By William Nee, China researcher at Amnesty International
The clock is ticking in Beijing. In just a few days, senior leaders of the Chinese Communist Party must decide whether to order the release or formally arrest 14 lawyers and activists, unjustly held in secret detention since the authorities launched an unprecedented crackdown against human rights lawyers and their associates in July 2015.
The 14 are being held under a form of secret detention, officially known as “residential surveillance in a designated place”, which allows the police to hold criminal suspects for up to six months outside of the formal detention system.
This six month deadline is a critical juncture for justice in China. The authorities can either admit their mistake and unconditionally release the 14 or continue to use the law as their weapon of choice to silence perceived troublemakers.
That the decision remains a political one tells us all we need to know about the current state of China’s judicial system.
To unconditionally release the 14 would send a signal that the authorities are prepared to deescalate their attack on the legal community. This would be a significant decision in a political culture that rarely admits mistakes, but it is the just one. Anything else would make government claims of “ruling the country according to the law” ring hollow.
The central thrust of the authorities’ case against the lawyers and activists so far is that their work poses a threat to “social order”. In the most extreme instance, the fourteen could each face up to 15 years in prison on charges of endangering national security.
State media went as far as to brand the Beijing law firm, Fengrui, as a “major criminal gang”. Six of their staff, including lawyer Wang Yu, remain in secret detention.
There is nothing criminal about using the law to defend the rights of Chinese citizens. Lawyers, working together with activists and petitioners, have put pressure on the authorities in cases involving allegations of excessive force in lethal police shootings, forced evictions, religious freedom, and defending citizen’s rights who gather to remember the victims of the bloody Tiananmen Square crackdown of 1989.
Their work only strengthens China’s legal system, it is their continued persecution by the authorities that undermines it.
If the government pursues the line of argument that lawyers and activists were disrupting social order through demonstrations and online activities, there continues to be one main problem: China’s case will not be in compliance with international human rights law and standards.
First, engaging in peaceful assemblies and sharing views on social media is protected under international law. The right to peaceful assembly is granted by the Universal Declaration of Human Rights (UDHR), and by the International Covenant on Civil and Political Rights (ICCPR) that China has signed and repeatedly stated its intention to ratify.
Second, Article 19 of the UDHR states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The ICCPR also upholds the right to freedom of expression. Any exception to this rule must meet strict requirements.
Third, this crackdown contravenes the role of lawyers as understood in international law. Lawyers should not face prosecution or sanctions for carrying out their work in accordance with their professional duties, standards and ethics.
The Chinese authorities’ criminal investigation against the lawyers is in part because they take on “sensitive cases” – a term which is simply a euphemism for cases the government doesn’t like.
Finally, it would be absurd for the authorities to pursue charges of “endangering national security” against the lawyers simply for their work defending human rights. National security is increasingly abused by governments as a smokescreen to stifle legitimate debate and to protect those in power from political embarrassment.
The human rights lawyers pose no threat to China’s national security. They simply took on many cases that exposed government wrong-doing and human rights abuses – precisely the type of work that is protected under international law and standards.
Undermining Xi Jinping’s own reforms?
President Xi Jinping has, to a significant extent, tied his long-term legacy to promoting “governing the nation according to the law”. He has even stated that one case wrongly decided can destroy the positive image built up through 99 cases properly adjudicated.
Yet with the persecution of the lawyers’ the image lies in tatters. If just one miscarriage of justice tarnishes the positive image built by 99 cases correctly handled, persecuting a large and important segment of China’s legal community has tarnished China’s international image immensely. The authorities still appear content to ignore due process in cases they consider “sensitive”.
The fate of the 14 lawyers in the next few days is a litmus test for justice in China and will have far reaching consequences for the country’s legal development. The question remains: will the government have the wisdom and the courage to reverse course and begin to instil faith in China’s justice system?