Law Reformers Inheritors of Liu Xiaobo Fight?
By Stanley Lubman, The Wall Street Journal, China Real Time Report
The award of the Nobel Peace Prize to Liu Xiaobo prompted furious denunciations of the Nobel Committee by the Chinese party-state, which most recently has pressed European governments to boycott the award ceremony.
However, other reactions, via the Internet and Twitter, suggest that there is resonance in Chinese society for Liu’s call for gradual political reform.
But who will speak out and work now for the gradual reform that Liu wants to achieve? Some lawyers and legal scholars may continue to carry a share of the burden. Allied with activists, they may be able to gain significant momentum for change on some issues. At high levels in Beijing, also, there may be some receptivity.
Chinese who challenge violations of individual rights display extraordinary courage, and some persevere despite the dangers their protests could generate. Such a protester is Yang Jingzhu, a criminal defense lawyer, who has dared to launch a public campaign to protest an egregious violation of Chinese law against none other than the President of the Supreme People’s Court. Last month, although Chinese law forbids the admission of evidence obtained by torture, the court authorized the execution of Fan Qihang. He had been sentenced to death for organizing a large criminal syndicate in Chongqing despite evidence that he had been tortured into confessing to the crimes of which he was accused.
Although torture has long been prohibited under the Chinese Criminal Procedure Code, it was not until May, 2010, that authoritative guidelines binding the agencies charged with law enforcement were issued, providing that evidence obtained illegally, including torture, may not be used to convict defendants. In February, 2010, Fan Qihang was sentenced to death. His conviction and sentence were approved by the Chongqing Higher People’s Court and then sent to the Supreme People’s Court in Beijing, which is required to review all death sentences.
In July, 2010, Fan’s lawyer, Zhu Mingyong, sent to the Supreme People’s Court, which under applicable law was reviewing the death sentence, five videotapes in which Fan vividly described five months of torture he had suffered. Also, according to the article cited above, “over 100 prominent lawyers, writers and activists signed two open letters” to the Court and the Supreme Procuratorate, calling for further investigation. Regulations on judicial review of death penalties require the court reviewing the case to “receive…face to face” opinions that defense counsel wishes to state to the court, but no such opportunity was given to Zhu, whose client was executed in September 2010 .
After the execution, Zhu published a poem circulated nationwide that expressed his outrage. Since then, law professors Jerome Cohen and Eva Pils have written that he has “vanished.” Research on the Internet yields no mention of Zhu since August.
Yang Jingzhu, another human rights lawyer, has taken up the cause. Before Fan’s execution he published a strong criticism arguing that the Chongqing campaign against gangsters was devoid of procedural justice and urged that the President of the Supreme People’s Court resign, because, he said, “the rule of law is already dead in China! The SPC has fallen!” He sent letters to the President of the Court, the Politburo and to the National People’s Congress which, of course, have not been answered, as far as we know.
It is possible that the political climate will change because at least some leaders and high-ranking Party members will be more in favor of political reform than they have been in the past. However, the signals are mixed: Premier Wen Jiabao recently said in an interview on CNN that “the people’s wishes for and needs for democracy and freedom are irresistible” –but this statement was censored in the Chinese press. Before the Nobel Committee announced its decision, on October 11th, twenty-three Chinese Communist Party elders known for their pro-reform positions, including Mao Zedong’s former secretary as well as a former editor-in-chief of the People’s Daily, submitted an open letter to the Standing Committee of the National People’s Congress, urging the Communist Party to abolish censorship and realize citizens’ right to freedom of speech and freedom of the press.
Whatever the sentiment among the leadership may be now, Chinese society seems restive, if we consider strikes, protests by farmers, or other “mass incidents” as indicators. Meanwhile, rights lawyers like Zhu and Yang are likely to continue to press for greater legality in practice.
Legal scholars can also be expected to express a need for the rule of law. For example, Luo Haocai, President of the China Society for Human Rights (also a former law professor and vice-president of Peking University) recently called for “the rule of law to be applied when handling human rights and development issues.”
Some scholars will also no doubt speak out on the state of Chinese legal institutions about which they are particularly knowledgeable. Wang Jin, an environmental law professor at Beijing University, has protested that “China’s green laws are useless,” because the courts do not enforce sanctions against polluters, sometimes refuse to accept cases against polluters in order to maintain “social stability,” and do not enforce criminal responsibility for pollution. In his view, “the current state of environmental law in China” consists of “laws without regulation, troops without power, duties without action.”
Zhou Wei, a law professor at Sichuan University, made a significant contribution by advising a plaintiff challenging a prospective employer’s refusal to hire him because he was infected with the Hepatitis B virus (HBV). The case drew nationwide attention after the court ruled that the refusal to hire was unjustified. Subsequently a website has been created to widen and arouse a network of activists who have fought employment discrimination against other HBV carriers. According to one recent study, ”by raising public awareness, petitioning for legal reform, and mobilizing media support for their cause, activists made HBV discrimination one of China’s leading equality issues.” Another study, however, demonstrates the difficulty of effecting change, arguing that despite the anti-discrimination movement and extensive legislation prohibiting employment discrimination, “ employment discrimination litigation remains unpopular and politically sensitive in China.”
How will the Chinese leadership respond to further continuing pressure for strengthening individual rights and limiting official arbitrariness? One American academic China-watcher, Professor Edward Steinfeld of MIT, has argued that the Chinese leadership, with the next five-year plan, will be committing itself to “creating widespread expectations for civic empowerment, legitimizing previously taboo subjects and raising the bar on its own performance.”
China is presently in a transition, between the current leaders and their successors who are due to assume power in 2012. We cannot yet know whether the leadership’s reaction to Liu Xiaobo’s Nobel Prize expresses not only sensitivity to pressure, especially foreign, but also determination to continue to oppose eventual political reform and block public appeals for it. It is safe to wager that the leadership’s reaction to Liu’s Nobel Prize will not still the desire for the reform that Liu has so courageously sought. 11/9/2010