Stanley Lubman writes for The Wall Street Journal, July 31, 2015
China’s current nationwide crackdown on “rights defense” (weiquan) lawyers is the strongest assault to date on a small number of pioneers who have struggled to advance the rule of law. Lawyers, activists and ordinary citizens who assert legal rights against agencies and officials now risk suppression in the name of ”stability maintenance.” The crackdown increases uncertainty about the future of law reform in China as long as Xi Jinping leads the party-state.
“Rights defense” lawyers emerged because popular demands for justice dovetailed with political-legal reforms initiated by Beijing. The reforms include creation of a private-sector legal profession and a commitment in the 1992 Constitution to “ruling the nation in accordance with the law.” This language was strengthened by other declarations, including a constitutional amendment in 2004 that says “the state respects and protects human rights.” Yet there are no limits on the Party’s power to make laws and dictate how they are applied.
The unpredictability of Party action hasn’t deterred a small number of lawyers who since 2000 have been focused on addressing mounting social grievances. The cases they have taken on range from torture and wrongful conviction to housing demolitions, food and medicine poisoning, Internet censorship and environmental pollution. (For a comprehensive study of activist lawyers, see “China’s Human Rights Lawyers: Advocacy and Resistance” by Eva Pils, Reader in Transnational Law at Kings College, London).
While the party-state has tried to marginalize rights lawyers by painting them as provocateurs who encourage disobedience of the law, the current assault on them is the latest and strongest expression to date of the Chinese leadership’s anxiety about social stability. The government’s invocation of the vague offense of “picking quarrels and provoking trouble” to punish lawyers and activists speaks volumes about the uneasiness that runs through the regime.
At the same time, very different issues of legal reform are being addressed. Previously-announced programs to distance local courts from the influence of local governments and to increase procedural regularity and transparency in cases that are not regarded as threatening to social stability are still proceeding slowly.
As this column noted earlier this year, the Supreme People’s Court plan for judicial reform aims to increase judicial independence and procedural justice—although it is made clear that this is within the limits of Party control and policy. Cases deemed to be “sensitive” remain subject to a different set of rules.
The outcome of the reforms, if successful, would be an autonomous judiciary in cases that are not viewed as concerning the interests of the Party. As legal scholar Susan Finder noted recently, “The reform plan is a recognition that the current system is dysfunctional in many ways. Party rule needs a better-operating more professional, and autonomous judiciary…in a world in which most matters that come before the courts don’t involve Party concerns.” It remains to be seen whether implementation of the reform plan will reflect this view.
The clampdown on lawyers is only one element of the Party’s drive to consolidate its power. Others include recent restrictions in a draft law on foreign NGOs; increased control over social media; a recent policy paper that referred to construction of harmonious labor relations as ”an urgent task;” and warnings against academic discussion of “Western values” such as freedom of the press, the importance of civil society, democratically-elected government and constitutionalism.
Moreover, Xi Jinping is faced with massive pressure to maintain China’s economic momentum–and, as a consequence, to strengthen Party rule. Economic reforms have been promised but have yet to be advanced. The recent stock market crisis and the intervention of the state reflect the continued grasp of the Party over the country’s markets.
Outside of the restrictions that will hamper some lawyers, many society-wide concerns will continue to be addressed by the courts, including land transactions, food safety offenses and environmental pollution. Business-related lawsuits will most likely increase.
The harassment of weiquan lawyers will not cease. Yet if the authorities continue to turn a blind eye to cases of cadres violating individual rights, they could face a growing number of public protests — as well as increased pressure to respond constructively rather than by denial. No one can predict when that might happen, but the possibility will not disappear. Nor will the weiquan lawyers.
Stanley Lubman, a long-time specialist on Chinese law, is Distinguished Lecturer in Residence (ret.) at the University of California, Berkeley, School of Law. He is the author of “Bird in a Cage: Legal Reform in China After Mao” (Stanford University Press, 1999) and editor of “The Evolution of Law Reform in China: An Uncertain Path” (Elgar, 2012).