Uncertainty in China’s Legal Development, Part I: Intimidation of Activists and Lawyers
By Stanley Lubman, The Wall Street Journal, China Real Time Report
Stanley Lubman, a long-time specialist on Chinese law, looks at government’s ongoing hostility towards dissent. Mr. Lubman teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).
Recent convictions of Chinese human rights activists and efforts by Chinese government agencies to restrict the activities of lawyers on behalf of clients who are considered politically disruptive demonstrate ongoing manipulation of legal institutions to suppress dissent and to buttress the authority of the Chinese Communist Party (CCP). In addition to suggesting the Party’s profound anxiety about maintaining “social stability,” both the convictions and the interference with lawyers also reflect deep indecision about defining the very role and operation of legal institutions.
At risk is not only freedom to assert legal rights, but the future course of Chinese legal development.
The most recent case of suppression of an activist for offending political views is the conviction of Liu Xiaobo, a well-known intellectual who helped write “Charter 08,” a document that called for protection of human rights and political reforms, and helped to organize hundreds of Chinese intellectuals to sign it. He was sentenced to 11 years in prison, one of the heaviest sentences ever received by a political dissident, after a brief trial in a courtroom from which known supporters (including his wife) were barred, along with foreign diplomats. His appeal was subsequently denied.
The leadership’s discomfiture at expressions of dissent is suggested by differences between two recent statements: A “security official” warned of “hostile forces stirring up chaos” — but a Chinese Foreign Ministry spokesman declared that “there are no dissidents in China.” Both of these sentiments, and the range of possible nuances between them, point to continued use in the near future of criminal proceedings to punish activists.
Notably, some cases do not involve political dissent at all, but rather alleged misconduct by local governments, such as the widely-publicized suspicion by many Chinese that shoddy construction of schools contributed to the deaths of many children killed in the earthquake in Sichuan in May, 2009. Huang Qi, a human rights activist, had offered to help parents to investigate allegedly defective construction of school buildings. He was sentenced to three years in prison in November, 2009 after a ten-minute hearing that referred to no specific offenses other than involvement with “state secrets.”
Some activists become involved in a range of protests on a variety of issues, which increases the risk of punishment for any of their actions. Earlier this month Tan Zuoren, an activist who had previously criticized the Tiananmen crackdown in June 1989 in a document that he published abroad in 2007, was sentenced to five years in jail for “incitement to subversion.” He was not charged, however, until July 2009, after he had called attention to poorly built schools in Sichuan and also led environmental opposition to a planned petrochemical plant. When the judge in the case handed down the sentence, he mentioned only Tan’s protest against the 1989 crackdown, not Tan’s investigation of school construction or other activities. Mr. Tan’s lawyer said that “the real reasons” were the protests against the petrochemical plant and the investigation of the “tofu” [bean curd] buildings in Sichuan.
Another example of the Party’s hostility to politically unwelcome activities is its strenuous discouragement of lawyers from participating in them or encouraging them. Professor Donald Clarke testified before the Congressional-Executive Commission on China in October, 2009 about events such as the temporary closing of a law firm in Beijing that had participated in a number of “high-profile” cases and was headed by an activist lawyer; closing of the Open Constitution Initiative, an organization headed by a legal scholar that has addressed issues related to the rule of law in China; cancelling the licenses of lawyers associated with unwelcome views, and the issue by judicial bureaus and governmental authorities of “guidance” or regulations that prevented lawyers from effectively representing clients in cases that are deemed sensitive. (Mr. Clarke’s testimony is available in PDF format here.)
The most dramatic recent event in the Party’s war on activist lawyers is the disappearance of the one of the best-known lawyers in the country, Gao Zhisheng. After he received a suspended three-year prison sentence in 2006, Gao, in an open letter to the U.S. Congress in 2007, protested religious persecution, violation of rights of free speech and free association, harassment and punishment of activist lawyers, violent repression of protests against illegal land takings, treatment of migrant workers and corruption among legal officials. (The letter is available here)
Gao disappeared in February 2009 and since then, there has been no word from him other than one brief phone call to his brother, during the summer, to say that he was alright but was not free. In January, 2010, a Foreign Ministry official said that Gao “is where he should be,” and provided no details.
One issue that is raised by these violations of human rights (and, often of Chinese law as well) is: when is foreign criticism desirable? In my previous blog I argued that moralistic broadsides are not helpful, but I also agree with Professor Jerome Cohen, who urges that focused criticism of specific cases “stated with requisite humility” is appropriate. It is also important to realize that broader issues are at stake. The opposition of the Party-state to activist lawyers extends beyond the courtroom to their acts out of court, whether seeking publicity or engaging in other activities to promote social change, and thus represents another attack on freedom of expression.
China is beginning to learn that as citizens begin to assert their lawful rights, it is difficult to limit their ability to assert those rights. China’s economic development has already generated enough public space for Chinese citizens and NGOs, in some areas, to become more aggressive.
That public space does not seem likely to contract, and whether it can grow will depend not only on the legal profession but on the courts. Even more fundamentally, China’s leaders, reluctant to loosen their powers, will have to decide on the scope of the role and operation of China’s judicial system, something they have never done except in the context of changing political policies. The state and future of the courts will be discussed in a forthcoming blog post.