Politics, Law, and the Case Against Pu Zhiqiang

Reporting on Monday’s trial of leading rights lawyer , The New York Times’ Edward Wong described the trial’s context amid efforts to chill civil society and subjugate the law. Pu was charged with inciting ethnic hatred and picking quarrels on the basis of seven Weibo posts (translated in full at China Change). The trial was marked by an aggressive security presence deployed against protesters, journalists, and foreign diplomats outside the courthouse.

Mr. Pu is the most prominent rights lawyer to be arrested in a wave of detentions and imprisonments of legal practitioners, though President Xi Jinping and other Chinese leaders have repeatedly pledged to strengthen the . Lawyers say the arrests are the greatest assault on their profession in decades. Mr. Pu’s case has taken on symbolic significance, as an indication of Mr. Xi and the Communist Party’s growing intolerance for liberal political thought and their abiding need to control any channels for discussion of social ills.

“Under Xi Jinping, our society has been regressing,” said Hu Jia, a rights activist who was imprisoned from December 2007 to June 2011 for his writings. “The authorities are doing this because they want people to feel that their fingers are loaded with a lot of weight when typing on the keyboard.”

[…] Late Monday morning, Sophie Richardson, the China director of Human Rights Watch, said in an email that the trial of Mr. Pu, along with the physical harassment of observers outside the courthouse, “suggests we have gone from a deteriorating environment to an all-out free fall.”

“The law in China today is nothing more than an instrument of the leadership’s political impulses — a reality with frightening consequences inside and outside the country,” she added. [Source]

Details of the case against Pu appear to support this interpretation. In an interview with The Times, Pu’s lawyer Mo Shaoping argues that it should at most have been pursued as a civil matter:

“The significance of the case is this: Where is the boundary between using harsh and rude words to criticize public figures and events, and freedom of speech? Our viewpoints are:

“First, apart from speech that leads to immediate danger, speech should not be deemed a criminal act. For instance, if you spread the lie that a theater is on fire and that triggers a stampede where people are injured or die, this would be speech that causes an immediate danger. Anything else should just be tolerated as free speech.

“Second, the public has the constitutional right to criticize public figures. It’s enshrined in the Chinese Constitution. Public figures should be more tolerant and should not charge someone just because his or her language is rude.

“Third, is a special platform of expression, and it’s an instant channel where people comment on events and public figures. Therefore, control over should be more tolerant than control over conventional media. It’s different from conventional media because it involves the expression of emotions. There should be a greater degree of free speech there compared with conventional media.” [Source]

The case against Pu has come under further scrutiny from He Bing, the vice dean of the law school at the China University of Political Science and Law, who noted its implications for public faith in the , the government’s practice of rule of law, and China’s international image.

He writes that the four posts cited in the “inciting ethnic hatred” charge—two pairs posted more than two years apart—do not demonstrate the coherent and continuous intent required by law. The two earlier ones, he concludes, should be inadmissible as evidence.

Although Pu’s choice of words on religious restrictions in and was “too sharp,” He believes that his judgment was correct. In criticizing local actions which contravened central policy and harmed China’s image abroad, Pu committed no crime under Chinese law, and in fact performed a service to the Party and state. His comment on a reported veil ban may have been factually dubious, but the right enshrined in the Chinese Constitution is to criticize the government, not to criticize the government correctly; to speak freely, not accurately. Even if wrong, Pu’s remarks fall within the bounds of free expression.

He Bing points out that “inciting ethnic hatred” means to incite hatred between ethnic groups, not to incite hatred of government and Party, which would fall under the crime of inciting subversion. The government and Party officially represent all ethnic groups, not just the Han: to equate dissatisfaction with them among ethnic minorities with ethnic hatred is therefore both a legal and political error. He concludes that Pu’s posts lack both the subjective intent and objective effect of inciting ethnic hatred, and do not constitute a crime.

In three further posts published between July 2011 and July 2013, Pu was accused of “picking quarrels” by using “abusive language to brazenly insult numerous people […], attracting a large number of online users to view, repost, and comment on his posts and creating an odious social impact.” Days before the last post appeared, the Supreme People’s Court and Supreme People’s Procuratorate (the “Two Supremes”) issued an interpretation on handling cases involving “picking quarrels.” A further interpretation on applying the law to cases of online libel was issued that September. It is an open question, according to He, whether the former interpretation should be retroactively applied to the two posts that predate it. Even if so, the earlier one should not be bundled with the others, as it exceeds the Two Supremes’ one-year limit on linking offenses. If the court endorses the logic that any old Weibo posts since 2013 can be artificially linked to play up the severity of a case with no time limits, He writes, then “picking quarrels” will become equivalent to the Cultural Revolution crime of being a “bad element.”

He agrees that Pu used “excessive” language in calling the spokeswoman for a manufacturer of railway signals blamed for the Wenzhou high speed rail crash “a sow.” But he did not mention her by name, and based on the content of the post alone, there is no way to identify her. (He himself initially struggled to do so.) Given the post’s limited reach, it had no serious consequences. Explicitly calling Mao’s grandson Mao Xinyu “a fool,” on the other hand, is not a serious insult given the term’s widespread use online. The two instances of this post were reposted a total of 249 times, far short of the 500-repost standard established in 2013, so their effect was also not too grave. Personally speaking, though, He feels that Pu should make a formal apology to Shen Jilan for suggesting that after 60 years of “playing the fool” as an unwaveringly obedient NPC member, she should “die on the battlefield.”

Finally, He writes that based on Supreme People’s Court judgments, state media content, and Xi Jinping’s own words, sharp criticism of the Party and leaders may be deemed an “error,” but is not a crime.

Speaking with CBC, the American scholar Perry Link suggested that the legal merits of the indictment against Pu had been secondary to the political consideration of finding any crime that could be pinned on him:

The Communist Party of China draws no clear lines about what speech it will tolerate. Who gets punished, and how badly, depends not only on what one says but on many other factors: who one is; whom one is connected to; what people one has offended; who those people are connected to; how widespread the damage is seen to be, both to those people and to the prestige of the Communist Party; and more.

Once the authorities have determined that someone has “crossed a line,” a language game ensues over what written rule, if any, was violated. For years, Pu Zhiqiang was able to win these language games for other people because of his intimate grasp of the law. He could out-manoeuvre government prosecutors, and they, knowing this, were reluctant to take him on.

[…] During the months of the investigation, it was clear from the reports of his friends and his colleagues whom the police were interviewing that the regime was trying to pin something really big on him, like treason or major financial corruption. Second best would be something really embarrassing, like sexual misconduct.

But apparently all these efforts yielded nothing and prosecutors had to settle for “stirring up trouble” and “inciting ethnic hatred” based on seven posts Pu had putting on […] the Chinese counterpart of Twitter. [Source]

Shanghai-based lawyer Si Weijiang agrees that the case has been politically driven:

If Old Pu is guilty, it is also because he has made a political mistake. It’s just as Global Times Chief Editor Hu [Xijin] said: “Objectively, Pu Zhiqiang’s case is very hard to judge, since Pu himself is a lawyer, yet he has long been committed to politics. In Chinese society and in the arena of public opinion, he is one of the symbols of the anti-establishment. His words and deeds clearly constitute a certain destructive force for social governance. This destructive force has emerged from the new social reality resulting from China entering the age of the Internet, and is a new form of challenge to legal authority.”

Editor Hu says the case is hard to judge because Pu is committed to politics, and is a symbol of anti-establishmentarians. This is a political determination. Because, while Editor Hu doesn’t understand the law, he does understand history. What two crimes determined from seven Weibo posts means for the history books, he also knows. When Old Pu was taken away, it wasn’t because he posted on Weibo, but because he attended a meeting. Now, when seven Weibo posts are incriminating him, these posts have already been deleted. Not even a skeleton of his account survives. If he had been caught committing a crime, with the rigor of Weibo inspection at the time, then he would have been caught long ago. This is simple, you could say, nothing other than finding a crime to fit the person. Why find a crime? Because Old Pu is committed to politics, and just like he himself jokes, he’s already become a “big shot outside the system.” [Chinese]

Such political abuse of the , Seton Hall University law professor Margaret Lewis writes at South China Morning Post, risks undermining China’s substantial achievements in reforming it:

According to the “100-1=0 principle”, as advocated by President Xi Jinping (習近平), the negative influence of one miscarriage of justice is sufficient to destroy the accumulated goodwill of 99 justly decided cases. Attention turned on Monday to a single case in a Beijing courtroom: lawyer Pu Zhiqiang’s trial for “inciting ethnic hatred” and “picking quarrels and provoking trouble” through comments on his microblog. Chinese authorities have detained the renowned civil rights lawyer since May last year.

[…] Selective prosecution of lawyers who peacefully use the legal system to defend citizens’ rights undermines the substantial progress that China has made to many aspects of its criminal justice system. In recent years, China has decreased its use of the death penalty, introduced procedures aimed at increasing the number of people released on bail, and expanded videotaping of interrogations in an effort to decrease coerced confessions.

[…] Despite the party’s call in a major policy document last year to “make the people feel fairness and justice in every judicial case”, even a miracle acquittal would not erase the injustice of Pu’s 18-month detention. At best, Pu can hope for prompt release based on his time already served in detention or some form of medical release in light of his health conditions. Whatever the eventual verdict, its significance will reverberate as an indication of the health of China’s criminal justice system. [Source]

TIME’s Hannah Beech writes that cases like Pu’s, and the heavy-handedness surrounding it, compromise Beijing’s record and image more broadly:

In 2015, President Xi globe-trotted to more than a dozen countries, promoting the friendly face of the world’s second largest economy. Around the world, the Chinese government has unveiled Confucius Institutes to subsidize study of Chinese language and culture; at the same time, more than 300,000 Chinese students are now enrolled in American schools. At New York City’s Times Square, a giant screen has broadcast a slick video illustrating Xi’s leadership mantra, the “China Dream.” State media, like broadcaster CCTV, have expanded overseas, even as Western media organizations have diminished their global coverage. When President Xi visited Britain in October, he rode in a golden carriage to Buckingham Palace and pledged $46 billion in trade and investment. Xi’s tour of Africa earlier this month brought vows of $60 billion in dollar diplomacy.

But soft power loses its gauzy delicacy when human-rights lawyers are jailed and their supporters harassed. The world has one Nobel Peace Prize laureate in jail, and he languishes in a Chinese prison. For all the positive developments in China — and there are so many, from poverty alleviation and upward mobility, not to mention digital innovation and expanding consumer choice — official repression of free thinkers only serves to outline the steely fist of authoritarianism. [Source]

Beech recently described the story of Ren Jianyu, a former civil servant whom Pu helped free from a labor camp, and who subsequently became a lawyer himself. Even so, he confessed to pessimism about the law’s continuing subservience to politics. Ren is not alone in this, as Jonathan Kaiman reports for The Los Angeles Times:

On Monday morning, two recent graduates from the China University of Political Science and Law, Pu’s alma mater, quietly snapped pictures of the courthouse with their phones. Both wore masks to protect themselves against the thick air pollution that has intermittently smothered the city in recent months.

“We’re disappointed, because it still feels so dangerous to follow in [Pu’s] footsteps, to become a rights lawyer,” said one, a young man in a black jacket who requested anonymity for fear of official reprisals.

“We can brag and say that we’ll continue his mission,” he continued. “But the political environment is like the weather. So we can only take things step by step.” [Source]