December 12, 2006

IV. Mass Cases and the Rights Protection Movement

The CPC appears to have realized that its viability depends to some extent on building a credible legal system. The authorities want people to turn to the courts and petitioning offices of the Letters and Visits system,[35]instead of taking to the streets to resolve social discontent-so long as the authorities can control those courts and offices.

Lawyers in recent years have successfully defended victims of police mistreatment, won compensation for victims of officials' abuses, and gained acquittals or sentence reductions for demonstrators, workers, political dissidents, journalists, and writers. They have prompted swift remedies from the central authorities for specific cases by attracting media and public attention, and brokered the resolution of countless acute labor, environmental, and land disputes.

A significant proportion of these cases involve dozens or even hundreds of plaintiffs, in what the authorities refer to as "collective" (jiti) and "mass" (qunti) cases, or, if they involve protests, "sudden incidents" (tufa shijian). These kinds of cases often revolve around livelihood issues such as land confiscation, forced evictions, forced relocations, life-threatening environmental pollution, layoffs induced by large-scale industrial restructuring, and non-payment of pensions and welfare benefits. Lawyers' ability to take on mass cases may be one of the only ways to break an increasingly vicious cycle, in which the lack of legal protections and of clarity in property rights fuels abuses by corrupt local authorities, which in turn fuel public protests among those who have no access to justice.

The increasing assertiveness of lawyers has progressively given rise to a small but influential movement of lawyers, law experts, and activists who try to assert the constitutional and civil rights of the citizenry through litigation and legal activism. The so-called "rights protection movement" (weiquan yundong) remains highly informal, and is mainly characterized by its willingness to take up and publicize cases that are politically sensitive because they involve citizens with grievances against local governments or state agencies. By circulating articles, maintaining web-logs ("blogs"), and mobilizing Internet communities, concerned journalists and scholars and the foreign media, members of the rights protection movement frequently expose the lack of legality in local government decisions and lack of credibility in central government commitments to a fair judicial system and "ruling the country according to law."

Weiquan lawyers are often openly critical of the deficiencies of the legal system, and in particular of the lack of independence of the judicial system. At the same time, the hallmark of the movement has been to keep all activities strictly within the realm of Chinese law and to advise protestors not to resort to unlawful means of contention.

Along with other legal activists, weiquan lawyers have been the vanguard of a number of high-profile protests, such as those in Taishi (Guangdong province), Tangshan (Hebei), or Zigong (Sichuan), which have attracted widespread attention, including from the international media.[36] Overseas human rights organizations have also started to rely on weiquan lawyers' accounts to report and document cases in which lawyers are serving as counsel and on incidents in which the lawyers themselves have become victims of abuses.

One of the most serious obstacles to accessing justice is that courts can-wholly at their own discretion-refuse to entertain cases without providing any justification or offering alternative recourse. The problem is compounded by specific instructions that prohibit certain categories of cases. A regulation issued by the Supreme Court in 2002, for instance, provides that the "Peoples' Courts should not accept civil lawsuits from plaintiffs if they concern disputes that have arisen during the course of State-Owned Enterprises reforms carried out by responsible government departments."[37]

Residents in Beijing reported that the courts were instructed to refuse cases involving residents forcibly evicted for urban redevelopment, and lawyers routinely complain that the courts will turn down cases without even explaining their decisions.[38] But making legal avenues appear futile in the eyes of the growing number of powerless and disenfranchised citizens left behind by economic reforms might ultimately heighten the risk of social unrest.

The Ministry of Public Security estimated the number of "mass incidents" at 87,000 during 2005, up more than 6 percent from 2004 and quadruple what it was a decade ago.[39] In December 2005 police opened fire on villagers opposing land confiscations in the southern village of Dongzhou, Guangdong province, killing at least three protesters.[40]In May 2006 China's top environment watchdog, the State Environmental Protection Agency (SEPA), acknowledged that over 50,000 protests related to pollution had been recorded in 2005.[41]Pan Yue, deputy director of SEPA, stated that environmental problems had "become one of the main factors that affect national safety and social stability."[42] (Although state media have reported a decrease of the number of incidents during the first nine months of 2006, this decrease is most likely due to under-reporting by local officials. Anecdotal evidence points to heightening, rather than diminishing social conflicts.[43])

The central authorities have recognized the link between abuses, unrest, and the need to develop legal services for preventing the escalation of disputes. Premier Wen Jiabao acknowledged in January 2006 that "some localities are unlawfully occupying farmers' land and not offering reasonable economic compensation and arrangements for livelihoods, and this is sparking mass incidents in the countryside."[44] Two months later, in his annual report to the National People's Congress, China's parliament, he promised "effective legal services and legal aid so as to provide effective help to people who have difficulty filing lawsuits," and a "strict, impartial, and civilized enforcement of the law."[45]

Actual developments and practice, however, have contradicted these promises. Instead of enhancing lawyers' ability to do their work, on March 20, 2006, the government imposed new limitations by adopting the Guiding Opinions on Handling Mass Cases. Weiquan lawyers became targeted in the name of preserving "social stability." On April 11, 2006, Luo Gan, a senior member of the Politburo and the head of the party Central Committee's Legal and Political Committee,[46] urged the adoption of "forceful measures against those who, under the pretext of rights-protection (weiquan), carry out sabotage, so as to protect national security and the political stability of society."[47]

Box: Mass incidents on the rise (April 2005-November 2006)

November 10, 2006 Thousands of protesters rampage through a hospital in Sichuan province after the death of a young boy whose guardians could not afford to pay treatment fees. At least 10 people are injured in fighting with police.

November 8, 2006 Thousands of villagers near Shunde, Guangdong, clash with riot police after barricading officials and foreign businessmen in a warehouse they said had been built on illegally seized land.

October 23-24, 2006 Thousands of university students from Jiangxi province's ClothingVocationalCollege march through campus and riot after state media reports that school authorities had deceived new students about their eventual qualifications and issued fake diplomas.

August 20, 2006 Villagers of Maoming, Guangdong province, detain a number of government officials in the course of a dispute about water tariffs. Police forces are dispatched and a dozen villagers are injured in the ensuing clash.

August 1, 2006 Hundreds of villagers near Linhai municipality, Zhejiang province, clash with police over land seizures. Thirty villagers are reportedly injured.

July 29, 2006 Christians in eastern China's Zhejiang province clash with police. The violence occurs as the police tries to break up a 3,000-strong protest against the demolition of a church. Twenty people are injured, including four seriously.

July 27, 2006 Around a thousand workers riot over working conditions at a factory producing toys for McDonald's in Dongguan, Guangdong province.

June 2006 Around a thousand policemen violently disperse a sit-in organized by villagers opposing the construction of a chemical plant in Guangxi. Four villagers are placed in criminal detention.

June 2006 Thousands of students ransack their university in Zhengzhou, Hunan province, in a dispute over diplomas.

May 2006 Thousands of residents of Loufeng township near Suzhou, Jiangsu province, protest over the conditions of their forced relocation. The police detain a dozen protesters.

January 2006 Hundreds or thousands of protesters clash with police over inadequate compensation for farmland taken for industrial use in Panlong village, Sanjiao township, Guangdong province.

December 2005 A dispute over the construction of an electricity generating plant and related property seizures culminates in a violent clash in Dongzhou village near Shanwei city, Guangdong province. Police open fire, killing at least three protesters.

September 2005 Over a hundred workers at a shoe factory in Guangzhou, Guangdong province, battle police and smash vehicles while protesting over unpaid wages.

August 2005 Police beat villagers protesting against pollution from a battery factory in Zhejiang province.

August 2005 Unemployed residents of Daye, Hubei province, attack government offices and destroy cars after the police break up an earlier demonstration over an official plan to annex Daye to a larger city, Huangshi. Ten people are sentenced to prison terms ranging from one to five years for their involvement in the protests.

July 2005 Residents of Taishi village near Guangzhou, capital of Guangdong province, submit a petition to remove their village chief for embezzling public funds. After one of their leaders is arrested, 1,500 villagers clash with 500 armed police.

July 2005 Some 3,000 migrant workers at a Hong Kong-owned garment factory near Guangzhou riot over a pay dispute. A report of the incident published in the local press mentions that there are thousands of such "explosions" every year.

July 2005 Farmers in Xinchang, 200 kilometers south of Shanghai, attack a pharmaceutical plant over pollution it emits.

June 2005 About 150 kilometers southwest of Beijing, approximately 300 hired thugs attack a group of farmers who have camped on disputed land that the local government plans to use to build a power plant. The farmers protest the lack of proper compensation for their land. Six villagers are reportedly killed in the attack, which is captured on video by a protester and shown on Chinese websites. Higher governmental authorities sack the local party chief and mayor and return the farmland.

April 2005 Some 20,000 peasants from several villages in Huashui township, Zhejiang province, who have been complaining for four years about industrial pollution from an industrial park that they claim has ruined their agricultural livelihood, fight with police. The factories are eventually shut down, but protest leaders are arrested.

Sources: Media reports; Social Unrest in China, Congressional Research Service, May 8, 2006.

In the following months the government's hostility towards the weiquan movement was reflected in the arrest and conviction of three of its most outspoken members, Chen Guangcheng, Gao Zhisheng, and Guo Feixiong.All three men had been providing legal advice to protesters and plaintiffs suing government authorities-Gao as a qualified lawyer, Chen and Guo as legal advisers (under Chinese law, it is not a necessary condition to be a qualified lawyer to be entrusted by a defendant, including in criminal trials).[48]

Guo Feixiong

Guo Feixiong(also known as Yang Maodong, his real name) is best known for providing legal assistance to villagers in Taishi, Guangdong province, as they sought to remove the allegedly corrupt village leader from office. As a result of his involvement, he was detained on September 13, 2005, and held incommunicado until October 4, when his legal representatives Guo Yan and Gao Zhisheng were notified of his arrest on suspicion of "assembling crowds to disturb public order." He was released without charge on December 27. In February 2006 he was detained again, by the Beijing Public Security.[49] In August he was formally arrested on suspicion of "running an illegal business."[50] His wife told Agence France-Presse that she "refused to sign the arrest notice and told the police [her] husband was innocent."[51]

Chen Guangcheng

Chen Guangcheng, a self-taught rights advocate, was sentenced in August 2006 to four years and three months' imprisonment for allegedly "damaging property and organizing a mob to disturb traffic" in August 2006. The initial trial was fraught with irregularities and an appellate court ordered a retrial, which took place in late November and where the original verdict was upheld.[52]

In March 2005 Chen learned from villagers that officials in Linyi, a city in Shandong province, had subjected thousands of people trying to evade restrictive population control laws to raids, beatings, late-term forced abortions, and compulsory sterilization.[53] In June 2005 he filed a lawsuit and then traveled to Beijing to discuss the case with legal scholars, lawyers, and foreign journalists. Soon after, the lawsuit was rejected.On August 12, 2005, local officials imprisoned Chen and his immediate family in their home and shut off all outside communication. They were detained there for seven months (Chen managed to escape in September, but was apprehended in Beijing and returned to Linyi). On March 11, 2006, Yinan county police officers "disappeared" Chen for three months, officials acknowledging only on June 11 that he was formally detained in the YinanCountyDetentionCenter.

On June 21 the Yinan County People's Procuracy approved Chen's arrest. That same day Chen's lawyers, Li Jinsong and Zhang Lihui, were able to visit him, but from then on authorities escalated the pressure to deny access to defense witnesses and materials for all the lawyers and activists involved. On June 22 police officers took lawyer Li in for questioning. Unknown assailants beat three other lawyers defending villagers jailed for supporting Chen. When Li Jinsong and Li Subin, another member of Chen's legal team, tried to visit Chen's wife on June 23, they were stopped and beaten by guards. The following day, all the lawyers involved returned to Beijing. Li Jinsong and Li Subin tried returning to Shandong on June 27, only to be harassed again while the police stood by. Some 20 men overturned the lawyers' car. Police took Li Jinsong in for questioning once again.[54]

On the eve of Chen's trial, all three of his lawyers were detained by Yinan police. None of Chen's lawyers were allowed in the courtroom for the trial on August 24, 2006. Instead, authorities appointed their own public defender for Chen just before the trial began. The trial lasted just two hours and Chen was sentenced to four years and three months of imprisonment for "damaging property and organizing a mob to disturb traffic."

In what was seen as a response to an international outcry,an appellate court on October 30 overturned the conviction and ordered a retrial.[55]The retrial, on November 27, was equally mired by severe violation of due process. Chen's three lawyers, Xu Zhiyong, Li Jinsong, and Teng Biao, were harassed on their arrival in Linyi the day before the trial by dozens of plainclothes agents who refused to identify themselves.[56]A key witness who had admitted providing a false testimony against Chen under police duress and whom Chen's lawyers intended to call at the trial was kidnapped by unidentified men, and two other defense witnesses were similarly taken away. Lawyer Teng Biao was detained for four hours by the police. The judge refused to adjourn the case despite the forced disappearances of the defense witnesses, prompting Chen's lawyers at one point to storm out of the court in protest. On December 1, the court upheld the original verdict and sentence.[57]

In April 2006, Time magazine named Chen one of its"100 people most influential in shaping our world."[58]

Gao Zhisheng

Gao Zhisheng, one of China's foremost human rights lawyers, is being held incommunicado on charges of "inciting subversion." He was arrested on August 15, 2006, and formally charged on September 15, although his family was only notified on October 12.

As the director of the Beijing-based Shengzhi Law Office, Gao has done pro bono work for forcibly evicted homeowners, members of the Falungong religious sect, underground Christians, fellow lawyers, and democracy activists. In November 2005 the operations of the Shengzhi Law Office were suspended by the Beijing Municipal Bureau of Justice for one year. One month later, Gao Zhisheng's license to practice law was revoked. He was then subjected to continuous surveillance and other forms of harassment and intimidation by the authorities.

His arrest came on the heels of a hunger strike he organized to protest violence against dissidents. Prosecutors charged him on September 15 with "inciting subversion," a state security crime often used against political dissidents. The police have denied his lawyer contact with Gao on grounds that the case involves unspecified "state secrets."[59]

[35]The Letters and Visits system, colloquially called shangfang ("appealing to higher levels"), is a complaints system allowing citizens to report grievances to authorities, who are then supposed to instruct other government departments to resolve the problems. It is estimated that a staggering 10 million petitions were filed in 2004. According to the People's Daily, "An official survey revealed that 40 percent of these complaints are about police, courts and prosecutors' offices, 33 percent about government, 13 percent about corruption and 11 percent about injustices." Other specific subjects often named in petitions include environmental problems, workplace complaints, and forced evictions. Human Rights Watch has documented these problems and how petitioners often suffer from systematic violence and ill-treatment. See Human Rights Watch, "We Could Disappear At Any Time": Retaliation and Abuses Against Chinese Petitioners, vol. 17, no. 11(C), December 2005, http://hrw.org/reports/2005/china1205/index.htm.

[36]See Kristin Jones, "China's Hidden Unrest," Committee to Protect Journalists, May 2006; Thomas Lum, "Social Unrest in China," Congressional Research Service, May 8, 2006; Eva Pils, "Land Disputes, Rights Assertion, And Social Unrest in China: A Case from Sichuan," Columbia Journal of Asia Law, Spring/Fall 2005, pp. 235-292; Joseph Kahn, "Legal Gadfly Bites Hard, and Beijing Slaps Him," The New York Times, December 13, 2005.

[37]Supreme People's Court of the People's Republic of China, "Regulations on various problems regarding the hearing of cases of civil dispute arising in enterprise reforms," effective January 1st, 2003, art. 3.

[38]See, for example, Jerome A. Cohen, "China's Legal Reform at the Crossroad," The Far Eastern Economic Review, March 2006, pp. 23-27. Cohen notes that "[i]n too many cases, plaintiffs with justifiable legal grievances are simply denied access to the courts by one means or another."

[39]The Ministry of Public Security has referred interchangeably to "mass incidents" and "public order disturbances" for the 87,000 figure. Given the lack of a precise definition and the politically sensitive nature of social unrest in China, these statistics should be taken as indicating a trend rather than absolutes. PRC Ministry of Public Security Press Conference, "Press Release: Ministry of Public Security Report on the Trend of Social Order and Disaster in 2005," January 20, 2006 ["公安部召开新闻发布会通报2005年全国社会治安形势暨火灾形势", 2006-01-20], http://www.mps.gov.cn/cenweb/brjlCenweb/jsp/common/article.jsp?infoid=ABC00000000000001018 (accessed August 3, 2006); "Data show social unrest on the rise in China," The Financial Times, January 19, 2006.

[40]"China: Dongzhou Killings Must Be Investigated," Human Rights Watch news release, June 1, 2006, http://hrw.org/english/docs/2006/06/01/china13489.htm.

[41]"Environment issues addressed more urgently," China Daily, May 4, 2006.

[42]Ibid.

[43] Richard McGregor, "Beijing reports decline in protests," The Financial Times, November 8, 2006.

[44]"Chinese PM Warns on Rural Unrest," BBC News Online, January 20, 2006, http://news.bbc.co.uk/2/hi/asia-pacific/4630820.stm (accessed January 21, 2006).

[45]"Text of Chinese premier's government work report at NPC session," BBC Monitoring Asia Pacific, March 5, 2006.

[46]Luo Gan is currently a member of the Politburo Standing Committee of the 16th CPC Central Committee. He is also a state councilor, a member of the Leading Party Group of the State Council and secretary of the CPC Political and Legislative Affairs Committee of the 16th CPC Central Committee.

[47]Luo Gan, "Bolstering the teaching of the concept of socialist rule by law: Conscientiously strengthening the political thinking of the political and legal ranks," Seeking Truth, Issue No. 433, June 16, 2006 [罗干, "深入开展社会主义法治理念教育切实加强政法队伍思想政治建设", 求是, 2006616日(总433期)], http://www.qsjournal.com.cn/qs/20060616/GB/qs^433^0^1.htm (accessed October 16, 2006).

[48] Article 32 of the Criminal Procedure Law allows "persons recommended by a public organization or the work unit the defendant belongs to, and their guardians, relatives and friends" to represent a defendant.

[49]Amnesty International, "China: Fear of torture and ill treatment: Yang Maodong (also known as Guo Feixiong) (m)," AI Index: ASA 17/008/2006, February 9, 2006.

[50]"Detained Rights Activist and Lawyer Formally Arrested," South China Morning Post, October 3, 2006.

[51]"Chinese police arrest civil rights lawyer," Agence France-Presse, October 2, 2006.

[52] "China abortion activist sentenced", BBC News Online, August 24, 2006, http://news.bbc.co.uk/1/hi/world/asia-pacific/5281440.stm (accessed November 23, 2006).

[53]"China: Release 'Barefoot Lawyer,'" Human Rights Watch news release, July 19, 2006, http://hrw.org/english/docs/2006/07/18/china13765.htm.

[54]Ibid.

[55]Joseph Kahn, "Rights advocate wins a retrial, a rarity in Chinese courts," The New York Times, November 1, 2006

[56] Maureen Fan, "Rare Retrial Begins for Blind Chinese Legal Activist Proceedings Again Marked By Tumult, Attorneys Say," The Washington Post, November 28, 2006.

[57] Maureen Fan, "Chinese Activist's Sentence Is Reaffirmed," The Washington Post, December 1, 2006.

[59] Joseph Kahn, "China Arrests Human Rights Lawyer Who Criticized State," The New York Times, October 15, 2006.