China’s rulers unequivocally see the country’s legal system as an instrument of power. Those working within it therefore face a choice: toe the line, step across it, or walk away. As a harsh crackdown on rights lawyers shows the risks involved in the second course, New York University law professor Jerome Cohen warns that political interference is driving many legal professionals to take the third:
In China, politics continues to control law. The current leadership has rejected many of the universal legal values that China accepted — at least in principle — under communist rule in some earlier eras. Today, for example, to talk freely about constitutional reform, even within the sheltered confines of universities and academic journals, is not a safe enterprise. And discussion of judicial independence from the Communist Party at the central level is a forbidden subject.
Yet there is discreet, if passive, resistance. Legal professionals are not happy, but they dare not speak for fear of losing their jobs. Some are simply giving up. In Beijing, reportedly, many judges have recently resigned in order to find other work, as lawyers, in business, or in academia. This dissatisfaction could become a crisis for the Chinese legal system.
[…] The very success of over three decades of legal education and practice has created a new legal elite. Thus a large number of people — legislative staff, judges, prosecutors, lawyers, administrators, legal scholars, and even police — want to inhabit a real legal system, not one that has the appearance of integrity but functions arbitrarily. They take legal reforms seriously and know that it is necessary not only to enact good rules, but also to implement them. In China, as many people have observed, faithful implementation is the name of the game, but it remains extremely difficult. Unfortunately, new judicial reforms may prove disappointing. […]
Judicial reform is one of the main challenges now confronting Chinese President Xi Jinping. Despite his emphasis on “rule of law,” Xi wants local courts reliably to submit to the discipline of the central party and judicial officials. He doesn’t want local judges to be independent of the central government, but he does aim to stop the local influences that distort local judgments. It’s too early to tell whether this effort and the parallel effort to improve the competence, status, and compensation of judges will succeed. But broad public dissatisfaction with the courts will probably continue, especially to the extent they continue to be instructed not to accept sensitive, controversial cases. [Source]
The official vision of the legal system as a tool of the Party is echoed in its attitude towards the media. Cohen’s warning mirrors a recent report by The Guardian’s Tom Phillips, who wrote that young journalists frustrated by political restrictions have also been leaving their profession. A retort at the state-run Global Times argued that commercial and financial pressures, not political, are to blame. As the newspaper has previously reported, low pay is also another factor in the flow of departing judges.
Rather than quitting, some lawyers have tried to work around institutional obstacles, as King’s College London’s Eva Pils—author of “China’s Human Rights Lawyers: Advocacy and Resistance“—described in a recent interview with The Diplomat’s Bochen Han. But such efforts have sparked a fierce backlash from authorities in forms such as last year’s “Black Friday” or “709” crackdown, a sweep of over 300 rights lawyers and others which led to 19 indictments, mostly on subversion-related charges, early this year.
In trying to perform their professional roles Chinese lawyers are bound to meet serious obstacles. These can be related to corruption as much as to political control. For example, courts refuse to take on cases; criminal defense lawyers are denied access to clients in detention; witnesses for the defense are not heard in court; lawyers are interrupted and/or not listened to in court.
[…] When they confront party-state illegality[, rights] lawyers tend to make different choices from other professional colleagues. Generally, they insist on following legal rules, resist illegal pressure, and refuse to be – indeed given their vulnerable status, they cannot afford to be – corrupt. They expose the flaws of the system, try to put pressure on the officials handling a particular case and call for improvements. Doing so is hard and risky. […]
Today, rights lawyers have many more options for ‘taking the action from inside to outside the courtroom.’ They can, for example, tweet (use social media) to report in real time about an ongoing ‘sensitive’ trial; disseminate images of ‘flash’ demonstrations through the social media; and document state illegality using smartphones and other technology. As they number a few hundred now, rights lawyers also have different ways of networking all across the country, working not only with professional colleagues but also with certain client groups, such as petitioners and other human rights defenders. They still don’t win cases but their advocacy may be able to protect clients from further abuse; and it sends out a political message of resistance to arbitrariness and power abuses in the legal system.
[…] The hope of incremental liberalization through top-down legal reforms was extremely important in the post-Mao era but today, in my view, it is very nearly dead. Under Xi Jinping especially, the law has been changed to accommodate rather than curb power abuses. Law is not seen as imposing limits on the power of the government; rather, it is an expression of the power of the ruling Party, including ruthless power to control its own bureaucracy. This is not to deny, of course, that there are occasional welcome changes, for example, the decision to abolish the feared “re-education through labor” system in 2013. But such changes generally look better on paper than in reality and do not address the central challenge of power abuse. For example, the government continues to lock people up under numerous forms of detention without due – or simply without any – legal process. The Party’s vision for 2020 is therefore Party rule by law, at best – legal rules used when it serves power-holders, and disregarded when it does not. [Source]
The NGO Chinese Human Rights Defenders summed up the authorities’ response to the rights lawyers’ unorthodox tactics, which they have described as the work of a “criminal gang” seeking to subvert court proceedings. From the organization’s annual report:
2015 will go down in history as the year that Chinese authorities launched an unprecedented attack on China’s human rights lawyers. Since July, in coordinated nationwide operations, police summoned more than 300 lawyers and activists for interrogation and put many under secret detention, including some in “residential surveillance in a designated location,” a de facto type of enforced disappearance. For months, authorities deprived the detainees access to legal counsel and refused to inform families of their whereabouts. At the time of this report, 22 lawyers and activists remain in custody from this crackdown; 19 of these have been formally arrested, including 16 in January 2016. Of the 19 arrested, all but three face charges of “subversion” or “inciting subversion of state power.” These individuals are all being punished for seeking justice—boldly challenging the CCP-ruled government’s interference in the judiciary, standing up for clients’ rights, and refusing to yield to state pressure. In addition, throughout the year, rights lawyers continued to be subjected to violent beatings while carrying out their professional work in defending their clients. CHRD documented eight incidents of violence—against 13 defense lawyers— between January to June 2015.
[…] One especially disturbing development during the year was authorities’ use of the newly amended Criminal Law to stifle defense lawyers’ speech during court trials. Amendments to the CL that went into effect on November 1, 2015, codify the criminalization of lawyers’ speech during trials; specifically, it can be considered illegal for defense lawyers to speak up in court to challenge unlawful trial procedures or mistreatment of their clients (Article 309). The provision, which penalizes “disrupting courtroom order,” gives authorities broad powers to interpret lawyers’ speech in court as “insulting,” “threatening,” or “disruptive”—an offense punishable by up to three years in prison. Under the law, judges can also order lawyers expelled from the court. [Source]
The harsh treatment of rights lawyers demonstrates both the authorities’ determination to guard its monopoly over the legal system, and their willingness to disregard the law while serving such ends. For example, Cohen recently noted the use of vague documentation in obstructing the detained lawyers’ own legal representatives. From his blog:
The use of such a form reveals the cavalier manner in which the police violate their nation’s Criminal Procedure Law by arbitrarily denying the right to counsel in their attack on rights lawyers and other human rights advocates whom they have detained. Indeed, the police are doing exactly what Article 9 of the major September 2015 Five-Institution Regulation interpreting the 2012 Criminal Procedure Law explicitly forbids. They are failing to give lawyers requesting a meeting with their detained clients the reasons for rejecting the meeting.
[…] According to the law, lawyers should be able to vindicate their rights by seeking administrative review of the police refusal at the next higher police level and by asking the local procuracy to investigate the arbitrary police refusal. Such efforts are apparently being made but no one is holding his breath in the expectation that this will bring relief. For example, over 15 years later I am still waiting for the office of the Supreme People’s Procuracy in Beijing to send me its promised report reviewing the lawless detention of a Sino-American joint venture’s Chinese CFO by the city of Jining in Shandong Province. [Source]
The obstruction of legal representation escalated last week when many of the detainees’ lawyers received notice that they had been fired by their clients. From Wen Yuqing and Yang Fan at the U.S. government-funded Radio Free Asia:
“Firstly, they wouldn’t produce written confirmation that Wang Yu has terminated her instructions to me,” [Wang Yu’s lawyer Wen Donghai] said. “Neither would they let me visit Wang Yu to confirm it in person.”
“Given the circumstances, I’d say it is the police who are firing us.”
[…] “Basically, they are now hiring the lawyers; they won’t allow the families to do it,” he said. “This is ridiculous, and it is in breach of existing law on lawyers, and of the Criminal Procedure Law.”
Meanwhile, lawyer Huang Hanzhong, who represents Wang’s husband Bao Longjun, said he had received a similar notification after trying to visit his client at the Tianjin No. 2 Detention Center.
“Actually I had been expecting this, although I hoped it wouldn’t happen,” Huang said. “It shows what the attitude of the prosecuting authorities is; they are acting irrationally, unreasonable and illegally according to existing rules and legislation.” [Source]
In a post at the University of Nottingham’s China Policy Institute Blog, Eva Pils described the “fear techniques” which appear “to play a more and more prominent role, and to be applied in a more and more open manner” against rights lawyers and others:
In the course of my research on Chinese human rights lawyers over the past several years, I got to hear a lot about the techniques the government allegedly uses to control them. I came to refer to them as “fear techniques.” They included tracking and following; soft detention; “being traveled”; being asked in for “chats”; criminal, administrative, and judicial detention; violent attacks; forced disappearance; torture and—in one or two particularly disturbing instances—brief spells of medically unmotivated, forced psychiatric detention (被精神病). Some of these techniques made some reference to legal rules, but in their actual use of these rules against human rights lawyers, the authorities invariably, and quite often egregiously, broke the law.
Those forcibly “disappeared,” for example, were, in addition to being locked up, reportedly pressured to “confess” and “repent.” They usually also had to promise—in writing as well as in front of a camera recording their statements—that they would stop their work as human rights defenders: stop taking on certain kinds of cases, stop meeting each other, and so on. It did not matter that there were no crimes to confess to and that promises made under duress were not binding. As one lawyer commented in 2011, “Not only did they want to make you say that black was white, you also had to explain why black was white.” The point, he thought, was to show who was master and show that no law—not even that of elementary logic—constrained the power he had tried to resist. The authorities using these fear techniques were intent on stopping the lawyers’ efforts to represent their clients and to challenge power abuses, while dreaming of (if not actually building) a better system.
As the language of reform —according to a dictionary definition, “improvement or amendment of what is wrong, corrupt, unsatisfactory”—which was so long considered axiomatic for discussions of the Chinese legal system, is now being questioned more widely, I would suggest that rule by fear should be considered as a centrally important element of the “new normal” under Xi Jinping’s party leadership. [Source]
This “rule by fear” was the subject of a later discussion at ChinaFile.
Also at the CPI Blog, Seton Hall Law School’s Margaret Lewis reviewed the use of torture and extra-legal detentions under which it often occurs.
To be fair, the Chinese government has introduced discrete reforms that could decrease the prevalence of torture. The Committee against Torture flagged a number of these positive aspects in its Concluding Observations. Yet each of these reforms needs to be analyzed with a critical eye because, as Teng Biao, a Chinese human rights lawyer, astutely explained, “The major problem with rule of law in mainland China is not establishing legal provisions but rather implementing laws.” And here lies the key problem: the Chinese government places perpetuating one-party rule above a robust commitment to the rule of law and human rights.
[…] One of the most exciting recent developments in criminal procedure reforms has been the use of audio and video recordings of interrogations. […] The hope is that recording interrogations will both provide evidence of how individual cases are handled and encourage a change in police culture away from coercive practices.
Preliminary indications are, however, that recording interrogations is not significantly changing the culture of extreme reliance on confessions as the primary form of evidence in criminal cases. […]
[…] The value of recordings is further limited if the court does not view the interrogation process with a skeptical eye, if the defense has a difficult time accessing the recordings, or if there simply is no defense lawyer, which is true for most criminal cases. Suspects need lawyers in order to understand their rights and then have someone advocate for those rights. No recording, even if completely accurate, can ever replace these fundamental functions. The Chinese government is increasingly intolerant of defense lawyers who zealously advocate for clients’ rights leading to reprisals against the lawyers rather than praise for their contributions to the rule of law. The Committee against Torture expressed deep concern for the recent crackdown on defense lawyers stating, “This reported crackdown on human rights lawyers follows a series of other reported escalating abuses on lawyers for carrying out their professional responsibilities, particularly on cases involving government accountability and issues such as torture, defence of human rights activists and religious practitioners.” [Source]
These problems recently drew the attention of U.N. High Commissioner for Human Rights Zeid Ra’ad Al Hussein, whose office issued a statement last week:
“We are seeing a very worrying pattern in China that has serious implications for civil society and the important work they do across the country,” the High Commissioner said. “Civil society actors, from lawyers and journalists to NGO workers, have the right to carry out their work, and it is the States’ duty to support and protect them,” he said.
The High Commissioner said he appreciated the opportunity to raise such cases with Chinese officials in Geneva, and acknowledged their efforts to clarify the matters at issue. However, the responses he received indicate that the authorities “too often reflexively confuse the legitimate role of lawyers and activists with threats to public order and security.”
[…] “Lawyers should never have to suffer prosecution or any other kind of sanctions or intimidation for discharging their professional duties” Zeid said, adding that lawyers have an essential role to play in protecting human rights and the rule of law.
“I urge the Government of China to release all of them immediately and without conditions.” [Source]
China’s permanent mission to the U.N. rejected Zeid’s remarks:
On 16 February 2016, in response to the press release by UN High Commissioner for Human Rights Mr. Zeid Ra’ad HUSSEIN on several individual cases of China, the Spokesperson of the Permanent Mission of China made the following clarifications, stressing that all those cases raised involve illegal and criminal activities, and has nothing to do with restrictions of the rights and freedoms. The Chinese Mission expresses strong dissatisfaction and disagreement with the High Commissioner’s misleading remarks.
[…] China is ruled by law and everyone is equal before the law, no matter what his/her occupation is. All Chinese laws, including the National Security Law, give emphasis to promoting and protecting human rights. Meanwhile, undermining social stability and order in the name of exercising human rights and freedom of expression will not be allowed in any country ruled by law. The High Commissioner made irresponsible comments in disregard of facts, which is sending to the outside world a wrong signal. We hope that Mr. Hussein as UN human rights chief could view China’s human rights in a comprehensive, objective and rational manner, rather than a biased, subjective and selective way. [Source]
In a third recent article, Jerome Cohen contemplated the prospects for constructive foreign pressure in support of the detained lawyers, revisiting controversy over the American Bar Association’s tepid initial response:
The ABA’s professional staff in Washington opposed any public condemnation. They feared that, in the current repressive atmosphere in Beijing, the association’s China office might be shut down and some of their Chinese staff detained.
[…] Some American lawyers even favor taking the initiative now to close the ABA’s China office until the human-rights pendulum begins to swing in a positive direction again. They believe that little significant law-reform progress can be made in China in the present climate and the office is a hostage that impedes an appropriate response to repression.
But if the ABA leaves China, what will become of the Chinese staff and their American colleagues in terms of employment and personal safety? Pulling out isn’t likely to dissuade the Xi regime from its repression.
In principle, tens of thousands of China’s judges, prosecutors, lawyers, administrators, law professors and students who helplessly oppose the current repression would welcome a stronger foreign protest. But ABA withdrawal might also create a sense of abandonment by those who have encouraged Beijing’s efforts to develop a genuine rule of law. One has to weigh the world-wide effects of its strong condemnation of Beijing’s repression against the loss of the valuable training contribution resulting from the ABA’s forcible or voluntary withdrawal from China.
[…] President Xi is playing a rough game, and cooperation between foreigners and Chinese in the legal field may become extremely difficult during the rest of his tenure. Powerful opposition both within and outside China offers the only hope of improving a dire situation. This is a messy, unhappy time for the rule of law in China, and there are no good solutions. [Source]