Anxiety trumps law in Party's crackdown on activists
By Stanley Lubman, The Wall Street Journal
Recent trials of activist protesters show continuity between Chinese law before post-Mao reforms and the Chinese law of today. The Party continues to twist the use of the criminal law and procedure to meet the perceived needs of the moment— which are propelled by a fundamental anxiety over the possibility of losing control of society.
The Beijing First Intermediate People’s Court’s decision to sentence activist Xu Zhiyong to four years in prison for “disturbing public order” by encouraging demonstrations against official corruption by his supporters in the New Citizens Movement surprises no one. The heavy-handed violations of Chinese criminal procedure law that marked the case, both before and during the trial, were part and parcel of the departures from Chinese law that have often marked prosecutions of activists protesting official illegality. Defense lawyers were barred from cross-examining prosecution witnesses and from calling witnesses of their own. The authorities also violated Chinese law by holding separate trials, which prevented the defendants from providing testimony that could be useful to one another’s defense. The instrumental manipulation of procedure is depressingly familiar.
There is an ironic twist in the fact that Xu and President Xi Jinping have both been campaigning against the same problem in Chinese society: the pervasiveness of official corruption. But while Xi has focused on the lifestyles of officials, Xu has sought to go deeper by insisting that officials be required to disclose the sources of their wealth.
Although no law requires disclosure of assets, recent amendments to the Criminal Procedure Law expanded the power of prosecutors to enable them to obtain court orders to confiscate the assets of corrupt officials who have died or fled the country. These powers have been little used, despite —or because of— the fact that many members of China’s elite have extensive holdings of overseas assets that remain secret.
When authorities charged Xu for the offense of “disturbing public order” with other supporters of the New Citizens Movement, they reflected an extreme, deep-seated concern to maintain the grasp of the Chinese Communist Party (CCP) over Chinese society.
Many foreign observers have criticized the trial and the harsh punishment of Xu, characterizing him as a “moderate” critic. Professor Eva Pils of the Chinese University of Hong Kong and Joshua Rosenzweig, a doctoral candidate at the same university, disagree, arguing that although the movement does not advocate violent overthrow of the current government, it presents a different threat. It does endanger the authoritarian rule of the Party because it shows itself able to muster “the force of popular resistance.” They further comment that the violence of the Party-state’s response to the movement is not because human rights advocates have become radicalized, but because “an environment of fear and instability has pushed them to seek new, extra-institutional forms of expression.”
Corroboration of this view was supplied by the Chief of the Beijing Public Security Bureau in a conversation with Xu before he was formally detained, quoted by the Economist magazine:
“Are you people reasonable?” the police official asked Xu. “You displayed banners more than a hundred times in various cities over the last few months. If we don’t stop you promptly, it will trigger social turmoil.”
This comment helps us to understand the wider crackdown on dissent that began last year, as public concern grew about official corruption, the environment and the slowing of economic growth. It also resonates with scholars’ observations that civil society is growing even though the political system remains authoritarian. New participants have appeared, attempting to influence civil society through such means as private foundations, new forms of philanthropy and increasing public advocacy.
Opinions differ on the likely impact of social activism in the wake of the trials of Xu and the other defendants who face similar charges. One wealthy businessman predicted that the trial of Xu would discourage businessmen and others from participating in social activism because it could have repercussions for their own safety. Another activist, however, has declared that the trial will have a significant effect by “highlighting the work of Xu and other New Citizens.”
The crackdown on Xu and other social activists illustrates one of the most serious aspects of the current state of Chinese criminal procedure: The primacy of the Party in the criminal process is shown in full force when it is brought to bear on activists for allegedly violating public order, disclosing state secrets and other offenses against the security of the Party-State. This means that Party policy continues to shape the conduct and outcomes of criminal cases, with disregard for procedural justice. The Party’s rhetorical support of the rule of law — often extolled in Party statements— is consistently and glaringly violated in practice.2/4/2014