Crackdown Shows Different Visions of Rule of Law

At least 228 people have now been detained or questioned in the “Black Friday” crackdown on Chinese rights . As of last Friday, according to Amnesty International, eight lawyers and four others remained in police custody, with five people under , and five others’ whereabouts unknown. (Biographies of many of them can be found at China Change, along with details of their current situations.)

The sweep has prompted a flood of international protests, mapped at China Law Translate. But state media have continued to respond that the lawyers sought to improperly influence —by allegedly organizing , publicizing cases online, disrupting court proceedings, and bribing state organ personnel—and that the investigation is entirely consistent with the state’s professed commitment to rule of law. From Xinhua, for example:

China has written “effective respect and protection of human rights” together with “implementation of rule-of-law,” “law-respecting government” and “higher judicial credibility” into its targets to be hit by 2020, when the country is aiming to have built a moderately prosperous society.

Big picture aside, China has taken concrete steps to champion legal protection of human rights.

[…] From this trail of moves, it is clear China upholds law-abiding petitions and lawyers’ rights in their lawful practices. The rationale behind the moves is that the rights of the accused can be better protected if lawyers who represent them enjoy guaranteed rights, and that petitioners’ human rights can be better protected if their grievances are heard and addressed.

[…] Putting [the detained lawyers] under investigation has nothing to do with jeopardizing human rights, but with clearing the way for the and effective legal protection of human rights. [Source]

The government’s interpretation of “rule of law” sees “law as the pre-eminent expression of central power,” in Jerome Cohen’s words, not a limit upon it: that is, law as a knife, and not a shield. While it may be used to punish individual officials, any possibility that it might constrain the government as a whole is denied by its insistence that “Party leadership and Socialist rule of law are identical.”

In an op-ed at South China Morning Post, on the other hand, Zhou Zunyou of the Max Planck Institute for Foreign and International Criminal Law wrote that have undermined the legality of the process by vilifying the detainees and broadcasting possibly forced confessions. He further argued that relevant aspects of China’s Criminal Procedure Law “are far from being compatible with […] minimum international standards,” and that the authorities do not appear to be adhering to it in any case:

If China truly wants to convince the world that this campaign is not “a human rights issue”, the prosecutors will have to prove beyond a reasonable doubt that the apprehended lawyers have broken criminal law. For the time being, it is key for China, during the pretrial period, to adhere to its own criminal procedure law and show respect for widely recognised international standards of criminal justice.

However, the fact is, even before trials begin, the state media have pronounced these people guilty; since their detentions, none of the Fengrui [law firm] suspects have had any – let alone immediate and adequate – access to their own lawyers.

The conducting of a “trial by state media” prompted the criticism of He Weifang, a prominent law professor at Peking University, for violating the presumption of innocence, a central principle of criminal procedure as guaranteed by Article 12 of the Criminal Procedure Law. In one of his recent posts on Sina Weibo, a Twitter-style microblogging service, he pointed out that the state- and party-controlled media has the duty to abide by the law, and that taking sides by playing up and sensationalising the guilt of people before their trials begin would make it impossible for the court to adjudicate the case impartially.

[…] The irony of the crackdown is that the detained lawyers, whose job is to fight hard to help other people, are sitting in cells themselves without access to their own defence counsels. Even if the detained lawyers have committed crimes, the criminal proceedings against them must also be lawful, justified and in line with international standards. [Source]

Human Rights Watch’s Sophie Richardson warned last week that “detaining anyone incommunicado and in secret leaves them at high risk of torture or ill-treatment, especially when they are detained on politicized charges. Beijing’s blatant failure to guarantee even basic protections for these individuals demonstrates the government’s extraordinary disdain for rule of law.” In an essay on the crackdown translated at China Change, meanwhile, writer Zhai Minglei commented that the detainees’ treatment by the media “has transgressed a basic line of decency in ordinary society. It’s as if two people sat down to play chess and one of them knocked over the chessboard and then blamed his opponent for being a ruffian.”

Lawyer , whose detention on July 9th began the current sweep, has been the target of particularly fierce media attacks. Articles bounced up the search ranks by Baidu have depicted her as hysterical, “shrewish,” and violent, emphasizing an altercation at a train station in 2008 which led to her imprisonment for assault. (See an alternative account of this incident in a profile at Chinese Human Rights Defenders.) Also highlighted is footage of an apparent outburst during the trial of three Falun Gong practitioners, which Matthew Robertson and Yaxue Cao write at China Change is presented seriously out of context:

On July 19, nine days after Wang Yu had been taken away by police, CCTV broadcast the tail end of an altercation in the Shenhe District Court, which made Wang Yu out to be the aggressor as she yelled out that the court was a “pack of scoundrels.” She can be seen pointing her finger, enraged, and at one point demands that the court transcriptionist record her words: “You are a pack of scoundrels!” She is then dragged away by bailiffs.

[…] But CCTV did not tell the real story of what happened in the courtroom on April 22. Not surprisingly, a fuller understanding of what took place reveals a rather different picture to the state portrayal of Wang Yu.

[…] First, defendant Li Dongxu (李东旭) objected to appearing by herself, rather than with her co-defendants Yu Ming (于溟) and Gao Jingqun (高敬群) per court procedure. She was silenced by the judge, but persisted. So the bailiffs rushed at her, shoving her back into her seat. She cried out, struggling through tears to speak, still being gripped fiercely by the bailiffs, before one of them kicked her chair over. Injured and in tears, she was removed from the room.

Lawyer Dong Qianyong (董前勇) then stood up and objected to the treatment, Dong describing the torture that Li had suffered in custody. He was pounced on by four bailiffs, pulled out of the room, pushed down, and put into a chokehold until he lost consciousness.

And this is when the CCTV footage began: Wang Yu shouting at the bailiffs for openly beating her client and colleague and removing them from the courtroom. [Source]

The man accused of leading disruptions outside courtrooms is activist , who was detained in May and also attacked in state media. Didi Tang described Wu’s activities in a profile for the Associated Press:

Bearded, bald and burly ex-soldier Wu Gan calls himself The Ultra Vulgar Butcher. He poses for online portraits brandishing knives in both hands that he says he’ll use to “slaughter the pigs” among local officials who’ve done wrong.

[…] Wu was arrested May 19 in the southeastern city of Nanchang. He had traveled there after defense lawyers were denied access to files in a case in which four men were serving prison time for a double murder despite a later confession from a fifth man.

Wu wanted to put pressure on the court’s chief judge, Zhang Zhonghou. In social media, Wu called Zhang a rogue and said he planned to hold a mock funeral for him, order white chrysanthemums for mourning and parade a statue of him around town.

[…] Zhang Weiyu, one of the lawyers representing the four men believed to have been wrongfully convicted, said they were hoping Wu’s activism would “prod the authorities into doing the right thing.”

[…] Zhang Weiyu said he does not think Wu’s acts were unlawful, although Wu did push the envelope.

“I really admired his courage, and I cautioned him to be more careful,” he recalled. “And he told me he did not believe he was doing anything wrong, and that he knew the boundaries.” [Source]

Read more in a lengthier profile by Yaqiu Wang at China Change.

A less theatrical protest was suppressed late last week outside the Guangzhou trial of lawyer and two activists, which Tang described in a defense statement as a clash of “darkness versus light, [and] destruction versus hope.” His wife told South China Morning Post that “I fear for the fate of my husband and the lawyers representing him and his friends in court … They might end up like Sui [Muqing] and the other lawyers who have been detained in the recent crackdown.” Sui took part in an earlier trial last month, and was dismissed along with the other defense lawyers in protest at the court’s refusal to let them call witnesses. He is now under residential surveillance for inciting subversion following the Black Friday crackdown. The tactic of firing lawyers has become common in political cases, and may be seen by authorities as the sort of disruptive activity that the detainees are accused of orchestrating.

The New York Times’ Dan Levin reported on the rounding-up of supporters outside the court:

As the trial in Guangzhou resumed, large numbers of police officers were deployed around the courthouse and foreign diplomats were barred from entering the courtroom. On Thursday, a phalanx of plainclothes security agents brandished large, black umbrellas to obscure views of several of the defendants’ supporters being led away by the police, according to witnesses and photographs posted to Twitter.

One of the detained supporters, Ouyang Jinghua, 75, said by telephoneon Friday that the police had taken away about a dozen people on Thursday afternoon after checking their identification.

“We did nothing wrong,” said Mr. Ouyang, a retired official from the central province of Hunan who made the 14-hour journey to Guangzhou to show support for the defendants. “We decided on our own to attend the trial because someone has to be there.”

The supporters, he said, were brought to an empty school nearby and kept behind barricades while police officers and state security agents took statements. Mr. Ouyang said he was being forcibly sent back to his hometown by train, escorted by security officials.

[…] Mr. Ouyang said he was not afraid of political retaliation for his public support of the defendants. “I’m old,” he said. “I don’t really care if they sentence me to 20 years.” [Source]

Besides accusations of shrewishness and vulgarity, state media accounts have cast the lawyers and their associates as greedy, accusing them of spinning “so-called” rights cases into an elaborate money-making racket. This suggestion is rejected by many of their peers, including 48-year-old former commercial lawyer Yu Wensheng in a report by The New York Times’ Andrew Jacobs and Chris Buckley:

Mr. Yu, the commercial lawyer who has embraced a perilous career as a rights activist, said his conversion began in October, when jail officials illegally barred him from seeing a client, a man being held on charges that he had supported the pro-democracy demonstrations in Hong Kong.

Frustrated, Mr. Yu did something out of character: He staged a protest outside the detention center in a suburb of Beijing, took selfies and then posted them on WeChat, a messaging app.

Two days later, he was arrested. During three months in detention, most of it in a cell filled with death row inmates, he endured 17-hour interrogations and was subjected to physical abuse that left him with an abdominal hernia. He was not allowed to see a lawyer, nor was he formally charged.

[…] Many lawyers have scoffed at the government’s allegations against the , especially the claim that they were seeking riches in taking rights cases. Mr. Yu, the lawyer who was held incommunicado for three months, gestured at his threadbare office and said there was little financial reward in representing rights-defense clients, many of them poor.

“If you want to make money,” he said, “I’d suggest you stick to commercial work.” [Source]

In an op-ed at Quartz, Human Rights Watch’s Maya Wang examines the timing of the current crackdown:

Since 2003, China has seen the rise of a “rights defense”—weiquan—movement, in which all kinds of popular and often spontaneous advocacy by netizens, activists, lawyers, and online commentators responding to injustices could snowball into pressure on the government. While the authorities have grown less tolerant of this movement, there was always an invisible “red line” within which a certain level of dissent was tolerated.

But things changed when President Xi came to power two years ago. Under his leadership, authorities started to target some of the most innovative activists working within this red line. China imprisoned legal scholar Xu Zhiyong, whose long list of achievements included founding the Open Constitution Initiative and the New Citizens Movement. Authorities detained lawyer Pu Zhiqiang, whose social media savviness helped to abolish arbitrary detention camps. The government harassed the anti-discrimination civic group Yirenping, which pioneered public interests lawsuits. […]

The government’s current campaign is not about a single law firm or a handful of lawyers. It is about the discrediting of the very modus operandi of the rights defense movement. Collectively these trailblazing individuals and organizations have done the coal-face work, at great personal risk, to try making human rights a reality for ordinary people in China. With this massive lawyers sweep, we can bid farewell to one of the only vehicles to provide real relief to victims of human rights violations in China. [Source]

A March 2014 essay by Mo Zhixu, reposted last week by China Change, explains why the Party sees rights defenders as such a thorn in its side:

In the eyes of those in power, concessions in the area of rights would have only a minor effect on promoting the continued economic development upon which the legitimacy of their rule ultimately depends. But once the that is now developing by leaps and bounds gains possession of these rights, it will significantly increase the capacity to coordinate and mobilize, will achieve a much higher level of integration, and it will become much harder to curb progress toward political liberalization. For precisely these reasons, the rights defense movement—particularly rights defense activity in the area of civil and political rights—has become a focus of the authorities, something that must be vigorously suppressed.

Rights lawyers occupy a core position in the rights defense movement. They are direct participants in rights defense cases, and they also act to disseminate information about these cases and explain their significance. Rights lawyers thus play a pivotal role as bridges drawing links between specific cases and the wider social environment. Individual rights cases can take on broader legal and political significance and become part of the rights defense movement only through the efforts of rights defense lawyers. Of the “New Black Five Categories” described above, only rights defense lawyers work with all groups participating in rights defense actions, including petitioners, followers of underground religious, dissidents, and Internet leaders. Naturally, the authorities cannot overlook this important, central role played by rights defense lawyers. [Source]

McClatchy’s Stuart Leavenworth highlighted debate over whether the sweep is a sign of vulnerability or confidence among the leadership:

As the detentions continue, veteran China watchers are debating what is behind this latest police action. Some say the Communist Party appears to feel increasingly vulnerable, and thus is jailing and intimidating even the mildest critics who might pose a threat to continued one-party rule.

[…] “We need to acknowledge the possibility of an alternative interpretation,” said Keith Hand, a specialist in Chinese legal reform at the University of California, Hastings College of Law. “It’s possible this is not a sign of fragility, but a sign that they feel very confident, both at home and on the international stage.”

[…] “They are in control, and they are further consolidating their control,” said Hand. “This is a party that systemically studies the past downfalls of communist regimes, particularly the fall of the Soviet Union, and learns lessons from them. That is something Xi Jinping has really emphasized since he came to power.”

[Eva Pils, a law specialist at King’s College London] however, says that are several signs of fragility within the party. Xi’s on-going anti-corruption crusade, while popular with the Chinese people, is taking on the signs of an internal “purge,” she said, and possibly creating some nervous party factions.

The anti-graft effort “clearly indicates a sense of vulnerability and at the same time, it has got to have the effect of increasing vulnerability,” Pils said in an email exchange. [Source]

Talking to Deutsche Welle’s Gabriel Domínguez, Pils expressed optimism that the rights movement could weather the current storm:

[… Pils] argues that while some rights lawyers appear to be lowering their profile temporarily, she doesn’t think they will back down over the long term, especially as there is an ongoing effort to rally around those detained and provide mutual support.

“The human rights lawyers’ social media groups are very actively discussing what can be done.” said the King’s College researcher. For instance, when one lawyer is detained or harassed, others in the loose network will publicize the case and speak up on their behalf. Structurally speaking, she added, the authorities have to face the fact that these lawyers are organized in a myriad of ways with no clear hierarchies and that much of their communication and coordination is fluid and almost invisible.

Moreover, while only some 300 are willing to see themselves as human rights lawyers there are some 240,000 full-time licensed lawyers nationwide, and “some of them at least tend to take an interest in what happens to their colleagues,” said Pils. [Source]

But an article at The Asian Lawyer suggests that while other lawyers might sympathize, few are likely to speak out:

China’s crackdown on human rights lawyers has prompted governments and bar organizations around the world to express concern and support for the detained Chinese attorneys. But China’s flourishing corporate bar—including the international firms active in China—has been relatively quiet.

[…] Why have global firms remained silent in comparison? In part, their reluctance to speak out underscores a stark divide in China’s legal community. According to one China-based U.S. lawyer, weiquan lawyers and commercial lawyers inhabit separate worlds that rarely interact.

[…] “These people are not likely to rock the boat,” says a China-based U.S. lawyer, adding that the market has become so competitive that law firms put a priority on maintaining good relationships with the government.

Some lawyers say there is private opposition to the crackdown. “Deep down inside most informed lawyers on the mainland do indeed care, including Chinese and foreign law firms,” says another China-based U.S. lawyer. “It’s the system that prevents them from being candid without the fear of retribution.” [Source]