Introduction to Rights in China
In China, a grassroots movement led by lawyers, activists, and commoners alike is taking shape. It is a diverse movement that draws strength from the different ways it manifests itself. Referred to as “weiquan” (维权) - the defense or protection of legal rights - this campaign poses a serious threat to the status quo of human rights in China. Much of the progress that has been seen in criminal procedure, environmental protection, and corruption recently has been made by weiquan lawyers pursuing legal claims, activists using social media, and rural citizens engaging in acts of civil disobedience.
The Chinese Communist Party (CCP) represents weiquan’s opposition. As always, the CCP is intent on maintaining a firm grasp on power. However, the swelling tide of frustration that weiquan reflects is a threat to the shaky stability created by a government that ignores the public interest. Weiquan is most successful when people's’ frustrations intersect - when the Chinese public, activists, and the international community collectively pressure the government. However, the movement faces serious institutional challenges. Weiquan’s future will depend on how it continues to assert itself in China and how the CCP responds.
More than anything, weiquan is about rights, but the mere notion of rights in China sounds oxymoronic. That perception makes it all the more surprising that many rights are actually described in the Constitution of the People’s Republic of China (“Constitution”) in language that parallels that of capitalist and democratic Western governments. Particularly relevant to weiquan is a 2004 amendment, which included a new paragraph in Article 33 of the Constitution: “The State respects and preserves human rights - 国家尊重和保障人权” (Constitution). This seems promising but must be considered in the context of the CCP’s interests. In the Chinese Constitution, rights and duty are concurrent: “Every citizen is entitled to the rights and at the same time must perform the duties prescribed by the Constitution and the law” (Constitution). This conditionality contradicts an Enlightenment notion of rights and provides an important foundation for understanding weiquan.
The Communist Party’s Response
We must then ask, if the Communist Party is so intent on maintaining power, why pass this amendment but at the same time conduct massive crackdowns on activist lawyers? Why does the government let some protests go on? Xi Jinping’s anti-corruption campaign provides a helpful analogy for understanding this behavior. Of course, a government with no corruption is the hope of all democratic states. Xi’s campaign hints at this ambition, but anti-corruption efforts are more a symbol of how power is exercised and consolidated in China. When a threat to Party power reveals itself, it can often be eliminated under the guise of routing out corruption. As with Xi’s campaign, we must ask of weiquan “whether public interest status will develop in China, but, in effect, as an instrument of government” (Guttman). For example, we can call public protests outside government offices a sign of reform and tolerance, but that would be ignoring the fact that the CCP deliberately allows these protests. They are paradoxically beneficial to the CCP. Such protests are often small, unpublicized, and most importantly, they function as a release valve. When weiquan is large-scale, covered by the international press, and led by well-known activists, the CCP takes a very different approach.
In July 2015, the New York Times published an op-ed by Xiao Guozhen titled “China vs. Its Human Rights Lawyers.” Xiao’s article describes the abusive, CCP-orchestrated crackdown against activists, which included the interrogation and detention of China’s most prominent human rights lawyers (Guozhen). Weiquan commonly takes this form: lawyers that have adopted a cause and seek redress from the courts. The All China Environment Federation (ACEF) is one of the most prominent of these groups, a collective of lawyers working with the United Nations. ACEF not only files lawsuits on behalf of the aggrieved but also trains lawyers, advocates structural reforms, and works to cover the costs of lawsuits. Their work in environmental cases has been precedent setting. But being a lawyer is complicated. Lawyers are particularly important because in China there is no conventional media. The fundamental effort of these lawyers is to “awaken people’s awareness of their basic human rights” (Guozhen). Cracking down on them is problematic though. At times, weiquan lawyers become more radicalized after being sought by the CCP (“Climbing the Weiquan Ladder”). And being a well-known lawyer might seem like useful protection against government abuse, but fame creates a Catch-22 scenario. It can help lawyers garner attention for their cause, but it is very difficult to become well-known without taking risks that could lead to the abrupt end of one’s career (Hualing).
Generally, weiquan lawyers are moderate in their approach. They take advantage of existing legal avenues and pursue less controversial land and employee compensation disputes (HRW), not the corruption, abuse, or free speech-related cases one might have in mind. Human Rights Watch explains that “the hallmark of the movement has been to keep all activities strictly within the realm of Chinese law” (HRW). However, these lawyers are often still subdued by the government or rejected by the courts, creating a situation where the Chinese government is forced constantly to balance how much steam they want to let off and how much control they are willing to give up. Teng Biao, one of China’s most famous activist lawyers and founder of the Open Constitution Initiative and the New Citizens Movement, aptly describes this: “[the government] arrested dissidents and leaders when they feel it’s necessary. So they arrested student leaders after 1989. They arrested the leaders of the China Democracy Party in the late 1990s, like Xu Wenli. They arrested Liu Xiaobo three times and many other democracy activists” (Johnson).
Being a Lawyer in China
The legal profession is regulated by several laws, the most prominent of which is the Law on Lawyers of the People's Republic of China (revised 2007) (HRW). Unlike the American Bar Association (ABA), founded as an independent organization, the All-China Lawyers Association (ACLA) is governed by the Ministry of Justice, and all lawyers must be members. The Criminal Procedure Law, which defines the charges that can be lodged against a defendant and the process that they are entitled to, often takes precedence over the Law on Lawyers when the two conflict (HRW). It is from the Criminal Procedure Law that the police and China’s security apparatus derive their authority to detain people under weak pretenses such as “endangering national security” or “disturbing public order” (Lubman). Some saw China’s abolishment of “reeducation through labor” as a sign of progress, but as Teng Biao notes in a 2014 interview, police have simply reverted to the Criminal Procedure Law for authority to detain people for up to 30 days “without any involvement of the prosecutor or the court” (Johnson). Cases like this provide a clear illustration of how “rule of law” in China functions less as a protection of rights and more often as a tool for removing dissidents and calming the public. Herein lies the distinction between “rule of law” and “rule by law” (Pereenboom).
These laws place strict and often arbitrary constraints on how lawyers may operate. Some of the difficulties faced by lawyers could be attributed to the legal profession’s immaturity, but more often than not, there are institutional barriers. The ACLA is not independent from the CCP, and the courts are not separate in any meaningful way from the government. Courts are subordinate to the Procuratorate, which supervises judges, prosecutors, investigators, and other organs of the judicial system. Because “every level of government has a zhengfawei - 政法委 [Political and Legal Affairs Committee]…judges are not independent. They must follow the orders from the government” (Johnson). The discouraging reality is that weiquan lawyers know courts may be of no help (Guttman), especially when the procedural barriers continue beyond these threshold matters. Section VII of the PRC Constitution provides for certain procedural rights that Americans are familiar with, such as the right to a public trial and a defense (Constitution, Article 125). But it is unclear how public of a trial this means (e.g. Is only state-run media allowed? Are transcripts censored or edited before being released?) and when one has a right to a defense (e.g. After interrogations and the discovery process?). These barriers make it difficult for lawyers to meet with their clients, build a case, and access information.
Obstacles in the Courts
In response, weiquan lawyers have devised extralegal tools. Social media, the fame of some lawyers, international press, and, unfortunately, public scandals are among the most useful. This is because the CCP tends to act in one of two ways: in developing the Five-Year Plan (FYP) and in managing crises. The latter occurs when international pressure from NGOs or Western governments becomes so great or a problem so severe that the government is forced to address some immediate issue, whether that means releasing political dissidents or taking certain cases to trial. Five-Year Plans and lawmaking are not susceptible to outside pressure in the same way that crisis management is, and that is why weiquan has found particular success when it takes advantage of the media and public opinion. Awareness and information are the lifeblood of weiquan. The more people that know about an issue the better. This is especially important because even when some cases reach the court, it is difficult to build a proper case. In many environmental matters (Guttman), lawyers will have evidence, sometimes irrefutable, of pollution, contamination, or corporate irresponsibility, but it will be deemed inadmissible because the Ministry of Justice only admits evidence from MOJ-certified institutions in matters involving environmental damages and compensation (Guttman).
This idea of third-party certification is not as straightforward as it should be. Courts are already suspected of corruption, so third-party certification is supposed to make the process more trustworthy. However, third-party certifiers require Ministry of Justice approval. For organizations like ACEF that focus on the environment, work is made even more difficult because there are no certified institutions addressing environmental damage (Guttman). In a potentially precedent setting move, an environmental tribunal recently accepted an ACEF expert’s damage report that was provided in an important case from Guizhou Province. This was extraordinary though. It is much more common for ACEF to hire an expert, present clear evidence, and then have that evidence rejected for lack of certification.
A related difficulty involves the compensation of attorneys and awarding of clients’ damages. There is a persistent idea within the Chinese legal community that no one can afford to pay the costs that come from lawsuits, pollution, or the loss of human life. When this is combined with the problems related to certification, it seems almost implausible that any plaintiff could make it through the entire legal process and finally receive redress. In a candid exchange during one of China’s most important environmental cases (which lasted 14 years), the deputy head of the Pinghu Intermediate Court said, “If we had found in favour of the plaintiff, then many others would have asked for compensation too. Who’s going to pay for all those losses?” (China Dialogue). In several cases litigated by the All-China Environmental Federation (ACEF), compensation for damages involving “fish, trees, crops and silk worms” were successful and awarded based on the current market price of those goods (Guttman), but this success contrasts the more general difficulty of establishing damages when a case involves human lives and public health.
Even when they are successful, those working in the legal profession must deal with courts that reject cases, difficulties involving groups of plaintiffs, and constant concerns about receiving compensation. These obstacles are often so difficult to overcome that many are discouraged from choosing the weiquan path (Guttman). The financial issue is not unique to China, but other countries have ways of dealing with it (e.g. attorney’s fees and compensation for plaintiffs in “citizen suit” cases in the U.S.). Organizations like the ACEF, in conjunction with the United Nations Development Programme and the United Nations Democracy Fund (UNDEF), are calling for reform. However, because the government obviously is not eager help an organization working against its policies and officials, significant concessions do not seem likely.
Other Tools and Future Potential
Weiquan is not confined to the legal profession. Despite popular belief, protests of varying size occur in China on a daily basis. Tools from the petitioning system to social media are used in response to make the public and the government aware of people’s concerns. In fact, “on any given day, 200 to 300 protests take place across China” (Bequelin) concerning issues varying from the environmental to corruption-based complaints and labor disputes. People are unsatisfied with Xi Jinping’s definition of “rule of law,” whether consciously or unconsciously, because of the perception that the courts will not help them. In particular, the NIMBY (“not in my backyard”) movement has won significant victories in matters involving the environment. In 2014 officials in the eastern city of Yuhang “suspended plans for a giant refuse incinerator pending consultation with the public” (Olesen). This was a move that followed days of often violent altercations between protesters and police. In another example, officials in 2007 halted plans for a chemical plant in Xiamen after protesters peacefully organized. Highlighting the impact of social media and cell phones, they made great use of text messaging in order to mobilize (Olesen).
Such cases reveal the potential but also the limits of protest. They are often quashed by the CCP’s sprawling security apparatus and concessions are rare While social media is a powerful force, censorship rarely lets civil unrest slip through the cracks. In China, as history has shown, censorship is powerful, the government will not limit its use of force even on its own citizens, and civil disobedience can only go so far.
A final consideration involves the role of the economy in the weiquan movement. There is the chance that distrust in the legal system will have an effect on economic growth. We must ask whether countries will be comfortable engaging in an economy so tainted by government control and political corruption. Civil disputes between corporations and the people they affect will only increase as markets take shape. The lack of faith in China’s legal system may make businesses and states unlikely to see China as a reliable partner for trade and business. The promising aspect of all this is that economic development is one thing the Chinese Communist Party will not ignore. It is perhaps the only thing for which the CCP is willing to sacrifice some power.
Because the weiquan movement is so new, it is defined by potential. It faces obstacles in countless places, but the pressures faced by the Chinese government are international, domestic, and only increasing in strength and number. Balancing competing interests is the name of the game for the Communist Party of China, but in the case of weiquan, it will be hard for China to keep moving forward until it takes rule of law, civil rights, and the legal process seriously.
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