China's Human Rights Lawyers

Advocacy and Resistance

Eva Pils

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781134450688
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

This book offers a unique insight into the role of human rights lawyers in Chinese law and politics. In her extensive account, Eva Pils shows how these practitioners are important as legal advocates for victims of injustice and how bureaucratic systems of control operate to subdue and marginalise them. The book also discusses how human rights lawyers and the social forces they work for and with challenge the system. In conditions where organised political opposition is prohibited, rights lawyers have begun to articulate and coordinate demands for legal and political change.

Drawing on hundreds of anonymised conversations, the book analyses in detail human rights lawyers' legal advocacy in the face of severe institutional limitations and their experiences of repression at the hands of the police and state security apparatus, along with the intellectual, political and moral resources lawyers draw upon to survive and resist. Key concerns include the interaction between the lawyers and their bureaucratic, professional and social environments and the forms and long term political impact of resistance. In addressing these issues, Pils offers a rare evaluative perspective on China's legal and political system, and proposes new ways to assess domestic advocacy's relationship with international human rights and rule of law promotion.

This book will be of great interest and use to students and scholars of law, Chinese studies, socio-legal studies, political studies, international relations, and sociology. It is also of direct value to people working in the fields of human rights advocacy, law, politics, international relations, and journalism.

1 Perspectives on human rights advocacy in China

The lawyers at the centre of this book represent a small number – probably fewer than one in a thousand licensed lawyers in China; and of these 200 or so (in absolute numbers),¹ a significant number have already been barred from practicing. Their professional advocacy is ridden with failures. Their political influence would be nil but for the people they represent and work with. They themselves are at constant risk of being detained, harassed and abused.

Yet they play pivotal roles, both in China’s legal practice and in political resistance against its current Party–State system. Their advocacy shows that although the Party–State is organised on Leninist principles, this system cannot be understood without attention to the rights it purports to protect (and sometimes does protect). Chinese rights lawyers’ work also challenges the view that ‘human rights’ stands only for inefficacious international institutions, culturally detached advocacy, or a simply obsolete idea; it shows that the values underpinning rights and law are of abiding appeal in China today. An account of their efforts therefore not only affects the evaluation of China’s legal and political system, but also allows us to assess domestic advocacy’s challenges to transnational civil society and international human rights diplomacy from new critical angles.

External perspectives on human rights advocacy in China

The principle that public power must not violate rights justifies the immense coercive power of the State;² and therefore all rights advocacy challenges government power at some level. The right not to be tortured is a good example; it supports criticism of governments that torture people. Although different theories of human rights diverge in many ways, including on the question of what rights are most central and deserve to be called ‘human rights’, they lead to similar conclusions when the violation of certain basic rights is concerned. The argument about torture, for example, is that it undermines human capabilities and human agency,³ that in many instances it unjustifiably inflicts (physical) pain;⁴ and that it violates the ‘right to be regarded as a human being whose dignity fundamentally matters’.⁵

Lawyers’ human rights advocacy is most centrally associated with the uses of procedures and channels provided by domestic systems and the international community to decide whether power exercise in specific cases was justified. It is this sense of advocacy that matters most to Chinese human rights lawyers’ work discussed in this book, whereas claims for State provision of welfare is less central to it. (Transnational NGOs’ work, focusing on the equally important task of monitoring and exposing abuses, is important for example through monitoring what happens to domestic rights defenders and on occasion by providing material support.) Viewed from an international perspective, domestic rights advocacy can localise challenges to specific government authorities. Again, torture is a good example. Some 35 years ago any rights-based criticism of torture in China came largely from outside the country;⁶ but today, as the State has publicly recognised the right not to be tortured and carried out legal reforms creating institutionalised complaint channels, it comes also from legal professionals who are in a sense part of the system they fight, and who complain, for example, about torture that occurs in police detention centres, prison cells and – sometimes – even courtrooms.

In repressive systems, human rights advocacy invariably edges toward political resistance, since the political morality that supports the idea of human rights holds political obligation – a duty to obey the laws of the political community – to depend on respect for such rights, which the repressive system denies. The idea of a right to resistance to tyrannical government derives from this argument.⁷ It is reflected in the 1789 Declaration of the Rights of Man and the Citizen,⁸ as well as in the 1948 Universal Declaration of Human Rights,⁹ for example. A total violation of all obligations to protect human rights – entailing the breakdown of corrective mechanisms such as court adjudication – can justify not only domestic resistance but even, at least as an abstract possibility, foreign intervention.¹⁰

It is therefore of relevance not only to historians that international and transnational organisations and governments have consistently described China’s human rights record as bad, on its own and in international comparison. Substantive criticism was advanced in the 2009 and 2013 Universal Periodic Review (UPR) processes, for example,¹¹ the ‘inconsistent, eclectic [and] incomplete’ nature of this process notwithstanding.¹² UN Special Rapporteurs such as Manfred Nowak in 2006 have also been sharply critical¹³ and individual States such as the United States of America and Sweden publish their own annual reports on countries including China;¹⁴ detailing many instances and aspects of (reported) human rights violations on the part of the Chinese State.

There is, of course, controversy about how appropriate criticism of the Chinese government for its human rights record is, or even about whether it is appropriate at all, given that China is a non-western country, a developing country and emerging economy, and a country whose government explicitly rejects political liberalism. This controversy can in my view never get away from the more basic question of whether human rights are important in China; but then, in addition to concerns about criticising the Chinese government, there has also always been a more global and profound kind of scepticism about the idea of (human) rights. From Bentham’s early positivism to Marx, Marxist, Marxian and various ‘postmodern’ views of law, critics have regarded rights either as derivative creations of law, which, in turn, is sourced in political power; or as potentially deceptive expressions of power relations that law and rights serve to support, rather than challenge or change. Some scholars in these traditions have argued that human rights are late expressions of imperialism and that ‘global neocapitalism and human-rights-for-export are part of the same project’, for example.¹⁵

Lastly, not only scholars who reject the idea of rights, but also some scholars who are sympathetic to it have described it as part of a secular faith. Thus Koskenniemi, who has argued that international law is in crisis, has also expressed the hope that faith in international law understood as a set of liberal principles with an ‘emancipatory promise’ could be regained.¹⁶ If this analysis is correct, we may regard human rights advocates as at best members of a community of faith constituted by the ‘global human rights movement’,¹⁷ some sort of global religion that has followers and priests; and we must perhaps ask ourselves if rights’ and rights advocacy’s importance is limited to those who share the faith¹⁸ and such faith may be lost.

These attitudes of scepticism should be noted and considered; but I would suggest that no critical engagement is possible if we do not at least consider what human rights advocacy looks like from the inside. To do this, it is necessary to engage those who choose to engage in rights advocacy in the rather hostile conditions of the Chinese system directly on the tenets of their convictions; and this is best done without assuming their attitudes or actions to be based in incommunicable articles of faith.

The human rights movement in China: an internal perspective

Considered through the eyes of the domestic lawyers who try to address them from within, human rights problems in China look quite different from what the external perspective would suggest. Drawing on practices of legal advocacy in concrete cases, discussing how case-based advocacy expands and relates to wider legal and political advocacy, the present account depicts an, in many aspects, dysfunctional system, but not one whose basic elements someone outside China cannot recognise; and this non-liberal system with an, at times, explicit anti-rights rhetoric is not ‘the other’ system with which the world has no connection but, rather, a possible system ours could become more like. As this study seeks to understand lawyers’ role in the Chinese human rights movement,¹⁹ it seeks to capture and interpret their experiences and views, their hopes and difficulties, starting from how they themselves presented these, under the protection of anonymity and unadulterated by the public persona they have been given in media and other more personalised reports.

In the domestic Chinese rights movement or weiquan movement, the ideas of human rights (renquan) and natural (human) rights (tianfu renquan), civil rights (gongmin quanli), basic rights (jiben quanli), constitutional rights (xianfa quanli), legal rights (hefa quanli/quanyi) and rights tout court (quanli) are used fairly eclectically.²⁰ In addition to these terms there is the ubiquitous term ‘rights defence’, weiquan, which could be read as a contraction of the words weihu and quanli.²¹ The differences between the various terms denoting rights appear to matter less than the common ideas underlying them. Echoes of the Mencian ‘Mandate of Heaven’ (tianming)²² and uses of traditional terms for wrongs and injustice are evidence of the vernacularisation of rights language;²³ and citizen action often emphasises the democratic and revolutionary potential of rights. Accordingly, at least so far as domestic perspectives are described and interpreted here, I will use ‘human rights’ in an open sense; and I will give preference to the terms ‘rights’, ‘rights defenders’ and ‘rights lawyers,’ reflecting the open Chinese usage.

Chinese human rights lawyers as a contentious issue

Reflecting a widely held opinion about Chinese human rights lawyers, perhaps especially among the circles of those involved in collaborative rule of law reform projects, but clearly also beyond, an academic commentator wrote in 2011 that:

[T]he horrendous and inexcusable plight of the handful of Chinese lawyers whose abuse has been reported is largely irrelevant to, and tells us little about, the everyday work of most Chinese lawyers and their interactions with the justice system.²⁴

Human rights lawyers have received attention not only from academia but also from the news media, human rights NGOs and the diplomatic community ever since the term weiquan started being widely used, initially as an idea promoted by the government, and especially when, around 2005, the persecution of rights lawyers started in earnest. It is perhaps not surprising that the renown rights lawyers thus obtained might not have had much appeal for those who were interested in a detached and serious study of the wider Chinese legal system and its rule of law reform as such. At the same time media attention has also drawn praise and admiration for human rights lawyers, praise whose effects have been complex and not always beneficial.

Picking up on the positive coverage of the idea of rights defence in Party–State-controlled domestic discussions in the 1990s,²⁵ the first scholarly discussions considered them largely as lawyers participating in ‘public interest law’ activities, i.e. in a constructive role supporting what was also thought to be the political leadership’s ultimate goal of a more independent judiciary and better rights protection.²⁶ From this perspective, it must have seemed natural, at least initially, to categorise weiquan lawyers depending on the extent to which they could be regarded as ‘constructive’ in this way. Academic literature has provided categorisations, or taxonomies. In a classic piece, Cullen and Fu, who adopt their taxonomy as a ‘descriptive-analytical tool,’ argue that the three types of lawyer they describe (‘moderate’, ‘critical’ and ‘radical’) are different mainly with regard to the kinds of case they adopt. They say that these typologies are recognised within the weiquan community, within society and within government, emphasise the types of case rights lawyers work on:

Moderate weiquan lawyers prefer to work through legal rather than political means. They limit their advocacy to legal issues and justify their legalistic approach on the ground of profe...