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By Elizabeth M. Lynch, June 3, 2015

An early photo of Wang Nan, late 1980s

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rating:

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

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By Elizabeth M. Lynch, June 2, 2014

The Goddess of Democracy – the symbol of the Tiananmen Square Protests

Twenty-five years ago, on the night of June 3 and into the early morning hours of June 4, 1989, tanks rolled in to the streets of Beijing and the Chinese government did the unthinkable: it opened fire on its own people, killing hundreds if not thousands of unarmed civilians in the streets surrounding Tiananmen Square.  That violent crackdown marked the end of seven weeks of student-led, peaceful protests in the Square itself, protests that were supported by much of the rest of Beijing, protests that would amass hundreds of thousands of people a day, protests that people wistfully thought would change China.

Twenty-five years later the students who participated in the protests are no longer fresh-faced, wide-eyed college kids, the workers who supported them are retired, and many of the bicycle rickshaw drivers who ferried dying students to hospitals on that bloody Sunday morning are long gone.  Along Chang’An Avenue, glitzy buildings have replaced the blood and bullet holes.  Starbucks stand near where students once went on hunger strikes. Tiananmen is different; China is different.  But yet there are some things that remain the same.

The government that ordered the crackdown 25 years ago – the Chinese Communist Party (“CCP”) – is still in power and many of the gripes that initiated the student protests – corruption and nepotism among political elites, lack of personal freedoms, and government censorship – have only gotten worse and continue to be the impetuous for activists.  And, like the students in 1989, these activists are still willing to risk their lives to promote the values enshrined in the Chinese Constitution and guide China to become a better place for its people.

But make no mistake, while these factors might be the same, there are important aspects of China that have changed.  In

Hundreds of thousands of Beijing residents – students, workers, ordinary people – supported the protests.

particular, China’s rise as a global power.  Criticizing China for human rights violations and its failure to live up to its own laws is not as easy as it was in 1989 when President George H.W. Bush cut off government ties, military relations, and the sale of U.S. government goods the day after the Chinese government’s crackdown.  Imagine denying U.S. businesses the opportunity to sell products to the world’s second largest economy?  That would never happen today.  And to severe relations with China – would the American public want to so easily give up its cheap Walmart goods or be denied the ability to obtain the newest iPhone?  Probably not.  The Chinese government understands the soothing and influential comforts of our material desires.

But perhaps the most troublesome change is how the CCP now deals with dissent.  If the last few months are any guide, excessive violence continues to be the modus operandi of the CCP.  Cao Shunli (pronounced Ts-ow Shoon-lee), an activist who organized small, peaceful protests that called for citizen participation in China’s United Nations human rights review, was detained for “picking quarrels and causing trouble,” was denied medical treatment for months, and died in police custody.  Tang Jitian (pronounced Tang Jee tee-an), a disbarred-lawyer-now-activist that sought to assist Falun Gong practitioners, has recounted the physical torture he suffered while in police custody in March.  Since coming out of detention with 16 broken ribs, Tang has all but effectively been denied appropriate medical care for his tuberculosis which has gotten significantly worse.

Deaths of many protesters lined the streets surrounding the Square

But the CCP has learned from its mistakes.  No longer is its violence against dissent as public as it was the morning of June 4, 1989.  And no longer does the CCP come off as a lawless regime.  Instead, its cloaks its crackdowns with a veneer of legality.  Since April 2014, in preparation for the 25th anniversary of the Tiananmen massacre, the Chinese government has detained – either criminally or through unofficial house arrest – over 84 individuals.  But these individuals are not detained under the guise of being counter revolutionaries like the students of the 1989 movement.  That would be too obvious.  Instead, the Chinese government has slapped the vague and overly broad crime of  “picking quarrels and provoking troubles.”  After 20 years of Western rule of law programs, the CCP has come to realize that the easiest way to deflect global criticism is to follow legal procedure, no matter how abusive, vague or entrapping that legal procedure might be.

If the 25th anniversary of Tiananmen means anything, China’s new strategy – the use of law to suppress dissent – must be

Everyday rickshaw drivers tried to save many of the students

examined and criticized.  China’s activists are being violently detained and imprisoned in record numbers “in accordance with the law.”  But that suppression of dissent is no different than what happened in 1989.  It is another method of killing the chicken to scare the monkeys – ensuring that the violence against a few “troublemakers” teaches the rest of society not to rock the boat.  This time though the rest of the world is increasingly complacent.

As the world marks the 25th anniversary of the Tiananmen Square massacre on Wednesday, China will be the lone nation that will not.  Since 1989, its people have been forbidden to commemorate the event; they are not permitted to remember; they are not allowed to note those fateful days that changed their lives more than anything in China’s recent past.  And that is why the events that other nations hold in honor of the many brave Chinese people who lost their lives on that night are so important.  Because while the Chinese government has found new strategies to more effectively deal with international criticism of its treatment of its people, the one thing that the outside world still has is the truth.  But that truth must not be limited to just what happened 25 years ago; it must also be used to call on China today stop its suppression of dissent today.  To do otherwise is a disservice the victims of that night.

One of the most iconic photos of the 2oth Century – one man stands up to a line of tanks

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By Elizabeth M. Lynch, January 28, 2014

Fuzzy Jurisdiction

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

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

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

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

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

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

Xu Zhiyong, awaiting trial in the detention center

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

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

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

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

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

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

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By Elizabeth M. Lynch, January 21, 2014

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

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

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

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

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

Emblem of the New Citizens Movement – calligraphy of Sun Yatsen

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

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

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

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

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

Beijing’s No. 1 Intermediate Court

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

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

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

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

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

Xu Zhiyong, awaiting trial in the detention center

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

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

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