Terence C. Halliday and Eva Pils, July 8, 2020
In the early hours of the morning on 9 July 2015, China’s security apparatus launched the first strike of its worst ever campaign against practicing lawyers in China. The forced disappearance of woman lawyer Wang Yu by unidentified black-garbed, masked men signaled the beginnings of a nationwide campaign that would detain and incarcerate, many times disappear and torture, numerous times charge and sentence, more than 300 lawyers in the following months. Their “crimes”? Taking on challenging criminal defense and human rights cases, accompanied by calls for a fair and just legal system that respected the rights of even the most vulnerable. It was an attack unsurpassed globally, if not in terms of its brutality, then in terms of its sophistication, that made China’s endangered lawyers targets of a wider campaign to destroy the very idea of autonomous legal advocacy and real rule of law in China.
And yet, on 9 July 2020, the lawyers’ struggle clearly remains alive, even as their suffering continues. It is imperative to remember and memorialize their suffering as well as that of colleagues who came to their defense only to be detained themselves.
During the years of crackdown China’s rights lawyers suffered brutal and inhumane treatment. Public humiliations of televised confessions, privately humiliating naked prisoners before mounted cameras, the psychological torture of extreme isolation, physical torture through forced chemical ingestion of psychotropic drugs, myriad tortures of the so-called Iron Chair, harsh shackles, excruciating extended distortion of limbs—these are now well-documented sufferings, some of which the survivors discussed in person with one of us following their release. China’s authorities imposed them on lawyers who, in societies more closely conforming to the rule of law, would be championed as zealous advocates and peaceful defenders of universal ideals.
In 2020 the supposed release of the rights lawyers detained in 2015 does not mean release as we assume it does in normal societies. Veteran China expert, Jerome A. Cohen, instead prefers the term, ‘non-release release.’ Formerly Beijing-based lawyers are banished to distant provinces. Homes and phones are bugged. Hallways are populated by 24-hour guards. Cameras at the front entrances of apartment buildings record all entrances and exits, including those of family and friends who manage to get past the guards in the street. Shopping trips are accompanied by followers who discourage by their presence neighbors and friends from conversation. And when important national events take place, as Jiang Tianyong recently discovered, up to 20 security persons surge around him, housed in tents and monitoring tightly his every move. The isolation of the prison becomes a wider social isolation as friends, neighbors, fellow lawyers and religious believers are discouraged from close contact. Lawyers are released from one prison, said a veteran of crackdowns, only to be shuttered in another.
The punishment of China’s notable criminal defense and rights lawyers continues with the loss of their livelihoods. Unlawful annual reviews by the Justice Bureau, pressure on and from law firm partners, gangster tactics to obstruct lawyers’ work, suspending of lawyers’ licenses or disbarring them altogether lead both to loss of income and a loss of the dignity that their professional status endows upon them.
And yet, despite all this, courage endures and hope remains alive. Courage expressed itself in Yu Wensheng, who had described to both of us vividly screaming like a wild animal during an earlier spell of detention and torture in his 2014 torture, yet persisted in defending colleagues swept up in the first few months of the 709 crackdown, and in calling for reforms of the system that had incarcerated them, only to pay a grim price that is still unfolding in detention, a secret trial and now years of imprisonment. Courage was displayed by Wang Yu’s decision to disclose how she had been coerced into publicly ‘confessing’ to ‘wrongdoing.’ Resolve shows itself in Wang Quangzhang’s decision, after emerging from the longest and undoubtedly among the most brutal of 709 disappearances and detention and decision, to launch a petition to challenge his conviction.
If the ‘709’ lawyers were fully free to speak to a global audience, our many years of research on them leave no doubt that they would all assure publics and policy-makers alike that their hopes remain intact, their resilience is assured, and their ideals are not only theirs but those of all champions of fundamental freedoms and rights everywhere.
Meanwhile, the domestic harms experienced by millions of China’s citizens have continued and been multiplied, even as the causes that brought activist lawyers into conflict with the Party-state remain unresolved. Environmental degradation, land takings, the miseries of migrant laborers, the cultural destruction of Tibetans and Uyghurs, the religious clampdown on Tibetan Buddhists, Muslims in the NorthWest provinces, Protestant and underground Roman Catholic Christians across the country, rampant corruption—the underlying tectonic pressures for relief from harm and misery remain. In the Xinjiang Uighur Autonomous Region, human rights violations have reached the level of apparent mass crimes against humanity and (at least) cultural genocide.
Until the advent of Xi Jinping’s ‘New Era,’ it was in many ways the lawyers who carried the flags for these vulnerable populations, who sought to channel their grievances into lawful channels of redress. The crackdown has marginalized their position in the institutions of the system, and rights lawyers are unable to play a role in addressing the worst of these ongoing systematic human rights violations, such as those occurring in Xinjiang, today. The international community has been reduced to criticizing China from the outside in this context; it cannot really work with domestic human rights defenders, whose work in bringing human rights issues to light is crucial. Yet , as eminent law professor, He Weifang, has noted in his In the Name of Justice , ‘[i]f the real side of a society, especially negative situations, is hidden, it is a very dangerous thing, like putting the country on top of a volcano.’ (p. 176)
China’s rights lawyers, and all those legal academics, private practitioners, judges and others whose aspirations are currently suppressed continue to cherish a vision of a different China. What is that vision? For Xu Zhiyong, most recently detained in March 2020, it starts with Xi Jinping’s resignation, for which he had called in an open letter released online. For Zhang Xuezhong, like Xu a member of the new Citizen Movement, a former law professor and disbarred lawyers who had also been victimised by the 709 Crackdown, it will entail an authentic constitutionalism and a new constitution that should enshrine ‘inviolable human dignity’ in its Article 1. To Li Heping and Jiang Tianyong, it will combine restraint of executive state power with autonomy of law, lawyers and legal institutions, from oppressive Party control. For all activists, a democratic China will enshrine freedom of speech and other human rights and liberties central to a dynamic civil society and an open and vibrant public square. For every genuine defense and rights lawyer, it will demand actual adherence to the most basic universal rights of legal practice, from abolition of confession by torture, to defense of any person by authorized legal counsel, to court procedures that test evidence, to judges that decide cases fairly on their merits without political or police or Party interference.
In our view, the spirit of 709 is the spirit of the international bill of human rights as expressed in the Universal Declaration of Human Rights and other UN-based documents reflecting the principle of an international rule of law – even though we must acknowledge that some of the human rights lawyers have expressed disappointment and skepticism about the UN institutions that have (as they see it) failed to help Chinese society overcome its current autocracy. It is a spirit as evident in the legal liberal democratic and rule of law East—in Taiwan, South Korea, Japan, India, among others—as it is in the so-called legal liberal constitutional democracies in the West—in Australia and NZ, Canada, Germany, among many others.
Yet 709 is not only the marker of an alive China movement, it is also emblematic of a global struggle. The 709 lawyers present the world with a challenge. They have sacrificed deeply in their drive to obtain basic legal freedoms, a civil society and moderate state substantially achieved in other countries. But if their ideals are to be obtained in China, long entrenched ideals of freedom, liberty and rule of law need defending and refining elsewhere. In one after another society, in East and West, democratic retrogression has been accompanied by a slippage away from universal legal and political values too long taken for granted. 709 is alive in China and will remain alive as resistance and as aspiration. The 709 lawyers would have us stand shoulder to shoulder in a solidary unity of ideals for a good political society they have never had and that we have endorsed but poorly defended, and that now seems at risk in many countries threatened by democratic retrogression. To stand with the 709 lawyers is to stand for the realization of ideals in Europe, the Americas, Asia and the world over that require constant vigilance, undaunted defense, and the courage, resilience and hope of our Chinese compatriots.
Terence Halliday is Research Professor, American Bar Foundation, and co-author, Criminal Defense in China: The Politics of Lawyers at Work.
Eva Pils is Professor of Law, Kings College London, and author of Human rights in China: a social practice in the shadows of authoritarianism.
特伦斯 • C • 哈立德，艾华
对中国知名刑辩律师和人权律师的惩罚无休无止，直至剥夺他们的生计。 司法局的非法年检，向律所合伙人施压以及藉由律所合伙人向人权律师本人施压， 使用各种流氓手段阻挠律师正常工作，暂停执业或吊销执照。凡此种种，不仅要砍断律师的收入，也意欲使其丧失筑于专业地位之上的体面。
特伦斯 • 哈立德 (Terence Halliday) 是美国律师协会基金会的研究教授，《刑事辩护在中国：律师工作的政治学》一书的合著者；艾华 (Eva Pils) 是伦敦国王学院法学教授，《人权在中国：独裁阴影下的社会实践》一书作者。