‘If I lose my freedom’: How China’s human rights defenders are preemptively resisting forced confessions

Originally published on 16 May 2017 at Hong Kong Free Press, here.

On May 3, police in Yunnan abducted human rights lawyer Chen Jiangang. He was forced to drive with security over 3,000 kilometres back to Beijing. He remained in their custody for over 80 hours, coincidentally missing the trial of his client, Xie Yang, whose torture he had exposed in January.

At his trial, Xie Yang “admitted” to having been brainwashed by foreign agents, and on Hunan state TV he repeated that he had sensationalised cases and denied that he had been tortured. Xie Yang had anticipated his forced confession.

Xie, detained in July 2015, wrote in a January 2017 affidavit, “If, one day in the future, I do confess – whether in writing or on camera or on tape – that will not be the true expression of my own mind. It may be because I’ve been subjected to prolonged torture, or because I’ve been offered the chance to be released on bail…” Soon after his trial, Xie was released on bail, but he is not free.

It seems police abducted Chen Jiangang to ensure his silence during Xie’s trial, but as soon as he was taken, reasonable fears circulated that he would be “disappeared”. Like Xie Yang, Chen’s understanding of the cruelty of China’s police state bred prescience. Three months earlier he had recorded a video statement to be released if he lost freedom. It was published on the China Change website soon after he was taken.

A sombre five minutes, Chen states that he has committed no crimes and won’t accuse others. Any spoken, written, or video confession will only have been made under duress, threat, or torture. If, in the future, he ends up on television accusing others or revealing names, he asks for forgiveness. Emotionally, he ends with, “If I am seized, dear kids, your father loves you. If I lose my freedom, release this video.”

While such prerecorded statements are becoming more common for human rights defenders in China, still more should learn from those like Chen Jiangang that protecting their clients or themselves also involves controlling narratives. Such statements are an important innovation in protection tactics in response to China’s increasing fetish for disappearances and forced confessions.

China is a fan of forced confessions

Forced confessions violate Chinese law and international norms. For those awaiting trial, broadcasting forced confessions violates their right to a fair trial. Many forced confessions come following hundreds of days in pretrial detention, which itself should be the exception, never the rule, and only for the shortest time necessary. The risk of torture is already high in a criminal justice system reliant on confessions, while the pursuit of forced confessions drastically increases the risk. Victims of enforced disappearance and secret detention are especially vulnerable to torture.

Emblematic is the case of my friend and former colleague lawyer Wang Quanzhang, whose exact fate and whereabouts have not been verified since police abducted him in August 2015. In January 2017, it was revealed that he has been tortured. Likely, Wang’s ongoing abuse is largely due to his refusal to perform a forced confession.

Part of the “709 Crackdown,” several prominent human rights lawyers have been forced to deliver televised confessions, from Wang Yu to Zhang Kai, who later disappeared a second time after he publicly recanted his initial forced confession. A couple months earlier, in June 2016, Hong Kong bookseller Lam Wing Kee also revealed that he and his colleagues at Mighty Current publishing had been forced into confessing, including Gui Minhai who remains incommunicado.

In his televised “confession,” Gui, a Swedish citizen, asked not to receive diplomatic assistance and renounced his Swedish citizenship. This has been rightly dismissed as arising from coercion but what if Gui, like Chen Jiangang, had left a video preemptively dismissing such absurdity? For many who disappear into China’s Orwellian darkness, and reemerge to “confess,” their last credible speech act may be what they leave with others, which in turn may offer some protection.

Scholars have identified the dramatisation of glaring state contradictions as creating opportunity for resistance. In practical terms, if preventive protection measures against certain forms of repression are increasingly adopted, the authorities are more likely to abandon them, ultimately protecting human rights defenders from being subjected to them in the first place.

Preventive protection and forced confessions

Video is powerful and rights defenders at risk of disappearance or forced confession should record their statements rather than just writing them down.

Before recording, it is important to conduct a thorough threat assessment, which should be detailed and constantly reviewed and updated.

Once taken, it is often too late to ask that person what assistance they want. Even if allowed to meet a lawyer, pressure often limits what one is able to say. This is why recording in advance is so important. The message depends on the individual. Gui Minhai could have expressed that he had already given up Chinese citizenship and would never renounce Swedish citizenship. For others it could be stating that they would never accept a state appointed lawyer. Some might want to issue a statement about family members, that except if subjected to threat or torture they would never deny access to the family bank account, a measure the state has used to target family members’ economic livelihood.

It is also important that the video preempts likely accusations, such as noting that under no circumstances but duress or torture would one admit to being a criminal, or denounce colleagues. One might state they have never colluded with foreign forces to cause trouble, that they believe in human rights and the rule of law, respect their work, and would never denounce their efforts to strengthen the rule of law in China, except if under threat to do so.

Human rights defenders should make sure they have a safe contact responsible for sharing the video if anything happens. Sorting out power of attorney issues before detention is vital, even if the state is likely to refuse a meeting with lawyers on other grounds. The person responsible for releasing the video, family members, and lawyers should all be in contact and aware of the video statement.

It is a travesty of the rule of law that anyone would need to think of preemptively recording their own defence against baseless charges and forced confessions but if more human rights defenders did so then potentially the power of this repressive measure will ultimately be lost through the unmasking of contradictions.

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Eliminating Statelessness in Southeast Asia

This piece was originally published at The Diplomat on 24 May 2016. Available here.

The government of Myanmar has come under fire this month following Aung San Suu Kyi’s rebuke of U.S. Ambassador Scot Marciel’s reference to the Rohingya, the estimated one million stateless Muslim inhabitants of Myanmar’s Western Rakhine State. Aung San Suu Kyi’s government refuses to fully confront the issue of the Rohingya, who have been denied equal access to citizenship since the passage of the 1982 Citizenship Law. The denial of citizenship has compounded human rights abuses, rising to the crime of genocide, according to an October study by Fortify Rights. The persecution of the Rohingya has deservedly captured increasing international attention in recent years, although greater awareness and mobilization is needed. The plight of statelessness remains a universal challenge.

Around the world, there are an estimated 15 million stateless people. According to the UNHCR, somewhere a stateless child is born every 10 minutes and within the countries hosting the 20 largest stateless populations some 70,000 stateless children are born every year. In 2014, the UNHCR announced its Campaign to end Statelessness in ten years. The same year, the Institute on Statelessness and Inclusion reported that more people in Asia and the Pacific are affected by statelessness than in any other region of the world. How ASEAN addresses this challenge will be key to achieving the UN’s objective of eradicating statelessness by 2024.

The Right to Have Rights

Hannah Arendt, in The Origins of Totalitarianism, calls citizenship the right to have rights, a sentiment which entered jurisprudence in 1958 through U.S. Supreme Court Justice Earl Warren, who wrote that the denial of citizenship is the denial of all claims to protection from any nation.

Modern notions of nationality emerged following World War I through a series of League of Nations treaties, which granted States total freedom to determine how individuals obtained or lost nationality. Such absolutism of State sovereignty changed following World War II with the realization of the degree of harm caused by discriminatory nationality laws, such as the Nuremburg Laws. This realization gave rise to Article 15 of the 1948 Universal Declaration of Human Rights, granting everyone the right to nationality.

Also in 1948, the United Nations commissioned the Study on Statelessness, released a year later. The Study affirmed that eradicating statelessness requires that, “Every child must receive a nationality at birth” and “No person throughout his life should lose his nationality until he has acquired a new one.”

The Convention Relating to the Status of Stateless Persons, adopted in 1954, provides the legal definition of statelessness as “a person who is not considered a national by any state under the operation of its law.” The 1961 Convention on the Reduction of Statelessness followed with more guidance. However, both Conventions remain poorly ratified with only 86 and 65 state parties respectively. The Philippines is the only ASEAN country to have ratified the 1954 Convention.

The right to nationality was further codified in the International Covenant on Civil and Political Rights (ICCPR). However, Brunei, Malaysia, Myanmar, and Singapore are not State parties. On the other hand, all ASEAN member states are parties to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Together they prohibit gender discrimination in matters of nationality, require immediate birth registration, and place an obligation on states to respect the right of the child to preserve identity and nationality.

Statelessness in ASEAN

The 2009 ASEAN Intergovernmental Commission on Human rights (AICHR) and 2010 ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) are both mandated with developing strategies for the promotion and protection of human rights. ACWC is furthermore empowered “to advocate on behalf of women and children, especially the most vulnerable and marginalized, and encourage ASEAN member states to improve their situation” and “to propose and promote appropriate measures…for the prevention and elimination of all forms of violation of the rights of women and children.”

Stateless people are indisputably among the most vulnerable and marginalized and international norms make explicit reference to women and children’s equal right to nationality. As such, AICHR and ACWC appear to have a mandated obligation to play a leading role in the elimination of statelessness in ASEAN, especially in ensuring birth registration and the elimination of gender discrimination in nationality laws.

One of the challenges to a regional approach is the lack of a unified definition of statelessness in domestic laws. The 1954 Convention provides the legal definition but the failure to ratify or implement in domestic laws provides countries with maneuverability. The Philippines offers the best example, having enacted the Convention and definition into domestic law in 2012. Vietnam and Laos provide a definition for stateless persons but do not go as far as the Philippines in implementing protections. The refusal to implement the accepted international definition in Myanmar, for example, has contributed to the State narrative that Rohingya do not qualify for protection as stateless because they are migrants from Bangladesh.

Birth registration, a human right vital for protecting against stateless, is not equally guaranteed throughout ASEAN. Cambodia provides a best practice in birth registration campaigning. In 2000, only around 5 percent of Cambodian births were registered. The Ministry of Interior, with support from UNICEF and others, initiated a pilot program involving more than 13,000 people who had received specialized training in birth registration. Within the first ten months of the program over 7 million adults and children were registered. Subsequently birth certificates were issued free of charge within 30 days of birth and only a small fee was incurred for late registration.

However, the 1996 Nationality Law offers no definition for statelessness and ambiguity in language implies that Khmer ethnicity may be a prerequisite for citizenship. Despite birth registration campaigning, several thousand stateless people remain in Cambodia.

Prohibitive costs for birth registration, requirements for documents that are sometimes unavailable or nonexistent, and associated costs of transportation or hospital fees, contribute to statelessness as well. Such obstacles often remain even after well-meaning policies have been adopted.

In Thailand, the 2005 National Strategy on Administration of Legal Status and Rights of Persons and 2008 changes in the Nationality Law ostensibly provided undocumented and migrant children, including stateless children, the right to attend primary and elementary school. Unfortunately, transportation or uniform costs continue to make education prohibitively expensive. Similarly, according to Children of the Forest, a child protection organization that works with stateless children and trafficking victims at the Thai-Myanmar border, among the common ways that children there become stateless is that parents will leave the hospital before registration because they couldn’t afford hospital services. Failure to register at the time of birth significantly increases the burden of registration at a later date. In 2015, the Thai government reported that over 18,000 previously stateless people had been given Thai nationality over the preceding three years. However, concerns over remaining obstacles in Thailand and elsewhere remain.

Gender discrimination in nationality laws is a significant contributor to statelessness. In Malaysia, although men and women confer nationality equally, children of Malaysian mothers born abroad only obtain citizenship at the discretion of the Malaysian Government. Mothers in Brunei have no right to pass nationality to their children. In a positive move, Singapore, in 2004, and Indonesia, in 2006, amended their nationality laws to permit mothers to pass citizenship to their children.

Three Approaches for the Elimination of Statelessness

The UNHCR acknowledges that some of the safeguards within the 1961 Convention have been enacted by ASEAN Member States. Still, accession to the two Conventions would provide the clearest framework for adapting national laws and policies to identifying, protecting, and eradicating statelessness within ASEAN. Although this is unlikely any time soon, there are three arguably more achievable measures that would strengthen the efforts to eradicate statelessness: empowering regional human rights bodies; emphasizing birth registration; and eliminating gender discriminatory nationality laws.

ASEAN created and empowered the AICHR and ACWC with a relatively robust mandate but they suffer from the lack of independence and weak enforcement capabilities. ASEAN’s Commitment to human rights, as expressed through the 2004 Vientiane Action Program and subsequent treaties, calls for strengthening such mechanisms.

This includes encouraging and working with States to withdraw reservations and amend laws that violate the right to nationality and birth registration, and localizing the legal definition of statelessness.

While civil society organizations are sometimes invited to regional consultations, the AICHR and ACWC remain under government authority. State representatives are largely coordinated by respective ministries of foreign affairs and not by national human rights institutions. Of course, national human rights institutions are not necessarily independent, as demonstrated in Myanmar and Thailand. However, AICHR and ACWC representatives from Indonesia, Thailand, and the Philippines have attempted to work around certain political obstacles by involving civil society and individual human rights defenders in the drafting or evaluation process, at times, and should be encouraged to do more so in terms of nationality issues.

Empowering regional human rights bodies to take a more active role in the identification and elimination of statelessness may also require the improvement of complaints mechanisms. Specifically, regional human rights bodies with a mandate over CEDAW and CRC should have specialized training and procedures for hearing complaints of arbitrary denaturalization, denial of nationality at birth or obstacles to birth registration.

The establishment of a regional human rights court would provide another forum for investigating and prosecuting the widespread or systematic arbitrary denial of nationality or grave human rights violations arising from the denial of nationality.

Registration at birth is of paramount importance. The ACWC mandate implies a role for the organization in birth registration campaigning and, in cooperation with child protection and gender experts, it should arguably take a more active role in harmonizing birth registration laws and advising campaigns throughout the region.

Drawing from Cambodia, efforts at raising awareness through television and radio should be maintained while other channels should be investigated and utilized. Public education during popular holidays would likely reach larger audiences. Because of challenges of birth registration campaigns reaching hill tribes or remote regions of Thailand, for example, efforts should be made to identify new strategies for locations or times of greatest community congregation. Registration campaigners should also concentrate around markets, where women may be likely to congregate. Campaigning should be increased around holidays when people from more remote areas are most likely to be present or when weather is more amenable to travel.

In order to address financial and administrative obstacles, a regional funding mechanism could be piloted to offset the costs of birth registration, including associated transportation costs. A period should be designated when birth registration is free, and after that waivers should be made available for the extremely poor.

There is also a role for innovative technology. Digital birth registration programs point to innovation in improving registration and archiving records.

A robust regional investigation into gender-based discrimination in nationality laws is a fundamental component of addressing statelessness. A widespread gender-based assessment of equal access to nationality should be conducted throughout ASEAN. Member states, especially Singapore and Indonesia, should work with Malaysia and Brunei to amend their Nationality Laws to abolish gender discrimination. Based on their mandates, this presents a strong opening for AICHR and ACWC involvement.

Admittedly there remain serious social and political obstacles to eradicating statelessness. Such obstacles have been reproduced through decades of structural violence and historical narratives of exclusion. The involvement of United Nations experts or foreign governments is not always greeted with fanfare. But ASEAN has made specific commitments and empowered regional bodies with a mandate to promote and protect human rights. Identifying and eradicating statelessness in ASEAN cannot be seen as a foreign imposition, as the government of Myanmar claims, but as an obligation inherent in the ASEAN Charter and within the mandate of regional bodies for the full realization of human rights for all.

Taiwan: Can Tsai Ing-Wen Change the Politics of Death?

This article was originally published at the Diplomat on February 10, 2016.

Following Tsai Ing-wen’s electoral victory last month, KMT lawmakers have been challenging Ms. Ing-wen, who will be inaugurated as Taiwan’s first female president on 20 May, and her Democratic Peoples Party on several issues. Among them, Ms. Ing-wen has been demanded to reveal her stance on the abolition of the death penalty. While capital punishment remains relatively popular in Taiwan, Lin Hsinyi, Executive Director of the Taiwan Alliance to End the Death Penalty, has pointed out that none of the KMT lawmakers who attacked the DPP over the abolition of the death penalty have been reelected. For her, “this congress is more friendly to human rights.” What will this mean for the death penalty in Taiwan?

In early June 2015 six death row inmates were executed at four locations around Taiwan. Their executions attracted some positive domestic attention but raised numerous concerns internationally. Taiwan has come under criticism several times by international human rights organizations for failing to adhere to procedural guidelines and the apparent use of capital punishment for political purposes. Such accusations could amount to violations under international law but this could change with Tsai Ing-wen and the DPP, which has tended to support abolition.

The Politics of Death

The Taiwan Alliance to End the Death Penalty (TAEDP) has observed that, “all the executions since 2010, when the four-year moratorium was lifted, took place when the government approval rate was low.”

Taiwan had a moratorium on capital punishment from 2006 to 2010.

In March 2010, then Minister of Justice Wang Ching-feng voiced support for the abolition of capital punishment and stated she would refuse to sign any execution warrants. This fueled a pro-death penalty social movement lead by entertainer Pai Ping-ping whose daughter had been murdered in 1997 and lead to Wang’s resignation. Tseng Yung-fu assumed the role of Minister of Justice and reinstated the death penalty. In April, negotiations surrounding a trade agreement between China and Taiwan caused high public disaproval. On 30 April 2010 the first executions since 2006 took place.

The Ministry of Justice consistently denies allegations of impropriety but has refused to provide records of its meetings on death row inmates or the criteria for deciding the timing of an execution.

There have been executions, timed around episodes of low government approval, every year since the moratorium was lifted. The executions in June are emblematic.

In March 2015 four subway commuters were killed in Taipei and in May an 8-year-old girl was killed at her school. Public outcry demanded the death penalty for the attackers. Abolitionist politicians and rights campaigners were harassed and threatened. In early June, then opposition party chairperson, Tsai Ing-wen drew considerable domestic media attention for a high profile trip to the United States, at the expense of the already unpopular KMT. Amid public outrage over the heinous murders and growing popularity for the opposition party, the timing of the 2015 executions is suspect. There were also several legal irregularities.

The initial list of those to be executed included Chiou Ho-shun, who had been sentenced in 1989 following four months of secret detention and reports of being tortured into confession. Amnesty International has repeated called for his release.

Three of the men who were executed, Huang Chu-wang, Wang, and Cheng Chin-wen, had filed special appeals on the day of their executions. This could reflect either a cursory or non-existent review. There has never been a successful case of a death row inmate filing a special appeal or commutation.

Lawyers for the three inmates were not notified of the rejection of appeal until after the executions. More concerning, two of the men executed in June, Wang Hsiu-fang and Wang Chun-chin, had no legal representation at their final trial before the Supreme Court.

Taiwan’s Criminal Procedure Code does not guarantee legal defense for final appeals. In 2012 a draft was proposed that would change this in cases involving a minimum punishment of three years but it has not yet become law. Many current death row inmates did not have lawyers at their final trials.

In 2012, the final appeal retrial in one death row case found the three defendants not guilty of the 1991 murder for which they had spent more than 20 years in prison.

This raises concern over the right to a fair trial, which includes the right to legal defense and appeal. If political calculations have been behind the timing of executions since 2010, it could constitute an arbitrary imposition of the death penalty, which would amount to a violation of the right to life.

International law does not explicitly ban capital punishment but places strict procedural guidelines on those countries that have not abolished the death penalty.

Taiwan and International Law

In 2009, Taiwan announced the ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Taiwan is not a State Party to the United Nations but effective ratification was accomplished through the Implementation Act, establishing that all domestic law align with the Covenants.

Article 6 of the ICCPR guarantees the right to life and protection from arbitrary loss of life. It prohibits the death penalty when it may constitute a violation of other rights, most notably the prohibition against torture.

Preventing the arbitrary deprivation of life requires that any decision to impose the death penalty must be narrowly circumscribed by clear and transparent principles in line with the Covenant.

This requires strict adherence to Article 14’s right to a fair trial. The Human Rights Committee has noted that, “the imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life.”

Anyone sentenced to death is entitled to seek pardon. This is enshrined in ICCPR Article 6(4). Number 8 of the 1984 Safeguards guaranteeing protection of the rights of those facing the death penalty adds that no execution shall be carried out pending an appeal, pardon, or commutation. The right to seek pardon carries the expectation that in some circumstances a pardon may be granted, otherwise the right is relatively empty.

Although not legally binding, UN General Assembly resolution 65/206 calls upon all states to “make available relevant information with regard to their use of the death penalty, which can contribute to possible informed and transparent national debates.” This is important for ensuring a fair trial and strict adherence to procedural rules at every stage of the process, from the initial trial to final appeal and scheduling of the execution.

Tsai Ing-wen’s Challenge

While advocates for the abolition of the death penalty have felt Tsai Ing-wen hasn’t been explicit enough in her position, KMT lawmakers have challenged her for supporting abolition. Such with Alex Tsai, for example, who was quite vocal on pro-death penalty issues during his campaign but was ultimately not reelected. Such failure for pro-death penalty lawmakers points to a possible decrease of importance for maintaining the death penalty for voters. This presents the best opening for a return to a moratorium and steps toward abolition without sacrificing political capital for the DPP.

Tsai Ing-wen is likely to face conflicting pressure moving forward, says Hsinyi of TAEDP. The new president may face public pressure to carry out an execution from those in favor of continuing the death penalty.

On the other hand, there is international pressure. In 2013, Taiwan received a delegation of independent experts to review its implementation of the ICCPR and ICESCR. The second review will take place in early 2017 and the death penalty is likely to be a high priority. If Tsai Ing-wen wants to demonstrate her commitment to human rights she will need to consider Taiwan’s implementation of the two Covenants.

Who Tsai Ing-wen appoints as the Minister of Justice is among the first key indicators. Lawyer Gu Lixiong, known for his support for abolition, was assumed my many to be a likely appointee but his election into the Legislature rules him out.

In 2009, abolition minded Justice Minister Wang Ching-feng created a working group on the death penalty, which included NGOs, lawyers, and academics. Although the working group was dismantled shortly after her resignation, Tsai Ing-wen has been advised to reestablish such a working group, which could also support public education and participate in a national dialogue on abolishing the death penalty.

Even if abolitionist minded lawmakers are able to float a bill, there’s too little understanding and support for the passage of any such law, which is where the importance of such a working group can be seen.

Moving Forward

Until a more thorough investigation into the use and potential political abuse of the death penalty, Taiwanese human rights groups say Tsai Ing-wen should announce an immediate moratorium. She should promise to more closely implement the ICCPR and encourage the Legislative Yuan to establish a National Human Rights Commission in line with the Paris Principles. Although in December the Executive Yuan granted a Freedom of Information Request filed by TAEPD last August requesting the Ministry of Justice to reveal its decision making process on signing execution orders, the system remains far from transparent. How Tsai Ing-wen responds to these issues leading up to and following her inauguration in May will matter.

The Truth About Myanmar’s New Discriminatory Laws

This article was originally published 26 August 2015 at The Diplomat. Available here.

Last Thursday, Myanmar’s parliament approved the remaining two of four “Protection of Race and Religion” bills. ASEAN Parliamentarians for Human Rights Chairperson Charles Santiago prefers to call them the “Race and Religion Discrimination bills.” Their passage—which would allow local governments to impose a host of repressive measures—comes at a time of ongoing racial and religious discrimination and violence, part of a concerning trend in systematic Rohingya persecution. It is only more alarming as it coincides with the widespread disenfranchisement of previously registered Rohingya voters, including former parliamentarian U Shwe Maung.

These bills are inconsistent with international norms and standards and represent a clear violation of Myanmar’s obligations under the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Myanmar is a party to both conventions. The bills are likely to not only legitimize anti-Muslim sentiment but also provide a legal framework for increasing discrimination of Rohingya.

The package of laws has been a long time coming. They were first proposed following the establishment of the nationalist Buddhist organization known as Ma Ba Tha, which presented them as a draft to President Thein Sein in mid-2013. In December 2014, the laws were tabled for parliamentary debate beginning in January. Civil society and the international human rights community campaigned against their adoption and encouraged the Government of Myanmar to observe its human rights obligations rather than succumbing to nationalist hysteria.

Despite such concerns, in May the Population Control Healthcare Bill was the first to be approved. UN Special Rapporteur on the Situation of Human Rights in Myanmar,Yanghee Lee cautioned that the “Protection of Race and Religion” bills “risk deepening discrimination against minorities and setting back women’s rights in Myanmar.”

The bill grants regional officials the ability to establish 36-month birth spacing for target groups. The bill lacks human rights safeguards and raises serious concerns for abuse against Rohingya Muslims, who have already been subjected to decades of similarly abusive local orders.

Muslim couples that wish to marry must obtain official approval, which can sometimes take years to secure and require bribes. The Two Child Policy requires them to sign an agreement that they will not have more than two children, under threat of fine or imprisonment. The policy has led to amateur abortions that threaten women’s lives, influenced the number of women refugees, and led to the birth of blacklisted children who may never be registered, explains Engy Abdelkader, an expert on freedom of religion with the OSCE. The CRC requires birth registration and establishes the right to a nationality and identity, noting that the state is obligated to ensure these rights “in particular where the child would otherwise be stateless.”

The desire to control Muslim populations in Myanmar comes from the widespread belief in the Buddhist-majority country that Muslim communities have exceedingly high birthrates and are planning a population takeover. However, as Abdelkader points out, based on official government data, researchers at Harvard University have revealed that Rohingya actually have one of the country’s lowest population growth rates. Unconvinced by such data, Ma Ba Tha founder and ultra-nationalist monk U Wirathu continues to infuse his Buddhist millenarian sermons with narratives of Muslim population growth, and the forced conversion or widespread rape of Buddhist women.

In July, parliament passed the Buddhist Women’s Special Marriage Bill, which requires Buddhist women and men from other religions who wish to marry to register their intention publicly. They may only get married if there are no objections. It will apply retroactively to existing unions who must register as interfaith marriages. This violates the universally recognized rights to marriage and privacy, as well as equal protection of the law by applying only to Buddhist women and non-Buddhist men. It is a blatant attempt to curb interfaith marriages says Phil Robertson, deputy Asia Director for Human Rights Watch.

The justification for protecting Buddhist women in marriage appears to arise from a gender discriminatory narrative that equates women with purity and assigns a patriarchal society with the task of protecting a Buddhist women’s purity at the expense of her agency.

In August, parliament approved the final two bills, the Religious Conversion Bill and the Monogamy Bill. The conversion bill requires anyone who chooses to change their religion to apply with a district level “Registration Board,” submit to an interview and a 90-day waiting period. Such restrictions violate the right to freedom of thought, conscience and religion and the right to freely have or adopt religion. It is an assault on privacy, also found in the monogamy bill, which targets religious minorities who are often seen as sexual deviants.

According to Human Rights Watch, at least the most recent bills are still awaiting final signature by President Thein Sein. As the November election approaches he will likely come under increasing pressure, along with the rest of his USDP Party, from Ma Ba Tha to enact them into law.

Throughout the drafting period and especially once the package of bills was introduced to parliament, Ma Ba Tha was active in campaigning for their enactment. In October, U Wirathu organized thousands in Mandalay to demand the passage of the bills. May Sabai Phyu, a human rights defender and member of the Kachin ethnic minority, revealed that Ma Ba Tha challenged parliamentarians who did not approve the bills. Senior monks told their congregations not to vote for those who did not support the bills. Some critics were labeled “traitors” and at least four civil society leaders reported receiving death threats.

Article 364 of Myanmar’s Constitution forbids the abuse of religion for political purposes, and several sections of the Penal Code criminalize deliberate assaults on religious feelings and the incitement of hatred or violence against racial or religious groups. However, there has been no investigation into these activities.

One problem that remains seemingly unanswered, as pointed out by Amnesty International and the International Commission of Jurists, is whether and how the bills would apply to non-citizens. This is a particular concern for the Rohingya, who have been denied citizenship and subjected to unofficial discriminatory local orders for decades.

When asked whether non-citizens living in the country would be burdened with the requirements under the religious conversion or the marriage bill, U Win Mra, Chairman of the Myanmar National Human Rights Commission, merely stated “that it is a very complicated thing, which the state must consider carefully.” The inability of the national human rights commission to conclusively dissuade concerns that the law would disproportionately target non-citizens raises serious concerns about implementation.

For Wai Wai Nu, a Rohingya rights defender and founder of Women Peace Network Arakan, there is little uncertainty. For her, the central government’s intent with the adoption of the “Protection of Race and Religion” bills is precisely to legalize discrimination.

In Myanmar, students test the sincerity of democratic transition

Originally published at openDemocracy on 10 June 2015. Also available here.

Students demand change in Myanmar. Creative Commons. Some rights reserved.

Students demand change in Myanmar. Creative Commons. Some rights reserved.

In Myanmar, as university students around the world begin to exalt their summer freedom, a national student movement continues to demand greater political freedom. At the end of May 2015 Myanmar’s parliament was still discussing proposed amendments to a National Education Law put forth by a coalition of student groups. The students have expressed their concern over the lack of academic freedom and the centralized control inherent in the law, which was passed in September 2014. Since its adoption, students and other activists have been campaigning around the country. In many ways, the struggle around education reform can be seen as a prism through which to assess the sincerity of democratic transition in Myanmar today.

It began in March 2014 with the release of the draft law. Later, a national coalition of student groups issued an 11 point manifesto. They demanded, among other things, student representation in enacting education legislation, teaching that ensures the freedom of thought, multilingual education for ethnic minorities, inclusion of children with disabilities, and the expansion of compulsory education from primary school to middle school. In November 2014, students in Yangon, the capital, issued a statement explaining that if the government failed to negotiate within 60 days there would be nationwide mobilization.

With little progress toward their demands, on January 20, 2015, they held true to their word. Several hundred students from Mandalay and elsewhere began marching the some 400 miles to the capital to demand negotiation. Less than a week later the government agreed to hold four-party talks. As a show of faith several of the groups marching on Yangon agreed to halt their processions. However, after only a few days the talks stalled. More than 250 civil society organizations pressed for their resumption and several protests were staged around the capital in solidarity with the marching students.

Sustained pressure appeared successful in mid-February when government negotiators surprisingly agreed to the students’ demands. A few days later a new version of the law was sent to parliament for discussion.

Throughout the months of demonstrations students overwhelmingly maintained nonviolent discipline with one noting: “we don’t have any weapons, not even a needle, so if there is a crackdown we will just have to bow our heads and face it.”

A tradition of student activism

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

These students are following a long tradition of student-led nonviolent civil resistance dating back to pre-independence Myanmar. Not long after General Ne Win’s March 1962 coup, students at Yangon University began demonstrating against the military dictatorship and the sudden loss of academic freedom. In early July that year, the military cracked down savagely, massacring between 100 and 1000 students and dynamiting the student union building, the epicentre of student activism since the colonial period. There would be no student unions again until 2010.

In 1974, following the death of U Thant, the United Nations Secretary General from 1961 to 1971, the regime denied him a burial with honours. Thousands of students and monks seized his body and marched to Yangon University, where they buried him close to where the student union stood. The armed forces soon drove tanks onto the university campus and exhumed his body. Upwards of 4,500 students were arrested in the ensuing melee, and some 100 were killed.

Student mobilization was salient in the better-known 1988 pro-democracy movement from March to August. In Unarmed Insurrections, Kurt Schock calls this period the “Rangoon Spring” — Rangoon is the former name for Yangon — in reference to the 1968 Prague Spring, a brief period of political liberalization in Czechoslovakia that ended with military intervention. Amnesty International even established a short-lived office in Yangon at this time. But by September the state responded with pure brutality. The military assumed control under General Saw Maung and the State Law and Order Restoration Council (SLORC). More than 3,000 were killed by the end of the month. Human Rights Watch’s Asia Director, Brad Adams, has called the ongoing impunity for these mass killings an unaddressed wound challenging the rhetoric of reform.

The inspiration and guidance of what became known as the 88 Generation would inspire incremental episodes of resistance and repression that followed. And in 2007, scattered demonstrations that began in April spread around the country reaching around 100,000 demonstrators in Yangon on September 24. This episode is known as the Saffron Revolution, in reference to the overwhelming presence of bright orange and red-clad Buddhist monks among the demonstrators. The spread of images, made possible by social media, of police and military savagely beating monks contributed to the international outcry and condemnation of the regime. In addition to monks, students made up sizeable numbers, as new student organizations such as Generation Wave, inspired by the 88 generation, began to organize and innovate strategies of resistance.

The government loses patience

Myanmar police stage crackdown. Thet Htoo/Demotix. All rights reserved.

Myanmar police stage crackdown. Thet Htoo/Demotix. All rights reserved.

Despite a long tradition of student-organized civil resistance, those who began in November 2014 exhibited a stark difference with their predecessors. They were engaging in collective action in an ostensibly democratizing Myanmar.

In November 2010 Myanmar held its first general election since 1990, although they took place amid concerns of intimidation and corruption, as well as laws that strongly favored the military. International election monitors and foreign journalists were banned. Anyone serving a prison sentence was barred from party membership, a questionable regulation in light of the more than 2,000 political prisoners. In April, Lieutenant General Thein Sein resigned from the military and formed the ‘civilian’ Union Solidarity and Development Party (USDP), absorbing several military organizations. USDP won vast Parliamentary representation. A week later Aung San Suu Kyi was released from house arrest, although she is still banned from running in the 2015 election. In the years following, Thein Sein released hundreds of political prisoners and has presided over certain welcome legislative reforms. In response, the United States and European Union have restored diplomatic relations and lifted decades of economic sanctions.

In light of this narrative of political liberalization, one would have hoped that the negotiation of a National Education Law would comport with Thein Sein’s attempts to maintain legitimacy by appearing more sympathetic to political reform. Unfortunately, after the student’s preliminary successes at convincing the Parliament to review their demands, the trajectory began to take a familiar arc.

In February 2015, even as positive negotiations were under way in the capital, several hundred security personnel were being deployed along the route of those marching south from Mandalay. Kyaw Thet, a student from Pathein, about 60 miles from Yangon, told The Irrawaddy: “if they shoot, we will be hit… We have no plans to back down, but we want to say there is no benefit to anyone if violence is used against students. If the government agrees to our demands, we will call off our strike and go home.”

Despite the agreement at the four-party talk, it soon became clear that the Parliament would not welcome student representatives. A few days later the government warned that action would be taken and Minister of Home Affairs Lieutenant General Ko Ko cautioned the organizers that demonstrators would be considered a threat to national stability. On February 16 two foreign freelance journalists were expelled from the country for documenting protests. In early March, police in Letpadan, about 85 miles from Yangon, surrounded the students marching from Mandalay. A tense standoff ensued with students demanding to continue, and the police, who outnumbered them 5 to 1, refusing to abandon their blockade. In Yangon, police assaulted a small group of activists on March 5 who had gathered in solidarity with those at Letpadan. Then, despite the authorities and students appearing to have reached a consensus in Letpadan, violence erupted on March 10.

In a move that was widely condemned by human rights organizations and governments, police and hired thugs, armed with truncheons and riot gear, mercilessly beat back the some 200 assembled students. Some passed out and others were badly cut from barbed wire or suffered broken bones, some were dragged into trucks, chased into the fields, or later snatched from their homes at night. The police also chased away journalists from documenting the abuse but evidence quickly spread through traditional and social media, such as the “We Support Myanmar Students” Facebook page, which, at the time of writing, has generated more than 25,000 likes. Soon afterwards, the Ministry of Information claimed to have arrested 127 people.

By truncheon or by gavel, the law as a repressive tool

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

The police violence at Letpadan, although thankfully low in casualties, bears a striking similarity to the state-sponsored violence of previous military governments. It is a disturbing return to past tactics of repression, says Human Rights Watch. But what seems equally, if not more troubling, is the instrumentalization of domestic law as a repressive tactic. This is part of what Thomas Risse and Kathryn Sikkink call a tactical concession. Repressive regimes will make certain concessions such as signing international treaties, passing new legislation, or releasing a few political prisoners. They do so to attempt to gain a little standing in the international community, to get human rights organizations off their backs, while not necessarily fully implementing such reforms. What this often means is that repressive regimes favour political crimes and show trials over mass killings or disappearances. It is a midpoint between traditional state repression and rule-consistent behaviour.

Of the 127 people arrested over Letpadan some 70 were later charged, such as Po Po, who had evaded initial detention but was rounded up in the weeks following. After the crackdown, the 20-year-old history student Po Po had gone home, where she was arrested on April 8 and brought to the infamous Insein Prison, while many others were held at Tharrawaddy Prison. Most of them have been charged with violations of the Penal Code and Peaceful Assembly Law, some facing the possibility of 10 years in prison. Enraged by the audacity of the state, activists and students in 11 cities around the country carried out protests in solidarity with the detained, prompting further arrests and charges of violating the outdated Penal Code.

The previous UN Special Rapporteur on the Situation of Human Rights in Myanmar, Tomás Ojea Quintana, has called for the abolition or amendment of the antiquated Penal Code, in many ways identical to when it was first enacted in 1860, to ensure that it complies with international human rights standards if there is to be a transition to democracy. Assessing Myanmar’s transition should be based on far more than the upcoming election. As we move closer to the November election we should remain cognizant of the growing numbers of activists behind bars who have done nothing more than engage in nonviolent civil resistance.

In testimony to premature talk of transition, the number of political prisoners since Thein Sein’s much touted amnesty at the end of 2013 has actually increased by nearly 600 percent, according to some figures – the vast majority of whom have been placed behind bars for their parts in various nonviolent campaigns, for violations of the Penal Code and the 2011 Peaceful Assembly Law. This law requires, in Article 18, that organizers obtain permission from township police chiefs five days prior to any demonstration and for any slogans or signs they intend to display. Each violation is prosecutable based on township, which means the students marching from Mandalay could theoretically be charged with a violation for each township they passed through without prior permission. As an indicator of scale, there are 33 townships in Yangon alone. A coalition of more than 50 activists and civil society organizations have been campaigning for years to amend Article 18. The group includes the 88 Generation Peace and Open Society and Generation Wave.

“I would say that Article 18 is related to everything, every issue. Because when people are repressed, while people’s rights are violated, they must have the right to express themselves.” Over an avocado smoothie at a roadside café in Yangon I speak with Moe Thway, co-founder of Generation Wave, one of the more active student movements that came out of the Saffron Revolution, about the detrimental impact of the Peaceful Assembly Law. “My worry about Article 18 is the first rank. It is the most important thing because it is the freedom of expression.”

The freedom of expression is a fundamental right enshrined in Article 19 of the Universal Declaration of Human Rights, which in Article 20 also recognizes the freedom of peaceful assembly and association.

Reform must come from below

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Students have been mobilizing around the country, seizing the right of free, peaceful expression and assembly by protesting, marching, sending open letters, engaging through social media, and negotiating with the state. Those who have been beaten and detained are engaged in active civil resistance to renegotiate the meaning of political participation in a changing Myanmar. In many ways, it is about more than just the National Education Law. In their expression of resentment toward the state, and in the level of national coordination unachieved in decades, the opportunity for civil society to influence social or political policy in Myanmar is great, even in the face of Thein Sein’s demonstrably thin commitment to democratization.

While much of the international attention regarding democracy in Myanmar remains focused on whether Aung San Suu Kyi will be allowed to participate in the elections in 2015 or who will be the next president, the real hope for transition in Myanmar arguably rests with the burgeoning civil society seizing every political opening to demand accountability. The movement around the National Education Law has managed to do what few in Myanmar have achieved since independence: to create a lasting national, cohesive social movement united around a core set of grievances and demands. Students, monks, and other civil resisters will continue to face repression from the state. But Myanmar’s desire to reconnect to the world after more than two decades of isolation also guarantees that the state will be forced to make increasing tactical concessions, leaving further openings for civil resistance.

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.

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.