Criminal Defense in China:
The Politics of Lawyers at Work by Sida Liu and Terence C. Halliday. Cambridge University Press,
200 pp., $99.99; $28.99 (paper)
China’s Human Rights Lawyers: Advocacy and Resistance by Eva Pils.
Routledge, 312 pp., $163.00
To Build a Free China:
A Citizen’s Journey by Xu Zhiyong, translated from the Chinese by Joshua Rosenzweig and Yaxue Cao, with an introduction by Andrew Nathan.
Lynne Rienner, 297 pp., $68.50
Gao Zhisheng’s Ten-Year Torture and Faith in China’s Future translated from the Chinese by Stacy Mosher.
200 pp., $30.00 (paper)
Activist Lawyers in Post-Tiananmen China by Rachel E. Stern.
Law & Social Inquiry, Winter 2017
Like an army defeated but undestroyed, China’s decades-long human rights movement keeps reassembling its lines after each disastrous loss, miraculously fielding new forces in the battle against an illiberal state. Each time, foot soldiers and generals are lost, but new troops and leaders emerge to take up the fight.
This might sound like high romance, but it isn’t far from the truth. In the 1970s the banner was carried by the Democracy Wall pamphleteers, in the 1980s by the Tiananmen protesters, in the 1990s by the China Democracy Party, and through the 2000s by the liberal intellectuals who helped write Charter 08, the bold document calling for an end to one-party rule. Often unaware of one another’s existence because of the Communist Party’s domination of education and the media, these various activists still rise up, inspired by the values of equal rights and justice.
Early on, efforts to promote human rights in China were visionary and emotional. During the Democracy Wall movement (1978–1979), writers like Wei Jingsheng called for systemic change, while the student movement offered inchoate but stirring appeals for fairness and freedom. Slowly, the demands became more deliberate, from the more pragmatic aims of the China Democracy Party, which called for an end to one-party rule and implementation of constitutionally guaranteed civil rights, to the measured tones of Charter 08 and one of its initial signers, Liu Xiaobo, who was sentenced to eleven years in prison and won the Nobel Peace Prize.
But it is the weiquan (legal rights) movement that has arguably had the most concrete effect on Chinese governance over the past fifteen years. Weiquan activists seek not the overthrow of the system but its reform, which they hope can be achieved by taking seriously China’s growing body of laws. Equally striking, they are lawyers, a profession the government has consciously revived and expanded along with the rest of the legal system with the aim of modernizing the Chinese state.
Like other movements before it, the weiquan movement is small, involving no more than a few hundred of China’s tens of thousands of lawyers. And now, it too seems defeated. Two years ago, on July 9, 2015, the government launched a crackdown known by its date: the “709 Incident.” Dozens of rights lawyers were detained and arrested, with some reportedly tortured and a few sentenced to prison for overstepping the boundaries of legal activism permitted by the government. This was the culmination of a decade of harassment that had already resulted in the most wellknown weiquan leaders getting locked up, exiled, or put under house arrest. Does this signal the end of the movement or just a setback? After all, Chinese leader Xi Jinping has made the rule of law one of his signature domestic policies. Can China’s rulers continue to develop a modern legal system while assuring that their own power remains unconstrained by law? Several new books help us understand the weiquan movement’s history and prospects, but more importantly what motivates its participants—why they continue what seems to be a hopeless struggle.
The price for opposing the government can be high. In June, for example, Liu Xiaobo was moved from prison to a guarded state hospital because he was suffering from late-stage cancer—raising questions about the quality of medical care for human rights defenders in Chinese prisons. Efforts by his family and by foreign governments to get approval for him to seek medical treatment abroad were unsuccessful, and on July 13, Liu Xiaobo died. And yet the weiquan lawyers persist in fighting for human rights. Why?
At the time of Mao’s death in 1976, China effectively had no laws. His successors created a legal code for two reasons. First, they wanted it to pursue economic reforms—capitalism needs contracts. But often overlooked was their genuine desire for the civilizing effect on politics that a functioning legal system can bring. Many senior party members had suffered badly because of Mao’s whims. Unsure of their own system and willing to look outward for solutions, leaders such as Peng Zhen, Deng Xiaoping, Hu Yaobang, and Zhao Ziyang realized that laws, especially as a way to regulate disputes, would make society fairer while also helping to restore the Party’s badly damaged legitimacy. In the 1980s, for example, China adopted a series of civil laws governing marriage, property disputes, contracts, copyrights, and trademarks; later laws governed environmental pollution and administrative litigation.
This continued even after the era of political reform ended with the 1989 Tiananmen massacre. The government inserted guarantees of the rule of law and human rights into revisions of the constitution in 1999 and 2004, and signed the International Covenant on Civil and Political Rights and the International Covenant on Economics, Social, and Cultural Rights. It also trained new judges, opened law schools, and allowed foreign governments and organizations to set up ruleof-law training programs. The judiciary was not independent—all courts were still firmly guided by Communist Party committees—but a functioning legal structure was established.
This ambitious development, including laws, judges, and lawyers, was matched by growing popular demand for legal remedies to economic and social disputes. Under Mao, social tensions had been suppressed through totalitarian control or channeled into violent political campaigns like the Cultural Revolution. The current era is less violent but tensions are still high. Capitalist-style economic reforms have led to land grabs, layoffs, and expropriation. At the same time, Chinese citizens—among them abused spouses, HIV patients, and rural migrants— have become increasingly aware of their own civil rights as a result of the new emphasis placed on laws. Many of these people began taking their complaints to the emerging court system where they gained support from an unexpected new source: publicinterest lawyers.1 Most were paid to take the cases but many were motivated by principle. With political participation difficult and the media under government control, the legal system was one of the few venues in which idealists could fight injustice.
This was apparent as early as the mid-1990s when large class-action lawsuits began to be filed. I visited Shaanxi province several times in the late 1990s and early 2000s to research a book on grassroots protests. Almost all the cases were organized and led by idealistic lawyers willing to help farmers who were the victims of pollution and illegal taxation.
One such lawyer, Ma Wenlin, was typical for his time. He was an autodidact who had moved to the county seat to take on lucrative commercial cases. But one day farmers from his hometown paid him a visit and told him stories of being bullied by local officials into paying outrageous taxes on everything from using roads to fetching water. In 1997 he filed a suit on behalf of 12,000 farmers. He lost in a local court, but took the suit to Beijing’s petitions and appeals office in hopes of getting a new hearing in a more neutral court. Instead, he was detained, beaten, put on trial, and sentenced to five years in jail. Ma’s case and those of many others from the 1990s seemed to make clear the limits of China’s legal system. Lawyers were welcome to engage in commercial activity. They could even file a suit against the local government. But when they lost—and they almost always did—that was it: no appeals and no activism. Taking cases to higher courts or government petitions offices might cause the state to strike back violently. One could argue that people like Ma made a difference because a few years later the state abolished all rural taxes—a landmark decision widely attributed to the rural uprisings and lawsuits. But the change did not result from legal action. No court struck down the taxes as illegal. Instead, it was bestowed by the government as an act of benevolence.
At the time, this kind of outcome seemed unsurprising. After all, the nature of the state hadn’t changed. The Communist Party was still in control and the courts were still overseen by Party committees, especially in cases deemed in any way sensitive. Rule of law could resolve disputes in society, but not be used as a basis for ersatz political reform.
By the 2000s, however, this view seemed overly pessimistic. The year 2003 was dominated by the sensational Sun Zhigang case. Sun was a college
graduate from the inland city of Wuhan who found work in the coastal city of Guangzhou. Detained by police when he couldn’t produce his temporary living permit or identity card, he was held without charges and beaten to death. A national outcry ensued, spurred on by lawyers and the new tools of the Internet. Eventually the government abolished the rules the police had used to detain him.
The Sun Zhigang case is often considered the beginning of the weiquan movement, which is carefully analyzed in two recent books, one by Eva Pils and the other by Sida Liu and Terence C. Halliday. Pils focuses on prominent human rights lawyers who worked for the most part in Beijing and were active before the “709 Incident” in 2015. Liu and Halliday have conducted a national survey of criminal defense lawyers—essentially a subset of the weiquan activists—and explore some effects of the crackdown. But many of the broader conclusions drawn in each book are similar and together they provide an invaluable empirical assessment of the movement.
Both books address one obvious question: Why bother giving so much attention to what amounts to a very small number of lawyers in a huge country? All three authors see the weiquan lawyers as crucial participants, emblematic of bigger tensions in Chinese society. Liu and Halliday draw parallels to other countries in other decades, noting that in such different settings as South Korea, Brazil, Kenya, and more recently Pakistan, lawyers have been at the forefront of change. Pils has similar views, arguing that “values underpinning rights and law are of abiding appeal in China today.”
So who are these lawyers? Liu and Halliday’s survey helps us with the big picture. Most, they write, depend on lawyering for their income, but they generally work alone and not in big practices. They tend to be autodidacts, at best with a law degree from a local university rather than one of China’s more famous schools—in some ways not surprising because students in those schools are often more firmly embedded in the system. And most of the weiquan lawyers did not begin as human rights crusaders. Instead, many of them describe experiencing a turning point— a case that especially galled them and inspired them to act. That was true of Ma Wenlin; he initially rejected farmers’ entreaties for help until he went home one Chinese New Year and saw firsthand the chicanery that they faced. On a deeper level, many weiquan lawyers have been driven by traditional concepts of justice. Pils sees plaintiffs influenced by the Chinese custom of petitioning and lawyers by the idea of remonstrating. The former was carried out by ordinary people who brought grievances to high officials, while the latter was done by officials to the emperor as a form of loyal opposition. Other possible motivations are explored less thoroughly. For example, observers such as the nonreligious weiquan lawyer Teng Biao note that a quarter of his fellow legal activists are Christian—a very high percentage in view of the fact that Christians account for just 5 percent of China’s population.2 Pils does not discuss this at all, while Liu and Halliday only devote a couple of pages to it, writing that many of these lawyers “believe they are engaged in a spiritual battle, even a struggle between the laws of God and the laws of man.”
Overall, however, both books provide helpful corrections to the wellmeaning but often simplistic discussion in the West about China’s legal rights movement. Western commentators have often assumed that with the right rules and regulations a legal system can be constructed that will lead to reforms. Liu and Halliday note that Chinese lawyers have indeed been given new rights and protections. Regulations in the 1980s called them “state legal workers” who were meant to “serve the cause of socialism.” Later revisions in the 1990s and 2000s gave lawyers the right to collect evidence for defendants and to meet their clients without police approval. While some foreign scholars and politicians hailed these improvements as breakthroughs, Liu and Halliday point out that the criminal legal system in China is still dominated by an “iron triangle” of police, courts, and government prosecutors. Training judges and lawyers might make them more efficient but it does not change what Liu and Halliday describe as the “configurations of power.” Pils goes further, criticizing by name the scholars and organizations—for instance, the American Bar Association—that have pushed the idea that training and encouragement can yield substantive change.
Although both books are informative, the rights lawyers themselves remain abstract figures. Fortunately, two memoirs give a human face to the movement. One is the second volume of memoirs by Gao Zhisheng, a Christian lawyer who was imprisoned throughout the 2000s for defending members of the banned Falun Gong sect. Gao’s book is a personal account of the experiences of a legal activist who has suffered much for his efforts. It tells the story of his various arrests and incarcerations leading up to his release in 2014, when he was placed under house arrest back in his village in northern Shaanxi province.
The book is a disturbing catalog of torture and abuse, including beatings, sleep deprivation, use of electric cattle prods, and months of solitary confinement. But Gao shows an amazing ability to forgive his tormentors, seeing them as victims of a system that brutalizes its enforcers as well as its victims. He has numerous conversations with young guards and torturers, describing how they were themselves abused by the army.
Many end up respecting Gao and helping out in little ways, such as when his wife and children fled China:
One time when I went to the nursery to pick up Tianyu, one of the young secret policemen took advantage of the crowd of parents at the doorway to come over and tell me, “Old Gao, some of us respect you, and when we’re on duty, we will keep our distance, even though that goes against orders.” When Geng He and the children eventually fled China, it was because
someone turned a blind eye. One of them said to my face, “We knew in advance that Big Sister and the kids were going to leave.”
Gao also pays tribute to his family, including his four brothers, who continued to stand by him despite the hardship he brought on them. This is the most touching part of the book, especially his description of his oldest brother, who worked as a laborer to support the family after their father died early. As he writes his memoirs locked in his bedroom, Gao can hear his oldest brother chopping firewood out in the yard—his own simple form of love and support.
Because Gao worked on such sensitive cases—today, Falun Gong remains a subject that drives censors and officials mad—he spent much of the lifespan of the weiquan movement in jail. At times his imprisonment seems to have been so unbearable that he retreated into obscure numerology to predict the Communist Party’s demise this year. Fortunately the translation smoothed this out, but the book is still somewhat narrowly focused on jail and torture. For a broader view of the weiquan era, we have To Build a Free China, a series of autobiographical essays by the activist, scholar, and lawyer Xu Zhiyong. Unlike many of the other lawyers described by Liu and Halliday, Xu was not an autodidact, having attended one of China’s best universities and studied under one of the country’s top legal scholars, He Weifang. He was not a criminal defense lawyer and he didn’t handle too many cases, preferring to offer legal advice to victims and ultimately to work as an activist.
But Xu’s personal journey perfectly captures the trajectory of the weiquan movement. Along with two other prominent lawyers (including Teng Biao), Xu was involved in the Sun Zhigang case in 2003 that brought legal rights to the forefront for a generation of lawyers. Like so many of them, Xu took cautious positions in order to work within the system; he refused, for example, to sign Charter 08 for fear of jeopardizing his “Open Constitution Initiative,” a nongovernmental organization that encouraged citizens to take their legal rights seriously. When he gradually realized that the Chinese political system could not be reformed from within, he decided to move toward activism. And like many of the other lawyers, Xu ended up in jail—given a four-year sentence that was due to end in mid-July this year.
As a collection of disparate essays, Xu’s book is sometimes choppy and leaves unclear the connection between certain events or their outcomes. But some passages sparkle brilliantly, and make it indispensable for understanding the ideals that drive the entire movement.
One of the strongest parts of To Build a Free China is the opening essay, in which Xu describes his youth in Henan province. This is one of China’s most populous and troubled provinces, the principal site of many of Mao’s failed radical experiments, including the Great Leap Famine, which Xu gradually learns about. Looking back on his youth, he recounts the corrosive effect of communism on people’s morals and daily behavior. The Party branch leader had dictatorial power unchecked by any traditional forces like the local gentry, who had been eliminated during land reform in the 1950s. The collective economy made property seem free and thus up for grabs, turning neighbors against one another as they sensed the unlimited but also unchecked potential of communal ownership:
Any kid who was resourceful enough to steal something from the “production brigade” would earn praise from adults. When a new shipment of vinegar arrived at the village’s only shop, the adults would order the children to rush over at once to buy some, knowing that overnight it would get watered down.
In contrast to many of the weiquan lawyers, Xu wasn’t a conformist who had a political awakening in adulthood. He knew from the time he was fourteen that he wanted to change society. At first he dreamed of being a biologist and winning a Nobel Prize. “But that winter I came to realize that what our society needed most was truth, freedom, and justice and that it required people working to promote the good society.” After a checkered academic career— he seemed to be too dreamy to focus on academics—he ended up as Professor He’s student and met up with Teng Biao, who became his lifelong friend and colleague. But while Teng became involved in legal cases, Xu spent more time with peasants and petitioners in an effort to understand their lives. He slept with petitioners in the rough countryside and accompanied them to the petition offices in Beijing. He was even beaten up by police—a common practice in the 2000s to prevent petitioners from arriving at the office. Xu knew the risks but wanted the experience, so he stood with the petitioners as they confronted the police. He refused to tell police that he was a professor at a local university, and suffered a serious beating. After he wrote about what happened online, officials called him in for a meeting and pledged to end the practice of permitting the police to beat up petitioners, which they did.
But with time Xu realized that working within the system would yield little more than token victories. Even the Sun Zhigang case seemed less of a triumph when it became apparent that the state had replaced the vagrancy laws with other means of scooping up people at will and holding them without charges. That pushed Xu toward even more assertive activism. He helped found the “New Citizen Movement,” adopting the word “citizen” from the writings of early reformers, such as Sun Yat-sen, who helped overthrow the Qing dynasty in 1911. Xu’s definition of citizenship was clear and striking:
Citizens are not subjects; they are independent and free individuals who comply with a legal order that is mutually agreed-upon and are not required to kneel in submission to anyone.
Xu’s idealistic commitment and his use of terms like “love” are so famous in activist circles that to this day many swear he is a Christian or a member of the Baha’i faith. But as he makes clear in his book (and as interviews with close friends confirm), this isn’t the case: “Many years earlier, I had dabbled in Christianity. I have a very religious mindset, but that mindset seems to transcend any particular religion. So, I can only dabble.”
As for what motivated him, he gave one answer that will ring true to many people with a heightened sense of social justice. Writing about the Sun Zhigang case and the government’s decision to end the rules that allowed police to arrest people, known as “custody and repatriation,” Xu writes: “The only selfish motivation I could think of was that I did these things for my own wellbeing and happiness. At the moment they announced that custody and repatriation was abolished, I was happy.” So is the weiquan movement more than a way to provide a small group of idealists with personal fulfillment? One of the best answers I found was in “Activist Lawyers in Post-Tiananmen China,” an essay by the legal scholar Rachel E. Stern, an assistant professor at Berkeley Law School. Stern takes a usefully long view. She writes that the Communist Party is in the middle of a vast experiment: trying to harness the power of the law without giving up political control. She writes that:
China is an unusual member of the authoritarian club. Today’s CCP [Chinese Communist Party] runs a government with long time horizons, a decent budget, and a claim to legitimacy that rests on governing well. Under these three conditions, trying to satisfy court users’ expectations—while also occasionally letting law take a back seat to political needs—is a logical strategy. But can dualistic legal systems ever be long-lived and large scale?
She notes that Nazi Germany tried this—a totalitarian state ostensibly bound by an elaborate system of laws— but it existed only for a dozen years. A state like Singapore also tries to use a developed legal system to rule, but it is tiny. By contrast, Stern observes,
China is pursuing bifurcated justice on an unusually long time frame and scale. My question is whether the state can keep control over who enters the courthouse after throwing the doors open.
—July 12, 2017
Protesters in Hong Kong carrying placards depicting human rights lawyer Gao Zhisheng during Gao’s imprisonment by Chinese authorities, December 18, 2011
Human rights lawyer Xu Zhiyong outside the Intermediate Peoples Court in Shijiazhuang, China, December 2008