China’s ‘Rule by Law’ Takes an Ugly Turn

A ChinaFile Conversation

Nancy Tang, Eva PilsJuly 14, 2015



Greg Baker—AFP/Getty Images

Police question a man in Tiananmen Square.

Yet another crackdown has begun under Chinese President Xi Jinping. This time, the target is so-called “rights lawyers,” loosely defined as those who defend unpopular or dissident clients, or bring cases against the state that rest on claims of individual rights. In recent days, according to U.S.-based nonprofit Amnesty International and other overseas sources, over 100 Chinese rights lawyers have been detained, questioned, or reported missing. According to a July 12 report in Chinese state media, key to the recent crackdown are several lawyers and one administrative assistant from Beijing-based law firm Fengrui, who are suspected of involvement with a “criminal syndicate” that caused “trouble and disorder” on behalf of clients. What does it mean—and why is Beijing doing this now? —The Editors

Responses

Tuesday, July 14, 2015 - 3:16pm

Nancy Tang



The crackdown has already raised grave doubts about the real-life implications of Chinese President Xi Jinping’s particular conception of “rule by law.” On July 12, state mouthpiece People’s Daily published a whole-page feature, “Unveiling the Inside Plot of the ‘Rights Defense’ Incident,” accusing the seized lawyers of colluding with petitioners, sensationalizing grievance cases on the Internet, seeking personal fame and status, and participating in a “criminal syndicate.”

But activists point out that the People’s Daily story and editorial are essentially a “prosecution without trial.” To make their point, they have juxtaposed the People’s Daily “criminal syndicate” headline with an (unverified) message sent to a Zhejiang-based lawyer by a Shanghai police bureau branch, which read: “Do not publish any relevant information on the arrest of Wang Yu, Zhou Shifeng, and [other rights] lawyers. Otherwise, we have a way to gao,” or mess with, “you and your son.”

The current crackdown on lawyers, though perhaps unprecedented, is anything but unexpected. Since Xi’s administration came into power in 2012, attacks on NGO groups, civil society activists, and media freedoms have impacted anti-discrimination groups, liberal intellectuals, and young feminists, and have resulted in arrests or detentions in the thousands. The ultimate goal appears to be the total prohibition of any possible outside checks and balances on the power of the Chinese Communist Party. The current crackdown is just the most recent manifestation.

In a May 2015 speech at the Central United Front Work Conference, Xi highlightedoverseas Chinese and especially Chinese students abroad as a new front for mobilization of Party interests. “Personnel studying abroad,” he said, constituted “a key element of the skilled workforce, as well as the new focus for a United Front.” That approach is wrongheaded. The state should recognize that having studied and lived abroad, students and scholars will carry different, sometimes dissenting, opinions with them back to China. The government’s stated refusal of Western values and its paranoia about foreign influence is seriously short-sighted and in the long run, may deprive China of opportunities to reform economically, politically, and legally.

One consequence of the recent detentions is likely to be the continued brain drain of young, justice-minded Chinese abroad. As a young feminist and aspiring advocate for Chinese civil rights, I find 2015 an ominous year to begin pursuing my Juris Doctorate (J.D.) at an American law school. While I’m not aware of statistics on the number of Chinese nationals going overseas to pursue J.D.s, I sense I’m part of a growing trend. Will our legal training in the United States impact the future of the Chinese legal landscape? Will young legal talents become interested in the separation of power, possible redistribution of power in the Chinese context, and perhaps even civil rights? Or will they just become yet another elite, depoliticized Chinese circle, collaborating with the state for personal status and material gain?

Tuesday, July 14, 2015 - 3:30pm

Eva Pils



This crackdown is the latest step in Xi’s apparent campaign to eradicate independent civil society and to concentrate power. It manifests his neo-totalitarian ambitions—trying to reclaim control of all aspects of society, which requires that all social activities must be reconceived and reorganised along corporatist lines, and under the firm leadership of the ruling party. The law, with its natural affinity to deep controversy played out in public, is a particularly important area to be brought under control.

A July 11 broadcast on state-run China Central Television (CCTV) labelled lawyers at the Fengrui Law Firm in Beijing as a “criminal organization” suspected of the offense of “creating ‘rights defense-style’ disturbances.” This phrase captures what rattled the authorities, as well as the absurdity of these charges. In recent years, human rights advocates in China have developed new strategies to take the action from inside courtrooms out to social media and the streets. The May 2015 Qing’an Incident, in which the deadly police shooting of a young man who may have been trying to petition the government triggered wide public discussion and calls for an independent investigation, is a good example. In its wake, some 660 lawyers rallied around their professional colleagues in a signature campaign, after one lawyer had been assaulted by “unidentified thugs” and others had been detained.

But to authorities trying to run a one-party “people’s democratic dictatorship,” a phrase reiterated in the National Security Law, such activities look like an attempt to subvert control of the legal process. Legal advocacy, in their eyes, becomes political resistance. The human rights lawyers’ swelling numbers—some 200 to 300 now, at an estimate—have added to the government’s anxieties. It may have reinforced its perception of human rights lawyers as public enemies—hence the “crime” of “creating a ‘rights defense-style’ disturbance” and the targeting of groups that represent modes of rights advocacy the authorities wished to repress.

The ongoing crackdown is unprecedented in terms of its scope and methods. Earlier crackdowns happened much less in the public eye. But this time around, authorities denounced human rights lawyers all over national media. In being so public and assertive, the authorities have signaled to a broad swath of society, including the wider legal profession, that they want to stop effective human rights advocacy. They have also shown themselves brazenly unconcerned about the illegality of some of their methods. Besides repeated use of forced disappearances, they even held a 16-year-old child for two days with no legal justification when his parents—Fengrui Law Firm employees Wang Yu and her husband Bao Longjun—were swept up in the current crackdown.

It is perhaps testimony to the strength of the human rights lawyer movement that the campaign we now see unfolding is so large in scope, with not only dozens detained or ominously out of reach, but also nearly a hundred lawyers taken in for questioning and warned they are not to advocate for their already-detained friends. Some of them have lived with persecution for many years. They have been put under surveillance, harassed, abducted, detained, tortured, placed under house arrest, and some have been sent to prison. As many lawyers still expect to be detained, the phrase “gai lai de jiu lai ba”—effectively, “bring it on!”—is currently popular among the social media groups they use to communicate and coordinate their actions.

In the short term, this crackdown produces terror and suffering. The spirit of professional solidarity, which the Party is clearly trying to break, can help people live with fear but not entirely dispel it. On a trip to China in May and June, I spoke to several of the lawyers now detained or disappeared, and already sensed more of that fear, even though it was not often expressed.

It is difficult to tell what longer-term consequences might be. One likely consequence is greater disapproval for the government’s actions and more support for human rights lawyers within the liberal-leaning legal academic establishment, such as recent comments by such widely respected figures as Chen Guangzhong and Jiang Ping. China’s rights lawyers are not the only ones who understand that Xi’s political vision is wholly incompatible with genuine rule of law.

Tuesday, July 14, 2015 - 5:32pm

Keith Hand



In my view, we should understand the wave of lawyer detentions this past weekend as the crescendo of a decade-long campaign by China’s leaders to contain the perceived threat posed by the rights defense movement.

The 2003 Sun Zhigang incident generally is viewed as a milestone in the development of rights defense in China. After Sun died in police custody, a group of young lawyers leveraged media coverage and public outrage over the incident, filing a petition with the National People’s Congress Standing Committee challenging the legality of a regulation that had led to Sun’s detention. Faced with public opinion pressure over Sun’s death and a modest, carefully drafted legal argument advanced through official channels, the government repealed the regulation. The incident highlighted a moderate approach that legal reformers could use to push for legal reform within China’s authoritarian system. In the wake of this incident, moderate lawyers refined rights defense strategies and applied them with limited success on issues such as anti-discrimination, property rights, and criminal procedure. At the same time, they advanced broader arguments about constitutionalism and the need for meaningful legal restraints on the Party-state.

Senior leaders identified the rights defense movement as a potential threat early on. Although official media praised lawyers such as Xu Zhiyong and Teng Biao for addressing Sun Zhigang’s death within the legal framework, authorities detained or prosecuted other lawyers, including Gao Zhisheng, Guo Feixiong, Zhu Jiuhu, and Chen Guangcheng whose advocacy was viewed as more confrontational or destabilizing. By 2006, Luo Gan, then head of the Party Political-Legal Commission, publicly declared that China must “[e]ffectively guard against enemy forces and people with ulterior motives who get involved in or use contradictions among the people to manufacture disturbances,” including those who use “the pretense of rights defense to engage in sabotage.”

The decade that followed witnessed a confluence of two trends that narrowed space for rights defense actions and expanded the group of rights activists falling fall within the category of enemy forces. As concern about threats to social stability intensified, Chinese leaders launched campaigns to shore up the loyalty of political-legal institutions and incorporate these institutions into a system-wide stability maintenance effort. At the same time, rights defense lawyers began to organize more overtly and to push political-legal boundaries through their advocacy on a range of sensitive cases and issues. The wave of citizen activism crested in 2008, when thousands of citizens signed a broad call for constitutional government called Charter 08.

Efforts to contain the rights defense movement have intensified under Xi Jinping. While the Fourth Plenum Decision renewed the party’s commitment to legal professionalism and process in certain respects, it also strengthened emphasis on the party. Xi’s apparent goal is to discipline the bureaucracy and promote new economic reforms by revisiting and modestly expanding on the legal reforms of the 1990s and early 2000s, while systematically containing perceived threats that the earlier wave of legal reforms generated. Accordingly, the party-state has stepped up repression of rights lawyers, tightened control over the Internet and other discourse and that sustains rights defense actions, and marginalized citizen constitutional rights arguments by emphasizing party leadership as the defining principle of China’s constitutional order.

The wave of detentions this past weekend is just the latest step in this sustained effort.

What political-legal space remains for rights defense lawyers? In the early 2000s, there was considerable optimism that some Chinese lawyers had identified a middle ground within which the party-state would tolerate some moderate citizen pressure and legal advocacy. Even as this space constricted over the past decade, petitions from rights lawyers and legal scholars contributed to some meaningful legal reforms. The adoption of new rules governing property seizures in urban areas in 2011 and leadership’s decision to dismantle the re-education through labor system in late 2013 are notable examples. However, the wave of repression that has culminated in the weekend detentions demonstrates the leadership’s resolve to eliminate much of this remaining space and make clear that it will tolerate citizen legal argument only within the very narrow and controlled confines.

In closing, some commentators have observed that the weekend action against rights lawyers demonstrates the regime’s fragility. While the notion that only a fragile regime would take such action against may help some grapple with the bitter news, I think we need to consider a different possibility. Together with China’s assertive posture in territorial disputes, the adoption of a broad national security law, and proposed legislation that would place strict new limits on the Internet and activities by foreign non-profits, the mass detention of rights lawyers suggests to me that China’s leaders are so confident in their strength that they no longer need to maintain a pretense of even limited engagement and tolerance.


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