China’s ‘Rule by Law’ Takes an Ugly Turn
A recent spate of arrests and detentions is another sign of the Communist Party's intolerance for dissent.
This article has been updated to reflect additional responses.
Yet another crackdown has begun under Chinese President Xi Jinping. This time, the target is so-called “rights lawyers,” loosely defined as those who bring 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 an 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? FP and partner site ChinaFile asked some experts. –The Editors
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headline with an (unverified) message sent to a Zhejiang-based lawyer by a Shanghai police bureau branch, which read: “Do not publish any relevant information on the arrest of Wang Yu, Zhou Shifeng, and [other rights] lawyers.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 highlighted overseas 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 (JD) at an American law school. While I’m not aware of statistics on the number of Chinese nationals going overseas to pursue JDs, 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?
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 and filed a petition with the National People’s Congress Standing Committee challenging the legality of a regulation on China’s custody and repatriation system. 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 promoting reform 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.”
Over the decade that followed, a confluence of two trends narrowed space for rights defense actions and expanded the group of rights activists that Chinese leaders viewed as falling 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 network. 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 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 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 Chinese leaders 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 determination 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.
Finally, some commentators have observed that the weekend action against rights lawyers demonstrates the regime’s fragility. 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 the pretense of limited engagement and tolerance.
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.
I’m not sure that the recent crackdown represents any significant change in government policy towards activist lawyers. While its scale is indeed unusual, one could argue that the scale was made necessary by targeting Fengrui Law Firm, which is similarly unusual among Chinese rights-focused legal practices in the scope and scale of its operations. The way that the crackdown was conducted, including the specific allegations and propaganda issued in party-controlled newspapers, is not substantially different from how other arrests and detentions have been conducted since 2007. One could even argue that the government has been playing a predominantly reactive role in recent years: the number of rights lawyers has skyrocketed (relatively) over the past decade, and the escalating scale of crackdowns is largely a response to that. In other words, this is more or less what we have come to expect from the government, which has, of course, always been openly hostile to rights activists, particularly those who operate with the social visibility and logistical coordination of Fengrui.
That is to say, once the initial shockwaves subside, I’m not sure that this incident will fundamentally alter the sociopolitical calculus of Chinese rights lawyers. The likelihood of arrest or detention has been very high for at least the past five to seven years, and is not necessarily that much higher after these recent arrests. The government’s playbook has shown few signs, if any, of substantial change. I expect, therefore, that the medium- and long-term scale of legal rights activism will continue on whatever trajectory it was on for the past several years—which, apparently, is steeply upwards, despite strong and obvious government hostility.
I should also add that a number of previous arrests were very much carried out “in the public eye.” Pu Zhqiang’s arrest was announced in a number of media outlets, and drew a firestorm of commentary on Weibo, as did Xu Zhiyong’s arrest. The target was larger (in numbers) this time, so naturally a greater number of people were affected, but the methods, including the media campaign, are not terribly different from what we’ve become used to seeing in the past several years.
I want to thank Nancy, Eva, Keith, and Taisu for their excellent comments — I agree with much of their analysis. I do, however, want to query Keith’s suggestion that the mass detentions of the past weekend do not suggest fragility, but instead might suggest that the party is in fact so “confident in (its) strength” that it no longer needs to allow even the slightest margin of political space to rights lawyers and activists.
Maybe so. But my own conversations with a number of activists and intellectuals — as well as with everyday Chinese — over the past several months have highlighted a very real cost of the increased repression that has marked Chinese society since Xi came to power in late 2012. For many, the Xi years have been marked by a willingness to pull out all the stops to silence critics and to maintain a high level of control. To be sure, the party itself has not been spared: an uncountable number of cadres swept up by the anti-corruption campaign have been tortured, and a small number have died in detention. A disturbing number of officials have committed suicide rather than face the no-holds-barred investigative techniques of the Central Commission for Discipline Inspection, the party’s lead anti-corruption investigation unit.
But what is really putting the party’s legitimacy at risk is its approach to civil society, including the repression of rights activists and lawyers like Wang Yu and her colleagues at the Fengrui Law Firm. As Eva notes, the party is increasingly making use of its extensive propaganda apparatus to “name and shame” those who cross the line. In addition to facing a very real risk of detention or even torture, activists now have to contend with the possibility that they will be paraded onto television and forced to confess their alleged misdeeds. In May 2014, for example, CCTV broadcast the confession of investigative journalist Gao Yu. Though Gao later recanted the confession, which she claimed was coerced, she was nonetheless convicted of leaking state secrets in April of this year and sentenced to seven years in jail. The July 12 People’s Daily attack on rights lawyers is but the latest example of the party’s increased use of official media outlets to blacken the name of its critics.
Taisu is right that there are too many prior precedents for this sort of thing. But it does seem that, over the past two years, the party has been reaching for this tool more often.
The problem is that the use of the media to smear activists cuts both ways. True, such stories do send a strong message that the party will hit back, hard, against those it views as a threat to one-party rule. On the other hand, anti-activist diatribes also publicize the party’s bare-knuckle tactics while at the same time highlighting the good works of the rights lawyers and activists whose reputations are being savaged. How many netizens, upon seeing Wang Yu’s name in the official media, jumped the Great Firewall to learn more about her? And how many young Chinese, reading about Wang Yu’s harsh treatment, shook their head in sadness over the party’s abusive handling of her case?
As the Chinese economy slows, the party is looking for alternative sources of legitimacy: in the absence of robust economic growth, it needs to find new selling points for its rule. As it does so, the Party should think about how the public reacts to its heavy reliance on repression. Keith may be right that the recent crackdown highlight’s the party’s strength. But if current trends continue, the party could find itself, in terms of reputation, much weaker.
Photo credit: AFP/Getty Images
Keith Hand is professor of law at University of California Hastings and former Beijing direct of Yale Law School's China Law Center.
Eva Pils is a Reader in Transnational Law at the Dickson Poon School of Law, King’s College London, a Non-resident Research Fellow at the U.S.-Asia Law Institute at the New York University School of Law, and author of China's human rights lawyers: advocacy and resistance (Routledge, 2014).
Taisu Zhang is an Associate Professor at Yale Law School.