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By Elizabeth M. Lynch, October 18, 2015

When the Chinese government detained, harassed and disappeared over 280 human rights lawyers and legal activists in July 2015, the international community took notice. These simultaneous, country-wide, nighttime and early morning raids made front page news in the United States, often described as the Chinese government’s attempts to eradicate cause lawyering from its shores.

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

Although the Chinese government still relies on extra-judicial measures such a illegal detentions, torture, constant surveillance when “free,” and pressures on families, employers and even landlords in an attempt to destroy the lawyer’s life, Plight and Prospects underscores that soon these extra-judicial methods will be unnecessary. Through amendments to the Lawyers Law (amended 2007), the Criminal Law (amended 2015), the Criminal Procedure Law (amended 2012), the National Security Law (passed 2015) and through the annual lawyer licensing procedure, the Chinese government can limit the ability of cause lawyers to practice and still pay lip service to “the rule of law.”

Chinese President Xi Jinping

As Plight and Prospects points out, under President Xi Jinping (pronounced See Gin-ping) there has been a stepped-up effort to enshrine in law methods that will effectively break the cause lawyering movement. But even before Xi took power in 2012, there were already concrete efforts in the Chinese government to use the law to limit human rights lawyers’ advocacy.

Take for example, the Lawyers Law. Amended in 2007 and believed to provide the profession with greater protection to practice law, it has proven to be a double-edged sword. Sure Articles 36 and 37 of the Lawyers Law maintain that the lawyers “rights to debate or a defense shall be protected in accordance with the law,” but Article 49, which lists the examples of lawyers’ conduct subject to punishment, increased the number of categories from four to nine with the 2007 amendments. Added to the Lawyers Law as Article 49(6) was instances where a lawyers “disrupts the order of a court . . . or interferes with the normal conduct of litigation or arbitration.” Vague and unclear, this provision could be used to limit the courtroom advocacy of lawyers who take cases the government just does not like.

Lawyers Liu Wei and Tang Jitian review papers in April 2010

And in 2010, it was. In April 2010, Tang Jitian (pronounced Tang Gee-tee’an) and Liu Wei (pronounced Leo Way), two cause lawyers who had represented a practitioner of the spiritual movement Falun Gong and who both quietly left the courtroom in protest when they were unable to present their client’s defense, were hauled before the Beijing Bureau of Justice for a hearing concerning whether they should be disbarred (see China’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law). While Tang and Liu both raised Article 37 – that their ability to practice law was being infringed upon – as a defense, both were permanently disbarred under Article 49(6) for “disrupting the courtroom.” (Id.).

Further attempts to limit the advocacy of human rights attorneys have been proposed more recently by the All China’s Lawyers Association (ACLA), the national bar association that operates under the guidance of the Ministry of Justice.  ACLA’s draft revisions to the Lawyers Code of Conduct (proposed in 2014), if adopted, could limit methods of advocacy that lawyers must use when representing vulnerable populations, including the use of the media and internet (draft Article 9), organizing demonstrations or “inflaming” public opinion (draft Article 11), or supporting organizations that do cause lawyering (draft Article 13).  These draft provisions are in contravention of Article 35 of the Chinese Constitution which provides for freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

When your home becomes your prison: residential surveillance

The Criminal Procedure Law (CPL) provides another example. Amended in 2012, it was hoped that the amendments would better protect suspects’ rights and ensure a more fair system. But, as Yaqiu Wang at China Change has pointed out, it left one gaping loophole: “residential surveillance at a designated place.” Articles 72 through 77 of the CPL deal with residential surveillance. Although this sounds like a more mellow way to be detained than at a detention center, for those investigations that might involve crimes of “endangering state security,” “terrorism” or “serious crimes of bribery,” residential surveillance does not occur at one’s home. (CPL, Art. 73) Instead, it occurs at an undisclosed location – the family is informed of the fact that the person is being detained under residential surveillance (required by CPL, Art. 73), but not necessarily of the location of the residential surveillance. The suspect has a right to retain a lawyer (see CPL, Art. 73, applying CPL, Art. 33).  But because “residential surveillance in a designated place” presupposes a possible state security, terrorist, or serious bribery charge, the requirement that a meeting with the lawyer take place within 48 hours (CPL, Art. 37) is suspended for those possible charges.  (CPL, Art. 37).  Instead, any meeting must be approved by the police. (CPL, Art. 37).   Which fits with the rules that the suspect must follow when in residential surveillance: only with permission of the public security agency can the suspect meet or correspond with someone else. (CPL, Art.75(2)). And it is not hard to place someone under residential surveillance at a designated place. All that the police need is approval from the chief of public security above the county level. (see Ministry of Public Security Implementing Regulations of the CPL, Art. 106). Residential surveillance pending investigation is permitted for up to six months. (CPL, Art. 77).

Whereabouts Unknown: Lawyer Wang Yu

As Plight and Prospects points out, the use of residential surveillance at a designated place has been used with abandon in the current crackdown. The section entitled “Whereabouts Unknown” highlights that eight of the suspects still being held as a result of the July crackdown are held under residential surveillance at a designated place but no one outside of the police, not even their lawyers, know where. Amnesty International researcher William Nee has pointed out that although a legally-authorized form of detention under the amended CPL, it still carries with it the dangers associated with enforced disappearances: held secretly and without access to a lawyer, these suspects in residential surveillance are vulnerable to torture to force a confession.

By being able to point to the law it is using to crackdown on cause lawyers, the Chinese government likely aspires to punt the international critique of a failure to follow a rule of law. It is following a rule of law, it will say. But as Plight and Prospects notes, it is a hollow one where the Chinese government undermines its own Constitution, other provisions of many of the laws it has used in the crackdown, its international treaty obligations as well as the desires of its own people.

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By Elizabeth M. Lynch, June 20, 2013

Chinese activist Chen Guangcheng

Love is a battlefield and so evidently is our China human rights policy.  At least that is what the recent developments with blind Chinese activist Chen Guangcheng demonstrate.  Chen made international headlines last April when he bravely escaped his illegal house arrest, fled to Beijing and sought refuge in the U.S. Embassy.

On May 19, 2012, after the U.S. brokered a deal, Chen and his family arrived at Newark International Airport where Chen was to start a fellowship at NYU Law School’s U.S.-Asia Law Institute.

Fast forward a year and on Sunday, Chen was again in the news, this time issuing a press release stating that NYU had forced him to leave, alleging that NYU’s actions were a result of the Chinese Communist Party’s pressure on the University.  NYU has denied Chen’s allegations.

Chen’s story is more than just a page six affair of he-said-she-said.  Instead it reflects the ability one group to exert an undue influence on the China human rights agenda.

The Commandeering of the U.S.’ Human Rights Policy in China

In very simplistic terms, the politics behind our China human rights policy used to be easy – the left supported human rights in China above all else.  The right was more about business ties to China before human rights (or as a way to achieving human rights).

But the rise of the religious right, especially the pro-lifers, within the Republican Party has changed that dynamic.  Nothing demonstrates that more clearly than the changing politics behind the Congressional-Executive Commission on China (CECC).

In 2000, after China’s WTO entry, Congress created the CECC to monitor China’s human rights and rule of law development.  It quickly became Capitol Hill’s bipartisan think tank on China issues, publishing a detailed annual report on China’s human rights and rule of law record and some of the U.S.’ best young China hands passed through the CECC.

But over the past six years, the CECC has become dominated by one voice, that of Rep. Chris Smith, a pro-life Republican who became a member of the Commission in 2007, its chairman in 2011 and its current co-chair.  Since his membership, the CECC has become increasing politicized.

I first felt this when undergoing an interview for a position covering the CECC’s criminal law portfolio back in 2009.  I had already cleared interviews with CECC staff, and a political vetting by one of

Rep. Chris Smith of New Jersey

Chris Smith’s staffers was the final hurdle. It was unclear why this staffer had been chosen as he neither spoke Chinese nor demonstrated any special knowledge of China.  He asked only limited questions about my work at NYU’s U.S.-Asia Law Institute (the same organization where Chen would land years later) or about my knowledge of Chinese criminal law which I had focused on during my two years at NYU.  Instead he asked about my views of Obama’s China policy vis-a-vis Bush’s (I believe they were pretty much the same); why I wrote for the Huffington Post (because they are willing to publish me); what editorial control did the Huffington Post have over my work (none); and finally, what did I think about China’s one-child policy.  And that is where much of the interviewed remained – around China’s one-child policy.

I told the staffer that forced abortions are wrong and illegal under Chinese law.  The staffer probed deeper than just forced abortions, inquiring what I thought about the one-child policy in the abstract and whether the policy alone, regardless of the way it was implemented, was a human rights violation.  Of the human rights violations in China, the one-child policy is low on my list, and I said as much.  But the questions continued, and at some point I found myself “admitting” that I was fine with contraception.   Once those words left my mouth, somehow I knew I did not get the job.

The phone interview ended with the staffer asking about one of my blog posts where I tried to explain why the Chinese Communist Party should not be viewed as a monolith.  The line of questioning quickly turned into what felt like a McCarthy-era hearing with the staffer accusing me about not caring about human rights.

After the interview, I was rejected for the job.  I was told that Chris Smith’s office stated that my rejection was because my blog had typos (which is true).  But the line of questioning I underwent suggests another reason to me.  That interview was the first glimpse of what I believe is the pro-life contingent’s influence on our policy toward China’s human rights.

How Does Chen Guangcheng Play Into Chris Smith’s China Human Rights Policy?

It didn’t surprise me last year when it was Rep. Chris Smith who orchestrated Chen Guangcheng’s dramatic phone call from Beijing into the CECC hearing where Chen begged to be allowed into the US, creating a second international crisis that the U.S. had to negotiate.  It was even less surprising that Chen’s translator on that phone call was Bob Fu, president of the Texas-based evangelical human rights group, ChinaAid.  Fu himself has testified a number of times before the CECC, and since Chen’s Sunday night press release Fu has made the rounds with the press, alleging that Chen was being forced out of NYU because of Chinese pressure.  Expectedly, Rep. Smith has threatened to convene a hearing hauling in NYU officials to testify under oath and prove that they were not pressured by the Chinese government.

Rep. Chris Smith with Bob Fu of ChinaAid, on the phone with Chen Guangcheng

To pro-life advocates like Rep. Smith, Chen is an important figure.  Chen, a self-taught lawyer, began his career by fighting for the rights of those with disabilities.  Soon, Chen heard of other injustices in his village, especially forced abortions.  Although China maintains a one-child policy, forced abortions and sterilizations are illegal under Chinese law.  An investigation by Chen and lawyers from Beijing uncovered that forced abortions and sterilizations were common, especially in rural areas.  By the summer of 2005, Chen filed multiple lawsuits in his village Linyi on behalf of many of the victims.

It was those forced abortion cases that caused Chen to become a martyr, being arrested and thrown in jail on trumped-up charges.  Even after his official release, the Linyi authorities illegally kept him under house arrest.  But it was these forced abortion cases that also brought him to the attention of the pro-lifers in the United States.  Although Chen has stated that he is against forced abortions and less against abortions themselves (see NPR interview at 9:51), his lawsuits represent an important stepping stone for pro-lifers –  ridding China of the one-child policy.  And there is always hope that he can be converted to a pro-life stance.

Chen Guangcheng – Only A Pawn in Their Game?

I don’t believe that NYU succumbed to Chinese political pressure.  Mattie J. Bekink, Chen Guangcheng’s special adviser while at NYU, has issued a convincing press release detailing the efforts that NYU went to for Chen and his family and that she was the one who informed him early on in his tenure is that he was on a one-year fellowship.

But more importantly, I question how much the Chinese government actually cares about Chen’s existence in the United States.  Chen was a public relations disaster for the Chinese government while he was in China – causing protests domestically and internationally and even having Christian Bale attempt to visit.  Yes, the Chinese government protested the U.S. government’s involvement in the Chen affair, but ultimately they let him go and likely because they wanted to.  Activists lose their impact once they leave China.

Chen offers no evidence as to this alleged pressure.  Although he ties all of this to NYU’s desire to expand its Shanghai campus, that doesn’t seem to make sense.  NYU accepted Chen in May 2012.  That didn’t change its plans for the Shanghai campus.  The campus is still set to open in fall 2013.

But whether Chen is a pawn in a much bigger game is merely speculation.  And maybe Chen isn’t even a pawn; maybe he has taken sides and that he has chosen the pro-life camp.  News reports have stated that Chen is currently negotiating fellowships with two organizations – the Leitner Center at Fordham Law School focused on international human rights and the Witherspoon Institute, a conservative, pro-life think tank, in Princeton, New Jersey.  But it wouldn’t surprise me if after Sunday’s press release and accusations if Fordham withdraws from negotiations; who would want that headache, ending up in the press like NYU.  So in the end, Chen may only be left  with one choice – Witherspoon.  Which makes one wonder why Chen didn’t wait until he signed the contract with whichever organization he chose and then lambast NYU.  There was no particular reason to do it now.  Unless of course Chen – or the people surrounding him – didn’t want a choice.

Ramifications of the Pro-Life’s Influence on China’s Human Rights Policy

Soon after my interview with Rep. Chris Smith’s office, I asked a friend who worked on Capitol Hill how a Congressional commission could be so influenced by one voice.  No one cares about China he told me, they care about the Middle East.

I don’t know if that is exactly true but certainly what happened with the CECC shows that others on Capitol Hill need to start paying attention.  Our relationship with China is too important to allow the human rights agenda to be so unduly influenced by one contingent.  The one-child policy and abortions can and should be a part of our human rights agenda, but it should not be the exclusive focus.  Or if it is, that consensus should be reached in a more democratic process not just by default because no one paid attention.

The CECC has long been an important resource for scholars, journalists and everyday citizens who want to learn more about China.  No other organization publishes as well documented an analysis of China’s human rights and rule of law developments as the CECC does in its annual report.  But if the organization becomes politicized, that annual report will begin to lose its legitimacy.  Its work is too important to allow that to happen.

In the present Congress, Rep. Smith is CECC’s co-chair, meaning that he will wield less influence than he did as chairman.  But he is still on the Commission and he also currently chairs the Subcommittee on Africa, Global Health, Global Human Rights and International Organizations of the House Foreign Affairs Committee.  Under his tenure, many of the hearings on China focus on these narrow issues with some of the same witnesses testifying.

But more than anything, what is happening with Chen Guangcheng is a sad state of affairs – it appears that he is being used by pro-life advocates in an attempt to commandeer the U.S.’ human rights policy in China.  To the extent that Chen is not a pawn, well, it didn’t have to end this way.  What’s unfortunate is that Chen’s behavior sets the tone for other activists trying to escape China, fearing for their life.  Will the United States government be willing to take that risk again, especially if a Democrat is still in the Executive Office?  Likely “the Dissident Wears Prada” is not a movie they want to see replayed.

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By Elizabeth M. Lynch, November 15, 2012

Meg Davis, Executive Director of Asia Catalyst Introduces the Speakers
Photo by Robert Burnett, Jr.
www.rburnettjr.com

Last week, the day after the United States elected its first openly gay Senator and more states extended the right to marry to gay couples, Asia Catalyst and Fordham Law School’s Leitner Center co-hosted a fascinating talk about Lesbian, Gay, Bisexual and Transgender (LGBT) rights in China entitled “China’s Comrades.”

Featuring two on the ground LGBT activists – Sam Zhao (co-founder of China’s only lesbian magazine) and Dan Zhou (a Shanghai lawyer who has taken on some hard-hitting LGBT rights cases) – and John Balzano, a law professor and China expert who provided a more macro view of the movement, the talk broke down some common assumptions about China and the development of individual rights.

Zhou started his talk stating that this discussion was a “queer event” – although talks about Chinese legal development are common, Zhou noted that rarely if ever do these talks discuss LGBT rights development.  But while true, what was perhaps most queer about the talk was learning of the Chinese government’s response to the LGBT rights movement.  Usually the narrative at many of these rights development talks are the same – an authoritarian government trampling over individual rights, fearful that its monopoly on power will be destroyed by such nascent rights movements.

But for LGBT rights, the story seems to be different.  Zhao made a joke about how in

Sam Zhao, speaking at “China’s Comrades”
Photo by Robert Burnett, Jr.
www.rburnettjr.com

1996, a friend called her, excitedly telling her to return to Beijing because there was going to be a “big” lesbian party – eight lesbians were getting together.  Fast forward a little over a decade and in 2008, Zhao helped organize a two-day lesbian independent film festival where 600 lesbians attended.

What was interesting about Zhao’s story was the fact that the Chinese government even allowed the film festival, and not because it necessarily has an anti-gay bias.  Usually, when movements get too large, the Chinese government sees the movement – be it LGBT rights activists organizing a film festival, rural villagers decrying the taking of their lands, or factory workers protesting inhuman working conditions – as an alternative source of power and threat to its rule – events are broken up and email listserves are shut down.

But both Zhao and Zhou discussed the success they have had in creating an LGBT community throughout China, with much of this success a result of the internet.  Even Balzano noted that while it is true that when movements in China get too large, too overt or too public, the government seeks to crack down, the LGBT movement thus far has not faced the same kinds of pressure.

Audience listens during China’s Comrades
Photo by Robert Burnett, Jr.
www.rburnettjr.com

Zhou did point out that the LGBT rights movement is not completely immune.  In 2012, some LGBT rights bloggers held a successful conference in a southern city that many activists attended.  When they tried to re-create the event in Beijing, the government put a stop to it.  But according to Zhao, when the activists asked the Beijing government if the reason was because the event was about LGBT rights, the government said no.  According to the authorities, the basis for denying the activists their conference was because it bordered upon a “mass incident” which the law forbids.

But not everything is rosy for LGBT individuals in China.  While Balzano remarked that there is no law in China that is overtly discriminatory toward the community, the law is still used at times to harass LGBT individuals.  Zhao confirmed this, noting the difficulty in obtaining the proper government approvals for her lesbian film festival because many officials equated lesbian film with pornography.

Zhou also commented that while there is no law that governs sexual relations in a

Photo by Robert Burnett, Jr.
www.rburnettjr.com

private place, what is still up for debate, at least with some government officials and courts, is what is private.  There have been cases where a hotel room is considered public or a bedroom in an apartment that serves as a business office during the day.  Zhou also discussed the prosecution of one of his clients – a gay D.J. who was part of a party in a gay nightclub.  He was taken in for “lewd” behavior.

Finally, although only briefly touched upon in the talk but much more fully fleshed out in the readings that Asia Catalyst and the Leitner Center diligently selected (see “Resources” list below) is the societal pressure that all Chinese face but is more acute in the LGBT community – parental pressure for a heterosexual marriage and a grandchild.  All of the reading went into depth on this issue, noting that traditionally in China, homosexual conduct has been tolerated so long as that behavior is more “on the side” of a heterosexual marriage that produces children (in this regard, Balzano’s article made an important distinction between traditional acceptance of homosexual behavior and not necessarily homosexual identity).  This pressure and to some degree behavior is still very much present in the LGBT community in China (the Kam article interviewed a number of Shanghai lesbians to ascertain how they deal with the heterosexual marriage issue).

Photo by Robert Burnett, Jr.
www.rburnettjr.com

Although China’s LGBT community is still in greater need of protection, especially since vague laws are arbitrarily used to harass some individuals, its movement appears to be on more solid footing than other rights groups.  By the end of the talk, Zhou’s initial remark – that it is queer that discussions of LGBT rights rarely happen – made one wonder, why isn’t Western China watchers especially those who focus on and seek to promote civil society development, examining China’s LGBT movement more.  The LGBT rights movement is an outlier in the normal course of civil society development in China.  What is it that allows it right now to be a bit more immune to traditional government pressure?  And is there anything other movements can learn from the LGBT rights movement?  China’s Comrades proved that more a deeper understanding of the LGBT movement are necessary.

Resources:

John C. Balzano, Toward a Gay-Friendly China?  Legal Implications of Transition for Gays and Lesbians, 16 Tul. J. L. & Sexuality (2007).

Lucetta Kam, Opening up Marriage: Married Lalas in Shanghai, in As Normal as Possible: Negotiating Sexuality and Gender in Mainland China and Hong Kong (Yau China ed., 2010; Hong Kong University Press).

Holning Lau, Grounding Conversations on Sexuality and Asian Law, 44 U.C. Davis L. Rev. 773 (2011).

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