The sentencing of Chinese human rights lawyer Jiang Tianyong: a tragic farce

Jiang Tianyong was sentenced to two years on the charge of “inciting subversion of state power.” His prosecution/persecution has been a tragic farce from the day he was detained a year ago. 

Jiang was a primary school teacher who decided that he could do more for his country if he studied law and learned how to defend human rights. After doing so he became a partner of the dynamic human rights lawyer Li Heping, and I met them both at a lunch meeting with their client, the blind “barefoot lawyer” Chen Guangcheng, just, a couple of hours before Chen was literally seized by Shandong police who came to Beijing without notifying their local counterparts. Chen was about to meet with the then Washington Post reporter Phil Pan.

Li Heping was prosecuted earlier than Jiang, was convicted and served terrible prison time before being “released” in a now typical NRR (“non-release release”) and is now inaccessible while recovering at home.

Li’s younger brother, Li Chunfu, also became a human rights lawyer and met the same fate as the older brother on whom he had modeled his career. Li Chun-fu was “released” from prison before his brother and returned home a virtual vegetable suffering from severe mental illness induced by his prison experience, where he had been forced to take debilitating drugs in the guise of (un)necessary medicine for non-existent illness.

Jiang Tianyong, despite disbarment, was able to elude formal detention for a longer period than the other lawyers and still be helpful to detained human rights advocates and their oppressed families. Jiang knew how to work within the limits for a long time. I recall inviting him to dinner one night in Beijing before the 709 campaign began. He said “I’ll have to call you back to confirm in half an hour, since I have to go outside and ask my security police minder for permission”. He later called back and said that the minder told him “If you want to go to the office tomorrow, you should not go to the dinner.” So instead he sent an assistant. This was an illustration of the restrictions on many human rights activists that might be termed PDD (“pre-detention detention”)!

Another, more ordinary pre-detention restriction of Jiang’s freedom was earlier illustrated when Chen Guangcheng, after his forced return to his rural home, was subjected to severe house arrest. Chen telephoned me in Beijing and asked me to persuade a lawyer to travel to his Shandong village that night in an effort to break his illegal confinement. I telephoned Jiang Tianyong, who agreed to book a train ticket. He later called me and said that the police, having listened to our phone conversation, had forbidden him from making the trip. At least that spared Jiang the beating by village thugs who, under police guidance, always used violence to prevent outside contact with Chen.

The reality of attempting to defend human rights in China

Zhu Shengwu. Credit: China Change

This sad tale reported by China Change (link here) offers vivid insight into the reality of attempting to defend human rights in China. The story of young lawyer Zhu Shengwu, who started as a commercial lawyer but whose exposure to injustice led him to professional suicide, is really the story of two other lawyers as well. It is good to know that the famous defender Pu Zhiqiang, despite disbarment and living under the coercion of a three-year suspended prison sentence, still manages to be heard from on occasion in his own clever way. And his recollection of Su Bo, the idealistic human rights firebrand of Peking University law students in the heady days before June 4 who is now an instrument of oppression as head of the local Lawyers Association, makes one want to cry and cry out. 

Wu Gan’s “Trial”—Yet Another Sad Example of China’s Political “Justice”

Wu Gan has been for many years one of the leading and most-admired human rights activists in China. After criminal detention for over two years he will finally be brought to “trial” August 14 in a secret proceeding.

Wu Gan’s pre-trial statement is surely one of the most moving and accurate descriptions I have read of the Chinese government’s manipulation of its legal system to stamp out freedoms of expression. This account of his personal experience encapsulates virtually all the abuses that the Xi Jinping regime has been committing against human rights activists and their courageous lawyers. It is tragic testimony to the pathetic attempts of the Communist Party to drape its oppression in the mantle of “law”. To me the saddest aspects are its reminder of the forced collaboration of China’s judges with its police, prosecutors and Party legal officials in suppressing the constitutionally-prescribed rights and freedoms of the Chinese people.

Wu Gan’s statement ranks with those of China’s greatest martyrs to the cause of democracy, human rights and a genuine rule of law, including the late Liu Xiaobo. It will inspire those few activists inside and outside the country who still dare resist the current onslaught. Unfortunately, because of the regime’s monopolization of the media, its message will not be seen by most Chinese. Nor is it likely to be noticed by much of an outside world distracted by too many crises closer to home.

Wu Gan's pre-trial statement in Chinese, source: China Change.

Liu Xiaobo’s death

Liu Xia holds a portrait of Liu Xiaobo during his funeral. AP: Shenyang Municipal Information Office

The propaganda struggle over Liu Xiaobo’s demise was a sad but fascinating spectacle. The PRC’s distorted video broadcast of his medical examination was a ghoulish sight as well as a horrible invasion of his privacy and violation of arrangements made with the German government. The truncated, swift and restricted funeral arrangements were a farce.

Yet, as some observers have come to recognize, if only as inadequate consolation, the extraordinary circumstances of this Nobel laureate’s departure may prove his greatest contribution to the cause of free speech he so gallantly served. Liu’s final tragedy has alerted the world, to an extent even greater than did the empty chair in Stockholm, to the Chinese Communist Party’s inhumane oppression.

Despite the enormous international pressures on Xi Jinping, China’s ruthless leader insisted on Liu’s last pound of flesh. Xi was bent on heartlessly punishing Liu to the end for following the admonition of Xi’s own father, a famous first generation Communist leader who, after suffering 16 years in political exile, urged the Party to allow freedom of speech not only among the elite but also for all Chinese people. Today in China such advice constitutes “incitement to subversion.”

In terms of its immediate impact, Liu’s death has energized human rights activists outside China, at least for a time. Unfortunately, however, I don’t think his death will have a major favorable impact on human rights activities inside China, since he had already been silenced for a long time and most people in China don’t know about him, at least in a positive way. To the extent people do know about him and care, many will be further intimidated by his fate, while some others may be inspired to enter the human rights field, if only cautiously.

On the surface the human rights/political reform movement in China is in dreadful shape. It obviously has got this way because of extraordinary massive, ruthless and efficient repression that has understandably deterred the many liberal elements in Chinese society and government. Yet, quietly, quite a lot of professional legal reforms are still under way. They do not affect the many political prosecutions that take place or the unauthorized, illegal restrictions that are indefinitely imposed on human rights activists, outside the formal legal system, by police and their thugs. But they gradually improve procedures in ordinary criminal cases and lay the groundwork for more comprehensive reforms to occur when the political climate becomes less repressive, as it may well after Xi Jinping’s eventual departure from office.

Human rights issues will not disappear from the media with Liu. The cases of his wife Liu Xia and just released from formal prison Xu Zhiyong will highlight what I call NRR – “Non-Release ‘Release’”, another, lesser-known but insidious form of oppression. These are home prisons of an indefinite duration, and they restrict not only the activists but also their families, relatives and friends. Usually there is no legal authority for such repression. Ask Cheng Guangcheng, Gao Zhisheng, Li Heping and Li Chunfu, for example, or their families! There are too many examples.

When Liu Xiaobo was treated in the hospital, Chancellor Angela Merkel called upon the Chinese government in vain to release him to go abroad for his final moments “as a signal of humanity”. Can we expect foreign governments to do more? Will they be more effective? Many governments feel that their human rights protests against Beijing will have no positive impact on the PRC and will have a negative impact on other aspects of their relations with China. To the extent they do protest, it is often more a response to their own citizens’ pressure for action than to genuine concern for human rights, and their domestic business constituents usually have more clout than their human rights community. Compassion fatigue and realistic hopelessness about the Xi Jinping regime are also factors. 

Yet those of us on the outside have to persist in our efforts to directly influence developments in China and to put pressure on our own governments not only to influence China but also improve their own human rights performance.

Liu Xiaobo’s passing and China’s human rights violations

Foreign governments have the right to complain about the People’s Republic of China’s denial of internationally-guaranteed human rights to the Chinese people. The PRC, for example, in the exercise of its vaunted sovereignty, chose to limit its sovereignty by ratifying the UN Convention against Torture that spells out in detail all the kinds of conduct that constitute internationally forbidden torture, mental as well as physical. The PRC’s mistreatment of its many political dissidents plainly violates this Convention in many respects.

The case of Liu Xiaobo’s widow, Ms. Liu Xia, is an obvious example of the PRC subjecting to forbidden torture someone who has not even been accused of a crime or even legally detained. As to her husband, we don’t know the facts of his final imprisonment and the extent to which he was denied adequate medical treatment but it is widely suspected that the authorities at least demonstrated indifference to his increasingly dangerous medical condition and that its mistreatment of Liu Xiaobo could well be deemed a violation of the Convention against Torture.

Of course, Liu Xiaobo’s criminal conviction was based on the regime’s suppression of his freedom of speech and the violations of criminal justice protections that marked his prosecution. Both of these categories of rights are protected by the International Covenant on Civil and Political Rights, which the PRC has signed but not yet ratified. The PRC has, however, ratified the International Covenant on Economic, Social and Cultural Rights, which requires it to respect the freedoms of expression denied to Liu Xiaobo. It is nonsense for the PRC, on the one hand, to commit itself to international rights protections in the exercise of its sovereignty and then, on the other, to say that holding it to such commitments is a violation of its sovereignty.

Not only should foreign governments condemn China for its violations of human rights that led to Liu Xiaobo’s imprisonment and death, but they should also press the Chinese government to give Liu Xia, who has been put under severe illegal house arrest for the past seven years, the option to leave China. If she chooses to remain in China, the Chinese government should, in accordance with its international human rights obligations, immediately lift all the oppressive conditions that she has suffered.

However, the chance that Liu Xia will be allowed to leave China or have genuine freedom at home in the near future may be slim. The Chinese regime was obviously extremely reluctant to release Liu Xiabo, whether at home or abroad, because of understandable fear of what he would choose as his final words. At home, if he had been allowed to leave the hospital, he would have been kept under strict guard to prevent media contacts, as so many other human rights victims currently are. This is what I call “Non-release ‘release’”.  Release abroad would have permitted him to indict the Chinese Communist Party dictatorship before the world, unless the Party insisted on keeping Liu Xia and her brother as hostages.

The PRC is also very sensitive about being seen to allow what it calls “foreign interference with its judicial sovereignty”. As noted above, however, this is a spurious argument in those cases where it has exercised its sovereignty to commit itself to the international standards it has violated.

While it is easy to conclude, given the current relentless repression, that the Chinese Communist Party cares little about what the world thinks of it, I believe that it actually cares desperately, even today. That’s one of the reasons why it confined Liu Xiaobo, despite the great “soft power” cost in doing so. Allowing him to be free would have been even more costly in ”soft power” terms because of his withering criticism. Moreover, it would have allowed him to “subvert” its dictatorship by challenging it on democratic grounds before the Chinese public.

Liu Xiaobo and Liu Xia, cartoon by Badiucao

Liu Xiaobo’s fate: the painful choice of exile or extermination

Liu Xiaobo and his wife Liu Xia at a hospital in China; source: Associated Press

The world has been watching whether Chinese Nobel laureate Liu Xiaobo, who has been diagnosed with last-stage liver cancer, will regain some final moments of freedom in order to receive adequate medical treatment abroad. His friend, Liao Yiwu, wrote a moving tribute (Chinese here) during the weekend, stressing Liu’s wish to leave China with his wife and brother-in-law for medical treatment, preferably in Germany with the U.S. as another possible destination.

Liao Yiwu himself is a splendid writer and also a poet. He is alive and active today because, after enduring harsh punishment in China, he made the decision to go into exile in Germany and, like the Chinese who assembled in Washington, DC and other places outside the Mainland July 9th to mark the second anniversary of the start of Xi Jinping’s continuing 709 purge of human rights advocates, he is free to express his views.

The dissimilar fates of Liao and Liu Xiaobo illustrate the painful choice (if they have that choice) that has always confronted civil libertarians from dictatorial regimes – exile or extermination. Ninoy Aquino, Kim Dae-jung, Annette Lu, Ai Weiwei , Chen Guangcheng and so many others have earned our sympathy and support, whatever their ultimate decision.

Many foreign scholars have agonized with and advised those who have had to confront this decision. The 1979 prosecution of Annette Lu in Taiwan under the KMT caused me to write a very long piece in the Wall St Journal, Asia – “A Taiwan Dissident’s Long Road to Prison” – describing the dilemma in particular of foreign students who choose to strengthen their human rights commitments by studying in democratic countries and then face the dilemma of whether and when to return home to dangerous dictatorships.

When on July 15 legal scholar/activist Xu Zhiyong is released from Chinese prison, I hope he will have the choice whether to stay in China or go abroad for a time. It is far more likely that Xi Jinping will decide to continue Xu’s confinement by other means via what should be called “the Non-Release Release” (NRR) that currently keeps so many supposedly “free” ex-human rights prisoners and their families effectively under political restraints.

On a lighter note, Liao Yiwu’s message reminds me of a passionate lecture he gave in Chinese to a packed house at the New School in NY about five years ago during his first American visit. The first questioner asked him: “What do you think of the U.S,?” Liao answered: “ I’ve only been here four days and I’ve spent them all in Flushing.” Undeterred, the questioner said: “So what do you think of Flushing?” Liao flashed a smile and responded: “That’s easy. Flushing is China without Communism!”

Second Anniversary of the 709 Crackdown on Chinese Lawyers and Activists

Today is the second anniversary of China’s “709 crackdown” on human rights lawyers and activists. ChinaChange published a statement by the The China Human Rights Lawyers Group here.

This statement is sad but important (I almost mistyped “impotent”). It is noteworthy in many respects but two stand out to me. The first is an extensive note of bitterness not only, as usual, against the Party and government responsible for this obscenity but also against the legal scholars, professors and lawyers in and out of government who have lent their cooperation or blessings to the repression.

The second is the absence of any optimistic prediction that, at least in the near future, the numbers of human rights lawyers will be expanding in response to the effort to suppress them.  This is a grim, realistic assessment of the situation. Those of us lucky enough to be on the outside can only hope that the programs being held today to commemorate 709 will stimulate greater support for this gallant, besieged group and their families, inside as well as outside China. I share the statement’s confidence that, in the long run, the Chinese pendulum will again swing in the direction of freedom and that the historic role of the human rights lawyers will be vindicated. 

Source: China Human Rights Lawyers Concern Group, July 6, 2017

What Ivanka Trump’s company should do for labor conditions in Chinese factories making the brand’s shoes

Here’s a good report by Keith Bradsher looking into labor conditions in a Chinese factory making Ivanka Trump shoes, a sequel to his report on China’s detention of labor activists who went undercover at Chinese factories making shoes for Ms. Trump and other brands.

For the detained labor activists striving to improve working conditions, Ivanka Trump’s company has a moral responsibility to speak out. It would be helpful to the situation of the activists if the company would issue a statement expressing deep concern over their detention. That alone might bring about their release. In any event it would stimulate local police to treat the detained better than otherwise; detention house conditions in China are often appalling with a large number of suspects confined in a single cell in an often disgusting and personally dangerous environment. A Trump expression of concern might well result in a faster, more lenient decision about how to deal with the case.The Marc Fisher company at least made a prompt statement promising to inquire into the facts.

Ivanka’s company has a moral responsibility not only to those detained but also to all workers who are exploited by Chinese companies striving to make a profit while competing with rivals to successfully respond to the demands of foreign companies for ever cheaper prices. It would also be good public relations for Ivanka to take the lead in supporting more humane working conditions. She should not see the human rights monitors as antagonists but as collaborators in the difficult effort to assure improved labor conditions.

Profound implications of the ruling of Taiwan’s Constitutional Court in favor of same-sex marriage

Supporters of same-sex marriage outside the Legislative Yuan in Taipei, Taiwan on the day of the Court decision. (CHIANG YING-YING/AP PHOTO)

Taiwan’s Constitutional Court issued a groundbreaking decision yesterday in favor of same-sex marriage (the decision, its summary and an English press release prepared by the Court can be found here).

This decision will have profound implications in many respects, as others have recognized in various fora. Domestically in Taiwan it will spur the Executive and the Legislature to fulfill their constitutional responsibilities within the two-year time frame prescribed by the Court. The Constitutional Court has done this before in controversial situations. For example, as Margaret Lewis and I described in our 2013 book (CHALLENGE TO CHINA:HOW TAIWAN ABOLISHED ITS VERSION OF RE-EDUCATION THROUGH LABOR), the Court’s decisions played the critical role in ending the power of Taiwan’s police arbitrarily to imprison “hooligans” outside the regular judicial system. The Court stimulated the Executive and the Legislature to finally end an abuse similar to “laojiao” on the Mainland.

Yesterday's much more controversial decision reminds me of the landmark US Supreme Court decision Brown v. Board of Education that in 1954 led a divided American society away from segregated schools and from other previously legal segregation practices. Yesterday's decision will generate backlash in Taiwan and elsewhere but it is a major step toward social progress everywhere.

Of course, the decision vividly highlights the sad contrast between Taiwan’s version of the rule of law, democracy and human rights and the Mainland’s, which has become ever more repressive. I think the decision’s positive impact on China as well as other countries far outweighs any modest additional, short-run, adverse impact on cross-strait relations. The Mainland’s strict censorship and manipulation of the media will not entirely prevent people from knowing about the decision and its meaning. Although many in the Mainland may not welcome the decision, China traditionally has been more open to same sex relations than more Christian-dominated countries, and the more educated classes will appreciate not only the wisdom and fairness of the decision on the merits but also the significance of the role of the judiciary in a genuine government under law country. It is a sobering fact that 68 years after its establishment the People’s Republic of China does not have a special constitutional court, does not permit its regular courts to apply constitutional protections and has failed to make significant use of the Standing Committee of the National People’s Congress for this purpose, even though the SCNPC is the institution authorized to apply the PRC constitution.

More broadly, this decision is a shot in the arm for Taiwan’s standing in the world, reminding people of the immense progress it has made, although a Chinese civilization, in instituting legal protection for human rights, judicial independence, separation of powers and all the other “Western values” openly condemned on the Mainland at present. Until now Taiwan’s establishment and implementation of the major international human rights covenants has been too little recognized abroad. Yet its national security and survival depend on the willingness of the United States, Japan and other democratic countries to continue to guarantee it protection against the increasing threat of military action by China, and that willingness will turn in large part on the extent to which those countries are aware of Taiwan’s accomplishments in achieving political freedoms.

Collective Family Punishment - Challenge and Response

Greg Baker/Agence France-Presse — Getty Images

New York Times’ Chris Buckley and Didi Kirsten Tatlow wrote a good story a few days ago about the resistance and resilience of the wives of Chinese human rights lawyers who have been detained.

These recent spousal responses do represent something new because they are frequently collective or joint rather than individual actions as occasionally occurred in the past and also because the Internet and social media offer opportunities for protest that were not previously available.

Moreover, each such spousal protest stimulates others, even in Taiwan. The Mainland protests of Xie Yang’s wife and Li Heping’s wife, for example, seem to have inspired the feisty wife of Li Ming-che, the Taiwan activist who has been detained in China since March 19.

Another new aspect of current protests is a greater willingness of the spouses to go to Washington in an effort to light fires under the Congress and the Executive Branch. Families of jailed dissidents and their jailed lawyers have long fled to the U.S. for refuge, as some oppressed lawyers have also, but, prior to the 2015 crackdown, they did not generally stir up protests here. And recent protests here have not been limited to Washington but have also taken place in New York and other cities, with college-age children often joining mothers whose English is not fluent.

So one might say that Xi Jinping’s resort to collective family punishments, which were formally abolished at the end of the Manchu dynasty, has evoked a collective family response.

Two important developments in China-North Korea relations and another significant DPRK human rights event

Increasing tensions in the North have led to two new under-discussed developments worth noting. The Chinese Embassy in Pyongyang has recently urged its citizens in the DPRK to return home because of the increased danger of attack. According to the May 2 Korea Times, one Chinese who took the warning seriously and returned home reportedly said that most Chinese in the capital were ignoring the message because the atmosphere there seemed peaceful despite the threats emitted in the global crisis. This is the first time such a warning had been issued, according to this informant.

Even more interesting is the April 26 report in Seoul’s “Daily NK” that the government has ordered the police, including the secret police, to “refrain from warrantless arrests” and house searches because such police crackdowns are not in accord with the intentions of the Party and estrange the people from the Party. People reportedly have recently shown intense resistance to the formerly unlimited exercise of police power. There is speculation that the authorities, in anticipation of possible Chinese cessation of oil supplies, may be trying to prevent internal unrest. But this restriction of the power of the secret police has supposedly had an adverse effect on the morale of the agents of the Ministry of State Security since some of them have been purged for apparently not heeding the restrictions out of “excessive loyalty” to Kim Jung-Un.

I have always wondered about how relatively unimportant the problem of illegal search and seizure has seemed to the Chinese people in comparison with other violations by police. 

Another human rights event worth noting is the DPRK’s first ever welcome to a Special Rapporteur appointed by the UN Human Rights Council. The Special Rapporteur on the Rights of Persons with Disabilities arrived in North Korea today, May 2, for a six-day tour.

The Courageous Spouses of Human Rights Lawyers and Activists

Prominent rights lawyer Li Heping, who has been held in detention since the “709 crackdown” in July 2015, received a sentence of three years in prison but with a four-year suspended sentence, and deprivation of his political rights for four years, for subverting state power in a secret trial followed by a public sentencing on April 28.

Video statement by Wang Qiaoling and Li Wenzu, April 28, 2017

Li’s wife, Wang Qiaoling, and Li Wenzu, the wife of detained lawyer Wang Quanzhang, issued a powerful and revealing video in response (watch here; see here for the translation by China Change). Both women have been outspoken throughout their husbands’ detention.

Beijing is facing a new phenomenon – the effective outrage of the brilliant and courageous wives of tortured human rights lawyers. One can only admire the bold stand of these long-suffering women.

Moreover, their statement of today lays bare a relatively unknown punishment for “released” activists and their families – “house arrest” for the entire family but not in their house but in that of the police. And without even the formal fig-leaf of the Criminal Procedure Law’s “residential surveillance”, which the police have been using more and more to lock up human rights lawyers in incommunicado detention for initial periods of six months.

Perhaps the righteous collective opposition of these and other spouses of detained human rights lawyers and activists has inspired the continuing public protests in Taiwan by the able wife of Lee Ming-che against her activist Taiwan husband’s detention on the Mainland since he was “disappeared” on March 19. This has given Beijing another well-deserved headache, one that is having a big negative impact on cross-strait relations.

What journalists can do in the case of Lee Ming-che

Here is an article that Yu-Jie Chen and I wrote on China’s secret detention since March 19 of Taiwan rights and democracy advocate Mr. Lee Ming-che. We argue that China’s handling of the case violates Mr. Lee’s human rights and a cross-strait agreement Beijing and Taipei signed in 2009. This incident has dealt a serious blow to the reliability and legitimacy of cross-strait institutions, which is not in Beijing’s interest.

(Voice of America—Wikimedia Commons)

Where is Lee? Journalists, especially Taiwanese journalists, should keep asking questions about his fate, including in the press conferences of China’s Taiwan Affairs Office and the Foreign Ministry. In particular, we still don’t know whether he is detained under “residential surveillance at a designated place” (指定監視居住) or normal criminal detention (刑事拘留) (although as we pointed out in the article, the charge of “endangering national security” suggests that Chinese police may have invoked the former procedure).

If it’s criminal detention, the police can hold the suspect as long as 30 days, by which time they have to ask the approval of the procuratorate to formally arrest (逮捕) the suspect in order to keep him in custody. The prosecutors have up to 7 days to make their decision. The 37-day mark for Lee’s detention is April 25 (counting from March 19). If there is any formal arrest in Lee’s case, it should be made by April 25. At that point journalists should ask whether a formal arrest has been approved. If it has, where is Lee being held? Why? Can he see a lawyer? Will Taiwan officials have access to him?

If there is no formal arrest, Chinese spokesmen should be asked whether Lee is under “residential surveillance,” according to which the suspect can be held for up to six months in an undisclosed place (i.e., without the protections of a formal detention center) and has no access to the outside. Torture is commonplace in such circumstances.

Review of Taiwan's implementation of the two major UN human rights covenants

Photo credit: Taiwan's Presidential Office

The week January 15 to 20 was a busy week in Taiwan for our ten-member committee of international human rights specialists who were invited by the ROC Government to review its progress in implementing the two major UN human rights covenants.

This was the second such review, the first having been in 2013. It was an impressive exercise and culminated in a stimulating lunch with ROC President Ms. Ing-wen TSAI. After lunch my wife, Joan Lebold Cohen, who specializes in Asian art history and photography, my very able colleague, Ms. Yu-jie CHEN, who just received her doctorate in law from NYU, and I spent another hour exchanging ideas with President Tsai. The Concluding Observations and Recommendations of the Second Review Committee can be found here.

Disappearance of Chinese human rights lawyer: what it means to be placed under “residential surveillance” in China

It’s been reported that (ex) human rights lawyer Jiang Tianyong, who disappeared on November 21, has been placed under “residential surveillance” (RS) by Chinese police. This sad experience shows how the new provision in the 2012 Criminal Procedure Law (CPL) – Article 73 – regarding RS has been abused by the police and the Party.

Lawyer Jiang Tianyong

My hope, rather vain in the current political climate, is that Jiang’s case will ventilate the problem of “residential surveillance” so thoroughly that it will create pressure for reform, as did Ai Weiwei’s case in 2011. At that time, if the government’s target maintained a residence in the jurisdiction of the police, the police were forbidden by Ministry of Public Security (MPS) rules to detain him in any residence but his own, i.e., to restrict him to genuine house arrest. What the police often did, however, as in Ai’s case, was to detain suspects they deemed undesirable in places designated by the police that were neither suspects’ homes nor regular police detention houses that, whatever their failings, were at least regulated by normal criminal procedures and protections. This was a plain violation of MPS regulations if the suspect maintained a local residence.

As a result of the Ai case and others that resulted in protests, when the CPL was revised in 2012 a specific provision was inserted into the new code authorizing RS “at a designated location”, i.e., in police custody, even in cases where the suspect maintained a local residence, but limiting this new authorization to three circumstances, i.e., cases involving national security, terrorism or serious bribery. As is so often the case, the relevant legislative language is vague, especially the provision that permits police to impose this six-months incommunicado sanction whenever they decide that the suspect may have committed a crime related to “national security”, an exercise of discretion that, unlike their desire to formally “arrest” someone, which must be approved by the procuracy within a 37-day period, the PRC system does not permit any other agency to review. Thus, as in Jiang’s case, all they need to do to inflict RS is assert a suspicion that the case might involve some aspect of national security.

Without even meeting any standard such as “probable cause” to believe the crime was committed by the suspect, the police detained Jiang ostensibly because he might have “incited subversion of State power”. This gives the police six months, without interference from any lawyer, family, friends or media, to subject the suspect to a whole range of pressures and punishments including torture in a highly coercive, sealed-off environment.

At the end of that very long period the police decide, based on the suspect’s degree of “cooperation” as well as other factors, whether the evidence elicited via their techniques warrants criminal prosecution in accordance with prescribed procedures leading to “arrest”, indictment, trial, conviction and sentencing. The final formal charge may indeed claim a violation of “national security” such as “subversion of State power” or merely “incitement” to such subversion. But the charge may turn out to be for a lighter offense the long incommunicado investigation of which would not have been authorized by the RS legislation.

So was the 2012 revision a reform? On the one hand, it prohibits police from giving RS in a “designated location” to a local person suspected of tax irregularities, for example, as Ai Weiwei supposedly was. On the other, it now for the first time authorizes incommunicado RS for local people any time the police choose to investigate conduct they wish to claim might constitute a type of “national security” violation (or a serious bribery or terrorism-related case). The result is that police, and the Party, now enjoy virtually unlimited freedom to arbitrarily detain and punish for six months anyone they think may be a dissident. This needs to be kept in mind when considering the progress made by the formal abolition of the police administrative punishment of “reeducation through labor”.

It should also be pointed out that Party members, who are subject to the feared Party “discipline inspection” procedures of “shuanggui”, which can extend incommunicado detention for longer periods than RS, are not immune from RS either, although it would take unpermitted empirical research to determine how often this type of RS is used against them.

International Human Rights Day

Reports about human rights advocates in China suffering in detention and abuse such as this one on Hada, an Inner Mongolian dissident and this one on rights lawyer Wang Quanzhang certainly inspire feelings of sadness and even hopelessness. Yet the odd thing is that many Chinese human rights lawyers and other advocates continue to enter the fray, even though now fully aware of the potential consequences. Efforts are gradually being made to learn what makes them tick. Infectious Western political ideology? Religion, Eastern or Western? The psychology of martyrdom?

Some even now maintain that the numbers of human rights activists are growing, a claim that is plainly difficult to verify. It all reminds me of the situation in South Korea in the ‘70s under General Park while China was still in Cultural Revolution. The late Kim Dae-jung seemed to be motivated by Jeffersonian democracy, indeed believed that the tree of liberty has to be periodically nourished by the blood of patriots, and was prepared to die for the cause, as he almost did on at least three occasions. He was also a devout Roman Catholic and strongly supported by his highly religious wife. South Korea, well over a decade later, experienced a stressful but largely peaceful revolution, and Dae-jung was liberated, vindicated and empowered.

Prospects for his Chinese heirs seem very gloomy at present. Yet, as we mark International Human Rights Day today, we should admire them, wish them well and hope that the UN Declaration on Human Rights, which was adopted with considerable pre-1949 Chinese input, will soon prevail in China too.

Human rights lawyer Jiang Tianyong has disappeared for nine days after visiting 709 family in Changsha

Photo: China Human Rights Lawyers Concern Group

Jiang Tianyong, a prominent Chinese human rights lawyer, was apparently abducted on November 21 after visiting the family of another human rights lawyer who has fallen victim to China’s crackdown starting from July 9 last year (709 crackdown). Jiang’s wife as well as family members of the rights lawyers who have been detained since the crackdown and fellow lawyers have issued a statement demanding the Chinese government to launch an investigation and reveal Jiang’s whereabouts.

Let us hope that Jiang will soon be released. He is a hardy veteran of such intimidations but this time he may be held for much longer than before. The police may have secretly detained him in the guise of “residential surveillance”, which would give them the power to hold him incommunicado for six months if they claim that he falls into one of the three categories of supposedly exceptional circumstances that allow detention apart from the conventional criminal process. Or he may be detained in the guise of the regular criminal process, according to which the police, again because of their very broad interpretation of another narrow legislative exception, allow themselves 30 days to hold a suspect before being required to charge the suspect before the prosecutor’s office or release him. Or, as often happens, the police or their hired thugs may have simply detained Jiang with no legal authority, in effect kidnapping him as they have so many others including one of his early clients, the blind “barefoot lawyer” Chen Guangcheng.

I first met the courageous Jiang in Beijing in 2005 when he and his law partner Li Heping, who has long since been confined as a result of criminal prosecution, were representing Chen, and we all lunched together. Jiang told me at that time how, as a young public school teacher, he had decided to become a lawyer in order to try to improve China’s human rights situation.  Shortly after lunch, Chen was abducted by Shandong police who had come to Beijing without seeking permission of their local counterparts.

For more than a decade since that meeting Jiang himself has had to play “cat and mouse” games with the security police in an effort to avoid the long-term detention that would stop his human rights work. For example, a few weeks after Chen’s abduction I telephoned Jiang to tell him that Chen, in a quick, furtive call to me, had asked that Jiang take the night train from Beijing to Shandong to try to visit Chen. Jiang agreed to try, despite the serious risk that he would be beaten by police thugs who were guarding Chen’s village. An hour later, however, Jiang called me back to report that he had received a call from the local judicial bureau ordering him not to travel to Shandong. The judicial bureau had evidently been contacted by whoever had been listening to my first call with Jiang. As a result, he did not make the trip but did manage to send an assistant, who was indeed abused by the local Shandong thugs.

Similarly, some years later, shortly after arriving in Beijing, I called Jiang to invite him to dinner that night. He said he would have to call me back in half an hour because he needed to ask for permission from the police “minder” stationed outside his law office. When he did call me back, he declined my invitation because the “minder”, whom Jiang evidently knew quite well, said that if Jiang wanted to return to the office the next day he had better not see me that night. Jiang, however, told me that his assistant would be permitted to join me for dinner, as he did, undoubtedly under surveillance.

Yet, despite such commendable caution, police have on some occasions detained and abused Jiang, but not for the long term that he might now confront.

A Conversation With Ai Weiwei

Here are the video and transcript of a conversation I had yesterday at the Council on Foreign Relations in New York with the courageous and outspoken Chinese artist/activist AI Weiwei.

My interview with the Diplomat on legal reform, human rights and judicial independence in China

From the Diplomat, September 1 (Link here)

More on rights lawyer Wang Yu’s “confession and release” and China’s revival of “brainwashing” practice

There is no doubt whatever that Wang Yu will not be free to resume her practice of human rights law or her previous professional or even personal friendships. Her hope must be to obtain her husband’s release from jail, to be able to see her son and to procure for him the right to study abroad, as was originally planned. The elements of the deal struck will gradually emerge.

To say that her statement was “probably” the product of coercion is silly since she has been held in an immensely coercive environment for over a year. These “confessions” are reminiscent of the “brainwashing” era of the 1950s for which the new China became infamous. Brainwashing was based on long-run confinement in a coercive environment combined with heavy doses of thought reform and the realization that release depended on adopting, at least temporarily, the “new truth”.

The regime obviously altered Wang Yu’s restrictions (it did not “let her go”) because of the enormous international pressures brought to bear. The American Bar Association’s annual meeting at which the award is to be granted is about to be held. Her alleged repudiation of the award, which was a brilliant decision by the ABA to recover its loss of prestige from earlier inadequate criticism of the PRC, is the PRC’s attempt to discourage all foreign legal organizations from further attacks on the PRC’s human rights violations.

Of course, some lawyers and their legal assistants have been released during the past year while other lawyers are still detained and awaiting criminal conviction and prison punishment as well as the loss of their right to practice law, unless they too succumb to the brainwashing and other coercion to which they are being subjected. Even legal assistants such as Zhao Wei have not been spared the “confession and release” farce.