Exposing falsehoods in Chinese law: Tibetan language advocate Tashi Wangchuk is no separatist

Originally published at Hong Kong Free Press on 27 January 2017. Here.

A year ago today, Tashi Wangchuk disappeared. He was recently indicted and is now awaiting trial, facing a 15-year sentence for the baseless charge of inciting separatism.

His crime: advocating Tibetan language rights in an interview with the New York Times – hardly a threat to national security.

tashi wangchuk

On 27 January 2015, two cars filled with men not wearing uniforms or presenting identification arrived at Tashi’s home, claiming he needed to go with them to handle some business registration. Two hours later, he was in police custody at the Yushu Public Security Bureau, locked into a tiger chair where he was kept until the following evening, continuously interrogated. They threatened him and his family. They demanded if he was in touch with Tibetan separatists abroad. A few days later, in a different detention center, he was subjected to a week of constant interrogation, during which he was repeatedly beaten by two Tibetan police officers. His family wasn’t notified of his detention until 24 March, 57 days later, when they were told that he was being charged with inciting separatism.

The charge arises from a distorted investigation into the New York Times video carried out in February by the Tibet research branch of the Ministry of Public Security, well before Tashi’s first meeting with his lawyers in June. According to the February investigation, in the video Tashi had intentionally acted to incite separatism, break Tibetan social stability, and discredit China internationally.

Tashi has also been active on Weibo and his last post before being detained is illustrative of the type of vocabulary in the video that the government claims discredits China and incites separatism. As reported by the New York Times, on 24 January, Tashi reposted a comment urging Chinese legislators to enhance bilingual education and hire more bilingual civil servants – hardly the rhetoric of an insurrectionist. The charge against Tashi is absurd.

Tashi does not advocate separatism. He only sought to promote Tibetan language education, guaranteed under Chinese and international law, and to use Chinese law to pressure officials to faithfully implement Tibetan language rights.

International standards are quite clear. Advocating Tibetan language rights is not a crime. The International Covenant on Civil and Political Rights, which China has signed, holds that minorities shall not be denied the right, among others, to use their own language. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which provides further guidance on international standards, also calls on states to take positive measures to create favorable conditions for minorities to develop their language.

In 2013, UN Special Rapporteur on minority issues Rita Izsák voiced concern that defending minority language rights has been associated with separatist movements by some countries where the unity of the state is largely influenced by the political narrative of a “single national language as a means of reinforcing sovereignty, national unity and territorial integrity.” In such countries, assimilationist narratives often extend to every aspect of minority culture, from language to religion, subsuming it under the oppressive myth of national unity through the forced adoption of majority culture. Minority language, as with folklore or custom, are downplayed to the level of tourist attraction for majority amusement. This is widespread in China.

Rather than treating efforts to reclaim rights for minority language and culture as acts of separation, Izsák explains, protecting the language rights of minorities is not only a human rights obligation but also essential to good governance, conflict prevention, and social stability.

That Chinese law supposedly guarantees minority language rights only makes the charges against Tashi all the more ludicrous. The constitution provides that all nationalities have the freedom to use and develop their own written and spoken language. This is also protected in the Regional Ethnic Autonomy Law, which goes on to note educational organizations with mostly ethnic minority students should strive to rely on textbooks and instruction in their own language. The national plan on education reform places similar emphasis on linguistic minority rights. It states that no effort shall be spared to advance bilingual teaching and that minority rights to education in their native language shall be ensured.

Despite such protections, China has incrementally repressed Tibetan language rights with the same increasing ferocity with which it has assaulted virtually every other aspects of Tibetan culture.

Tashi told the New York Times that his passion for language rights campaigning, in part, began with his desire to find a place for his two nieces to study Tibetan after local officials closed a small school where monks had offered Tibetan language classes. Public schools throughout Tibet have largely abandoned bilingual education, approaching Tibetan the same way it would a foreign language, says the International Campaign for Tibet.

Regulations in 2010, that severely limited the use of Tibetan language in schools sparked major protests in Qinghai and lead to an urgent appeal before the Human Rights Council. In 2015, regulations on bilingual education instructed officials to “unswervingly implement the national common language [Mandarin]…to ensure that minority students master and use the basic national common language.” Such policies give rise to the accusations that advocacy for minority language is a separatist attack on politically crafted national unity. This is wrong.

On 10 December, international human rights day, U.S. Ambassador Max Baucus asked, “China’s constitution states that ‘all nationalities have the freedom to use and develop their own spoken and written languages.’  So I ask why Tashi Wangchuk, a Chinese citizen who is deeply interested in education, remains in jail for his peaceful advocacy of Tibetan language education.”

Now, more than a month later, with the stakes for Tashi highly increased, the answer to Ambassador Baucus remains the same, because in China the law only matters as far as it suits the interests of the state.

Indicting Tashi for insisting on nothing more than for the government to uphold its own laws on language rights is as much an indictment against China’s claims to be a laws-based society. Tashi should be released immediately. Instead, the state now seems likely to condemn him to prison to cover its own falsehoods.

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Myanmar: Prisoner Amnesty Highlights the Need for Penal Code Reform

This article was originally published at The Diplomat on 5 May 2016. Available here.

A week after having released 199 political prisoners, on April 17 the Government of Myanmar released 83 additional prisoners. Among those released were student activists involved in peaceful protests against the National Education Law and Naw Ohn Hla, a land rights activist involved in demonstrations against the Chinese-backed Letpadaung Mine.

Htin Lin Oo, a writer and former National League for Democracy information officer, was also among those released. In June 2015 he had been sentenced to two years of hard labor for violating section 295(a) of Myanmar’s Penal Code, which prohibits the deliberate and malicious outraging religious feelings. The charge emerged from a speech in which he had accused several prominent Buddhist organizations of extreme nationalism.

He was mostly referencing Myanmar’s notorious monk, U Wirathu, who has been accused of hate speech and incitement of violence against Muslims by international observers numerous times since anti-Rohingya violence erupted in 2012.

Another victim of abusive 295(a) prosecution, New Zealander Philip Blackwood was released in January. Blackwood, along with two colleagues, had been sentenced in March 2015 to two and a half years of hard labor over a psychedelic image of the Buddha wearing headphones they had used as a promotion for their bar. The court appeared to have caved to pressure from Ma Ba Tha, Wirathu’s organization, and their excessive convictions arguably contributed to the ongoing privileging of Buddhism above other religions.

Both cases are emblematic of the susceptibility of the Penal Code to manipulation that furthers discrimination against ethnic and religious minorities.

Speaking on April 19, a spokesperson for the Office of the High Commissioner for Human Rights commended Myanmar’s new President U Htin Kyaw’s commitment to preventing “those who act legally for political causes or for their own conscience from being imprisoned.” Such commitments are positive but they also highlight the need for critical review of laws that do not conform with international standards. Because section 295(a) of the Penal Code has been used to further religious discrimination and to imprison critics of nationalist hate speech, it requires critical examination if Myanmar is to avoid institutionalizing discriminatory practices in this sensitive time of transition.

Historical Irony

There’s an unmistakable irony in that section 295(a) came about in response to the need to prohibit incitement against Muslim minorities by Hindu nationalists, yet it has become instrumentalized in contemporary Myanmar to insulate Buddhist nationalists against prosecution for incitement against Muslim minorities.

Myanmar, like other former British South Asian colonies, bases its criminal law on the Penal Code of 1860. Section 295(a) was added through legislative amendment in 1927.

In 1924, an unattributed satirical pamphlet written in Urdu titled The Promiscuous Prophet had gone on sale in bookstores in Lahore, in present day Pakistan. Responding to a copy he had been sent, Gandhi wrote, “I have asked myself what the motive possibly could be in writing or printing such a book except to inflame passions.” Sure enough, protests within the local Muslim community mounted against the publisher, who was ultimately acquitted; the judge ruled that the Penal Code did not explicitly criminalize this manner of religious hate speech. Around the same time a second case dealing with a publication that ridiculed the Prophet Mohammed was brought before the Lahore High Court amid growing demands for an amendment to the Penal Code that would be more sensitive to protecting religious minorities from hate speech.

In 1927 the Government convened a legislative assembly mandated with this task.

Historian Neeti Nair explains that the legislative assembly was concerned with ensuring maximum personal liberty of expression. The assembly was in agreement that in order for speech to be prohibited, the insult to religion or outrage to religious feelings must have been the sole deliberate and conscious intention. In this the lawmakers were concerned not to punish good-faith social or historical commentary or limit attempts to challenge religious adherents in order to encourage reform. For these reasons the final text aimed to explicitly prohibit only the “deliberate and malicious intention of outraging the religious feelings of any class of persons.”

N.C. Kelkar, one of the commissioners, was less convinced that this language would be sufficient to prevent abuse. He proposed including two explanations that would have explicitly noted what is not to be considered an offense under 295(a). This included stating facts and criticism of individuals, tenets, or observances of any religion with a view to promoting social or religious reform. Kelkar was defeated in this proposal and the amendment entered into force on September 22, 1927 without exception.

Kelkar was surprisingly prescient in insisting on further clarifications. The problem in contemporary Myanmar is that the lack of precise language has allowed for the object and purpose of this section of the Penal Code to be disregarded under pressure from Buddhist nationalist forces at the expense of religious minorities and those who may have spoken in their defense.

How the court has interpreted this section of the Penal Code is inconsistent with both Burmese law and international human rights standards.

Inconsistencies with Burmese Law

The Constitution, in Article 34, recognizes the right of every citizen to the freedom of religion. As such the State should have an obligation to protect this right but the lack of transparency and failure to adhere to the law, and bias in favor of Buddhist plaintiffs, implies the courts are not upholding the equal protection of the freedom of religion.

The Constitution is actually somewhat ambiguous on this. Article 361 sets out that Myanmar recognizes the special position of Buddhism as the faith professed by the majority of the country while merely recognizing in Article 362 that Christianity, Islam, Hinduism and Animism were religions existing in the country at the time the Constitution took effect. From recognizing the special position of one to merely acknowledging the existence of others, it is not difficult to see where courts may be pressured to read bias into the law by politicized Buddhist organizations.

That such groups are as much political as religious should, however, raise a major Constitutional concern. Article 364 forbids the abuse of religion for political purposes. In light of Ma Ba Tha’s role in drafting the recent so-called Protection of Race and Religion laws and issuance of threats preceding the 2015 election it is clearly politicized.

While there are limited similarities with Ma Ba Tha claiming religious offence and threatening disorder with Muslim protests against offensive publications in the 1920s, the 1927 assembly was clear to differentiate between intentional offence and social reform-minded criticism such as in Htin Lin Oo’s case. Ma Ba Tha’s pressure on the court is either a willful misreading of the law or, arguably, part of a program that is more political than religious. In either case, such groups have been allowed to exert undue influence over the court due to a lack of judicial training or independence.

The most important element of 295(a) is that the accused acted with deliberate and malicious intent however courts in Myanmar have not consistently ruled on this requirement. In cases where the court has sentenced someone to prison after disregarding this fundamental requirement it has acted inconsistently and in violation of domestic law. The resulting imprisonment should therefore be considered arbitrary detention, a violation of international law.

Inconsistencies with International Standards

Equality before the law is a core human rights norm. The Universal Declaration of Human Rights (UDHR), Article 8, guarantees that everyone has the right to effective remedy by a competent tribunal. Articles 10 and 11 stipulate that everyone is entitled to full equality before a fair and public trial by an independent and impartial judiciary and that nobody shall be found guilty for anything that doesn’t constitute a penal offense under national or international law. This is reiterated in Article 15 of the International Covenant on Civil and Political Rights (ICCPR).

The biased rulings on certain 295(a) proceedings are a far cry from the standard of equality and fairness before the law and the courts’ failure to adhere to the intent requirement violates the defendant’s right not to be found guilty for acts that do not constitute a penal offense under national law.

Failure to uphold equality before the law in these proceedings is a violation of the fundamental human right of non-discrimination, which is to be upheld at all times, under all circumstances. Although the UDHR and ICCPR don’t explicitly define discrimination, the Human Rights Committee has held that the Convention on the Elimination of Racial Discrimination (CERD) provides definitional clarity and sets forth guidelines and specific State obligations. Although Myanmar is not a party to CERD, the Convention offers guidance on eliminating discrimination that the new Burmese Government should consider embracing.

CERD explicitly deals with racial discrimination but this can arguably be extended to other forms of discrimination pertinent to section 295(a) and broader Penal Code reform. Article 2 holds that States shall take effective measures to review governmental policies and to amend or repeal laws that allow for discrimination.

Article 4 continues that States shall prohibit organizations that promote or incite discrimination and should not permit public officials or institutions to promote or incite discrimination. The State and courts’ tacit acceptance of Ma Ba Tha and other nationalist Buddhist organizations have contributed to an emboldening and permissive atmosphere for discrimination in favor of Buddhism over other religions. Public officials and institutions are ultimately responsible for the selective implementation of section 295(a), and as such their behavior appears to be in violation of obligations outlined by CERD.

The Human Rights Committee has provided commentary on such implementation in noting that “laws to discriminate in favor of or against one or certain religious or belief systems, or their adherents over another” are impermissible as are laws that “prevent or punish criticism of religious leaders or commentary on religious doctrine or tenets of faith” as long as they do not constitute incitement.

It is clear from the commentary of the 1927 assembly that the commissioners hoped to preserve the freedom of opinion and expression, which the Human Rights Committee has called “the foundation stone for every free and democratic society.” It is so fundamental that international human rights law only permits for limited restrictions, laid out  in ICCPR Article 20, namely propaganda for war and advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The object and purpose of section 295(a) appears to conform with international law in this sense, but selective prosecution has amounted to an undue restriction on the freedom of expression.

During the Universal Periodic Review of Myanmar before the Human Rights Council in November 2015, several States including Norway, Turkey, France, and Nigeria made recommendations that Myanmar address the spread of discrimination and incitement against ethnic and religious minorities and enact laws to this effect. Myanmar ultimately rejected most such recommendations claiming they “are contrary to the situation on the ground.” This rejection, however, falls flat in the face of evidence otherwise.

Time for Penal Code Reform

During the follow-up session to the Universal Periodic Review on March 17, 2016, Myanmar’s Representative U Maung Wai remarked that, “as things are changing, and changing in the right direction in the country, a window of opportunity may arise to revisit these recommendations in the future.”

If President U Htin Kyaw is to be taken seriously on his commitment that those who act legally of their own conscience will no longer be imprisoned and if the new Government is sincere in promoting human rights moving forward, it is time for them to see the window of opportunity as wide open. The Office of the High Commissioner for Human Rights, in the same statement mentioned above, has been clear that it is ready to provide expertise to the Burmese Government to reform those laws that do not conform with international standards. Beginning with a review of the Penal Code would be a good start.

Violence and Nonviolence in the Uyghur Struggle

First published at opendemocracy.net on 10 October 2014 as Resistance, repression, and the cycle of violence in the Uyghur Struggle.

On Tuesday, September 26, 2014 a Chinese court convicted Ilham Tohti, a Uyghur economics professor, to a life sentence on charges of separatism in a disgracefully political trial. Amnesty International’s China researcher William Nee wrote, “This shameful judgment has no basis in reality. Ilham Tohti worked to peacefully build bridges between ethnic communities and for that he has been punished…”

Ilham Tohti’s conviction should be seen as a symbol sent by the Chinese Communist Party (CCP) to other Uyghurs and a reprisal against Mr. Tohti specifically for his outspoken activism for Uyghur rights. He has been adamant that central government policies have been abusive toward Uyghurs and have fueled conflict. However, he has been steady in his commitment to nonviolent action as the necessary path for Uyghur rights in China, always advocating autonomy never independence, despite contrary claims by the government.

Admittedly, over the past few years, there has been a tragic increase in violent episodes attributed to Uyghur discontent in China. Uyghurs are the ethnically Turkic, predominantly Muslim minority who claim ancient homeland in what is today the northwest Chinese province of Xinjiang, a Chinese word that literally translates as ‘new territory.’

Restive and repressive

Chinese and Uyghur historical narratives have been a source of contention. Uyghurs have suffered from state repression on the basis of cultural, linguistic, and religious rights and been disadvantaged by a number of prejudicial economic policies that favor the majority Han. While Uyghur grievances have sparked unrest in the past, the recent increase of violence is startling.

While the Chinese government has been quick to blame this spate of violence on Islamic radicalization and incitement by foreign forces, which has been used to justify greater securitization, most international human rights organizations point to a systematic assault on Uyghur rights and increasing militarization by the state as causes of escalating instability in Xinjiang.

Commonly reported on are the large-scale outbursts of violence such as the Kunming train station massacre in March 2014 or the Urumqi vegetable market bombing in May the same year, but more common are the countless episodes of everyday resistance and unrest directed at perceived targets of state repression. Many public manifestations begin as small groups of Uyghurs peacefully protest grievances of religious or cultural abuse or in solidarity with a detained friend or relative. This was the case following the questionable death of 17-year old Abdulbasit Ablimit when 17 Uyghur protesters were sentenced to between six months and seven years in prison.

Nonviolent demonstrators are attacked or arrested by security forces, which sometimes leads to radical flanks storming police or government buildings armed with knives and axes, many of whom are then gunned down by security forces and labeled as separatists and terrorists for their outburst. This tends to engender greater resistance to police violence. A similar situation triggered severe unrest in Yarkand in June 2014 that by one account resulted in the death of some 2,000 Uyghurs, although this has not been confirmed.

In such clashes police and government officials as well as civilians have admittedly been killed and no doubt some violent outbursts have been driven by religious fundamentalism, but the uniformity of central government depictions of the cause of violence and the categorical repression of Uyghur dissent challenge the validity of such narratives and fail to address the core instability.

The increase in violent resistance, the ongoing and perhaps escalating crackdown on Uyghur rights advocates, and zero-tolerance for all Uyghur dissent pose two pressing questions.

Firstly, why haven’t we seen more nonviolent resistance by Uyghurs? While Uyghur experts Gardner Bovingdon, James Millward and others have documented nonviolent resistance, it is less frequent than one might expect considering the litany of abuses and grievances generally acknowledged by international organizations.

The silencing of high profile Uyghur rights defenders who advocate for nonviolent resistance has arguably ceded some strategic and intellectual territory to more radicalized forces. The Chinese state seldom discriminates between peaceful and violent dissent among Uyghurs, treating virtually all expressions of grievance as connected to separatist ideology fomented by ‘foreign forces’ and calling for strike-hard campaigns against violent and nonviolent dissent alike.

Secondly, what is the root cause of the rise in violent manifestations in Xinjiang, and how does regime intolerance toward nonviolent resistance impact this? The late social scientist Charles Tilly wrote in Regimes and Repertoires that a government that narrows the openness for tolerated nonviolent civil resistance, such as demonstrations, petitioning or open letters, significantly increases both the likelihood of violent resistance and encourages further violent repression from the state — a cycle of violence.

Acts of dissent, acts of terror

Bovingdon explains in The Uyghurs: Strangers in Their Own Land that in the face of severe repression Uyghurs have for a long time engaged in both nonviolent collective action and everyday resistance, often taking the form of strengthening Uyghur distinctions from Han China and its political order.

Nonviolent civil resistance is more successful in achieving political change than violent insurgencies, explain Erica Chenoweth and Maria Stephan in Why Civil Resistance Works, in large part due to mass participation. Nonviolent movements have fewer barriers to participation, while violent movements have more. As such, state repression aims to increase the costs of participation; repression either constrains resistance or radicalizes tactics toward violence, as movement actors feel they have no opportunity for nonviolent dissent and nothing to lose.

Chinese government rhetoric continues to deny accusations of structural inequality and Uyghur grievances. Ironically, as Millward notes, while “the PRC claims that the Uyghur terrorist problem is foreign in origin, much of China’s effort to combat terrorism is directed domestically at Uyghur cultural expression, thus worsening the Uyghur civil rights problem.”

By claiming that inequality does not exist, delegitimizing Uyghur claims, and circumscribing the available nonviolent channels for Uyghurs to express grievances, CCP policy in Xinjiang continues to engender unrest. The unrest is then labeled as the influence of foreign forces because the government refuses to acknowledge the possible existence of legitimate domestic grievances.

Virtually all Uyghur participation in nonviolent resistance may be labeled as inciting separatism and treated with severe repression, even in the case of those who merely participate in scholarship.

Resistance campaigns begin with cognitive liberation, which is fostered by dissident scholars and inspirational counter-culture figures. They too have been silenced and disappeared, unquestionably affecting the tactics of resistance.

Silencing the Uyghur who speaks

In 1989, Uyghur poet and historian Turghun Almas published a 6,000 year Uyghur history. His scholarship positioned an empowering narrative that contradicted the official Chinese history designed to bolster Beijing’s claims to ancient dominance and to legitimize the Communist trope of emancipating enslaved minorities. The book was blacklisted and Almas was placed under house arrest until his death in 2001. In March 2002, authorities burned countless copies of his book along with thousands of others during raids on bookstalls in Xinjiang.

Two years later, in 2004, Nurmuhemmet Yasin was arrested, found guilty of inciting separatism, and sentenced to 10 years in prison. In 2013, a year before he was scheduled for release, authorities announced that he had died in prison in 2011. His crime had been writing a short story called ‘Wild Pigeon,’ an allegory for Uyghur captivity and abuse in Han-dominated China, an act of symbolic resistance. The magazine editor that published the story received three years in prison.

Abduweli Ayup studied in Turkey and completed his MA in linguistics through a Ford Foundation fellowship at the University of Kansas in 2011. Afterward he returned to Xinjiang and campaigned for Uyghur cultural and linguistic rights. He had a vision to establish Uyghur language kindergartens as a way to resist growing perceptions of assimilationist language policies. He documented his interactions with belligerent officials ‘to let people know how China was treating the status of the Uyghur language,’ said Mamatjan Juma of Radio Free Asia. In August 2013, Ayup was detained and later arrested on spurious charges of ‘illegal fund-raising,’ for selling honey and T-shirts to raise money for his language centers.

Ilham Tohti, with whom we began, was first charged with separatism in July 2014, after months of incommunicado detention. Despite being first detained on January 15, 2014, and constant pleas from his lawyers, he wasn’t allowed legal visitation until June and soon after that meeting one of his lawyers, Wang Yu, was forced out of the case after her law firm was intimidated by the government.

When I first met Mr. Tohti in 2011 he was clear in his discussion of Uyghur rights abuses and unwavering in his commitment to nonviolent resistance as the only strategy for promoting and protecting Uyghur rights. Speaking shortly after the announcement of the charges in July, Nicholas Bequelin of Human Rights Watch told The New York Times that charging Mr. Tohti with separatism “signifies that China is burning all bridges with moderate voices.” Similarly, William Nee of Amnesty International noted, “with violence on the rise in the Xinjiang Uyghur Autonomous Region, it’s difficult to grasp why the authorities would target a prominent Uyghur intellectual known for his commitment to nonviolence and dialogue between ethnic groups.”

Ending the cycle of violence

The Chinese government could do two things to address Uyghur grievances and decrease violent resistance. It could put an immediate end to its categorical repression of all performances of Uyghur resistance, i.e. no longer treating violent and nonviolent dissent alike, and it could immediately release individuals such as Tohti and Ayup who are clear prisoners of conscience.

Detaining and disappearing inspirational figures that advocate nonviolent resistance and moderate rights defense sends a signal to all would-be resisters that no amount of dissent will be tolerated. The state’s refusal either to acknowledge the legitimacy of ongoing grievances or to make structural adjustments, as well as its abusive policies and zero-tolerance toward dissent, will not encourage submission to Beijing’s rule. It will likely radicalize more severe resistance tactics in the vacuum of avenues for nonviolent action and the presence of moderate voices offering cognitive liberation.

The escalating repression of all acts of Uyghur claim-making might portend a deeper feeling of insecurity toward the power or validity of Uyghur grievances by policymakers in Beijing. Gene Sharp has observed that “repression is an acknowledgment by the opponents of the seriousness of the challenge posed by the resistance.” In that sense, one might interpret the brutality of state repression as a response to the Uyghur struggle: the state is actively engaged in decreasing participation in nonviolent resistance and delegitimizing Uyghur grievances by highlighting escalating violence.