Political opportunities in non-democracies: the case of Chinese weiquan lawyers

Abstract

The present article examines human rights practice by China's weiquan (‘rights-defence’) lawyers in the years 2003–2014. Notwithstanding the Chinese authorities’ hostility and overt repression towards rights defenders, the number of weiquan lawyers has increased over the past decade. Most of them are able to bring cases to court, publish in foreign media and cooperate with foreign donors. This article is an attempt to examine why and how this has been possible. It does so by relying on the theoretical framework of the political opportunity structure applied to non-democratic contexts.

Keywords:

• China
• human rights lawyers
• political opportunities
• repression
• non-democracies

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Elisa Nesossi is a research fellow at the Australian Centre on China in the World. She is the author of China's Pre-Trial Justice. Criminal Justice, Human Rights and Legal Reforms in Contemporary China (Wildy, Simmonds and Hill, 2012) and (with S. Trevaskes, F. Sapio and S. Biddulph) The Politics of Law and Stability in China (Edward Elgar, 2014).

Notes

1. Benney provides a detailed account of the changes that have occurred in the use of the term weiquan in China. Jonathan Benney, Defending Rights in Contemporary China (London and New York: Routledge, 2013), 12–34.

2. The scandal involved Sanlu, a Hebei-based dairy company, whose melanine-contaminated baby milk formula had sickened thousands of babies around the country. Litao Zhao and Tin Seng Lim, ‘The Tainted Milk Formula Scandal: Another Hard Lesson for China', EAI Background Brief No. 406, 29 September 2008, http://www.eai.nus.edu.sg/BB406.pdf.

3. Lawyers may occasionally win in administrative courts or in general courts, but to win special conditions should be created. See: John Givens, ‘Sleeping with Dragons? Politically Embedded Lawyers Suing the Chinese State’, Wisconsin International Law Journal 31 (2013): 734–87; Mary E. Gallagher, ‘“Use the Law as Your Weapon!” Institutional Change and Legal Mobilization in China’, in Engaging the Law in China: State, Society, and Possibilities for Justice, ed. Neil Jeffrey Diamant, Stanley B. Lubman, and Kevin J. O'Brien (Stanford, CA: Stanford University Press, 2005), 54–83; Alex Wang, ‘The Search for Sustainable Legitimacy: Environmental Law and Bureaucracy in China’, Harvard Environmental Law Review 37 (2013): 365–465.

4. Verna Yu, ‘A Blow For Freedom: The Campaign In Memory Of Sun Zhigang, 10 Years On’, South China Morning Post, 14 May 2013, http://www.scmp.com/news/china/article/1236973/blow-freedom-campaign-memory-sun-zhigang-10-years.

5. In this article, I use the word ‘mobilisation’ in its broadest sense, as defined by Osa and Corduneanu-Huci, whereby mobilisation in non-democracies includes all manifestations of high risk/high cost political action. Maryjane Osa and Cristina Corduneanu-Huci, ‘Running Uphill: Political Opportunity in Non-Democracies’, Comparative Sociology 2 (2003): 612.

6. Peng Yuan, ‘Zhongguo zhenzhen de tiaozhan zai nali’ [Where Are The Real Threats To China], Sina.com, 31 July 2007, http://news.sina.com.cn/pl/2012-07-31/035924873558.shtml. For a translation of the article see: Geremie Barmé, ‘The Five Vermin Threatening China’, The China Story Journal, 4 November 2012, http://www.thechinastory.org/2012/11/the-five-vermin-五蠹-threatening-china/.

7. Maryjane Osa and Kurt Schock, ‘A Long, Hard Slog: Political Opportunities, Social Networks and the Mobilization of Dissent in Non-Democracies’, Research in Social Movements, Conflicts and Change 27 (2007): 123–53.

8. Frank W. Munger, Scott L. Cummings, and Louise G. Trubek, ‘Mobilizing Law for Justice in Asia: A Comparative Approach’, Wisconsin International Law Journal 31 (2013): 396.

9. Jeff Goodwin and James M. Jasper, ‘Caught in a Winding, Snarling Vine: The Structural Bias of Political Process Theory', Sociological Forum 1 (1999): 27–54; Doug McAdam, Sidney Tarrow, and Charles Tilly, Dynamics of Contention (Cambridge: Cambridge University Press, 2001).

10. Osa and Schock, ‘A Long, Hard Slog’, 142.

11. Ibid., 143.

12. Xi Chen, Social Protest and Contentious Authoritarianism in China (New York: Cambridge University Press, 2012).

13. Ibid., 192.

14. Timothy Hildebrandt, Social Organizations and the Authoritarian State in China (New York: Cambridge University Press, 2013).

15. Ibid.; Chen, Social Protests and Contentious Authoritarianism.

16. Eva Pils, ‘Asking the Tiger for His Skin: Rights Activism in China’, Fordham International Law Journal 30 (2007): 1209–87; Hualing Fu and Richard Cullen, ‘Weiquan (Rights Protection) Lawyering in an Authoritarian State: Building a Culture of Public-Interest Lawyering’, The China Journal 59 (2008): 111–26; Eva Pils, ‘Rights Activism in China: The Case of Lawyer Gao Zhisheng’, in Building Constitutionalism in China, ed. Stéphanie Balme and Michael W. Dowdle (New York: Palgrave MacMillan, 2009), 243–60; Hualing Fu and Richard Cullen, ‘Climbing the Weiquan Ladder: A Radicalizing Process for Rights-Protection Lawyers’, The China Quarterly 205 (2011): 40–59; Eva Pils, China's Human Rights Lawyers: Advocacy and Resistance (Abingdon: Routledge, 2014).

17. Fu and Cullen, ‘Climbing the Weiquan Ladder’; Hualing Fu, ‘Can Lawyers Build a Legal Complex for the Rule of Law in China?’, Human Rights in China, 25 July 2014, http://www.hrichina.org/en/china-rights-forum/can-lawyers-build-legal-complex-rule-law-china.

18. Charles Tilly, From Mobilization to Revolution (Englewood Cliffs, NJ: Prentice Hall, 1978), 100–2.

19. Mark Lichbach, ‘Deterrence or Escalation? The Puzzle of Aggregate Studies of Repression and Dissent’, Journal of Conflict Resolution 31 (1987): 266–97; Mark Lichbach, The Rebel's Dilemma (Ann Arbor: University of Michigan Press, 1995); Mancur Olson, The Logic of Collective Action (Cambridge MA: Harvard University Press, 1965); Neil Smelser, Theory of Collective Behavior (London: Routledge and Kegan Paul, 1962).

20. Charles Brockett, ‘A Protest-Cycle Resolution of the Repression/Popular Protest Paradox’, Social Sciences History 17 (1993): 457–84; James de Nardo, Power in Numbers (Princeton, NJ: Princeton University Press, 1985); Marwan Khawaja, ‘Repression and Popular Collective Action: Evidence from the West Bank’, Sociological Forum 8 (1993): 47–71; Marwan Khawaja, ‘Resource Mobilization, Hardship, and Popular Collective Action in the West Bank’, Social Forces 73 (1994): 191–220; Johan Olivier, ‘State Repression and Collective Action in South Africa, 1970 to 1984’, South African Journal of Sociology 22 (1991): 109–17; David Snyder and Charles Tilly, ‘Hardship and Collective Violence in France, 1830–1960’, American Sociological Review 37 (1972): 520–32.

21. Terry Boswell and William J. Dixon, ‘Marx's Theory of Rebellion: A Cross-National Analysis of Class Exploitation, Economic Development, and Violent Revolt’, American Sociological Review 58 (1993): 681–702; Edward N. Muller, ‘Income Inequality, Regime Repressiveness, and Political Violence’, American Sociological Review 50 (1985): 47–61; Kurt Schock, ‘A Conjunctural Model of Political Conflict: The Impact of Political Opportunities on the Relationship between Economic Inequality and Violent Political Conflict’, Journal of Conflict Resolution 40 (1996): 98–133.

22. Osa and Schock, ‘A Long, Hard Slog’, 135–7.

23. Ibid., 135.

24. As claimed by Meyer and Staggenborg, ‘strategy includes decisions about tactics, claims, targets, and alliances, and these decisions are interrelated’. David S. Meyer and Suzanne Staggenborg, ‘Thinking about Strategy’, in Social Movements, Protest, and Contention, Volume 37: Strategies for Social Change, ed. Gregory M. Maney, Rachel V. Kutz-Flamenbaum, Deana A. Rohlinger and Jeff Goodwin (Minneapolis; London: University of Minnesota Press, 2012), 6.

25. Ibid., 136.

26. Timur Kuran, ‘Sparks and Prairie Fires: A Theory of Unanticipated Political Revolution’, Public Choice 61 (1989): 41–74; Timur Kuran, ‘Now Out of Never: The Element of Surprise in the East European Revolution of 1989’, World Politics 44 (1991): 7–48.

27. Susanne Lohmann, ‘The Dynamics of Informational Cascades: The Monday Demonstrations in Leipzig, East Germany, 1989–1991’, World Politics 47 (1994): 42–101.

28. Fu and Cullen, ‘Climbing the Weiquan Ladder’, 51.

29. Ibid., 52.

30. I follow here the methods of classification of repressive measures identified by Turk. See Austin Turk, Political Criminality. The Defiance and Defence of Authority (Beverly Hills, CA: Sage Publications, 1982).

31. Ibid.

32. Ibid.

33. Eva Pils, ‘“Disappearing” China's Human Rights Lawyers’, in Comparative Perspectives on Criminal Justice in China, ed. Mike McConville and Eva Pils (Cheltenham, UK: Edward Elgar, 2013), 418.

34. Charges such as ‘subversion’ and ‘inciting subversion of state power’ (Article 105 of the 1997 Criminal Law), along with ‘splittism’ and ‘inciting splittism’ (Article 103), and ‘leaking of state secrets’ (Articles 111 and 398) are generally characterised as crimes of ‘endangering state security’ and punished with relatively long periods of imprisonment. Other vague provisions such as ‘creating disturbances’ (Article 293) or ‘gathering a crowd to create public disturbance’ (Article 291) are also frequently used to silence rights defenders.

35. The 1979 Criminal Procedures Law (CPL) and its later revisions (1996, 2012) allow two distinct forms of residential surveillance, which differ depending on the location where the measure is carried out – either in or around the criminal suspect's place of residence or, in exceptional circumstances, in a residence designated by the police (zhiding jusuo). When there is ‘no fixed residence’ or ‘in cases involving offences of endangering state security, terrorism or extremely serious corruption’ (Article 73, 2012 Criminal Procedure Law), the law does not require for notification of the families about the detainees’ whereabouts or the charges they face. Over time, such exceptions have been used to widen the scope of ‘residential surveillance’, which has merged with other extra-legal measures including enforced disappearance or incommunicado detention.

36. Human Rights Watch, ‘China: End Unlawful Practice of House Arrest’, 24 October 2012, http://www.hrw.org/news/2012/10/24/china-end-unlawful-practice-house-arrest.

37. Under the 2006 Passport Law (Article 13(7)) and the 2012 Entry-Exit Law of the PRC (in force from 1 July 2013) (Article 12(5)(6)), officials may prevent Chinese citizens from travelling abroad when they believe that this might harm ‘state security’ or harm or cause ‘major loss’ to national interests. The meaning and scope of ‘harm to state security’ or ‘harm or loss to national interests’ are left purposely undefined to allow a broad degree of official discretion and arbitrary enforcement. China Aid Association, ‘Three Lawyers Barred from Leaving China to Attend US Human Rights Forum’, 2 January 2011, http://www.chinaaid.org/2011/02/three-lawyers-barred-from-leaving-china.html.

38. Yaxue Cao, ‘Drinking Tea with the State Security Police – Who Is Being Questioned?’, Seeing Red in China, Comment posted 11 March 2012, http://seeingredinchina.com/2012/03/01/drinking-tea-with-the-state-security-police-who-is-being-questioned/.

39. Tania Branigan, ‘China Officials Shut Legal Aid Centre’, The Guardian, 18 July 2009, http://www.theguardian.com/world/2009/jul/18/china-shuts-legal-aid-centre.

40. Human Rights Watch, Walking on Thin Ice.

41. In 2007, the Law on Lawyers was amended and in 2008 the Ministry of Justice issued the Methods for the Management of Law Firms and the Methods for the Management of Lawyers’ Practice imposing an ‘annual inspection and assessment process’ (niandu jiancha kaohe).

42. One of the most extreme cases is represented by the disbarment from the profession of the two Beijing lawyers Tang Jitian and Liu Wei in 2010. Human Rights in China, ‘Beijing Judicial Bureau Revokes Licenses of Two Rights Defence Lawyers’, http://www.hrichina.org/en/content/398.

43. Following the release of the Guiding Opinions on Lawyers Handling Collective Cases in 2006.

44. Fu and Cullen and Pils offer a systematic classification of weiquan lawyers according to ‘a pyramid of weiquan lawyering’ including moderate, critical and radicals. Moderate represents the majority of the lawyers, those who try to protect the rights and interests of the Chinese citizens without significantly challenging the legal and institutional constraints defined by the state. Critical lawyers are those who criticise China's current legal and political conditions, but who express their criticism with a certain degree of caution. They work at an individual-case level, but they also propose longer-term legal and political reforms. Lastly, radical lawyers challenge both the legal and political status quo by taking up extremely sensitive cases which involve the so-labelled ‘enemies’ of the state. Legal defence is accompanied with radical criticism of the political and legal systems. Fu and Cullen, ‘Climbing the Weiquan Ladder’; Fu and Cullen, ‘Weiquan (Rights Protection) Lawyering in an Authoritarian State’; Pils, ‘Asking the Tiger for His Skin’.

45. Fu, ‘Can Lawyers Build a Legal Complex’.

46. Susan Trevaskes, ‘The Ideology of Law and Order’, in The China Story Yearbook 2012. Red Rising, Red Eclipse, ed. Geremie Barmé (Canberra, Australia: Australian National University, 2012), 66–87.

47. Rongjie Lan, ‘Killing the Lawyer as the Last Resort: The Li Zhuang Case and Its Effects on Criminal Defence in China’, in Comparative Perspectives on Criminal Justice in China, ed. Mike McConville and Eva Pils (Cheltenham, UK: Edward Elgar, 2013), 304–21. See also the articles on: http://special.caixin.com/event_0422_1/index.html.

48. On Zhou's approach to law and justice at the time the cases presented here unfolded see: Trevaskes, ‘The Ideology of Law and Order'.

49. Yueran Zhang, ‘China's All-Star Legal Team Pleads for Defendants’ Rights on Social Media’, TeaLeafNation, 25 July 2012, http://www.tealeafnation.com/2012/07/bilingual-brew-chinas-all-star-legal-team-pleads-for-defendants-rights-on-social-media/.

50. Ibid.

51. ‘Yuanyu fangfan yu lüshi zuowei’ (Preventing Wrongful Imprisonment and the Role of Lawyers), Xinpo pinglun, 22 December 2013, http://news.sina.com.cn/pl/2013-12-22/082229050181.shtml.

52. Re-education through labour (RTL) was a form of administrative detention administered by the public security organs, allowing detention without trial for up to three or four years for prostitutes, petty thieves, those judged to have disrupted social order, people involved in unlawful religious activity and even petitioners. The system was formally abolished at the beginning of 2013.

53. Black jails are unlawful detention facilities where individuals, very often petitioners, could be held incommunicado. See: Human Rights Watch, ‘China: Secret “Black Jails” Hide Severe Rights Abuses’, 12 November 2009, http://www.hrw.org/news/2009/11/02/china-secret-black-jails-hide-severe-rights-abuses.

54. Human Rights in China, ‘Lawyers Detained in Jiansanjiang, Heilongjiang’, 26 March 2014, http://www.hrichina.org/en/citizens-square/photos-lawyers-detained-jiansanjiang-heilongjiang.

55. Associated Press, ‘Four Chinese Rights Lawyers Allege Torture by Police’, The Guardian, 16 April 2014, http://www.theguardian.com/world/2014/apr/15/chinese-rights-lawyers-police-torture.

56. On the difficulties experienced by Chinese lawyers in criminal defence work, see: Elisa Nesossi, China's Pre-Trial Justice. Criminal Justice, Human Rights and Reforms in Contemporary China (London: Wildy, Simmonds and Hill, 2012), 136–72; Elisa Nesossi, ‘Compromising for “Justice”? Criminal Proceedings and the Ethical Quandaries of Chinese Lawyers’, in Comparative Perspectives on Criminal Justice in China, ed. Mike McConville and Eva Pils (Cheltenham, UK: Edward Elgar, 2013), 256–78; Hualing Fu, ‘When Lawyers Are Prosecuted … The Struggle of a Profession in Transition’, The Journal of Comparative Law 2 (2007): 95–133.

57. On the risks associated with reformist projects, see: Osa and Schock, ‘A Long, Hard Slog’, 128–9.

58. Craig Calhoun, Neither Gods Nor Emperors. Students and the Struggle for Democracy in China (Berkeley and Los Angeles: University of California Press, 1994); Dingxin Zhao, The Power of Tiananmen: State-Society Relations and the 1989 Beijing Student Movement (Chicago: The University of Chicago Press, 2001).

59. Kevin J. O'Brien and Li Lianjiang, Rightful Resistance in Rural China (New York: Cambridge University Press, 2006); Elizabeth J. Perry, Challenging the Mandate of Heaven. Social Protest and State Power in China (New York: M.E. Sharpe, 2002); Chen, Social Protests and Contentious Authoritarianism.

60. Ching Kwan Lee, Against the Law: Labor Protests in China's Rustbelt and Sunbelt (Berkeley and Los Angeles: University of California Press, 2007), 17.

61. Pils, ‘Asking the Tiger for His Skin’; Hualing Fu and Richard Cullen, ‘Weiquan (Rights Protection) Lawyering in an Authoritarian State’.

62. Lianjiang Li, ‘Rights Consciousness and Rules Consciousness in Contemporary China’, The China Journal 64 (2010): 47–68; Mary Gallagher, ‘Mobilizing the Law in China: “Informed Disenchantment” and the Development of Legal Consciousness’, Law and Society Review 40 (2006): 783–816; Merle Goldman, From Comrade to Citizen. The Struggle for Political Rights in China (Cambridge, MA; London: Harvard University Press).

63. Chen, Social Protests and Contentious Authoritarianism, 16.

64. Yinan Zhao, ‘Xi Pledges to Implement Rule of Law’, China Daily, 12 May 2012, http://www.chinadaily.com.cn/china/2012-12/05/content_15985873.htm.

65. Benjamin Liebman, ‘China's Courts: Restricted Reform’, The China Quarterly 191 (2007): 620–38.

66. Nesossi, China Pre-Trial Justice.

67. Fu, ‘Can Lawyers Build a Legal Complex for the Rule of Law in China?’

68. Fu and Cullen, ‘Weiquan (Rights Protection) Lawyering in an Authoritarian State’; Pils, ‘Rights Activism in China’; Nesossi, ‘Compromising for “Justice”?’

69. Consider, for example, the suggestions sent to the National People's Congress (NPC) by lawyers Xu Zhiyong, Teng Biao and Yu Jiang that led to the abolition of the system of ‘custody and repatriation’ (shourong shencha) in the aftermath of Sun Zhigang's death, or, the 2013 suggestions sent to the NPC by 11 weiquan lawyers calling for the revision of the 1990 Regulations on Detention Centres. See: Keith Hand, ‘Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizens Action in the Peoples’ Republic of China’, Columbia Journal of Transnational Law 45 (2006): 114–95; Xinhuawang, ‘11 ming lüshi jianyi xiugai “kanshousuo tiaoli” jinzhi qiangpo laodong’ (Eleven Lawyers Suggest Revising the ‘Detention Centres Regulations' and Prohibiting Forced Labour), Xinhua News, 18 March 2013, http://big5.xinhuanet.com/gate/big5/news.xinhuanet.com/legal/2013-03/18/c_124471564.htm.

70. Fu, ‘Can Lawyers Build a Legal Complex for the Rule of Law in China?’

71. See, for example: Carl Minzer, ‘Judicial Disciplinary Systems for Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On’, New Mexico Law Review 39 (2009): 63–88; Ira Belkin, ‘China's Tortuous Path toward Ending Torture in Criminal Investigations’, Columbia Journal of Asian Law 24 (2011): 273–302.

72. See Boaventura de Sousa Santos and Cesar Rodrigues Garavito, Law and Globalization from Below, Toward a Cosmopolitan Legality (Cambridge: Cambridge University Press, 2005); Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders. Advocacy Networks in International Politics (Ithaca, NY: Cornell University Press, 1998); Osa and Schock, ‘A Long, Hard Slog’, 131.

73. See, for example, the work done by CHINAaid on freedom of religion: http://www.chinaaid.org/2014/03/law-and-religious-training-seminars.html.

74. Gerda Wielander, Christian Values in Communist China (Oxon and New York: Routledge, 2013), 140.

75. From private conversations with Chinese weiquan lawyers.

76. Nicola Macbean and Elisa Nesossi, ‘Living Up to Human Rights Responsibilities: Lawyers and Law Firms in the Chinese Authoritarian Context’, in Human Rights Protection in Global Politics: Responsibilities of States and Non-State Actors, ed. David Karp and Kurt Mills (London: Palgrave Macmillan, forthcoming 2015), 180–200.

77. As of 1979, there were only 69 newspapers in the country, all fully controlled by the State-Party and reporting primarily political propaganda. See: Benjamin Liebman, ‘Watchdog or Demagogue? The Media in the Chinese Legal System’, Columbia Law Review 105 (2005): 17; Marina Svensson, Elin Saether, and Zhi'an Zhang, eds, Chinese Investigative Journalists’ Dreams. Autonomy, Agency, and Voice (Lanham, MD: Lexington Books, 2013), 7.

78. Karin Deutsch Karlekar and Jennifer Dunham, ‘Freedom of the Press 2014. Press Freedom in 2013: Media Freedom Hits Decade Low’, Freedom House, http://www.freedomhouse.org/sites/default/files/FOTP2014_Overview_Essay.pdf.

79. China.org.cn, ‘Mass Media’, http://www.china.org.cn/english/features/Brief/193358.htm.

80. Qiang Gang and David Bandursky, ‘China's Emerging Public Sphere: The Impact of Media Commercialization, Professionalism, and the Internet in an Era of Transition’, in Changing Media Changing China, ed. Susan Shirk (Oxford: Oxford University Press, 2011), 40.

81. Benjamin L. Liebman, ‘Changing Media, Changing Courts’, in Changing Media Changing China, ed. Susan Shirk (Oxford: Oxford University Press, 2011), 153.

82. Svensson, Saether, and Zhang, Chinese Investigative Journalists’ Dreams, 1.

83. Ibid., 7.

84. See for example: Biao Teng, ‘China's Growing Human Rights Movement Can Claim Many Accomplishments’, The Washington Post, 18 April 2014, http://www.washingtonpost.com/opinions/chinas-growing-human-rights-movement-can-claim-many-accomplishments/2014/04/18/7c5fb650-c707-11e3-bf7a-be01a9b69cf1_story.html.

85. The Chinese authorities appreciate the power of the internet and are strictly controlling it. Thus, Section Five of the 1997 Computer Information Network and Internet Security, Protection, and Management Regulations approved by the State Council provides, among others, that the internet should not be used to ‘incite splittism’ or ‘destroy the order of society’ – vague clauses that are easily abused in cases involving individuals who are deemed politically sensitive. Since 2010, new legal and institutional structures have been created to further strengthen the state's control over the internet.

86. Osa and Schock, ‘A Long, Hard Slog’, 137.

87. Nesossi, ‘Compromising For “Justice”?’

88. Fu, ‘Can Lawyers Build a Legal Complex for the Rule of Law in China?’

89. Ibid.

90. Beijing Yirenping Center, http://www.yirenping.org/.

91. Ibid.

92. China Human Rights Defenders, http://chrdnet.com.

93. China Human Rights Lawyers Concern Group, http://www.chrlawyers.hk.