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By Elizabeth M. Lynch, March 4, 2018

Since 2004, it has been illegal to build golf courses in China.  Not only do they suck up a tremendous amount of water, but all too often local officials unlawfully appropriate farmers’ land for these golf courses.  In 2015, President Xi Jinping focused his anti-corruption campaign on the sport, forbidding Chinese Communist Party (CCP) officials from playing the game.  But even with these prohibitions, golf still reins.  Since 2004, over 400 new golf courses have been illegally built.

Thus, one would think that the Chinese government would welcome a local tip that an official was appropriating village land to sell to a developer to build a golf course.  But that is not how the Chinese government responded when, in August 2015, Guangdong attorney Liu Yao reported precisely that.  Instead, Liu Yao now sits in a jail cell, serving a 20 year sentence on what most believe are trumped-up charges in retaliation for his whistle-blowing.

Like many Chinese human rights lawyers, Liu Yao is not a stranger to the inside of a Chinese prison.  In 2008, Liu was given a four year sentence for leading a demonstration of farmers who had not been properly compensated when government officials took their land. His sentence was decreased to 18 months after the Shenzhen Lawyers Association began a campaign to expose the sham that was his conviction.

But as in every society, land has value and the powerful will seek to unlawfully strip the poor of their land rights, enriching themselves in the process. For China, that struggle is happening in the rural villages. And that is what makes Liu, an effective advocate for these rural poor, a danger to the powerful.

Liu Yao awaiting his verdict

But Liu is more than just an advocate.  He is one also of them, deepening his clients’ faith and trust in him.  As Tom Mitchell reported back in 2009, Liu himself is the son of farmers, teaching himself the law after witnessing injustices against his family and feeling powerless to do anything about it.  He knows the value of land to farmers and since passing the bar exam in 2003, has successfully helped farmers in his home province of Guangdong to fight to keep their land or, at the very least, for the market value of what they are forced to give up.

So when He Zhongyou, the Party Secretary of Heyuan City in rural Guangdong, appropriated thousands of farming fields to sell to a company to build an “ecotourist site”, Liu, whose 2008 conviction resulted in his disbarment, did what he could: he filed a complaint about He Zhongyou to the CCP’s Commission for Discipline Inspection in Guangdong.  Make no mistake, He Zhongyou’s ecotourism development was not a secret to the central government; the local state-run media had already celebrated He Zhongyou’s development.  But what Liu highlighted was the fact that the ecotourist site was to also include an illegal golf course, something not reported by the press.  And Liu did not just submit the complaint.  A few days later, on August 22, 2015, he also published it on his blog for all to read.

On December 26, 2015, while meeting with a colleague, Liu Yao was grabbed by a number of men, thrown into an unmarked minivan and taken away according to an article that appeared in the Southern Metropolis Daily.

For over six months, Liu was held incommunicado, under the now infamous and well-abused legal procedure of “residential surveillance at a designated location” (RSDL).  Under Article 73 of the Criminal Procedure Law (CPL), RSDL is permitted when the individual is being investigated for national security crimes; national security also permits the police to deny access to lawyers and family members (CPL, Art. 37; see also RSDL Monitor for more on the abuse of RSDL on human rights defenders).  The “evidence” the police used to claim that it was investigating Liu Yao for national security crimes, was a picture of Liu with two well-known Western China law experts, Professors Jerome Cohen and Eva Pils.  Because of that picture, the police claimed that they were investigating Liu for “providing state secrets to foreigners.”

Liu Yao and his wife, Lai Wei’E

Ultimately, the police’s national security investigation went nowhere except for the very useful fact that it provided a fig leaf of legality to deny Liu access to his own lawyer.  On June 23, 2016, Liu was officially charged with extortion (Art. 274 of the Criminal Law (CL)), fraud (CL, Art.192,) , and trafficking in children (CL, Art. 240).  The extortion and fraud claims related to Liu’s work in achieving beneficial settlements from some of the local industries for their illegal appropriation of his clients’ land.  The trafficking charge was a result of his and his wife’s adoption of a baby from an unwed mother who already had three other children.  But in addition to Liu, four local farmers were also charged as well as Liu’s own son.  Liu’s wife, Lai Wei’E was also held for a year, allegedly while the police were investigating the legality of the adoption.

With a closed door trial, lack of access to a lawyer, and the fact that Liu was exposing the local government’s most important revenue-generating strategy – illegal land grabs – a judgment of guilty on all charges was all but certain.  And on April 24, 2017, the Heyuan City Intermediate People’s Court found Liu Yao guilty, sentencing him to 20 years and a fine of 1.4 million RMB ($221,000).  Liu’s son was given four years and three months for helping his father post materials online with the three farmers receiving sentences ranging from four years to nine and half years.

He Zhongyou

Even with the Chinese government crackdown on human rights lawyers that began in earnest in July 2015, Liu’s 20 year sentence is harsh.  It is almost triple that which was given to the “ringleaders” of China’s human rights lawyers.  Such a harsh sentence likely shows the continued importance to the Chinese government of being able to take farmers’ land without proper compensation.  Even representing Falun Gong participants, petitioners, other rights activists is not as threatening to the government as representing those who challenge an important revenue source to local officials.

And what happened to He Zhongyou after Liu Yao exposed his land grab to build a golf course?  He has had a series of promotions.  In January 2016, as Liu languished in detention, He Zhongyou became the vice-governor of Guangdong Province, an influential position in one of China’s wealthiest provinces.  In May 2017, after Liu Yao received his 20 year sentence, He Zhongyou was again promoted to the powerful position of Secretary of the CPP’s Political and Legal Affairs Commission for Guangdong.

From the website for the resort that shows the golf course

And the illegal golf course? It’s been built along with a resort of luxury RVs, personal saunas and a Disney-like castle to serve as the golf club.  For this playground of the wealthy, Liu Yao got 20 years, pretty much a life sentence for this 56-year-old.

Since taking over the leadership in 2012, Xi Jinping has attempted to reassure foreign powers that China’s rise is peaceful.  But all evidence points otherwise.  In the summer, it was the unnecessary death of Nobel Peace Prize winner Liu Xiaobo while he was serving an 11 year prison sentence; last week it was the mysterious death of human rights lawyer Li Baiguang after being admitted to a state-run hospital for stomach pains; a few days ago it was Xi’s moves to eliminate term limits; and then there is Liu Yao’s 20 year sentence for exposing the corruption and injustice that Xi’s government has publicly stated it wants to eradicate.  Increasingly, China’s rise – or more apt, Xi’s consolidation of power – has not been peaceful.  It is time foreign government recognize that what is happening to China’s human rights defenders is not an outlier but is instead a reflection of the governing philosophy of Xi’s regime, both domestically and internationally.  And it’s time they start to care and raise these issues publicly.

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By Elizabeth M. Lynch, August 30, 2017

To call China’s human rights lawyers “battered” is an understatement.  These lawyers are victims of the Chinese government’s deliberate and brutal pursuit to render them extinct.  And that is why the nomination of Chinese human rights lawyer Wang Quanzhang for the Dutch government’s Human Rights Tulip award is so significant and why readers should vote for him (public voting is open here until September 6, 2017).

Wang is perhaps the quintessential human rights lawyer.  Even before graduating from Shandong University Law School in 2000, he was already representing some of Chinese society’s most vulnerable: members of the banned spiritual sect of Falun Gong.  From there, he extended his practice to assist farmers whose land was being confiscated, criminal defendants and other civil rights activist.  Throughout, he received constant pressure from the Chinese government to discontinue his practice and in 2013 was taken into custody by Chinese police merely for defending his client in court.  But instead of ending his advocacy, the Chinese government’s pressure only emboldened him. Wang criticized the Chinese government in a series of blog posts under the pen name Gao Feng and in 2014, traveled to Heilongjiang to protest the illegal detention of other human rights lawyers.  But for Wang, practicing law was not enough.  He also sought to elevate the legal profession in China and joined forces with a small foreign NGO in Beijing – Chinese Urgent Action Working Group (“China Action”) – to teach and support other human rights lawyers throughout China on how to effectively advocate in a one-party dictatorship.

Photo courtesy of China Human Rights Lawyers Concern Group, July 4, 2016

While the rest of the world might celebrate Wang’s commitment to justice, in China, Wang is considered a villain – at least according to the Chinese Communist Party (CCP).  It is his work that the CCP fears as a threat to its one-party rule and is intent on destroying.  On July 9, 2015, the Chinese government launched a national offensive against its human rights lawyers, simultaneously detaining over 300 lawyers and activist across the country (known colloquially as the “709 Crackdown”).  Wang was caught up in the persecution and on August 4, 2015 was detained for suspicion of “picking quarrels and provoking trouble” and “inciting subversion of state power.”  Since then – for over two years – he has been held incommunicado, with his lawyers and his wife denied any access to him.  Ironically, the rights that Wang has long sought for his own clients – the right to meet with an attorney, the right to a fair trial, the right to a speedy trial in accordance with Chinese law – is being denied to him as he remains isolated in prison.

For sure, China’s human rights lawyers have been under assault for close to a decade now.  But as Professor Eva Pils notes in a recent article, the 709 Crackdown is much more severe, with new and frightening measures taken by the Chinese government.  From the inception of the Crackdown, the Chinese government has vilified these lawyers by name in the press (including naming Wang as a ringleader) and refer to them as a “criminal syndicate.” It has also changed its rhetoric – no longer are human rights lawyers a threat to social stability; instead, because of the influence of “foreign forces,” specifically the use of foreign NGO funds, the Chinese government presents these lawyers as a national security risk. And more recently, Pils notes that there appears to be at least six detained human rights lawyers who have been forced to take medication while in detention.  But not for any current medical condition.  Instead, it appears to Pils that the Chinese government’s use of forced medication has had a physiological impact on the detainees and is being used more to alter the personalities of the human rights defenders with the hope that they do not continue to practice once they are released.

Wang Quanzhang’s wife and son. Neither has seen Wang for the last two years,. Photo courtesy of RFA

And this is another reason why Wang Quanzhuang should be awarded the Human Rights Tulip.  China – the world’s second largest economy – offers another way by which to order society.  A world where human rights take a back seat to economics and alleged national security issues.  Unfortunately, the rest of the world appears to be largely playing along.  As Nobel Peace Prize winner Liu Xiaobo laid unnecessarily dying in a Chinese prison hospital, imprisoned for his speech, not a single world leader made a public peep about it at the G20 Summit that was happening at the same time.  As Beijing dismantles Hong Kong’s democracy, Western democracies largely remain quiet.  In May 2017, U.S. Secretary of State Rex Tillerson ignorantly stated that promoting human rights “really creates obstacles to our ability to advance our national security interests, our economic interests.”   In June 2017, Greece – which has been able to economically recover largely through the support of China – vetoed the European Union’s condemnation of China’s human rights record.  And this has only been the last four months.  With the nomination of Wang Quanzhuang for the Human Rights Tulip, the question arises – how many times can the world turn its head and pretend that it just doesn’t see?   Is this who we really are?  If the answer is no, then please vote for Wang Quanzhuang here.  From the top three, the Minster of Foreign Affairs of the Dutch Government will choose a winner.

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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, August 17, 2015

Last week, China Law & Policy published a post encouraging President Obama, even in light of the current crackdown on rights defending advocates in China, to move ahead with President Xi Jinping’s State Visit to the U.S. currently scheduled for September. However, China Law & Policy recommended that President Obama raise the plight of the rights defending lawyers by highlighting the important role public interest lawyers have played in the United States.

State Visit or not, the real question is: What Will the First Lady Wear?

Our posting received a plethora of responses, including one from Adam Bobrow, CEO and Founder of Foresight Resilience Strategies, LLC, a Maryland-based strategic consulting firm to develop new solutions for companies facing cybersecurity challenges. With prior experience in the White House and the Department of Commerce, Bobrow explains the procedures surrounding a State Visit and argues that while the Xi visit must occur because of many thorny issues plaguing the US-China relationship, the visit should be downgraded to an “official visit,” not a State Visit.

Adam Bobrow

By Guest Author Adam BobrowThanks to Elizabeth for her original post which made me think more about Chinese President Xi Jinping’s September State Visit to Washington.  Elizabeth’s thoughtful take addressed the question of the White House’s response to the crackdown on rights defenders in China.  I agree that President Obama’s meeting with Chinese President Xi should go forward but I have tried to take into account additional strategic and economic policy considerations in assessing whether Xi’s State Visit seems appropriate at this time.  For reasons addressed below, I do not think that incorporating a session on the crackdown will work but suggest that the White House downgrade the meeting from a State Visit to another category of Head of State visit, such as an official visit or a working visit.

The Obama-Xi meeting should take place because there are many issues that the United States and China need to discuss at the highest levels.  But the pomp and circumstances and the inherent approbation of a State Visit sends the wrong message to China about the ways in which Chinese government policies impact the U.S. economy and elements of global security that the United States has vested interests in maintaining.

Background on State Visits

A State Visit, while it does not have an absolute definition, follows certain traditional guidelines surrounding its logistics and the respect accorded the foreign Head of State or Government.  In the United States, such a visit has an arrival ceremony on the South Lawn of the White House, a 21-gun salute for the visiting Head of State, a joint review of U.S. troops, and a State Dinner with the visiting Head of State as the guest of honor.  Because the last element is the easiest to measure—either a State Dinner occurred or it did not—I have used the inclusion of a State Dinner during a visit as a proxy for State Visits.

During the current Administration, President Xi’s State Visit would be only the ninth State Visit in the almost seven years since President Obama was sworn into office.  Perhaps more telling, of those nine State Visits, President Obama will have hosted two different Chinese Presidents.  No other country’s leaders have enjoyed two State Visit invitations during this Administration even though Mexico, South Korea, Japan, and India—all State Visit countries during the Obama Administration—have changed leaders since President Obama hosted their previous Head of State or Government.

Why Should Obama and Xi Meet?

In Elizabeth’s blog post, she advocates that President Obama should, “invit[e] Xi Jinping to a session with U.S. public interest lawyers and their supportive corporate law brethren” to demonstrate the United States’ support for the plight of rights defenders in China.  During President Xi’s visit President Obama can and certainly should raise the unacceptable and self-defeating nature of the ongoing roundup of weiquan (rights defending) lawyers by the Chinese authorities––either by insisting that there be a window reserved in the primary bilateral meeting (preferred) or by bringing the topic up spontaneously in that meeting or at the joint press conference. The latter is less effective to change Chinese behavior but important as a domestic political issue in the United States. But keep in mind that the Chinese officials planning the State Visit will not agree to a meeting that includes some of the private critics of their conduct in the United States.  The U.S. government cannot unilaterally control the broad agenda for the visit by insisting on certain meetings, such as one with U.S. public interest lawyers.

But even with this limitation, the larger question remains: why should the U.S. and Chinese Presidents meet?  Currently, the United States and China face a number of urgent issues that directly impact their relationship.  For far too many of these, however, neither side will agree even on the terms of reference for their differences, preferring either to deny a problem exists or to insist on a formulation that assigns the responsibility exclusively to the other party.  These thorny issues are myriad: Chinese island reclamation and freedom of navigation in the South and East China Seas; alleged cyber incursions into U.S.-based systems including personnel files held by the U.S. government and commercially valuable data held by a wide range of U.S. businesses; the devaluation of China’s currency in response to slowing growth in China; the creation of the Asia Infrastructure Investment Bank, a new international development institution created with China as the leading shareholder; national security limitations on Chinese investment in the United States; the impact of China’s own National Security Law on U.S. businesses operating in China; and even China’s continued non-market economy status in U.S. antidumping investigations. Today’s New York Times reveals another agenda item: Chinese public security agents operating in the United States and allegedly intimidating or threatening some Chinese expatriates suspected of graft to return to China. This is an additional issue for which the two countries offer incompatible explanations. Unfortunately, political leaders in both countries have framed these issues in ways that make them difficult to discuss, much less resolve.

The meeting of the two Presidents could advance bilateral cooperation, however, on two issues of current importance.  First, both sides seek to advance negotiations on the U.S.-China Bilateral Investment Treaty (BIT) by exchanging updated negative lists of excluded investment areas.  Second, each side also wants to advance cooperation on curbing greenhouse gas emissions in advance of the 21st session of the United Nations Framework Convention on Climate Change (UNFCCC) Conference of Parties (COP 21) in Paris in December.  Obama and Xi could announce concrete and meaningful progress on BIT and greenhouse gas emissions based on strong preparation at the staff- through Cabinet-levels and help provide negotiating teams on each topic with clear instructions on the way forward in both cases.

When weighing the decision of whether to downgrade the meeting, political and protocol reasons for the level of the visit must also contend with the substantive policy questions already discussed. The issue of face plays a role in this calculation as President Xi hosted President Obama for a State Visit in Beijing last year, complete with State Arrival Ceremony at the Great Hall of the People and a State Banquet. Refusing to accord President Xi the same courtesies would cause great offense. In addition, leaders meet to increase opportunities to get to know one another and build a relationship that might advance issues or prevent future conflicts. Two years ago, the White House cited this reasoning in meeting in a more relaxed setting away from Washington in the lead-up to the two Presidents’ summit at the Sunnylands Estate in California. The very specific intention of the informal setting away from Washington was to reduce the pressure to make public pronouncements and face the increased scrutiny of a scripted and formal visit so that the leaders could get to know one another better. Whether the more informal setting did allow greater candor, the added scrutiny of a State Visit can only undermine efforts by the two Presidents to build their relationship as a hedge against growing frictions in any meaningful way.  Next month, the two Presidents will meet farther apart on urgent bilateral issues than at any prior meeting they have had and with often conflicting visions of the world as they would like it to be.  Ranging from President Xi’s marketing of China’s New Model of Great Power Relations, which premises more space for Chinese actions on the world stage free of American interference or even commentary, to President Obama’s preference for selling the Trans-Pacific Partnership trade agreement (TPP) as a way of writing new international trade rules to prevent China from writing those rules instead, these competing visions are not currently amenable to building trust during a one-day visit.

Where does that leave us in terms of a verdict on the impending visit?  Looking at the list of issues where no progress is likely, it is probable that each President will raise a differing subset of those issues without actually hearing what the other has to say.  They will talk past each other and reach no conclusions nor even advance the terms on which officials at lower levels will address these issues going forward.  On the other (skimpier) hand, the Presidents may make meaningful progress on the two issues identified above:  BIT negotiations and climate change measures ahead of the Paris negotiations in December. The non-policy considerations present a trickier, more qualitative question of whether the slim possibility of greater candor in a less formal set of meetings makes it a better bet to risk the strong negative reaction of a Chinese government that sees the downgrade as a personal snub to President Xi. The White House needs to decide based on the best interest of the United States and the American people, of course, rather than how its decision in Washington will be received in Beijing or even by some larger subset of the Chinese people.

In this instance, the pomp and circumstance of a State Visit will reduce the efficacy of the potential positive outcomes of the meeting and send a misleading positive message about the current parlous state of U.S.-China relations.  Rather than providing additional space for the two Presidents to increase mutual understanding and provide clear guidance to their bureaucracies on how to resolve some outstanding issues, the Presidents may make some small and specific progress in two areas.  But the strictures of a State Visit also make it likely that the two governments will feel compelled to send a message that the visit demonstrates a highly productive bilateral relationship on firm grounding. That message would obfuscate real differences in search of solutions, potentially setting back relations rather than moving them forward, and backfire as the evidence clearly belies such a positive message. The White House should downgrade the meeting, restore the informal approach of Sunnylands, and hope that more time focused on substance and less on meaningless public praise by each country of the other may permit more candid discussion and advance solutions to pressing problems.

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By Elizabeth M. Lynch, August 14, 2015

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

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

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

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By Elizabeth M. Lynch, August 4, 2015

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

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

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

Attorney Wang Yu

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

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

Obama & Xi to meet in DC in September.

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

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

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

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

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

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By Elizabeth M. Lynch, May 13, 2014

Prof. Eva Pils

Last month the New York Times ran a front page story on the Chinese Communist Party’s investigation of former Minister of Public Security Zhou Yongkang.  Rarely if ever have the Party’s investigations reached such senior echelons.  Does this signal a new Chinese president intent on holding officials responsible under the law or merely a purge to consolidate his power?

Here in part 3 of this three-part series, Prof. Eva Pils, an associate professor of law at the Chinese University of Hong Kong and research fellow at NYU’s U.S.-Asia Law Institute, answers that question, noting that Xi Jinping’s current anti-corruption campaign is far from a promotion of a rule of law.

Read the transcript below of Part 3 of this three-part interview or click on the media player to listen:

Length: 9:20 minutes

To read or listen to Part 1 of this three-part interview series with Prof. Pils, click here.

To read or listen to Part 2 of this three-part interview series with Prof. Pils, click here. 

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EL:  Going back to the government, I want to finish with one last question about the government and its relations to the rights activists.  Recently, in late 2013, early 2014, you’re seeing a lot of rhetoric coming from the Chinese Communist Party calling for things like judicial independence, greater respect for lawyers.  I think there are some people in the West who have seen this as a positive development, that it is showing that the government wants incremental legal reform and that there is space for that.  But my question to you: given this crackdown that has happened, should we see this rhetoric as anything positive?  How should we view it and how should you view the rhetoric that’s happening simultaneously with this very severe crackdown on rights lawyers?

EP:  Well maybe answering those questions does require looking at least briefly at some of the reform measures and the changes

Former Minister of Public Security, Zhou Yongkang. Now being investigated by the Party for corruption.

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

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

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

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

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

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

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

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

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

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

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

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

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

EP:  Thank you very much.

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This concludes Part 3 of this three-part interview series with Prof. Pils. 

For Part 1, please click here.

For Part 2, please click here. 

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By Elizabeth M. Lynch, May 12, 2014

Prof. Eva Pils

In Part 1 of this interview series with Prof. Eva Pils, an associate professor of law at the Chinese University of Hong Kong and research fellow at NYU’s U.S.-Asia Law Institute, Prof. Pils described the “weiquan” (rights defense) movement in China.  Here in Part 2, Prof. Pils continues by discussing the emergence of one of the most significant and organized aspects of the weiquan movement, the New Citizen Movement.  What is it these New Citizens want and what is it that causes the government to violently suppress some of the Movement’s leaders?  Prof. Pils answered these questions and more when China Law & Policy sat down with her last month.

Read the transcript below of Part 2 of this three-part interview or click on the media player to listen:

Length: 13:38 minutes

To read or listen to Part 1 of this three-part interview series with Prof. Pils, click here. 

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EL:  So just to get a little bit more specific, I want to turn now to focus on Xu Zhiyong who just received in January four years in

Emblem of the New Citizens Movement – calligraphy of Sun Yatsen

prison.  He is a part of this “New Citizen Movement.”  Can you describe what that movement is a little bit?  Where did it emerge from and what its platform is?

EP:  So the New Citizen Movement, it emerged in 2012, around May 2012.  I think that it can be seen as in some ways a response to the problems that we have just been discussing, the [social] grievances, and also the problem of repression of civil society.  In some ways it is also due to changes that have come about because of new communication technologies – the social media – that have enabled a new form of activism to emerge not only in China but also in other parts of the world.  Think of the various Occupy movements and the Arab Spring.

That’s I think  one the reasons why the New Citizen Movement emerged.  Obviously it focuses on the idea of the citizen. When you look at what Xu Zhiyong in particular has provided as an analysis of citizenship, the concept of the citizen, you can see that it is a very strong, richly normative political conception of the citizen; a sort of 18^th-century-Europe notion of the individual who has rights against the state.  I think that looking at the history of the human rights movement [in China] that we just discussed, you could perhaps also say that Xu Zhiyong,  having tried for ten years to introduce beneficial changes in China through case-by-case legal rights advocacy, comes to the conclusion, around 2011- 2012, that now a new method of advocacy has to be tried; that rights advocacy in a way has to move beyond working on individual cases, and become more issue-focused and more explicitly political.

Teng Biao, organizing without organizations

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

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

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

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

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

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

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

Education of migrant children – major political issue in China

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

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

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

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

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

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

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

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

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

For Part 1 in this series, please click here.

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By Elizabeth M. Lynch, May 11, 2014

Prof. Eva Pils

Since the fall, not a month has gone by where there isn’t some Chinese human rights advocate being prosecuted.  The charge is usually the vague and broad claim of “disturbing public order.”  Activist Xu Zhiyong (pronounced Sue Zhi young) was given four years in January under that charge, one year shy of the maximum.  Cao Shunli (pronounced Ts-ow Shun lee), another human rights, died in police custody while being investigated for the same charge.

Who are these human rights advocates and lawyers?  And why has the Chinese government become increasingly harsh?  To put this all in is Prof. Eva Pils, an associate professor of law at the Chinese University of Hong Kong and research fellow at NYU’s U.S.-Asia Law Institute.  In 2006, Prof. Pils wrote the seminal article on human rights lawyers in China, Asking the Tiger for His Skin: Rights Activism in China. This summer, Prof. Pils will continue her work with a book on rights activism entitled China’s Human Rights Lawyers: Advocacy and Resistance.  Last month, as more human rights advocates and lawyers were being detained, Prof. Pils sat down with China Law & Policy.

Read the transcript below of Part 1 of this three-part interview or click on the media player below to listen:

Length: 14:49 minutes

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EL:  Thank you for joining us today Prof. Pils.  Let’s start with a little bit of background.  These human rights lawyers, who are most frequently referred to as “rights defense” or “rights defending” lawyers, when did they first start to emerge and why?

EP:  Thank you.  I think that they used to call themselves ‘rights defense – weiquan [维权] lawyers’ – but I think that actually over

Bringing back the law – Deng Xiaoping

the past one or two years, they’ve started preferring the term renquan lushi [人权律师] which means ‘human rights lawyers.’  That’s in a way related to how they emerged.  They emerged because in the post-Mao era, especially from the 1990s onward, it became possible to use the law to defend rights, for one thing of course because there [now] was law — it was only under the Deng Xiaoping reform and opening policies that law became an accepted tool of government of the Party-State, after it had been completely denounced in essence as a counter-revolutionary idea in the last decade under Mao Zedong

Then the other thing is that there was a period, [from the beginning of the post-Mao era until] the 1990s when the Party-State authorities were essentially encouraging the use of law to address certain kinds of dispute, certain kinds of conflict in society.  During that time, weiquan – rights defense – was actually an officially propagated term.  As background, one would have to say that rule by law – yifa zhiguo [依法治国] – was an idea that the authorities were making use of in the Deng Xiaoping era in order to claim political legitimacy.  That in a way replaced the political legitimacy coming from the idea of a communist revolution that was what political legitimacy was based on in the Mao Zedong era.

I think that this argument [about law as a tool of governance] is quite right, this is how Deng Xiaoping wanted to develop China in the post-Mao era, but also I think that the authorities, perhaps including Deng Xiaoping, didn’t fully realize what they were letting themselves in for when they promoted the idea of [rule by law and] weiquan.  Perhaps this was because they were quite good Marxist-Leninists and believed sincerely that law was nothing other than a tool of governance to be used by the ruling power.  Whereas of course, from the weiquan or rights defense perspective, [law] is  connected to justice and it’s connected also, potentially at least, to political resistance,  to the idea of rights, of human rights.  I think that it’s a step toward a more explicitly political agenda that the lawyers who used to be referred to as weiquan lawyers have now chosen to call themselves human rights lawyers.

EL:  In terms of the political agenda, the agenda of the human rights lawyers in China, in terms of their issues – is there something that unifies them as a single issue or are there  different issues?  In general, are they located in one area or do you find them throughout the country.

The Jiansanjiang Four – from L to R: Jiang Tianyong, Zhang Junjie, Wang Cheng & Tang Jitian

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

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

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

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

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

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

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

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

Locked Up for Four Years – Human Rights Lawyer Xu Zhiyong

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

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

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

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

“Social Stability” at all costs

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

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

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By Elizabeth M. Lynch, May 2, 2013

For over a decade now China has been drafting environmental protection laws at a rapid clip.  And it’s no wonder. From 1980 to 2000, the Chinese government’s singular focus on economic growth has put the environment in grave jeopardy, with cancer villages sprouting up throughout the country, toxic air a common occurrence and polluted waters killing fish and people’s livelihoods.

But laws on the books are meaningless if not properly enforced and part of that enforcement often takes the route of citizen lawsuits, especially in the environmental realm.  In China, a country that intentionally keeps its statistics and information opaque, it’s often difficult to see what is happening on the ground let alone in the courts.  Until now.

Enter Environmental Litigation in China: A Study in Political Ambivalence, a new book by Rachel Stern, an assistant professor of law and political science at the University of California, Berkeley.  The book is perhaps the most significant contribution to the pantheon of books on China’s legal development published in the past ten years.  Through on the ground research, including review of hundreds of legal cases, interviews with lawyers, judges, government officials and average citizens, Environmental Litigation in China is not some theoretical analysis of the law.  Rather it provides a concrete example of law in action in China.

Taichi in the Beijing pollution – the price of economic development at all costs

And although the book is ostensibly about environmental litigation, the patterns and problems for average citizens in bringing cases could be applicable to many of China’s touchier subjects such as workplace discrimination or food safety.  In a clear and concise way, Environmental Litigation in China begins by describing the destruction and then the re-development of the Chinese legal system under Mao and then Deng Xiaoping.  From there, Prof. Stern discusses the new environmental laws that have been passed during the period when China was truly “turning toward the law.”

Then comes the more practical aspects of the book.  Chapter 2 – “From Dispute to Decision” – is a gem.  It describes in detail the unfolding of an environmental case in China – how citizens hook up with lawyers, the exorbitant rates of filing fees, how cases often fail to be “accepted” by the case-filing division (li’an ting), the use of evidence at trial, and the enforcement mechanisms of the court.  Even for long-term China law watchers, this chapter provides a great resource to the various stages and venues for court cases and the intricate rules that govern both.

In line with presenting the realities of litigation in China, Environmental Litigation in China goes on to describe some of the major players in environmental law in China – the judges, the lawyers, the media, the Party and the international NGOs.  For each actor, Prof. Stern describes many of the limitations that leave the environmental law field from developing.

But Environmental Litigation in China‘s greatest contribution is perhaps the interviews with many of the on-the-ground actors.  This was a

Dead fish – a common occurrence in China’s polluted waters.

six-plus year project for Prof. Stern, with many trips to China and interviews with hundreds of individuals.  Interspersed throughout the book are these people’s analysis of why they did certain things and how they believe the law is developing.  Getting inside of these actors’ heads is invaluable to understanding how those who are shaping environmental law currently perceive it.   It’s one thing for an outside scholar to hypothesize a law’s limits; it’s another thing to hear it from the lawyer or the judge herself.

Environmental Litigation in China is a great book and an important study, but if you are a looking for a feel-good conclusion, this is not it.  Ultimately, it is the mechanics of China’s unique system – the importance of business to the local tax base, the tying of the local judiciary to the local Communist Party and the debilitating fear of the Chinese Communist Party to allow the law to just take its course – that undermines environmental justice and a rule of law for the average citizen.

And that’s the one and only critique that could be made of the book – that perhaps it doesn’t look enough at some of the positives.  Chapter 3 – “Frontiers in Environmental Law” – discusses two environmental cases and then compares them to two situations where the people opted to go outside of the courts.  The two traditional legal cases, while “victories” ultimately provided little compensation for the damage.

But the last two cases, where the people decided not to file a legal case, demonstrate the creativity that citizens use to enforce their rights in place of a broken legal system.  In particular, the citizens of Shanghai whose international media blitz, banners on the tops of buildings that could not be easily taken down, and weekly demonstrations resulted in the plan to build a maglev train in their backyard from being completely shelved.

Shanghai residents protest maglev trains in their backyard – note the use of English signs for the international media

Yes, this wasn’t the use of law and it probably makes Western legal scholars uncomfortable in the use of messier tactics such as demonstrations and outright public shaming.  But it got results and results more quickly than any legal case could.  And make no mistake, this is not just a tactic used in China.  Rather it is a tactic in any legal system, including the United States – using outside legal means, including the press, to achieve justice for society’s underdog is common.  It is this development of a rights consciousness among these Shanghai residents and their effective tactics that is an important part of China’s legal development that could have been discussed a bit more.

Ultimately this is a minor point in what is an amazing study of China’s recent legal development. Environmental Litigation in China: A Study in Political Ambivalence is a necessary read for all China scholars, and even more so for those who teach a Chinese law class.  The book itself – with its clear, concise and direct style – could serve as the textbook for the course.  And although it does not provide for great optimism in the present system, it does provide for hope.  The fact that one of the judges on an environmental case was a student of an environmental clinic at her law school, the fact that the Environmental Protection Bureau officials often leave to become aggressive “cause” lawyers, the fact that average citizens are looking for ways to achieve justice, these are all hopeful signs for the future of environmental litigation in China.

Rating:

Environmental Litigation in China: A Study in Political Ambivalence, by Rachel Stern (Cambridge Studies in Law and Society 2013), 234