May 22, 2012

The media have focused on the case of Chen Guangcheng, but dissent in China is much broader and driven by many factors, writes David Whitehouse .

THE DRAMATIC escape of blind activist lawyer Chen Guangcheng from house arrest in late April has thrown a fresh spotlight on China's vast apparatus of repression.

Now that Chen and his family have made it to the U.S.--with Chen beginning a law fellowship at New York University--Chinese officials have reason to hope that the worst embarrassment about Chen's persecution is over. Once dissidents leave the mainland, they rarely have much impact, either in China or in their adopted countries.

Officials in the Obama administration must be relieved, too. As long as Chen's fate was unresolved, the episode exposed them to Republican criticism.

Besides, Chen showed up at the doorstep of the U.S. embassy in Beijing at a moment when Secretary of State Hillary Clinton had been hoping for a businesslike official visit that downplayed questions of human rights. Instead, Clinton's entourage and U.S. ambassador Gary Locke scrambled to negotiate a deal with Chinese officials to free Chen from custody and allow him to study law outside of his home province of Shandong, where his persecution began.

Chen Guangcheng at the U.S. embassy in Beijing

Then, when it became clear to Chen that he and his family would continue to be subject to official abuse, Clinton and Locke struck a new deal under which Chen would be allowed to continue his studies in New York.

Chen understood that he needed to stay in the spotlight to have any leverage, and Republicans were glad to oblige. Seeking to embarrass the Obama administration as long as China had not honored Clinton's deal, Republicans allowed Chen to testify to congressional hearings twice by mobile phone.

Most of the time, Chinese authorities succeed in repressing news about activists who try to expose official abuse. Cases like Chen's are "only unusual because you know about them," New York University law professor Jerome Cohen told the New York Times. "There are thousands of cases like this," added Cohen, the leading U.S. authority on China's legal system, who arranged the position for Chen at NYU.

IN CHINA, "dissident" is an elastic term that includes a wide range of individuals who have been singled out by the regime for some kind of ongoing oppositional activity.

Literally, the word means "those who dissent or disagree," so it generally refers to "mental laborers"--artists, intellectuals, lawyers and journalists--especially to those who try to address a broad audience. Workers and peasants who participate in collective forms of resistance number in the millions, and generally aren't called dissidents.

Some dissidents, like the signatories of "Charter 08," have a broad political agenda that includes calls for multiparty elections, privatization of state enterprises, the right to bargain collectively and the abolition of hukou, the system of family registration that makes migrant workers into second-class citizens.

Others confine their work to narrower fields, such as exposing corruption or threats to health and safety, combatting illegal land seizures, advocating the rights of national minorities or fighting discrimination against other minorities, including patients with HIV-AIDS or Hepatitis B.

Despite their diversity, however many dissenters in China belong to loose networks of a self-proclaimed weiquan (rights defense) movement.

Chen is one of them. A self-taught lawyer, he exposed illegal sterilization and forced abortions around Linyi in Shandong province and brought a class-action suit on behalf of victims. He served four years in prison on trumped-up charges, after which Shandong authorities placed him under house arrest in 2010.

Although his activity was quite particular, his experience illustrates some typical patterns in the treatment of dissidents:

Administrative detention. Local police, under direct command of political authorities, are free to impose three years "reeducation through labor" or indefinite house arrest without bringing the victim to court, according to Human Rights Watch (HRW).

Many news sources claimed that Chen's detention was illegal, but local authorities had nationwide precedent to support their claim that Chen's treatment was perfectly normal--even though it was ordered by the very officials that Chen was trying to sue.

-- Persecution of activist lawyers. Defendants have had a right to legal counsel since the overthrow of the Qing Dynasty in 1912, according to legal historian William C. Jones, writing in Understanding China's Legal System. But the persistence of imperial norms of governance under the Communist Party (CCP) rule--a situation that guarantees the dominance of party officials and the police over the legal system--has exposed lawyers and clients alike to abuse.

HRW reported in 2008 that lawyers "often face violence, intimidation, threats, surveillance, harassment, arbitrary detention, prosecution, and suspension or disbarment from practicing law for pursuing their profession. This is particularly true in politically sensitive cases."

Targeting of family members. Chen Guangcheng and his wife were both beaten for posting a video of the conditions of their detention. Following Chen's escape, his brother was also beaten, and Chen's wife was bound to a chair for two days, according to a conversation she had with The Economist.

Most ominously, Chen leaves behind a nephew, Chen Kegui, who has been charged with attempted murder for defending himself with a kitchen knife when officials brought thugs armed with clubs to search his house. Officials have blocked a dozen lawyers from volunteering to defend Kegui, who is now represented by a public defender, according to the Financial Times. Guangcheng believes his nephew was tortured to accept the public defender.

IT'S DIFFICULT to assess whether overall repression has become more intense in recent years, because China is large and complex, and the ruling CCP has expanded many rights incrementally. It's clear, however, that some things have gotten much worse since 2008, when officials imposed a series of crackdowns in the lead-up to the Beijing Olympics.

Authorities responded to the March 2008 uprising of Tibetans by locking down and further militarizing the "Tibet Autonomous Region," gunning down scores of demonstrators, torturing hundreds, jailing thousands, subjecting Tibetan monks to forced "reeducation" and intervening to select new leadership for Tibetan Buddhists.

Intellectual supporters of Tibetan rights such as Wang Lixiong and his wife, Tsering Woeser, a Tibetan poet and essayist, were put under house arrest in Beijing for protesting the Han nationalist frenzy that officials were whipping up against Tibetans.

Central government officials responded with similar repression to later revolts by ethnic Uighurs in the western province of Xinjiang and by ethnic Mongols in Inner Mongolia.

The Sichuan earthquake followed the Tibetan revolt by two months, killing 70,000. Officials were hoping that rescue and reconstruction efforts would cement the loyalty of ordinary Chinese to the CCP and the People's Liberation Army. Schoolchildren, however, died by the thousands because of shoddy school construction, and their parents began to organize protests.

The party immediately ordered the arrest of these protesters and continues to persecute those who try to investigate official responsibility for the children's deaths. The government claimed that 5,335 children died in the quake, but parents and their supporters have tried to prove that the number is greater--by compiling an independent list of children's names.

Renowned sculptor and architect Ai Weiwei participated in the count, which now places the death toll at more than 7,000, according to HRW. Officials arrested and "disappeared" Ai for three months in 2011 and later charged him with $2.4 million in tax arrears. He recently obtained permission to fight the tax case in court.

In the lead-up to the Olympic Games in August 2008, Beijing officials told CCP members to "go on a war footing" to head off protests that might tarnish the country's image.

They particularly advised officials to settle--or to repress--local disputes to prevent peasants and workers from traveling to Beijing to petition for redress. For the first time, international media were to be granted freedom to interview ordinary Chinese, and the party didn't want aggrieved citizens lining up to offer tales of official corruption and abuse.

In December of the same year, 350 intellectuals and activists signed Charter 08, an overtly oppositional manifesto demanding a wide range of democratic rights and simultaneously endorsing economic neoliberalism. This political stance is recognizable as an echo of demands that many students made in the Tiananmen Square movement in 1989.

Officials subjected signatories of the manifesto to surveillance and harassment, and immediately detained one of its authors, Liu Xiaobo, whose activism includes and predates the Tiananmen movement. Charged with "inciting the subversion of state power," Liu has been in prison since mid-2009, and his wife is "disappeared," apparently under house arrest.

Liu is rabidly pro-Western--he once called for colonialism as the only means of reforming China. He received the 2010 Nobel Peace Prize, even though he supports every war the U.S. fought during the Cold War, plus the Iraq war of 2003. Needless to say, not all Chinese dissidents share Liu's views, but it wouldn't be a surprise if members of the Nobel committee do.

When the revolts began against the autocracies in Northern Africa at the beginning of 2011, Chinese officials stepped up surveillance and censorship of online communications and imposed a ban on Web searches containing the word "Egypt." When rumors spread of a "Jasmine Revolution" for China to begin on February 27, officials warned citizens not to show up at the appointed area and sent a swarm of uniformed and plainclothes police. Chinese stayed away, but foreign journalists who showed up were beaten and detained.

Since the fall of the Communist governments in the Eastern Bloc and Russia from 1989 to 1991, Chinese officials have been particularly sensitive to movements that challenge autocratic governments.

Party institutions have devoted intensive study to such events, drawing lessons about the need make incremental reforms while keeping a tight grip on the economy, state positions and security forces. Even though the military budget is growing rapidly, the budget for internal security is bigger.

REPRESSION ISN'T the only means of dealing with resistance. Sometimes officials congratulate and try to co-opt activists. This was the response to Chen in his early career when he concentrated on defending the rights of disabled persons. In other cases, resistance, especially collective resistance, can lead to concessions, though there is often a price to pay as leaders get singled out for torture, jail or forced relocation.

The legal system is rarely the place to win concessions. Under Western capitalism, of course, the laws and legal practice are also stacked against workers, the poor and minorities, but in China, the legal system is a veritable chamber of horrors.

The traditions of administrative detention, torture and the like stem from the imperial legal system--borrowed wholesale by the CCP--that was designed to promote the efficient administration of the state. As historian William C. Jones notes, the system wasn't based on the idea that litigants possessed rights. Magistrates conducted their own investigations, regularly torturing the accused--and witnesses, too, if necessary--to produce an outcome that defended the local interests of the empire.

National policy now prohibits the extraction of confessions through torture, but 95 percent of convictions still come from confessions, according to Hong Kong legal researcher Mike McConville--a solid indication that torture is still routine.

The language of "rights," including the right to independent counsel, has been grafted onto the system in the past hundred years, but legal proceedings remain a direct policy tool for local officials.

In the face of a legal system that rarely brings redress of grievances, peasants and workers have sidestepped the courts and appeals process, often traveling to petition the central government.

The petition offices in Beijing are technically outside the legal system. At any one time, tens of thousands of petitioners are visiting from out of town. They may wait for months or even years for their case to be heard by an official who promises to do something about it. In the meantime, their families back home are subject to harassment by local officials, and officials routinely contract private security firms to kidnap petitioners and place them in "black jails," where they may languish until the promise to give up the fight.

Nevertheless, Beijing officials do solve the occasional case in favor of petitioners, a result that allows the central government to blame all the abuses on corrupt local officials. This strategy of legitimizing the role of the central government takes account of the reality that most oppression is delivered locally, while the central government is remote and can claim ignorance of local abuses--until it becomes aware of exemplary cases and "fixes" them.

It's not clear that many people in China buy into this illusion any more--that the "emperor" would fix all the problems if only he became aware of them. China's new working class is no longer fresh off the farm, and peasants themselves now have decades of bitter struggles under their belts.

What's more, it's widely understood that the central government sets up the conditions that permit or even encourage local abuse. As The Economist recently noted:

[U]nder the Communist Party's system of cadre evaluations, local officials are graded on the basis of a series of internal targets that have little to do with the rule of law...The most important measures are maintaining social stability, achieving economic growth and, in many areas, enforcing population controls. Cadres sign contracts that spell out their responsibilities. Failure to meet targets can end a cadre's career. Fulfilling them, even if it means trampling laws to do so, can mean career advancement and financial bonuses... Social stability is paramount: authorities in Tibet and in Jiangxi province recently announced that officials can be promoted for "outstanding performance" in maintaining stability. Beijing will supply localities seeking to put down unrest with additional "stability maintenance" funding, which creates a perverse financial incentive to employ repressive tactics. Political careers have been made, not broken, by brutal repression of unrest--in 1989, an official named Hu Jintao imposed martial law after riots in Tibet. Mr. Hu is now China's president.

In the past decade, the central government unwittingly provided another incentive for brutality. Peasant revolts, starting in the 1990s against extortionate taxation, moved the Hu administration to seek stability by outlawing local taxes on peasants' tenancy on the land. When local officials lost the revenue from these taxes, however, they soon began to force peasants off the land so that taxpaying businesses could take their place.

In both cases, before and after Hu's reform, local officials continued to enrich themselves at the expense of the peasantry. Peasant struggle has not abated, as last year's revolt in the southern village of Wukan showed.

More generally, the CCP's top officials also guarantee the conditions that perpetuate official corruption. As part of the party's strategy to keep a tight grip on power, the CCP safeguards the fusion of political and economic power, both by giving officials control over state enterprises and affording them access to profits from private ones. The system is thus built on corruption--the use of official power for private gain.

All capitalist systems are rife with corruption, but in China's particular form of capitalism, led by a party-state, corruption is a fundamental feature.

IF CHINA'S top officials come to feel that routine abuse of the population is undermining their legitimacy, they may try to reengineer the system of incentives that they've set up for local officials.

Any real reform, however, would have to reduce the general level of exploitation of workers and peasants by the elite, because so many of the abuses are simply different means of extracting wealth from the working population. For that reason, pressure from below would have to be the real driving force behind any reform from above.

Many voices call for reform of the legal system itself--particularly to create an independent judiciary. Even inside China, the state-run media have given coverage to eloquent exponents of this view. No doubt it would be a step forward if state and party officials could no longer simply use the legal system as a personal tool for persecution.

It's important, however, to understand what judicial "independence" means in the West and what it doesn't. The Western legal system developed in the first place as a means of resolving disputes between property owners--the late-medieval bourgeoisie of bankers, merchants, artisan masters and the like.

Judicial independence meant that judges were to be independent of the two parties within this single class of relative equals. But the bourgeois were happy to use their legal system to fleece the other classes--peasants and nobles--out of their land, as Michael Tigar explains in Law and the Rise of Capitalism.

Over time, the growing class of propertyless wage workers understood that the system was independent of them, but not independent of class interest. The laws themselves favored the property owners, and the procedures could only be understood by expensive specialists, so the system reinforced social inequality even though litigants were formally "equal before the law."

Nevertheless, the oppressed occasionally do win in court--a circumstance that legitimizes the system while leaving the basic fact of social inequality untouched. The rules themselves, and the effective practice of the law, only begin to shift in favor of the oppressed when the oppressed use their social leverage outside the legal system. Workers in China will win the legal right to strike and organize collectively in the same way that U.S. workers did--by continuing to do both successfully while they're still illegal.

Pressure from below, however, may not be adequate to make China's judiciary independent of the officialdom.

If China's future is anything like the West's past, the move toward an independent judiciary would come when China's rulers themselves tire of the insecurity inherent in a system where the law is a tool of intimidation and revenge in the hands of one faction of the ruling elite against another. Because corruption is endemic to the system, most party officials--and their relatives and rich allies--are vulnerable to prosecution when they fall out of political favor.

The fall of former Chongqing party secretary Bo Xilai illustrates the messy results of such infighting.

Just six months ago, Bo seemed destined to join the nine-member standing committee of the CCP politburo, the effective inner circle of the party-state. Nevertheless, the party stripped him of his position in March. Then--as if to ensure that he can't make a comeback--Bo's wife was also charged with hiring somebody to kill a British former acquaintance of the family. The scandal is still widening to swallow up Bo's tycoon associates.

The significance of Bo's fall will be the subject of the future article.