Matching resistance to repression in China

Pu Zhiqiang

First Published at openDemocracy on April 8, 2015. Also available here.

Prominent human rights activist Pu Zhiqiang has languished in pre-trial detention since his arrest last May – in the lead-up to the twenty-fifth anniversary of the Tiananmen Square massacre – on charges for several crimes including “picking quarrels and provoking trouble”. His case remains at a crossroads today. Any day now prosecutors should decide whether to indict and begin his trial or hand the case again back to the police for further investigation – meaning more time to conjure up criminal intent. It is unfortunately highly unlikely that he will be released.

Pu Zhiqiang is another high-profile prisoner of conscience suffering under a severe crackdown on civil society under President Xi Jinping since 2013. But is this vocabulary of a crackdown, with its connotations of sudden escalation, constructive?

Throughout 2013 to 2014, I remember many grassroots activists around China relating to me their perceptions that the ferocity of government repression should be understood as steadily increasing pressure, not as a swift crackdown. It is severe and inexcusable, without question, but in this sense it is more similar to the ‘frog in boiling water’ folk tale than the sudden purges of past dictatorships.

For domestic rights defenders, the challenge has therefore become matching their resistance efforts to this sort of slow-onset repression. Rather than pursuing tactics of sudden unrest and demanding high-profile victories, more can arguably be achieved – especially within a high-capacity authoritarian regime such as China – through strategic actions, producing limited but sustained improvements.

The importance of such realizations is universal. Activists and movements that demand sudden systemic change can become upset when they fail in their mission, causing participation to dissipate or making participation in successive waves harder to secure. They may refuse to abandon or adapt their tactics accordingly, such as refusing to evacuate a public occupation until all their demands are met. The world witnessed the gruesome consequences of this logic in Beijing in the early hours of 4 June, 1989.

Observers and analysts began to issue similarly cautious remarks regarding Occupy Central and the Umbrella Revolution in late 2014. Victoria Hui, speaking with the International Center on Nonviolent Conflict, for example, outlined the need for tactical evolution in the form of methods of dispersion, which might garner less publicity but ultimately have more impact. Focusing on more systematic, grassroots, or small-scale change can ultimately be more productive for civil resistance and rights campaigns.

Broad resistance is harder to repress

Mark Lichbach came up with the five percent rule, that no regime can withstand the collective force of five percent of its population mobilized against it. Research by Erica Chenoweth and Maria Stephan actually puts that number even lower, showing that the sustained active participation of 3.5 percent of a population is sufficient for a successful campaign.

While 3.5 percent is a lot larger than it sounds (nearly 45 million people in China), it is not an impossible number. As Chenoweth and Stephan have shown, it’s been done before. But it does require diverse tactics that can appeal to broad sections of society, and the ability to outmanoeuvre repression and think in terms of grand strategy over immediate rewards.

The Chinese government is likely aware of the possible threat posed by sustained collective action achieved through small-scale victories for activists. This, in part, explains the sophisticated attempts to circumscribe collective action and to respond with draconian measures against even minor civil dissent. Indeed, the government is notorious for issuing harsh sentences for moderate voices and activists.

The year 2014 was marked by a procession of reprisals against all manifestations of nonviolent civil resistance and domestic rights defenders, from Xu Zhiyong’s four year prison sentence and Liu Ping’s six and a half year sentence to Ilham Tohti’s life sentence. Figures released by the US-based Chinese Human Rights Defenders indicate nearly 1000 cases of detention and torture of Chinese rights defenders in 2014, with more than 100 detentions drawn from seven provinces and three municipalities as simple reprisals against those who supported the Hong Kong demonstrations.

Much of this repression has come through the manipulation of Chinese law. In this sense it is persecution through prosecution, or what is called legalist repression. The vaguely worded crimes of “Picking Quarrels and Provoking Trouble” or “Disturbing Public Order,” outlined in Chapter VI, Section I of the Criminal Law, articles 290 to 293, have become a canvas applied to virtually anything the state finds discomforting. However, far more serious crimes have also been conjured to silence rights defenders, such as the appalling life sentence for Ilham Tohti on absurd charges of separatism.

There are several lessons in this for domestic actors and those who would support them – particularly the importance of steady, strategic development and a focus on details. This requires recognizing the dynamic between rights abuse and repression on the one hand, and the interconnectivity of resistance tactics on the other. Put another way, because repression is most often the context for a series of rights abuses, resistance that is too narrow is also more susceptible to persecution. The Chinese rights defence community has begun to recognize this.

For example, what begins as a land rights violation or forced eviction can escalate into a situation of arbitrary detention or disappearance of villagers who intervene between developers, hired thugs, police and local officials. Village petitioners might blockade township government offices or issue open letters. Some have resorted to mass public suicide. They also travel from the village or township to cities seeking government redress, file open information requests to expose the corrupt development negotiations, or organize small campaigns against corruption. By doing so, they may find themselves detained in black jails and abused by thugs or charged with illegal assembly.

Some turn to citizen lawyers or licensed lawyers for support at different stages. More tech-savvy petitioners and rights defenders post evidence of land theft and abuses to Weibo and other social media, or communicate with domestic or international media and organizations, at which point some might be arrested on charges of sharing state secrets. Sometimes the victim, jaded by an endless petitioning cycle, sees independent candidacy in local elections as a means of holding officials accountable.

How to protect a movement from state repression

Effective rights defence campaigns and civil resistance must prepare for the protection challenges of steady state repression. For a time, certain civil society actors such as lawyers, journalists, scholars, petitioners and labour, land or LGBT rights activists were focused on narrower solutions to their own causes. The mentality is shifting, however, in favour of more coordination and horizontal networking between groups.

This is not to say that issue-specific rifts don’t still exist. I’ve been frustrated in conversations with licensed rights lawyers who claim that grassroots ‘barefoot’ lawyers aren’t worth collaborating with. Similarly, freedom of religion activists have told me that gender issues aren’t an important civil society concern or that women don’t make as good ‘barefoot’ lawyers as men. But the broader preference is a trend toward more integrated communication and exchange.

These are among the lessons I have learned from nearly five years of supporting civil society and human rights in China.

The main protection challenges stem from the government’s manipulation or outright disregard of domestic law. However, despite the more traditional inclination of civil resisters to work outside of established state institutions, couching resistance in Chinese law has a demonstrated benefit.

The police often illegally detain rights defenders and activists. In some cases merely the presence of a lawyer or ‘barefoot’ lawyer may force the police to release the arbitrarily detained individual or at least begin proper legal proceedings. While the charges may still be contrived, operating within the legal system is preferable to disappearances or prolonged detention and is also advantageous to sustained rights defence and gradual normative change. Furthermore, even a flawed trial often supports greater coordination of civil resistance or advocacy campaigns than more illegal alternatives such as disappearance or detentions without trial.

The degree of international attention and domestic pressure and the profile of the activists are important factors in the effectiveness of rights defence. The Nobel Peace Prize-winning Liu Xiaobo is unlikely to be released from prison any time soon nor will Gao Zhisheng realistically be free of revolving detention and harassment despite considerable domestic and international advocacy. These high-profile cases are important to the central government and maintaining a strong stance is related to demonstrating their supremacy. On the other hand, in 2005 Rebiya Kadeer was released from prison and permitted to leave China following international advocacy. More recently, in 2011, following sustained domestic and international efforts, journalist Qi Chonghuai was transferred out of Tengzhou prison where he was being savagely beaten under direct order of local officials.

While Beijing likely later grew to regret releasing Rebiya Kadeer, these cases demonstrate that concessions have been made but only in cases where the central government doesn’t have a direct interest in the detention. One of the most successful tactics in rights defence and civil resistance to date is recognizing and capitalizing on cases where central and local government interests do not overlap. Although no easy task, identifying targets for support within the pillars of the state can have a drastic impact.

What role can the international community play? Recognizing the differences on the ground and the specific needs of Chinese rights defenders and civil resisters is essential. This can be accomplished through greater support of civil society, especially through increasing attention to activists outside of Beijing and Shanghai, supporting less high-profile rights defenders and activists throughout the country. Pressure must also come from within Chinese society. The greater rights defence campaign successes have tended to come most from domestic organizations working from the grassroots.

This can be achieved through the creation of space. Chinese rights defenders and activists must be provided greater opportunities to simply come together and exchange ideas and skills. This can be done through more training programmes and experience sharing but also just through creative ways to gather freely. While digital networking is important for direct exchange in individual cases, the sustainability of a rights movement is built on face-to-face interaction. This increases trust and supports more intimate exchanges about grievances and tactics.

Furthermore, as activists around the world know, you don’t always need a strict schedule of events and curriculum; sometimes just facilitating gatherings of activists is the best way to support the development of rights awareness and resistance tactics. Again, the government of China is aware of such moves, which is why it responded mercilessly to the New Citizens’ Movement dinner meetings and the small apartment gathering organized by the Tiananmen Mothers in 2014 for which Pu Zhiqiang was detained.

Additionally, increasing awareness of the needs and limitations of front line rights defenders in China can be reflected in more flexible donor contributions, through international organizations or government mechanisms, to support small initiatives and start-up organizations. The Chinese government investigates and has persecuted foreign funded Chinese organizations and individuals receiving money from abroad. Leaking state secrets continues to be an opaque legal charge and method of repression, as with Gao Yu, and many activists have been detained or had funding seized for collaborating with international donors. Financial security for domestic activists is a serious challenge and should be part of the agenda of international rights defence support moving forward.

This assessment is far from comprehensive. These are some of the principal means of state repression and small tactical changes that Chinese rights defenders and activists engaged in civil resistance campaigns have begun to recognize. Focusing on more daily routines and details rather than higher profile events is an important step for the sustainability of civil resistance and rights defence in China. The utility of such principles, however, is not confined to China.

A common refrain among activists in many countries is that their struggle is unique, oppression too institutionalized, dictatorships too brutal, or causes not well supported by the international community. One can differentiate between the conditions for domestic resistance in China, Zimbabwe and Russia from the United States, Spain and Australia but civil resistance trainers are wont to repeat that conditions do not dictate outcomes.

While specific country conditions do not determine the outcomes of resistance, they do affect the availability of tactical options for a given act or campaign of resistance. And recognizing the importance of building sustainable campaigns through a series of small-scale victories, matching resistance to repression, and horizontal networking are therefore not only important guidelines for civil resistance in China. They also have universal value.

In China: Citizenship on Trial

This article was originally published in a shortened version on 7 February 2014 at Waging Nonviolence. Available here.

Last week China observed the lunar New Year. The Spring Festival is celebrated with two weeks of fireworks and food, when hundreds of millions of Chinese travel home to be with their families, but this year a group of activists will be conspicuously missed as their families ring in the year of the horse. The Chinese Communist Party scheduled the majority of trials for some 20 activists related to the New Citizens Movement for the week preceding the Chinese New Year with the expectation that the overlap would diminish public awareness of the trials.

When Xi Jinping became the new president of China in March 2013 there was a general feeling, although perhaps naïve, that he would be more politically liberal than his predecessor, Hu Jintao. Even before assuming full position, in early 2013, Xi Jinping was inspiring hope for reform by calling for a comprehensive crackdown on graft. Corruption, mainly related to illegal demolitions and evictions, health and labor exploitation, is a serious issue in China. It is at the source, in one form or another, of the majority of demonstrations, online campaigns, legal challenges, and millions of petitions filed every year. However, the jubilation over his declared war on corruption soon receded with the parallel crackdown on civil society activists, many whose principal grievance ironically was corruption.

The year before, Xu Zhiyong, a well-known human rights defender, had published an article calling for enhanced civil society participation and this impetus soon became the spirit and master frame of civil society activism and the government’s response. In certain respects, Xi Jinping’s repressive policies against civil society participation in the first year of his administration as much created the New Citizens Movement as a unified movement as the activists who have been or are awaiting trial for their involvement. Who are some of these individuals? What are their grievances and how have they mobilized?

The Jiangxi Three and Other New Citizens

On April 21, 2013 Liu Ping, Wei Zhongping, and Li Sihua, along with nine others staged a demonstration in Xinyu, Jiangxi Province. They posted photos online of themselves holding posters in solidarity with several recently detained activists. A week later they were detained. While most of the demonstrators were subsequently released, the three organizers were arrested on charges of ‘gathering a crowd to disturb public order.’  On December 3rd, 2013 the Jiangxi Three would become the first group formally tried in relation to the New Citizens Movement. But these three were far from new to civil resistance and their singling out is as much related to their previous activism as their association with the nascent movement.

Liu Ping had been forced from her job at a steel plant back in 2009, around which time she began petitioning for worker’s rights. In 2011 she decided to run as an independent candidate in a local election. Two days before the vote she was arbitrarily detained by police. Professor Yu Jianrong of the Chinese Academy of Social Sciences posted an online appeal, which was reposted nearly 70,000 times. Liu Ping was released but still barred from running in the election. Wei Zhongping, like Liu Ping, began his activism on worker’s rights and has also campaigned for housing and land rights. He too ran as an independent candidate in 2011, and 2006. Li Sihua had on numerous occasions campaigned for China to ratify the International Covenant on Civil and Political Rights and was also an independent candidate in 2011. Following their failed electoral bids, the three activists were subjected to relentless persecution but their trial was far from isolated in the repressive political climate of 2013.

Liu Yuandong stood trial for his part in the New Citizens Movement in Guangdong province on January 24th, amid the flurry of summary trials preceding the Spring Festival. Liu Yuandong, at the helm of a loose network of activists in southern China, holds a PhD in biology. In February, he was detained for staging demonstrations against North Korean nuclear tests and two months later was arrested on charges of disturbing public order.

On March 31st, several Beijing activists unfurled banners and made anti-corruption speeches in the crowded Xidan shopping area. Among them were Li Wei and Ding Jiaxi, whose trials both begun on January 27th but were postponed until after the Spring Festival when they dismissed their lawyers. Several of the New Citizens Movement trials have been tactically postponed in order to extend public attention of the proceedings beyond the holiday. Ding Jiaxi is a rights lawyer and has been a champion for the rights of migrant worker children since 2010, while Li Wei is an unemployed petitioner. Veteran activist, Zhao Changqing was also part of the March demonstration.

A student protestor during the 1989 Tiananmen pro-democracy movement, Zhao has been imprisoned three times in his career of civil resistance, focusing on the right to education and anti-corruption. He has been active both in the streets and online. At the time of their detention in April 2013, rights defenders cautioned that the repression would engender further unrest. And it was only a few days later that the Jiangxi Three were protesting for their release. Countless others around the country would soon be equally emboldened to demand civil and political reform, inspired by an impassioned article written by Xu Zhiyong.

The Radicalism of Xu Zhiyong

Debonair in a pinstriped shirt with French cuffs, Xu Zhiyong posed for the cover of the Chinese version of Esquire, with a black leather bound legal pad and slightly cocked head he looked the part of the issues theme, Chinese Dream. His dream for China was a country that could be free and happy, where no citizen needed to go against her own conscience. That was in 2009, a year after he made headlines for himself by defending countless families affected by melamine poisoned milk powder but even as he was honored on the cover of Chinese Esquire he was under detention on spurious charges of tax evasion for his nonprofit Gongmeng (Open Constitution Initiative). He was released but the organization was shuttered on the tax evasion charges, which came suspiciously soon after Gongmeng sponsored research into the deadly March 2008 Lhasa riots. He continued his rights defense and lecturing at a university in Beijing.

Xu Zhiyong completed his doctorate of law from Beijing University, classmates and later partners with other high profile human rights defender Teng Biao. Liu Hua, whose husband had been a village chief until he tried to uncover local party corruption and was driven from their home to living in a tunnel in Beijing, recalls the day Xu Zhiyong found them in 2003. She recalls, “He used to come all the time, bringing us quilts that people had donated and he even slept there for three nights so he could experience what it was like.”

After graduating Xu Zhiyong and Teng Biao helped to organize a sophisticated campaign that utilized fledgling online tools in coordination with legal challenges and traditional collective action to abolish an abusive system of arbitrary detention known as Custody and Repatriation. A few years later Xu Zhiyong was at the forefront of campaigns against the even more arbitrary ‘black jail’ system. He also served as an independent candidate in his local Beijing district legislative body stating, “I have taken part in politics in pursuit of a better and more civilized nation.”

One of his clients remembers, “My impression of Mr Xu is that he is a moderate and prudent man. I have a hot temper, and once I yelled at him for a long time. But after I was finished, he simply asked me to calm down and said things would only be resolved when we were calm.” Xu Zhiyong is often depicted in media in this light, as the equanimous proponent of moderate reform. However, Eva Pils, law professor at the Chinese University of Hong Kong, and Joshua Rosenzweig, a human rights researcher, argue that the China envisioned by Xu Zhiyong is in fact a very radical position in the one-party state. To think of him as a moderate does a great disservice to Xu Zhiyong and the “force of popular resistance he and others have successfully coordinated.” The only thing moderate about Xu Zhiyong, they write,  “is his unwavering advocacy of non-violence.” It is this radicalism and unwavering commitment to strategic nonviolence that encapsulates the New Citizens Movement.

A New Citizens Movement, What’s New?

The New Citizens Movement is an innovative, multi-issue campaign for systemic change, based on institutional and extra-institutional tactics, from launching legal actions, filing freedom of information requests, and staging demonstrations online and in the streets. In the article that called it into being in 2012, Xu Zhiyong writes that is political, championing the end of authoritarianism; social, seeking to destroy corruption, the abuse of power, and the gap between rich and poor, by building new foundations of justice; cultural, to cast off the culture of oppressor and oppressed; and progressive, in heralding a new civilized humanity. “The goal of the New Citizens’ Movement is a free China ruled by democracy and law, a just and happy civil society with ‘freedom, righteousness, love’ as the new national spirit.” It is a spirit that must, “appear on the Internet, flourish in the streets, and, most of all, take root in the deepest part of our hearts.”

The New Citizens Movement is “the lawful defense of citizens’ rights, citizens’ non-violent non-cooperation, and peaceful democracy, all under a new system of ideas and discourse,” a discourse that is not ‘overthrow’ but ‘establish.’

At the core of the New Citizens Movement is the citizen, as an independent, individual, political, and social actor responsible only to the laws that have been commonly entered into. What is important is civil society participation through regular mealtime conversations, political discussions, attention to public life and policy, and community service. Xu Zhiyong’s call to action is,

“Repost messages, file lawsuits, photograph everyday injustices, wear t-shirts with slogans, witness everyday events [specifically referring to the phenomenon of standing in a circle around someone causing a scene to witness it], participate or openly refuse to participate in elections, transcribe [things that you see happen], hold gatherings or marches or demonstrations, do performance art, and use other methods in order to jointly promote citizens’ rights movements and citizens’ non-cooperation campaigns—such as assets reporting, openness of information, opposition to corruption, opposition to housing registration stratification, freedom of beliefs, freedom of speech, and the right of election. Practice the New Citizen Spirit in action. Citizens’ power grows in the citizens’ movement.”

Granted, the activists involved in the New Citizens Movement crackdown were not radicalized by Xu Zhiyong’s article; they were mostly veteran activists. But his moving words provided a master frame for dissent, which served to galvanize civil resistance and political repression. As the Chinese New Year celebrations culminating in the Lantern Festival on February 14th wind to an end, as the last fireworks sparkle and the mountains of red paper are swept away, Ding Jiaxi, Li Wei, and others will return to court for exercising their rights as citizens. As Human Rights Watch researcher Maya Wang observed, “the government is redrawing its red line about what is allowed, and clearly street action with a clear political theme is not allowed.” But, despite the arrests and the trials, no doubt New Citizens Movement inspired street action will continue in the Year of the Horse.

The Buddhist King and Modern Politics

The following is an excerpt from In Quest of Democracy, an essay written by Nobel Peace Prize winner Aung San Suu Kyi. The original essay was written before Aung San Suu Kyi was placed under house arrest in July 1989 and had been planned as part of an anthology of essays on democracy and human rights. Aung San Suu Kyi, after years of tumultuous house arrest and suffering, was released on 13 November 2010. Since her release she has continued to campaign for deeper democratic transitions in Burma as the leader, and founder, of the National League for Democracy. Around the same time as her release, the decades long military dictatorship began to initiate political liberalizations that permitted independent parties an unprecedented degree of freedom. Despite easily agreed upon positive steps toward Democracy Burma faces many obstacles and complex challenges to its ongoing democratization, particularly in terms of reconciling complicated group and individual identity politics. While this essay was originally written over twenty years ago, it presents a vision of a moral leader, a vision inspired by Buddhist legends and parables, with considerable transferability to not only guiding Burma’s democratic transition but in pointing to desirable qualities in all democratically elected figures and offers insight into discussions on resisting authoritarian and totalitarian regimes. It begins…

Opponents of the movement for democracy in Burma have sought to undermine it by on the one hand casting aspersions on the competence of the people to judge what was best for the nation and on the other condemning the basic tenets of democracy as un-Burmese. There is nothing new in Third World governments seeking to justify and perpetuate authoritarian rule by denouncing liberal democratic principles as alien. By implication they claim for themselves the official and sole right to decide what does or does not conform to indigenous cultural norms.

This excerpt was taken from a version of the essay appearing in Freedom From Fear: And Other Writing (2010) p. 170-173.

—-

“The Buddhist view of world history tells that when society fell from its original state of purity into moral and social chaos a king was elected to restore peace and justice. The ruler was known by three titles: Mahasammata, ‘because he is named ruler by the unanimous consent of the people’; Khattiya; ‘because he has dominion over agricultural land’; and Raja, ‘because he wins the people to affection through observance of the dhamma (virtue, justice, the law)’…

The Buddhist view of kingship does not invest the ruler with the divine right to govern the realm as he pleases. He is expected to observe the Ten Duties of Kings, the Seven Safeguards against Decline, the Four Assistances to the People, and to be guided by numerous other codes of conduct such as the Twelve Practices of Rulers, the Six Attributes of Leaders, the Eight Virtues of Kings and the Four Ways to Overcome Peril. There is logic to a tradition which includes the king among the five enemies or perils and which subscribes to many sets of moral instructions for the edification of those in positions of authority. The people of Burma have had much experience of despotic rule and possess a great awareness of the unhappy gap that can exist between the theory and practice of government.

The Ten Duties of Kings are widely known and generally accepted as a yardstick which could be applied just as well to modern government as to the first monarch of the world. The duties are: liberality, morality, self-sacrifice, integrity, kindness, austerity, non-anger, non-violence, forbearance and non-opposition (to the will of the people).

The first duty of liberality (dana) which demands that a ruler should contribute generously towards the welfare of the people makes the tacit assumption that a government should have the competence to provide adequately for its citizens. In the context of modern politics, one of the prime duties of a responsible administration would be to ensure the economic security of the state.

Morality (sila) in traditional Buddhist terms is based on the observance of the five precepts, which entails refraining from destruction of life, theft, adultery, falsehood and indulgence in intoxicants. The ruler must bear a high moral character to win the respect and trust of the people, to ensure their happiness and prosperity and to provide a proper example. When the king does not observe the dhamma, state functionaries become corrupt, and when state functionaries are corrupt the people are caused much suffering. It is further believed that an unrighteous king brings down calamity on the land. The root of a nation’s misfortunes has to be sought in the moral failings of the government.

The third duty, paricagga, is sometimes translated as generosity  and sometime as self-sacrifice. The former would constitute  a duplication of the first duty, dana, so self-sacrifice as the ultimate generosity which gives up all for the sake of the people would appear the more satisfactory interpretation. The concept of selfless public service is sometimes illustrated by the story of the hermit Sumedha who took the vow of Buddhahood. In so doing he who could have realized the supreme liberation of nirvana in a single lifetime committed himself to countless incarnations that he might help other beings free themselves from suffering. Equally popular is the story of the lord of monkeys who sacrificed his life to save his subjects, including one who had always wished him harm and who was the eventual cause of his death. The good ruler sublimates his needs as an individual to the service of the nation.

Integrity (ajjava) implies incorruptibility in the discharge of public duties as well as honesty and sincerity in personal relations. There is a Burmese saying: ‘With rulers, truth, with (ordinary) men, vows’. While a private individual may be bound only by the formal vows that he makes, those who govern should be wholly bound by the truth in thought, word and deed. Truth is the very essence of the teachings of the Buddha, who referred to himself as the Tathagata or ‘one who has come to the truth’. The Buddhist king must therefore live and rule by truth, which is the perfect uniformity between nomenclature and nature. To deceive or to mislead the people in any way would be an occupational failing as well as a moral offence. ‘As an arrow, intrinsically straight, without warp or distortion, when one word is spoken, it does not err into two.’

Kindness (maddava) in a ruler is in a sense the courage to feel concern for the people. It is undeniably easier to ignore the hardships of those who are too weak to demand their rights than to respond sensitively to their needs. To care is to accept responsibility, to dare to act in accordance with the dictum that the ruler is the strength of the helpless. In Wizaya, a well-known nineteenth-century drama based on the Mahavamsa story of Prince Vijaya, a king sends away into exile his own son, whose wild ways had caused the people much distress: ‘In the matter of love, to make no distinction between citizen and son, to give equally of loving kindness, that is the righteousness of kings.’

The duty of austerity (tapa) enjoins the king to adopt simple habits, to develop self-control and to practise spiritual discipline. The self-indulgent ruler who enjoys an extravagant lifestyle and ignores the spiritual need for austerity was no more acceptable at the time of the Mahasammata than he would be in Burma today.

The seventh, eighth and ninth duties — non-anger (akkodha), non-violence (avihamsa) and forbearance (khanti) — could be said to be related. Because the displeasure of the powerful could have unhappy and far-reaching consequences, kings must not allow personal feelings of enmity and ill will to erupt into destructive  anger and violence. It is incumbent on a ruler to develop the true forbearance which moves him to deal wisely and generously with the shortcomings and provocations of even those whom he could crush with impunity. Violence is totally contrary to the teachings of Buddhism. The good ruler vanquishes ill will with loving kindness, wickedness with virtue, parsimony with liberality, and falsehood with truth. The Emperor Ashoka who ruled his realm in accordance with the principles of non-violence and compassion is always held up as an ideal Buddhist king. A government should not attempt to enjoin submission through harshness and immoral force but should aim at dhamma-vijaya, a conquest by righteousness.

The tenth duty of kings, non-opposition to the will of the people (avirodha), tends to be singled out as a Buddhist endorsement of democracy, supported by well-known stories from the Jakatas. Pawridasa, a monarch who acquired an unfortunate taste for human flesh, was forced to leave his kingdom because he would not heed the people’s demand that he should abandon his cannibalistic habits. A very different kind of ruler was the Buddha’s penultimate incarnation on earth, the pious King Vessantara. But he too was sent into exile when in the course of his strivings for the perfection of liberality he gave away the white elephant of the state without the consent of the people. The royal duty of non-opposition is a reminder that the legitimacy of government is founded on the consent of the people, who may withdraw their mandate at any time if they lose confidence in the ability of the ruler to serve their best interests.

By invoking the Ten Duties of Kings the Burmese are not so much indulging in wishful thinking as drawing on time-honoured values to reinforce the validity of the political reforms they consider necessary. It is a strong argument for democracy that governments regulated by principles of accountability, respect for public opinion and the supremacy of just laws are more likely than an all-powerful ruler or ruling class, uninhibited by the need to honour the will of the people, to observe the traditional duties of Buddhist kingship. Traditional values serve both to justify and to decipher popular expectations of democratic government.”

Surveying Nonviolence in China

This Article was originally published on 24 September by openDemocracy under the title A Sea of Dissent: Nonviolent Waves in China.

In 2010, Chinese sociologist, Sun Linping, estimated that the number of mass incidents across China had surpassed 180,000 that year, more than doubling from 2006. This indicates growing discontent in the world’s most populous non-democracy, unrest that the regime has treated with corresponding repression. In 2013 China’s internal security budget reached 124 billion dollars, exceeding military allocations. This awesome internal security spending implies the regime’s trepidation about what is predominantly nonviolent resistance. But what are the lasting sources of discontent that drive this increase in protest? What tactics are Chinese activists employing and how have nonviolent actors adapted in the face of severe government persecution?

The most universal source of discontent in China is illegal demolition and eviction, a byproduct of rapid development and urbanization. Corrupt local officials profit from illegal development deals and brutally crack down on resistance; adding to widespread claims of arbitrary detention and invasion of privacy. Land and labor abuses stem from official impunity, incentives for rapid development, a party controlled union, and limited rights for migrant workers because of the hukou, the local registration system. China reports more than 250 million migrant workers who leave countryside homes in search of work. They are often greeted with a litany of labor violations. Official impunity and the lack of judicial independence affords aggrieved Chinese villagers and workers minimal institutional recourse. Labor arbitration is less popular than strikes or protests, but this often remains locality-specific. Meanwhile boycotts are frequently nationalistic and often target Japanese products or those associated with the Dalai Lama.

Chinese activists have turned to the media to publicize their grievances and voices within the media have become activists, alongside an emboldened netizen community, to challenge propaganda and make claims against censorship, coupled with discontent over the lack of freedom of expression. In January 2013, a censored message in the Southern Weekend newspaper sparked massive material and digital resistance. Such information-based grievances have slowly created activists within the previously apolitical middle class, traditionally acquiescent to economic liberalization. Treating much discontent as politically interrelated, Chinese citizens have issued demands for civil society empowerment. Most recently Xu Zhiyong, who was later arrested in July 2013, called for a ‘New Citizen’s Movement.’ While many Chinese activists and scholars have remained skeptical of these claims gaining sustainable national traction, environmental and public health grievances are seen by some as having the greatest opportunity for more enduring mobilization. This array of loosely connected, deeply felt grievances has produced a diverse repertoire of resistance tactics.

Publicly inscribed resistance is prevalent. Petitioning, despite frequently lead to arbitrary detention or torture, is by far the most popular means for protesting land rights violations but is also a common tactic for expressing other grievances, from official corruption to government transparency. Preceding the 2008 Beijing Olympics, according to Chinese Human Rights Defenders, there were an estimated 10 million petitioners across China. Petitioners mostly arise from poorly educated villagers, but sometimes develop into professional rights defenders. Hanging banners is common among both village and urban neighborhood committees to broadcast myriad grievances, such as in early 2013 when activists, including later arrested Zhao Changqing, unfurled banners in Beijing calling on government transparency. Activists in Guangdong and elsewhere seized the spotlight of the 2008 Olympic Torch Relay to hang posters challenging China’s Human Rights Record. Civil society activists including academics, journalists, and lawyers, have relied more on signed public statements and open letters such as Charter 08, which called for greater political liberalization and lead to the imprisonment of Liu Xiaobo in 2008; Liu later won the Nobel Peace Prize.

Collective action such as protests, strikes, sit-ins, blockades, marches, and teach-ins are widespread. On 6 March 2006 several thousand workers at a textile plant in Yunnan Province went on strike demanding participation in company restructuring while two years earlier 6,000 women workers protested the privatization of a textile factory in Guangdong.  In 2004 hundreds of villagers, representing 150,000 inhabitants, around the Hanyuan Reservoir Area in Sichuan banded together to protest forced relocation and blockaded several villages. Police later opened fire killing 17 and wounding 40. While marches are infrequent in China, the Wukan incident began with a march of 5,000 villagers to Liufeng city to stage a sit-in during the early days of the protests over stolen land, which precipitated the now famous election. Upwards of 200 individuals, in July 2013, staged a two-week sit-in at the Ministry of Foreign Affairs in Beijing demanding greater transparency or participation in China’s human rights reporting to the UN. Activists from villagers to lawyers, often with the assistance of domestic or international NGOs, hold teach-ins to share grievances and exchange strategies for resistance. Despite scattered attempts to emulate the Arab Spring, the Chinese Jasmine Revolution of 2011 never took off. Critical activists and scholars are in agreement that this scale of national collective action is a long way off in China.

Symbolic resistance such as political mourning or politicized grave visitation, hunger strikes, and costumes or theater are not unknown in China. In 2011 Chengdu officials detained known activist Chen Yunfei as he prepared to travel to Beijing to pay his respects to former premier Zhao Ziyang, known for being sympathetic to the 1989 pro-democracy student movement, and in 2012 police in Beijing arrested more than 2,000 people on their way to demonstrate at his grave. While hunger strikes were traditionally associated with religious demonstrations, they have become more common among political prisoners, and publically. Activists in 2006 coordinated hunger strikes in at least 10 provinces across China to challenge government repression and support fellow dissidents. Recently, in March of 2013 activists staged a hunger strike at a school in Hefei city to protest the refusal to admit the ten-year-old daughter of political prisoner Zhang Lin. Chinese activists sometimes play on the association of white with death and incorporate symbolic dress into demonstrations or street theater.

Government Repression seeks actively to forestall movement formation through sophisticated surveillance and censorship apparatuses and strives to confine resistance to locality or issue specific claims. In the first half of 2013 the Central Government proclaimed the ‘seven don’t mentions’ of universal values, freedom of speech, civil rights, civil society, historical errors of the CCP, official bourgeoisie, and judicial independence. The 1989 Law on Assemblies essentially forbids dissident collective action and in 2013 the central prosecutors office promised to crackdown on all ‘illegal assembly’ that aims to ‘subvert state power.’ However, activists continue to develop robust networks of support for exchange and innovation.

Repertoire innovation in China has reacted to government repression and in many cases dramatized regime vulnerability, illegitimacy or hypocrisy, through the dyad of digital and rightful resistance. Despite regime attempts to control the Internet, from blocking Facebook, Twitter, and countless other websites and blogs, or in 2009 shutting down the Internet for ten months in Xinjiang province following ethnic riots, Chinese netizens continue to develop creative solutions to speak truth to power, such as renowned blogger Zhou Shuguang, aka Zola. Some rely on homonyms and oblique references to voice discontent, exposing a vulnerability that censors even web searches for ‘big yellow duck.’ The government has responded to the perceived threat of digital resistance with mass arrests and crackdowns. In August and September 2013 alone more than 400 netizens were placed in administrative detention. Rightful resistance describes petitioner’s reliance on Chinese law to frame their resistance and the growth of weiquan, rights defenders, who legally challenge government abuse of other activists, thus positioning an unorthodox demographic of resistance actor: the relatively intra-institutional activist couching their grievances in the vocabulary of the abusive state. Again, the state has responded to perceptions of a nonviolent threat with force, by rounding up and detaining weiquan lawyers, from Gao Zhisheng to Chen Guangcheng and countless others.

Despite growing internal security spending and repression techniques by the government, the number of resistance actors in China is likely to continue to rise unless the state seriously addresses widespread grievances. Because its internal security logic is based on force and manipulation, the growth of nonviolent resistance outside of its purview and the inter-connectivity of activists may eventually overburden the state’s capacity to forestall more national mobilization with local repression. And while the overall Chinese population may have agreed not to discuss the 1989 Tiananmen Massacre, they will not suffer another.

Fundamental Rights

The following list of fundamental human rights is taken from Jack Donnelly‘s book International Human Rights2007 p. 7. This compilation of fundamental rights is based on the key articles and substance of the three documents that make up what has become known as the International Bill of Human Rights. Namely, these are the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). While the UDHR is not exclusively a legal document, many law scholars, activists, and practitioners have argued that it has, through practice and general acceptance, entered into customary international law. Meanwhile, the two International Covenants are international legal documents. They were both adopted by the United Nation’s General Assembly on 16 December 1966. The ICESCR achieved enough ratifications and entered into force on 3 January 1976 and the ICCPR on 23 March 1976. Since the ratification of these two treaties a number of additional international human rights instruments that greatly expand on the rights here enumerated have entered into force.

1976 also inaugurated the Human Rights Committee, charged with reviewing state implementation of the ICCPR and hearing complaints and the Committee on Economic, Social and Cultural Rights, charged with the same task for the ICESCR. As noted in an earlier post, a number of states parties to both conventions have either put forth reservations stripping these monitoring bodies of jurisdiction to specific countries or failed to ratify accompanying optional protocols that allow for independent complaint mechanisms. Aside from these monitoring bodies, known as Treaty bodies because their existence is tied to specific human rights treaties, the United Nations Human Rights Council is the principal body charged with monitoring human rights among the 193 member states of the United Nations. The Human Rights Council shall be composed of 47 member countries, chosen with set distribution from certain regions around the world. It has come under significant criticism from a number of sources for bias or hypocrisy. For example, the Philippines is a current member despite censure by the Committee to Protect Journalists that the Philippines is the second most dangerous place for press freedom advocates and journalists after Iraq and the fact that China has served, and is up for election in November.

In light of such contradictions and concerns amid declarations of humanitarian and international human rights conditions as a pretext for the Responsibility to Protect (R2P), for example, a deeper understanding of the specific human rights guaranteed by international law is of paramount necessity. If the international order, composed of states most often acting in pursuit of their own interests, is to be taken seriously, far greater promotion and protection of human rights is needed. For regimes such as the United States in their support of R2P or China in their support for non-interference, both countries eliciting respect for international law, to be taken seriously their own domestic and international records have a convenient litmus by which to measure actual commitment against the rhetoric of political or economic expediency.

Donnelly succinctly outlines the following principle human rights by which we may measure state’s commitment to international law and fundamental human rights (UDHR=D; ICESCR=E; ICCPR=C):

Equality of rights without discrimination (D1, D2, E2, E3, C2, C3)
Life (D3,D6)
Liberty and security of person (D3, C9)
Protection against slavery (D4, C8)
Protection against torture and cruel and inhuman punishment (D5, C7)
Recognition as a person before the law (D6, C16)
Equal protection of the law (D7, C14, C26)
Access to legal remedies for rights violations (D8, C16)
Protection against arbitrary arrest or detention (D9, C9)
Hearing before an independent and impartial judiciary (D10, C14)
Presumption of innocence (D11, C14)
Protection against ex post facto laws (D11, C15)
Protection of privacy, family, and home (D12, C17)
Freedom of movement and residence (D13, C12)
Seek asylum from persecution (D14)
Nationality (D15)
Marry and found a family (D16, E10, C23)
Own property (D17)
Freedom of thought, conscience, and religion (D18, C18)
Freedom of opinion, expression, and the press (D19, C19)
Freedom of assembly and association (D20, C21, C22)
Political participation (D21, C25)
Social security (D22, E9)
Work, under favorable conditions (D23, E6, E7)
Free trade unions (D23, E8, C22)
Rest and leisure (D24, E7)
Food, clothing, and housing (D25, E12)
Health care and social services (D25, E12)
Special protection for children (D25, E10, C24)
Education (D26, E13, E14)
Participation in cultural life (D27, E15)
A social and international order needed to realize rights (D28)
Self-determination (E1, C1)
Humane treatment when detained or imprisoned (C10)
Protection against debtor’s prison (C11)
Protection against arbitrary expulsion of aliens (C13)
Protection against advocacy of racial or religious hatred (C20)
Protection of minority culture (C27)

‘The Danger of American Fascism’ by Henry A Wallace

The Danger of American Fascism by Henry A. Wallace

On April 4, 1944 the following op-ed piece appeared in the New York Times. It was written by then American Vice President Henry A. Wallace. Wallace served as President Franklin D. Roosevelt’s Vice President from 1941 until 1945. Wallace was also a third party nominee for the 1948 presidential elections. I have posted his article here because of its hauntingly prescient content, a prescience in 1944 that rings startlingly relevant to the face of American politics in 2013, sixty-nine years later. It needs little commentary or introduction.

The following text has been reposed from The New Deal Network. The text as it appears below is from Henry A. Wallace, Democracy Reborn (New York, 1944), edited by Russell Lord, p. 259.

  1. On returning from my trip to the West in February, I received a request from The New York Times to write a piece answering the following questions:
    1. What is a fascist?
    2. How many fascists have we?
    3. How dangerous are they?
  2. A fascist is one whose lust for money or power is combined with such an intensity of intolerance toward those of other races, parties, classes, religions, cultures, regions or nations as to make him ruthless in his use of deceit or violence to attain his ends. The supreme god of a fascist, to which his ends are directed, may be money or power; may be a race or a class; may be a military, clique or an economic group; or may be a culture, religion, or a political party.
  3. The perfect type of fascist throughout recent centuries has been the Prussian Junker, who developed such hatred for other races and such allegiance to a military clique as to make him willing at all times to engage in any degree of deceit and violence necessary to place his culture and race astride the world. In every big nation of the world are at least a few people who have the fascist temperament. Every Jew-baiter, every Catholic hater, is a fascist at heart. The hoodlums who have been desecrating churches, cathedrals and synagogues in some of our larger cities are ripe material for fascist leadership.
  4. The obvious types of American fascists are dealt with on the air and in the press. These demagogues and stooges are fronts for others. Dangerous as these people may be, they are not so significant as thousands of other people who have never been mentioned. The really dangerous American fascists are not those who are hooked up directly or indirectly with the Axis. The FBI has its finger on those. The dangerous American fascist is the man who wants to do in the United States in an American way what Hitler did in Germany in a Prussian way. The American fascist would prefer not to use violence. His method is to poison the channels of public information. With a fascist the problem is never how best to present the truth to the public but how best to use the news to deceive the public into giving the fascist and his group more money or more power.
  5. If we define an American fascist as one who in case of conflict puts money and power ahead of human beings, then there are undoubtedly several million fascists in the United States. There are probably several hundred thousand if we narrow the definition to include only those who in their search for money and power are ruthless and deceitful. Most American fascists are enthusiastically supporting the war effort. They are doing this even in those cases where they hope to have profitable connections with German chemical firms after the war ends. They are patriotic in time of war because it is to their interest to be so, but in time of peace they follow power and the dollar wherever they may lead.
  6. American fascism will not be really dangerous until there is a purposeful coalition among the cartelists, the deliberate poisoners of public information, and those who stand for the K.K.K. type of demagoguery.
  7. The European brand of fascism will probably present its most serious postwar threat to us via Latin America. The effect of the war has been to raise the cost of living in most Latin American countries much faster than the wages of labor. The fascists in most Latin American countries tell the people that the reason their wages will not buy as much in the way of goods is because of Yankee imperialism. The fascists in Latin America learn to speak and act like natives. Our chemical and other manufacturing concerns are all too often ready to let the Germans have Latin American markets, provided the American companies can work out an arrangement which will enable them to charge high prices to the consumer inside the United States. Following this war, technology will have reached such a point that it will be possible for Germans, using South America as a base, to cause us much more difficulty in World War III than they did in World War II. The military and landowning cliques in many South American countries will find it attractive financially to work with German fascist concerns as well as expedient from the standpoint of temporary power politics.
  8. Fascism is a worldwide disease. Its greatest threat to the United States will come after the war, either via Latin America or within the United States itself.
  9. Still another danger is represented by those who, paying lip service to democracy and the common welfare, in their insatiable greed for money and the power which money gives, do not hesitate surreptitiously to evade the laws designed to safeguard the public from monopolistic extortion. American fascists of this stamp were clandestinely aligned with their German counterparts before the war, and are even now preparing to resume where they left off, after “the present unpleasantness” ceases:
  10. The symptoms of fascist thinking are colored by environment and adapted to immediate circumstances. But always and everywhere they can be identified by their appeal to prejudice and by the desire to play upon the fears and vanities of different groups in order to gain power. It is no coincidence that the growth of modern tyrants has in every case been heralded by the growth of prejudice. It may be shocking to some people in this country to realize that, without meaning to do so, they hold views in common with Hitler when they preach discrimination against other religious, racial or economic groups. Likewise, many people whose patriotism is their proudest boast play Hitler’s game by retailing distrust of our Allies and by giving currency to snide suspicions without foundation in fact.
  11. The American fascists are most easily recognized by their deliberate perversion of truth and fact. Their newspapers and propaganda carefully cultivate every fissure of disunity, every crack in the common front against fascism. They use every opportunity to impugn democracy. They use isolationism as a slogan to conceal their own selfish imperialism. They cultivate hate and distrust of both Britain and Russia. They claim to be super-patriots, but they would destroy every liberty guaranteed by the Constitution. They demand free enterprise, but are the spokesmen for monopoly and vested interest. Their final objective toward which all their deceit is directed is to capture political power so that, using the power of the state and the power of the market simultaneously, they may keep the common man in eternal subjection.
  12. Several leaders of industry in this country who have gained a new vision of the meaning of opportunity through co-operation with government have warned the public openly that there are some selfish groups in industry who are willing to jeopardize the structure of American liberty to gain some temporary advantage. We all know the part that the cartels played in bringing Hitler to power, and the rule the giant German trusts have played in Nazi conquests. Monopolists who fear competition and who distrust democracy because it stands for equal opportunity would like to secure their position against small and energetic enterprise. In an effort to eliminate the possibility of any rival growing up, some monopolists would sacrifice democracy itself.
  13. It has been claimed at times that our modern age of technology facilitates dictatorship. What we must understand is that the industries, processes, and inventions created by modern science can be used either to subjugate or liberate. The choice is up to us. The myth of fascist efficiency has deluded many people. It was Mussolini’s vaunted claim that he “made the trains run on time.” In the end, however, he brought to the Italian people impoverishment and defeat. It was Hitler’s claim that he eliminated all unemployment in Germany. Neither is there unemployment in a prison camp.
  14. Democracy to crush fascism internally must demonstrate its capacity to “make the trains run on time.” It must develop the ability to keep people fully employed and at the same time balance the budget. It must put human beings first and dollars second. It must appeal to reason and decency and not to violence and deceit. We must not tolerate oppressive government or industrial oligarchy in the form of monopolies and cartels. As long as scientific research and inventive ingenuity outran our ability to devise social mechanisms to raise the living standards of the people, we may expect the liberal potential of the United States to increase. If this liberal potential is properly channeled, we may expect the area of freedom of the United States to increase. The problem is to spend up our rate of social invention in the service of the welfare of all the people.
  15. The worldwide, agelong struggle between fascism and democracy will not stop when the fighting ends in Germany and Japan. Democracy can win the peace only if it does two things:
    1. Speeds up the rate of political and economic inventions so that both production and, especially, distribution can match in their power and practical effect on the daily life of the common man the immense and growing volume of scientific research, mechanical invention and management technique.
    2. Vivifies with the greatest intensity the spiritual processes which are both the foundation and the very essence of democracy.
  16. The moral and spiritual aspects of both personal and international relationships have a practical bearing which so-called practical men deny. This dullness of vision regarding the importance of the general welfare to the individual is the measure of the failure of our schools and churches to teach the spiritual significance of genuine democracy. Until democracy in effective enthusiastic action fills the vacuum created by the power of modern inventions, we may expect the fascists to increase in power after the war both in the United States and in the world.
  17. Fascism in the postwar inevitably will push steadily for Anglo-Saxon imperialism and eventually for war with Russia. Already American fascists are talking and writing about this conflict and using it as an excuse for their internal hatreds and intolerances toward certain races, creeds and classes.
  18. It should also be evident that exhibitions of the native brand of fascism are not confined to any single section, class or religion. Happily, it can be said that as yet fascism has not captured a predominant place in the outlook of any American section, class or religion. It may be encountered in Wall Street, Main Street or Tobacco Road. Some even suspect that they can detect incipient traces of it along the Potomac. It is an infectious disease, and we must all be on our guard against intolerance, bigotry and the pretension of invidious distinction. But if we put our trust in the common sense of common men and “with malice toward none and charity for all” go forward on the great adventure of making political, economic and social democracy a practical reality, we shall not fail.

Ai Weiwei’s Wife Reflects on the Criminal Procedure Law (Redux)

((Disclaimer: After I first wrote this article and posted on the evening of March 7 there were several developments. The Revised Text for the New Criminal Procedure Law was made public. At 10:31am on March 8, 2012 Nicholas Bequelin of Human Rights Watch Tweeted: Breaking News: “Disappearance clause” stricken out of revisions to the Criminal Procedure Law. A significant victory for legal reformers…”  Carrying on the conversation Bequelin later tweeted: “What was particularly worrisome with the “disappearance clause” was the power to detain suspects OUTSIDE of formal detention places.” Joshua Rosenzweig of Siweiluozi Blog responded, “@Bequelin Police will be able to detain people outside of formal detention centers; but they won’t be able to do so without notifying anyone.” However, all this effectively means is that the new law is not granting the Public Security Bureau with greater freedoms and power of detention; it does not legalize what is already an extensive system of arbitrary detention and abuse as some feared. There are still a number of lingering questions and concerns. However, if these changes are true then it would appear that the drafters have at least honestly responded to public criticism, in the wording of the text at least, which is certainly a positive step.

Whereas the initial intent behind this blog entry was to offer a new look at an open letter in criticism of this very clause, now that it has reportedly been removed from the final version this blog entry will hopefully serve to remind those of us who have not been following this process as closely why this was such a ‘significant victory for legal reformers…’ and their families. I also hope that it will help to illuminate some of the difficulties facing dissidents and rights defenders in China for those with less background.))

——

This week at the National People’s Congress the much anticipated, much debated, revised Criminal Procedure Law (CPL) will be made public. This is the legal document most responsible for establishing the rights of criminal suspects, including dissidents accused of political crimes, and delimiting the powers of the police. For these reasons the contents, both the purportedly unequivocal printed text and the ambiguities of interpretation, will be the principle guiding legal standard for the vast majority of China’s legal system in the years to come; the revision under discussion is the first thorough reworking of the law since 1996.

One of China’s most famous dissidents, the internationally renowned artist Ai Weiwei, was disappeared earlier this year, prompting almost immediate international attention. Many fear that if certain sections of the draft CPL are made into law it would institutionalize the types of abuses suffered by Ai Weiwei and countless others, most without an international advocacy network, who end up languishing for years shunted about from one facility to another, in and out of contact with their loved ones.

Back in September Ai Weiwei’s wife, Lu Qing, sent a letter to the Law Committee of the National People’s Congress (NPC) Standing Committee to request further deliberation by the NPC concerning the draft Criminal Procedure Law. Her contention with the draft legislation, as has been discussed elsewhere (See China Geeks, Siweiluozi Blog), was with a number of articles that afford the police the right to carry out residential surveillance and detain a suspect without the need to notify their family if the suspect is deemed, by the police, to represent a threat to national security. The problem with these articles is that they provide for the police to not only carry out residential surveillance at the suspect’s residence but to move the suspect to a designated location, outside of a residence, detention facility, or police station, when the situation is deemed sensitive for purposes of terrorism, cases endangering state security, or large scale corruption. In such cases the police are not required to notify anyone of the suspects whereabouts. Under the draft law, this condition of enforced disappearance can carry on for up to six months. Human Rights Watch has noted, “Disappeared’ people are often at high risk of torture, a risk even greater when they are detained outside of formal detention facilities such as prisons and police stations.” Nicholas Bequelin, senior Asia division researcher for Human Rights Watch has pointed out that if this provision in the draft CPL is written into law it would only legitimize what is currently an illegal practice.

In her letter Lu demands that the draft CPL should constrain and monitor police power, rather than legitimize arbitrary and extralegal activities. Only in this way, she states, can citizens be protected by the law, and exercise their fundamental human rights. Lu Qing’s letter was mailed and published on Ai Weiwei’s Google+ account during the designated 30 day period (August 30-September 30) for public commentary invited by the drafters of the new law. The very fact of calling on public commentary in the drafting process of a new law has received considerable attention; Elizabeth M. Lynch of China Law and Policy has an interesting analysis.

Now, as the likely unveiling of the new law draws near, Lu’s comments are worth revisiting. Below is a rough (my apologies) translation of Lu Qing’s open letter. The letter is also available, in Chinese, following the English translation or on the Human Rights in China Website, here. It first appeared on the HRIC Website on 28 September 2011.

——–

Opinions on the Draft Criminal Procedure Law of the People’s Republic of China

Law Committee of the National People’s Congress Standing Committee:

As a Chinese citizen, I recognize that the Standing Committee of the National People’s Congress is in the process of soliciting public commentary on the revised draft of the Criminal Procedure Law of the People’s Republic of China. Included in the revised law is Article 30, which affords the Public Security Bureau the ability to place a suspect in residential surveillance without notifying their family members in special circumstances, and articles 36 and 39, which stipulate that the Public Security Bureau can carry out detention or arrest without notifying family members. This will make basic protection of Chinese citizen’s rights impossible. Where residential surveillance can turn into secret detentions it is a clear violation of the constitution. I request that the National People’s Congress consider not passing the amendments to articles 30, 36, and 39. It should be clear that regardless of who the Public Security Bureau detains, arrests, places under residential surveillance or any other form of coercive measure, their family should be notified within the legal time period.

My name is Lu Qing. I am a Chinese citizen. My husband, Ai Weiwei, the artist, architect, active member of civil society, and curator at Fake Cultural Development Limited, was taken from customs at the Beijing International Airport on April 3 as he was preparing to leave. After this he was missing for as long as 81 days. We receive no official or formal information, no notice of why he was taken, where he was being held, or his physical condition.

Friends and relatives were all very worried because of his unknown whereabouts. We were worried and angry. Ai Weiwei’s 80 year old mother was so worried that she was unable to sleep for nights on end, and forced to take medications to maintain her health, suffering extreme psychological duress. We asked everywhere, frantically inquiring about his whereabouts, reporting him missing to the local police. We sent letters to the Beijing Public Security Bureau, the Procuratorate, The Political and Law Commission, the Discipline Inspection Commission, and the Ministry of Public Security. We received no answers. These 81 days of Ai Weiwei’s disappearance caused immense physical and psychological injury to our family.

On June 22 Ai Weiwei was released on bail and returned to his family. We never received formal documents from the Public Security Bureau after he was taken away. After he was taken away he was required to sign a so-called residential surveillance notice but he was held at a secret location on the outskirts of Beijing.

When a citizen is taken into police custody, providing some kind of notification to the family concerning their whereabouts is a basic right. Family members are not accomplices and should have the right to know. When a society fails to protect even one citizen’s fundamental rights, the whole society is injured.

A civilized country ought to respect the fundamental rights of its people. If the above mentioned articles are passed into law, it will cause a serious regression in China’s legal system, human rights will suffer, and it will obstruct the course of our civilization. I hope that this amendment to the Criminal Procedure Law will restrain arbitrary enforcement by the Public Security Bureau, and provide citizens with legal protection, to genuinely achieve fundamental human rights as they are enshrined in the Chinese Constitution.

Opinion: Lu Qing

September 28, 2011

对《中华人民共和国刑事诉讼法修正案(草案)》的意见

全国人大常委会法制工作委员会:

我 作为一名中国公民,看到全国人大常委会正在公开征求《中华人民共和国刑事诉讼法》修订草案的意见,其中,《修正案》“第30条”规定了公安机关可给嫌疑人 指定监视居住地点,不通知家属的特殊排除条款;《修正案》“第36条”、“第39条”规定了公安机关采取拘留、逮捕措施可以不通知家属的特殊排除条款;使 中国公民人身权利无法得到最基本的保障,使监视居住变成了秘密关押,公然违反宪法。我要求全国人大审议时,对修正案第30条、36条、39条中特殊排除条 款不予通过,明确公安机关对任何公民采取拘留、逮捕或监视居住等强制措施时,都应当在法定时间内不加区别地通知到家属。

我叫路青,中国公民,画家,我的先生艾未未,一位艺术家,建筑师,公民社会的参与者,发课文化发展有限公司设计师,今年4月3日在出北京首都机场海关时被带走,失踪长达81天,我们没有收到官方的任何手续,不知道他为什么被抓,被关在哪里,身体状况如何。

亲 人朋友都为他的下落不明焦虑、担忧和愤怒。艾未未的母亲,八十多岁,为此日夜担心,寝食难安,只能用药物来控制身体健康,精神上遭到巨大的折磨,家人四处 打听,到他的失踪地点备案,到居住地及户籍所在地派出所报案,写寻人启事,向北京市公安局、检察院、政法委、纪委和公安部写信,都没有任何答复。艾未未 81天失踪给家人带来了巨大的身心伤害。

6月22日艾未未先生以“取保候审”名义回到家中,我们是没有得到任何公安机关的手续,他被公安机关带走后,曾被要求签署了一份所谓的“监视居住”的通知书,被关押在北京郊区一个秘密的地点。

一个公民被公安机关带走,给家属一个通知是对公民最基本人权的尊重。家属不是同案犯,应当有知情权。当社会失去了对一个公民的基本权利的保护,整个社会也受到伤害。

一个文明的国家,应当尊重人的最基本的权利。如果上述条款得以通过,是中国法制的倒退,是人权的恶化,阻碍了我们文明进程。我希望本次刑事诉讼法修正案能限制公安机关执法的任意性,使公民在公权力面前得到法律的保护,真正实现宪法中所体现的基本人权。

意见人:路青

二○一一年九月二十八日

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