie Yinniang contemplating her choices.

What develops next is Nie Yinniang’s internal struggle. She doesn’t want to kill Tian Ji’an but she is loyal to her nun-master who has instructed her to do so. It is this struggle, and all the female characters that propel this movie forward, that makes this a feminist movie. The male characters play second fiddle to their female counterparts while the women break traditional female roles.

But those excited to finally see a true feminist wuxia movie will also be disappointed. Unfortunately, wuxia is missing from a lot of the scenes. While Hou hearkens back to the golden age of wuxia – where the actors do their own stunts without strings and special effects – the wuxia is minimal, much like the plot line. As one film-goer and a wuxia fan dryly stated after the movie “this is a Hou Hsiao Hsien interpretation of a wuxia movie.”

No plotline, very little wuxia. But still a film worth seeing for the sheer beauty of every single scene. Hou is a master director who, in The Assassin has made every scene into a master painting.

Rating:

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The Assassin is still showing at select, “artsy” theaters throughout the United States.  Check Fandango to see if it is showing near you.

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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.