Yu Jianrong (于建嵘): Maintaining a Baseline of Social Stability (Part 9)
Dr. Yu Jianrong (于建嵘), chairman of the Social Issues Research Center of the Rural Development Institute of the China Academy of Social Sciences, delivered a speech entitled “Maintaining a Baseline of Social Stability” before the Beijing Lawyers Association on December 26, 2009. This is the final section of the CDT translation, which includes a question and answer session after Yu’s talk. Here are part 1, part 2, part 3, part 4, part 5, part 6, part 7, and part 8. CDT would like to thank the translator, who wishes to remain anonymous.
Wei Rujiu: Dear colleagues, I am Wei Rujiu from the Constitution Committee of the Beijing Lawyers Association. I express my deep respect to all of you for coming here to listen to this lecture during this bitterly cold weekend! I respect you because attending this type of lecture will not bring any direct benefits to your legal work. If a lawyer participates in the representation of a sensitive case or a case involving mass incidents, then that lawyer may be in for some bad luck. For example, because I previously handled one of these cases I was fired from a prominent law firm. Afterwards, this law firm put forth a rule: whoever again handles these type of cases will be relieved of their employment. I took a picture of this written rule so that in the future I can place it in “The Lawyers Museum of China.” So, I express my understanding for those lawyers who didn’t come to hear this lecture! And it’s because of this that I express my sincere respect to everyone here who cares about our establishment of a system of constitutional governance and who cares about the protection of basic human rights!
If we don’t squarely face the true reality of society, if we don’t defend a baseline of constitutional governance, if we don’t defend a baseline of the rule of law, then we’ll simply be called “money-grubbers,” “posers,” or “litigious scoundrels,” as many in the legal profession have been called for years! We don’t know where the future of our profession lies, but we do know where our hope lies. So I hope everyone cares about building a system of constitutional governance and about the protection of basic human rights, and that people also care about the work of our Constitution Committee. [I hope] many [of you] come and participate in the work of building a system of constitutional governance and protecting human rights!
Now we will have some question and answer time with Professor Yu. Everyone can freely ask any question. First though, let me offer three criticisms of Professor Yu’s lecture. I feel that Professor Yu has made three “serious errors.”
1. Professor Yu has committed a legal error. Professor Yu said that he was almost put under shuanggui [Party house arrest] for one week. This is incorrect. Shuanggui is a method of Party discipline imposed by the Chinese Communist Party according to the Party Constitution, whereby a Party member’s personal freedom is restricted. Our country’s laws clearly state that restricting someone’s personal freedom can only be done on the basis of a “basic law” that has been passed by the National People’s Congress. However, the Party Constitution rides above the law and stipulates that the Party can restrict Party member’s personal freedom. We know that Professor Yu is not a Party member, so even if he wanted to, he wouldn’t be eligible to be placed under shuanggui. How could he be placed under shuanggui? This is a legal error.
2. The second error is an error in his point of view. Professor Yu said that we must defend the authoritativeness of the constitution, that we must realize the judicial implementation of the constitution. This is incorrect. The Chief Justice of the Supreme People’s Court has openly said, “the Constitution is supreme,” “the Party’s interests are supreme,” and “the people’s interests are supreme.” However, the Supreme People’s Court issued an internal notice concerning the question of “judicial implementation of the Constitution.” This notice forbids judges from using the Constitution when they handle cases. It stipulates that judges are not allowed to participate in symposia concerning the “judicial implementation of the constitution.” It also stipulates that judges are not allowed to publish articles concerning the “judicial implementation of the constitution.” “Judicial implementation of the constitution” has become just a slogan. [Therefore] what’s called “the Constitution is supreme” [really should be] called, “the memorial is supreme.”
3. The third error is a political error. Where exactly the error lies I can’t think of right now.
Our Constitution Committee is firmly united around the Party Central Committee. We conscientiously study Minister of Justice Wu Aiying’s guidance that “Lawyers Must Concern Themselves With Politics.” We conscientiously study the speech given by the director of the Chongqing Municipal Judicial Bureau, that lawyers must be mindful of the big picture. This Bureau’s former director was worthless.* I don’t know whether the current Judicial Bureau director is or is not a good person.
If anyone has any questions they’d like to ask Professor Yu, please feel free to ask. Thank you.
Yu Jianrong: Rujiu said I just committed a legal error, but in this he is mistaken. Because the Party’s rules are not the law, I have not committed a legal error. It is Wei Rujiu, Esq. that has just committed a legal error by taking something that is not a legal concept and turning it into a legal concept.
Yu Jianrong: (Looking at a note) This lawyer’s first question is about the problem of transferring one’s hukou [registered place of residence]. He says that the Constitution provides that citizens can [transfer their hukou] but asks why is this not allowed in practice. [This] non-local lawyer has always been unable to transfer his hukou to Beijing. [This person’s] children grew up in Beijing but have to return to Hunan to take the college entrance exam.** What can be done? For this question, first of all I want to say that in this regard, lawyers and rural farmers are about the same, they get treated the same. Don’t think that lawyers enjoy more rights than migrant workers, and of course, lawyers should not have greater rights than migrant workers. Recently we have been researching how to reform the hukou system. Right now the hukou system itself doesn’t have much significance. The key is what to do about all the things now connected to the hukou system. For example, this person just brought up the issue of the college entrance exam. I think that this is both a legal question and a non-legal question. The conclusion we came up with is that there is an institutional problem. You have to look at [what has happened] since the process of setting up the hukou system. Then you have to gradually peel off those things that have become attached to the hukou system.
The second thing he says is that he has not participated in any elections and asks how I view this. I have the same view as you on this issue. I have also not participated in any elections. I feel that since there is no real system of elections, there is no need for us to play this game with them. Why is this? That’s because within my heart I still have a little bit of faith left, just a little bit. I’m always hoping that I can hang onto this faith. I’m not willing to tarnish [it] by playing along.
Concerning the Li Zhuang case***, I once wrote an article entitled, “Demonizing the Legal Profession is Not the Proper Attitude.” The article criticized The China Youth Daily. Where was their mistake? I thought that no matter what kind of person Li Zhuang is, you as a newspaper should not carelessly extend this to all us lawyers and say we’re the same way. [The article] said that lawyers only won 5% of their cases [against the government] and that a 5% win ratio was terrible. [I feel that] even if they only won 1% of their cases then that would represent a great victory for China’s lawyers. Defending the dignity of the law, defending the rights of our clients—these are the greatest victories.
There are some in the legal profession who want to enter politics. Let me tell you that this is certainly the way things will be in the future. That is because if you take a look at the process of development in all advanced countries, they all start with an “era of heroes” that ushers in a so-called “era of construction.” Finally they all enter an “era of law.” This is the era of those in the legal profession. Law is what finally must become the ultimate baseline of a nation’s government. Today, why have lawyers not entered politics? It may be because a lot of people don’t want to enter politics or it may be because they won’t let you enter. But I believe that in the future the people who truly control this country will certainly be from among the legal profession and a lot of those people may have previously been lawyers. There is no doubt about this; this is a global trend.
Yu Jianrong: (Looking at a note) This lawyer wants me to talk about the characteristics of rabble-rousing incidents. What is the biggest characteristic of rabble-rousing incidents? It is that they are directed towards innocent bystanders. Venting incidents are violations of legal baselines. [People in venting incidents] violate the law; they’ll set fires and smash up your public security bureau. But venting incidents do have a baseline—the baseline of social morality cannot be violated. If you’re not related to the conflict then they are not going to direct their acts at you. In contrast, rabble-rousing incidents violate the baseline of social morality. It doesn’t matter who you are, they are still going to rob you and beat you. Therefore this is the distinction with venting incidents.
There’s also another question. “What is meant by the term ‘politics?’” At the time the Minister of Justice said that lawyers must concern themselves with politics, I wrote an article that was published in the newspaper. The article was entitled, “The Minister of Justice Does Not Know What Politics Is.” So what is meant by the term “politics?” I think that lawyers’ most important “politics” is protecting the dignity of the law and doing what the law tells you to do. What does the law tell you to do? To protect the legal interests of your clients. This is the “politics” bestowed us by law. This is our only politics. Lawyers don’t need to “be mindful of the big picture,” our job is to protect the legal interests of our clients. Doing this means protecting this nation’s baseline, society’s baseline. On this point, if we lawyers, if we who study the law, people with masters and doctorate degrees in law, if none of us know [what these] words [mean], then I think this is dangerous.
Yu Jianrong: (Looking at a note) Someone asked if I can talk a little about the issue of Falun Gong****. I have not investigated Falun Gong so I’m not well situated to give an opinion. I’m not afraid of having political problems, it’s just that I never talk about things that I haven’t investigated.
However, I have recently investigated house churches. Last year we wrote three reports about this issue. I recommend that you pay attention to this issue. According to my investigation, currently in the whole country, if you just look at Christianity, there are approximately 70 million followers. Moreover, two thirds of these belong to house churches. Currently the government’s position towards house churches is to turn a blind eye and pretend it doesn’t see them. This problem is pretty serious. Last year we gave a speech at Peking University. We called for open acknowledgment of house churches. It is first necessary to strip away the sensitivity [surrounding the topic] and to discuss [the issue]. Pretending like we can’t see them is not acceptable. I basically feel that house churches themselves do not pose much of a problem to social stability. I mainly worry about the attitude of the Communist Party towards them.
However, there is a problem concerning house churches themselves that I do worry about. What is it? It is house church training schools. In the future if you happen to be interested in handling this kind of case, let me remind everyone to be especially careful. When I was researching in Wenzhou, Xiao Shu and others at the Southern Weekend got the news [that I was there] and they all rushed over. That evening I took them to see one of the more shocking things they had seen in their lives. Through a lot of personal relationships we entered an ordinary residential building. There we saw almost twenty students from all over the country undergoing a closed-off house church training. Why does this worry me? Because we don’t know what is being taught, we don’t know what they are learning. We also don’t know what they think about things. So I really worry about this problem. Wei Rujiu previously handled a case. He sent me the materials to look at. The conclusion I came up with was that forcing them to be secret aided the spread of evil cults. There’s nothing frightening about them as long as they are made open. So recently I have repeatedly called for allowing house churches to exist in the open. What I oppose is forcing them to be secret. The more secret they’re made to be, the more trouble they are likely to cause. Therefore what I’m most worried about is not the meetings of house churches; I’m worried about underground schools. I suggest that lawyers here pay a lot of attention to things concerning house churches. For legal problems that will arise in the process of these house churches’ development, we should not say that we will defend [them] or take [their] case. At the very least we should do some research. I predict that in this future this might become a huge problem. Thank you.
Question: I have a question. What role do you think lawyers can play in these mass incidents? Besides doing defense work, [what role have] you considered [lawyers might have in] designing institutions and procedures?
Yu Jianrong: I think that lawyers can possibly play two roles. First, before the thing has developed into a mass incident, if [someone involved] is able to find you, you should give them some better suggestions that involve using legal means. If lawyers are really able to get involved then the result might be better. The second role is the role played after [the mass incident] has occurred. However, the role lawyers can play in mass incidents is actually quite constrained. According to my understanding, in many of China’s large mass incidents, especially rights defense activities, [the people involved] had already consulted with lawyers before the incident occurred. But even when they consult with the lawyer, there’s nothing the lawyer can do. If the [courts] aren’t willing to hear the case, what can the lawyer do about it? Furthermore, the government doesn’t support [lawyers playing a role in mass incidents]. You all might know after the Yunnan Menglian Incident† occurred, [the government] said that lawyers instigated the incident by inciting rubber farmers, and that lawyers had been a bad influence. I feel that the government’s attitude here is improper. In addition, some lawyers don’t want to become involved because their potential clients are unable to pay litigations costs and lawyers fees. A lot of things do not seem noteworthy until they erupt.
Actually, currently society’s view of lawyers is divided. Recently since the Li Zhuang incident occurred, I wrote an article about how the legal profession has been demonized. A lot of people commented and said, “Who has demonized lawyers? It is you lawyers who have demonized yourselves.” Therefore I still think that lawyers should still involve themselves more in rights defense cases concerning underprivileged groups of people, especially cases involving land. However, in order to protect ourselves, I still suggest that we as a lawyers association make some kind of standard for handling mass incident cases. For example it would say, if a certain case came up, what we should do. Then we would have a standard for ourselves. Perhaps this is one method of protecting ourselves.
Question: What if this standard requires that lawyers not accept interviews with foreign journalists, that [law] partners avoid [these cases], and that [the lawyer] must submit files to the Ministry of Justice and to the local Judicial Bureau? What then?
Yu Jianrong: What’s the problem with that? I think that it is proper to not accept interviews with foreign journalists. I agree. Why do we need to create problems for ourselves! I have never accepted interviews with foreign journalists. Whenever there is a foreign journalist who calls me on the phone, I always say that I don’t have time. If foreign journalists call my work unit saying that they want to interview Yu Jianrong, our leaders definitely tell them that they can’t find me. For foreigners to find me they must gain permission from the Academy [of Social Sciences]. Furthermore, they also need a formal document telling me [that they have been granted permission]. Otherwise, I won’t meet with them. It’s their loss, not mine. (Laughter) Therefore I actually suggest that we do not become entangled with this problem; we don’t need to. Today in China whether you are a lawyer, a member of society, or a so-called public interest intellectual, you must still have a baseline of self-protection.
But what things in the law aid in protecting lawyers? We must list these out clearly. I still suggest that everyone make a standard. That way when or if there is a rights defense or venting incident, there is a standard for how lawyers are to participate and there is no fear of complications. Sometimes we need to compromise. In China, one needs be wise in the ways of survival. A big problem is that we need to find a baseline for our standards of behavior. This baseline [should be] that we do and defend the dignity of our laws, that we defend the legal rights of our clients. This is very important.
Question: Professor Yu, let me ask you a question. Based on China’s current situation, is there any possibility of institutional reform? You just mentioned that organizations such as the Communist Party Political and Legislative Affairs Committee are not willing to give up their power; it’s even less likely that there will be judicial independence. There’s also the problem of a new transition for the whole system. Where do you think China’s future way out of this is? Is there any hope of this change taking place?
Yu Jianrong: I think that there still is hope. This hope lies in there being social pressure. From the look of things now, it’s difficult to say whether this generation of leaders think this way. But when this social pressure becomes greater and greater and when everyone feels that there is no way out, perhaps then we will search for a consensus and a baseline. Two years ago I already said that the Constitution should become our baseline of social stability. At that time everyone may have laughed at me. Today let me tell you, no one laughs at me. That’s because we do not have a baseline. We are going backwards; we’ve been going backwards all along. We have nothing. This people has nothing. Today, if the party in power wants to stay in power, if those in power still want to harbor a sense of responsibility towards this people, then they must find a baseline that all kinds of powers in society can accept. This baseline isn’t some kind of “politics,” it’s not some kind of “Three Represents;” I believe that it is the Constitution. Relatively speaking, China’s Constitution has a lot of rules now; it would be hard for us to choose wrong.
So this is what my view is. Will China experience great social upheaval? I think that if we don’t search for this baseline then it will. But will this upheaval thoroughly upset social order? No. After it occurs, everyone will probably return to a baseline. That is because [a government] whose political powers have been taken by violence will certainly use violence to restore [those powers]. But will this people again walk the road that was taken sixty years ago? This is something that the vast majority of people are not willing to see. Therefore, if there is social upheaval, it may actually spur everyone into acknowledging that the only road to take is to rationally go about searching for a baseline that everyone can accept, and then to go about protecting this baseline. Otherwise, social upheaval might bring huge catastrophe. Right now everyone is compromising, constantly compromising, both sides are compromising, both sides are debating. As pressure becomes greater the government will start compromising. I think that this is what is meant by searching for a baseline. After searching here and there and finding nothing else, the only thing to be found is the Constitution. “Being mindful of the big picture,” “concerning ourselves with politics,” these are all empty phrases. In contrast, this Constitution is the constitution approved by our Communist Party; this is the Constitution established by the National People’s Congress. I think that this is our baseline. Of course there are a lot of things in the Constitution that we might not be satisfied with, but I think that this can be changed. This is basically what my perception is.
Yu Jianrong: (Looking at a note) This lawyer asks this questions: can traditional culture have an effect on China? Yesterday afternoon a man named Chen Ming who is extremely famous for protecting traditional culture came to my house. I think that society needs certain aspects of traditional Chinese culture, but at present it is very difficult to rely on traditional culture to protect social stability. Traditional culture is not able to act as a standard baseline for China’s social stability. These few years that I have investigated issues related to Christianity I have thought that finding a consensus for China that is based on culture is quite difficult. The reason is perhaps [best understood] by those who study law. A lot of people [who study] law concern themselves with rules. However, in traditional Chinese culture a lot of rules are unclear. Someone has recently proposed that we return to the principles of Confucius and Mencius. Can the principles of Confucius and Mencius save China? They cannot. In my view, the only thing that can save China is the Constitution. All of us must adhere to this Constitution, turn principles of the Constitution into a standard baseline for society. This perhaps is what is very important. Therefore, this is the view that I hold.
Host: We’re about out of time. Today Professor Yu gave us a wonderful lecture and [provided us with] some solutions. He spoke about the big picture and enlightened all of us. We all need to ponder [his words] and ponder [them] deeply. Let’s give a round of enthusiastic applause to thank Professor Yu for his lecture.
(Protracted and enthusiastic applause)
* This is most likely a reference to Wen Qiang who was detained and investigated during the “Chongqing Gang Trials.”
** The reason this is such an important issue is that students who take the entrance exam in Beijing are given preferential treatment by Beijing universities.
*** Li Zhuang was a lawyer who was convicted for allegedly coaching his client, mobster Gong Gangmo, to lie. See: here, and here.
**** To avoid becoming ensnared in Chinese internet filters, the transcription of the talk writes, “Fa L Gong, (法L功)” instead of “Falun Gong, (法轮功).”
† “The Menglian county incident began with farmers trying to defend their rights and later developed into a violent confrontation between police and 500 rubber farmers. . . . The trouble began when the farmers complained that their land rights were being abused by the local rubber company. Though they appealed both to the company and to the government to fix the problem, they received no result. So the farmers rose up to defend their rights, and the local government used police to suppress them.” Taken from Caijing.