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Why Is China Muzzling Its Lawyers?

Tags: Human Rights , Civil Society , China , Xi Jinping , Local Government

Ako, Tomoko

February 01, 2016

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China’s nationwide crackdown on civil-rights lawyers may seem like a clear case of top-down repression, but in reality the dynamics are much more complex. The author shines a light on the structural problems fueling the latest civil-rights campaigns and the government’s misguided response.

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In recent years China’s lawyers have come under intense pressure as officials crack down on civil-rights advocacy. The trend peaked in July 2015, with the mass detention and questioning of more than 200 lawyers nationwide. Was this a coordinated campaign orchestrated by the leadership of the central government and the Communist Party with a unified purpose in mind?

With President Xi Jinping’s state visit to Washington and London in the offing, why would the Chinese government deliberately embark on a course of action that would invite Western criticism? Foreign analysts are sharply divided on this question. Was it an indication of the regime’s confidence and its indifference to outside opinion? Or was it a panicked response precipitated by the stock market crash of the previous month?

The driving forces behind Chinese politics—from the Communist Party’s internal power struggles to the processes surrounding the adoption and implementation of individual policies—are often hidden from view. That said, it seems to me that we can gain a deeper understanding if we approach recent developments like these not only as clues to the current regime’s intent and policy direction but also as symptoms of the broader structural issues with which China is grappling.

The State Media’s Smear Campaign

According to Amnesty International, Chinese authorities detained or questioned more than 200 lawyers between July and the beginning of October. While most have since been released, more than 20 were still in custody or missing as of this writing.[1] At the center of the crackdown is the Fengrui Law Firm in Beijing, whose director, Zhou Shifeng, was seized and jailed on criminal charges along with lawyer Wang Yu.

Within days of the lawyers’ detention—before authorities had a chance to draw up formal charges, let alone conduct a thorough investigation—such state- and party-controlled media as Xinhua, Renmin Ribao (People’s Daily), and China Central Television (CCTV) were treating the lawyers as criminals and explaining their alleged crimes in considerable detail. Officially sponsored media smear campaigns of this sort have become increasingly common in recent years.

A July 12 piece carried by Xinhua reported, “the Ministry of Public Security has ordered police in Beijing and elsewhere to take concerted action to break up a major crime ring centered on the Fengrui Law Firm of Beijing, which has organized more than 40 politically incendiary incidents since July 2012 and severely disrupted public order.”[2]

Preceding this account of events is a series of loaded questions calculated to sow suspicion: “Why have certain lawyers appeared time and again on the scene of controversial incidents, stirring up trouble? Why do so many protesters join with them, carrying signs and creating a disturbance? Why have judges and officials in charge of politically sensitive cases been waylaid outside the courtroom, attacked, and made the targets of online exposure campaigns? Why does one so often glimpse behind these escalating controversies the presence of groups that intentionally agitate and manipulate for their own illicit purposes?”

Among those charged with serious crimes is Wang Yu, who has earned a reputation as China’s most intrepid female lawyer and a powerful force for civil rights. Wang Yu’s clients include Ilham Tohti, a prominent Uighur scholar currently serving a life sentence; human-rights activist Cao Shunli, who died of poor health (amid accusations of neglect) after five months in detention; Fan Mugen, arrested for assaulting police authorities when he resisted forced eviction; and a group of underage girls who were raped by a school principal.

On July 20, CCTV’s evening newscast aired footage of Wang Yu confronting a group of security officers in a courtroom, shouting, “You’re a pack of scoundrels, you’re beasts!” Doubtless many viewers reacted negatively to this scene. I myself questioned the use of such violent language in a court of law. But feminist activist Ye Haiyan put the incident in context, explaining that four stocky court police officers had physically restrained Wang’s female client in the midst of an emotional testimony regarding the torture she had endured under police interrogation.[3] If what Ye says is true, it means that CCTV took the incident out of context and highlighted it in a deliberate attempt to show Wang Yu in the worst possible light.

Making a Crime of Advocacy

Because China does not recognize the independence of the judiciary, attorneys often battle against impossible odds as they attempt to secure justice in the face of political interference. In some cases they cannot even meet with their clients. Key evidence or testimony may be excluded from consideration. Family and associates may be barred from the courtroom and denied access to court transcripts. Detainees are held without trial past the legal time limit for prosecution, and the court may reach a verdict before defense attorneys even have an opportunity to present their case. Increasingly, moreover, attorneys are facing threats to their own safety and liberty.

In a society in which the judiciary is neither independent nor transparent, the law alone is insufficient to hold the government accountable for violations of civil rights and other social issues. Cognizant of this problem, lawyers in charge of controversial cases have taken to working in concert with interested citizens and the media to strategically raise public awareness regarding incidents and problems. They may take to the streets with a megaphone or release videos and other key information on the Internet. This can be considered a form of advocacy, a way of pushing society and the government to address important social issues. Internationally, advocacy of this sort is widespread and acknowledged as essential to the development of a healthy society. In China, however, advocates are increasingly branded as troublemakers and even enemies of the state. China’s public security officials have come to regard this alliance among lawyers, activists, and aggrieved citizens as a major threat to stability.

Amid these concerns, the public backlash over the Qing’an station incident of May 2015 clearly touched a raw nerve. On May 2, a police officer at a station in Qing’an county in Heilongjiang Province shot and killed a man by the name of Xu Chunhe as he was waiting to board a train with his wife, three children, and 81-year-old mother. The officer claimed justifiable defense, but rumors spread online that the victim was a disgruntled citizen on his way to Beijing to petition the government, and that the officer was trying to prevent him from boarding. A video of the altercation found its way onto the Internet and went viral.

In China, individuals with grievances can petition the national government directly, and countless citizens who feel they have been denied justice at the local level travel to Beijing to submit their petitions to central government authorities. Since a large number of petitioners from a given area reflects badly on local officials and can lead to disciplinary action, provincial governments have been known to intercept and even detain petitioners without just cause. Whether or not Xu himself was a petitioner is almost impossible to establish now that he is dead and reporters have been denied access to his family, but reports later emerged that local authorities have offered his mother a substantial sum of money, presumably in exchange for her silence.

The Communist Party’s Central Publicity Department did its best to control coverage of the story, but the online community was soon abuzz with testimony and comments that had the authorities on the defensive. There were growing calls for an independent commission to investigate the incident.

The government’s discomfiture over the affair and its aftermath are apparent in the aforementioned Xinhua piece, which includes pointed remarks about the role of lawyers and their collaborators in the Qing’an incident. “They concocted the false allegation that Xu Chunhe was a petitioner and that the police had shot him on orders from local leaders,” the authors write. “The lawyers who raised their banners at the station and signed a contract to represent Xu Chunhe’s mother also orchestrated an exposure campaign [renrou sousuo] against a local official who defended the police officer’s action. When they discovered an irregularity in the official’s past, they exaggerated the problem in a bid to put pressure on the government.”

The term renrou sousuo (literally, “human flesh search”) used in the piece refers to organized efforts to dig up damaging personal information and to publicize it through the Internet. Local officials are the most frequent targets of renrou sousuo. In the wake of the Qing’an incident, Internet users targeting Deputy Magistrate Dong Guosheng discovered that he had misrepresented his age and education on a résumé and that his wife was receiving wages from the government despite having no official position. Dong was suspended pending an investigation.

The Xinhua piece continues, “A key instigator, Internet user ‘Chaoji Disu Tufu,’ a.k.a. Wu Gan, rushed to the scene and promised to ‘pay 100,000 yuan to anyone providing video footage of the Qing’an incident.’[4] According to [detained Fengrui lawyer] Zhai Yanmin, Wu Gan is an old hand at creating a public uproar from politically sensitive incidents and is well known among those involved in such activities. . . . The protesters who hurried to the scene testified that they each received a 600 yuan ‘reward’ for carrying a sign. Some of the protesters were detained by police, and according to Zhai Yanmin, they were feted as ‘heroes of Qing’an’ after they returned to Beijing.”

Blogger Wu Gan was detained in late June and arrested on charges of disorderly behavior, defamation of character, and inciting subversion of state power. According to the Xinhua piece, the Fengrui Law Firm had hired Wu Gan as an assistant and was paying him a salary of more than 10,000 yuan per month, plus expenses.

The Fengrui Law Firm was probably working with Wu Gan in order to draw attention to cases it had undertaken. Wu Gan had frequently used the Internet as well as street demonstrations to help aggrieved citizens publicize incidents and pressure the government for action or disclosure. When such activity was insufficient to raise public awareness, he would search for evidence of corruption or malfeasance by officials involved in the incident and publish the information on the Internet. In this way he would pressure the authorities to acknowledge the victim’s suffering and offer compensation or an apology. An online fund-raising campaign had even solicited contributions from abroad to support this mode of activism, which Wu termed “slaughtering the pigs.”

A Threatening Coalition

Civil-rights coalitions of this type, in which activists and citizens make skillful use of the Internet to mobilize public support, have become increasingly common in recent years, but the authorities have begun taking strong measures to suppress them. In the 2014 Jiangsanjiang incident, lawyers Tang Jitian, Jiang Tianyong, Wang Cheng, and Zhang Junjie were held at a “legal education base” in Heilongjiang province on charges of “using cult activities to harm society” after they joined with citizens to protest the unlawful detention of Falun Gong devotees, petitioners, and others. This provoked a backlash from supporters outraged by the authorities’ high-handed measures.

Another proponent of this type of alliance was legal scholar and rights advocate Xu Zhiyong, who launched a citizens’ campaign around 2010 to lobby for the disclosure of officials’ personal assets and equal educational opportunity—a campaign known as the New Citizens’ Movement. The movement came to an end in 2014, when Xu and other key figures around the country were sentenced to prison for disrupting public order.

Officials have also moved against independent think tanks and nonprofit groups involved in citizen outreach. Two notable targets are the Transition Institute of Social and Economic Research in Beijing, a private think tank that has won kudos for its constructive policy proposals, and the Liren Rural Libraries, a nongovernmental organization that built a rural library network to provide broader access to free books and educational opportunities. In 2014, authorities detained a number of key figures from both the Transition Institute (including founder Guo Yushan and administrative supervisor He Zhenjun) and Liren (among them Executive Director Xue Ye and Deputy Director General Liu Jianshu).[5]

It should be noted that, unlike Nobel laureate Liu Xiaobo’s Charter 08, which called for a new constitution guaranteeing democratic elections and a multi-party system, the New Citizens’ Movement and other civil-rights campaigns of recent years have refrained from attacking China’s basic political system or challenging the CPC’s one-party dictatorship. They have sought only incremental social change based on the rule of law under the existing constitution, which recognizes the legitimacy of one-party rule by the CPC but also provides explicit guarantees of freedom of speech, freedom of the press, freedom of assembly, and the right to demonstrate or protest peacefully. Yet even with such relatively moderate goals, these groups’ expanding networks and growing ability to mobilize popular support have clearly made the authorities nervous.

But another important factor behind the severity of the crackdown, even in far-flung regions, may be an overreaction by officers and officials farther down the chain of command, who fear being held responsible for possible outbreaks of unrest. Below we look more closely at this dynamic

China’s Bloated Security Apparatus

When the government drafted its 2012 budget calling for 701.8 billion yuan for public security and 670.3 billion yuan for national defense, the international media picked up on the story, reporting that China’s domestic security spending had outstripped defense spending for the first time ever. The Chinese government was quick to respond to these reports. One finance official (speaking to a reporter for Guangzhou-based Nanfang Dushi Bao, or Southern Metropolis Daily) explained that “expenditure for public security” included such things as public health, public transportation, construction safety, and food safety, as well as law enforcement.

This explanation was greeted with skepticism. According to the explanatory notes in the 2011 China Statistical Yearbook, “expenditure for public security . . . refers to the spending of government on maintaining social and public security, including the expense on armed police force, public security [local police] forces, state security, prosecution, courts, justice, prison, labor education and rehabilitation, protection of state secrecy, anti-smuggling police, etc.” In addition, the breakdown of the 2010 public security budget published by the government revealed that, out of a total of 551.8 billion yuan in actual spending, the armed police accounted for 93.4 billion, public security (local police) forces for 281.6 billion, the courts for 54.5 billion, the justice system for 16.6 billion, and anti-smuggling and anti-trafficking operations for 1.1 billion yuan. The remaining category of “other” accounted for a mere 1.2% of the total, suggesting that the bulk of the funds allocated for public security spending does indeed go to the police and criminal justice systems.[6]

These expenditures have been rising at a fairly dramatic rate. Between 2010 and 2014, total outlays by the central government (excluding local allocations) rose by 40%, but spending on public security rose 170%. We should note in this context that three-fourths of the public-security budget (unlike the defense budget) is shouldered by local governments, most of which have been under severe fiscal constraints due to the slowing down of economic growth. Why do they continue to ramp up their spending on public security despite falling revenues and high levels of local government debt?

One likely reason is that public-security indicators count prominently among the evaluation criteria by which local officials are promoted or, in some cases, disciplined. As one local government official explained to me, “We are expected to prevent large-scale protests before they happen, and how we deal with petitioners is an important indicator as well.”

Another possible reason is that unnecessary work is being created by organizations and personnel engaged in public safety as they seek to aggrandize their own benefits. As Parkinson’s law dictates, the bureaucracy expands “irrespective of any variation in the amount of work (if any) to be done.”[7] Budget decisions and the process of implementation are quite opaque in China, and information regarding public security is guarded particularly closely, as it often involves state secrets and other important matters. Rather than considering the good of their organization or country as a whole, officials, according to Parkinson, are wont to multiply subordinates and to make work for each other so as to increase the size of their budgets.

Nearly all of the Chinese lawyers, journalists, and scholars I know claim to have been tailed or questioned by the guobao, the secret police directly under the Ministry of Public Security.[8] Some have even been given money and told to “go somewhere remote” during a major event or international conference in Beijing. The director of a private group involved in labor issues told me that a guobao officer put a stack of cash on his desk, saying, “It would make our jobs a lot easier if you would quit yours.” Other acquaintances speak of being plied with gift certificates, vouchers, liquor, and cigarettes. On the basis of such anecdotal evidence, one can imagine how quickly expenses could mount in the name of “dealing with potential troublemakers.”

Near the bottom of the domestic security hierarchy, different motivations come into play. A lawyer I know got so accustomed to seeing the same guobao agents lurking around his home and workplace that he began engaging them in conversation. “They were overjoyed whenever I made them gifts of some liquor or tea that I’d received from clients. I think many of the rank-and-file agents are having a hard time making ends meet,” he said. These are low-ranking officers with few privileges and small, closely monitored spending accounts. No doubt, some are struggling to support their families. Such agents may feel the need to make a show of diligence and zeal and to adjust their level of familiarity with their subjects in order to keep their posts and advance through the ranks. It would hardly be surprising to learn that some alter their reports to their superiors as circumstances dictate.

The economic slowdown has doubtless contributed to a general atmosphere of paranoia, since security officials understand that economic stress can trigger political instability. And paradoxically, Xi Jinping’s tough anticorruption campaign seems to have exacerbated the situation. The corruption investigations are carried out by the Communist Party’s Central Commission for Discipline Inspection, whose criteria for prosecution are vague, arbitrary, and subject to change. Anxious to avoid becoming targets, officials are at pains to gauge which way the wind is blowing and to tailor their behavior accordingly. Under the circumstances, it is inevitable that some will overreact or make the wrong choices.

The Top Proposes, the Bottom Disposes

Such problems are endemic to the Chinese system, which combines elements of a rigid top-down command structure—as embodied in the national party apparatus and the central government—with a vast and unruly network of horizontal relationships at the local level. While China’s central government and party organs lay down the law, they have relatively little control over its implementation in the provinces, where there is a strong tendency toward localism, together with bureaucratic bloat, inefficiency, and incompetence.

As the Chinese are fond of saying, the top has its measures, the bottom has its countermeasures (shang you shengce, xia you duice). While giving the appearance of following the directives they receive from above, local officials are adept at ignoring them so as to protect the interests of their own department, relations, and cronies. The central government, for its part, has been largely willing to turn a blind eye to irregularities at the local level—even if they make a mockery of the nation’s laws and systems—providing they do not threaten the central power structure.

This environment of political instability and the unpredictable nature of the ongoing anti-corruption campaign have induced visible changes to longstanding personal and organizational networks that had previously been built on common interests.

As an example, we might cite the repercussions from the 2012 downfall of Bo Xilai, who wielded tremendous power in the Communist Party’s Central Political and Legal Affairs Commission (which has jurisdiction over public security and information) and his close associate Zhou Yongkang, who oversaw domestic security as secretary of the commission. Although internal power struggles are difficult to document, various sources note that the disgrace of these two powerful officials and the ensuing reorganization of the party’s central domestic security apparatus spawned confusion in Beijing’s local security apparatus, leading to inconsistencies in the treatment of lawyers and journalists.

Sustainable Development and Freedom of Expression

With their traditional emphasis on social relationships, the Chinese are often said to place “rule of man” ahead of the “rule of law.” This tradition, combined with a byzantine administrative structure in which rampant localism tends to circumvent the centralized authority of the Communist Party, creates an environment favorable to cronyism, favoritism, and the abuse of authority.

After the introduction of free market reforms, a lax regulatory environment helped incentivize investment and entrepreneurship, contributing to China’s explosive economic growth. At the same time, traditional family and community ties helped fill the gaps in the government’s social security system. In today’s China, however, the shortcomings of “rule of man” can no longer be ignored. Wholesale political reforms will ultimately be essential if China is to achieve sustainable development. Old habits die hard, though, and the transition to the “rule of law” will not occur overnight.

The prospects for wholesale reform seem particularly remote given the current government’s attempts to curtail freedom of expression. The mainstream media, the publishing industry, and academic institutions are suppressing the kinds of news, investigations, research, and commentary that could galvanize reform for fear of punitive action. And although the Internet continues to facilitate the flow of information and ideas on an unprecedented scale, the crackdown on free speech has polarized and fragmented public discourse along ideological and political lines.

So, is the central government to blame for failing to pursue political reform? Or does the problem lie with Chinese society itself and its abiding predilection for “rule of man”? In a sense, this is like asking whether the chicken or the egg came first. In his 2015 book The Age of Ambition: Chasing Fortune, Truth, and Faith in the New China, Chicago Tribune reporter Evan Osnos quotes his local informant as follows: “I see our society as an enormous pond. For years, people have been using it as a restroom, just because we could. And we enjoyed the freedom of that, even as the pond got filthier and filthier. Now we need someone who can stand up and tell everyone that the pond has been fouled and if you continue to pollute it, nobody will survive.”

China is a vast country with a history spanning millennia. Addressing its problems and reforming its systems is a monumental task, and radical reform is not a realistic option. The only option is incremental change via a persistent, collaborative effort by government and society to address the challenges in each sector one by one.

Ultimately, the key to positive change is probably freedom of expression. In the current environment, with its lack of legal guarantees and its restrictions on thought and speech, social morals can only decline, as experience reinforces the conviction that honesty and social responsibility do not pay. Such an environment discourages the growth of new ideas and values oriented to the betterment of society. Faced with unprecedented challenges, the state is sabotaging itself with policies that discourage the development of social responsibility and civil society. The government persecutes lawyers and intellectuals with a social conscience, fearful that they will highlight the stresses and inequities afflicting Chinese society. In so doing, it allows the underlying problems to fester and grow. It is a vicious circle that is bound to continue until China’s rulers come to terms with the vital importance of free speech in a modern society.

 


[1] For data on the investigation and detention of lawyers in China, see Amnesty International, “China: Lawyers and Activists Detained or Questioned by Police since July 7 2015,” https://www.amnesty.org/en/documents/asa17/2277/2015/en/.

[2] Zou Wei and Huang Qingchang, “Jiekai ‘weiquan’ shijian de meimu” (The Puppeteers Behind the “Rights Protection” Incidents), Renmin Wang (People.com), July 12, 2015, http://politics.people.com.cn/n/2015/0712/c1001-27290030.html.

[3] Ye Haiyan offered the explanation in a comment posted on Sina Weibo, a Chinese microblogging and social networking site.

[4] Chaoji Disu Tufu, literally, “Super Vulgar Butcher,” is the handle of the well-known human-rights blogger Wu Gan.

[5] Guo Yushan and He Zhenjun were abruptly released on September 14, 2015, shortly before Xi Jinping’s visit to the United States.

[6] See Yutaka Kitamura, “Chian iji hi ga gunji hi o uwamawaru Chugoku shakai,” Nikkei Business Online, March 16, 2012, http://business.nikkeibp.co.jp/article/world/20120314/229787/?rt=nocnt.

[7] As articulated by Cyril Northcote Parkinson in his book, Parkinson’s Law: The Pursuit of Progress, based on his extensive experience in the British Civil Service.

[8] The chief responsibilities of the guobao are reportedly to maintain national security, social and political stability, and ethnic solidarity and to crack down on foreign enemies attempting to permeate China, forces fostering ethnic division, terrorist groups, radical religious organizations, Taiwan separatists, heretic religions, organized crime, and people who threaten national sovereignty or seek to overthrow the administration.

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