Hualing Fu & Han Zhu (PhD 2016)
Fordham International Law Journal
2018, Volume 41, Issue 5, pp. 1135-1164
Introduction: Eighteen months after the 709 crackdown on human rights lawyers, a debate took place within China’s human rights lawyers’ communities. It is a brief, yet passionate and provocative debate focusing on some of the fundamental questions about law’s limits in seeking justice and protecting rights in an authoritarian state and the limited role of lawyers in their endeavour. Having grown for about twenty years since the mid-1990s, human rights lawyers have engaged in social-legal activism in wide policy areas including consumer protection, anti-discrimination, rights in the criminal process, and the freedom of religion and speech. The growth of legal rights and their enhanced protection in China in the past two decades are inextricably tied to China’s growing legal profession, especially a small group of lawyers who variously called themselves weiquan lawyers, die-hard lawyers, or human rights lawyers—lawyers who are public interest minded, legal rights-focused, and politically motivated in their battles against arbitrary powers. Yet, those are the lawyers who have received severe crackdown, and the repression has naturally provoked some of them to reflect on the vulnerability of the legal profession in the authoritarian state and the future prospect of socio-legal activism in bringing meaningful changes in society. The debate involved two issues: one specific and the other one general. The specific, pointed question that they have raised is this: is the traditional case-focused and law-centred legal mobilization, moderate or aggressive, still a feasible approach to take to bring structural changes to the political system, incremental or otherwise? In the aftermath of the crackdown, estranged lawyers started to reflect on their past success and failure, to cast doubts about their potential of their own profession in catalysing political transformation, and to express their deeply felt anxiety, frustration, and confusion about law, courts, and human rights lawyering. A more general question touches on a more sensitive issue relating to the politics of lawyering. For the rights lawyers who have experienced or witnessed the crackdown, the Party has revealed its true nature and whatever hope that lawyers may have on law’s potential to tame the Party must have proven false. For them, what matters in the Chinese political-legal system is Article 1 of the Constitution that states clearly that China is a democratic dictatorship. The occasional success in a few legal battles, they admit, may have blinded their eyes on the true nature of the Party state. Some of them, they admit, may just have forgotten that, in Svolik’s terms, repression is the “original sin” of authoritarianism. If that were the case, human rights lawyers should step out of the shadow of law, call a spade a spade and confront the Party head-on. Human rights lawyers need to be openly political. Before the 2015 crackdown, China had experienced waves of social-legal activism since the mid-1990s in which right discourses are translated into rights practices. As it happens, human rights lawyers and other activists have been situated at the forefront in the tireless efforts to expanding the sphere of rights and freedom and in constraining the arbitrary exercise of state power. Together with media, especially social media and domestic Non-governmental organizations (“NGOs”) working in different sectors, human rights lawyers form a strategic “legal complex” in China in protecting legal rights and freedom and in the process hold the Party state accountable to its own legal rhetoric. Supported and sometimes aided by foreign donors, the legal complex used law as an entry point to engage in social-legal activism in shaping public opinions and influencing court decisions. For what they have done in leading and organizing those movements, lawyers and other activists have paid heavy prices and, one may argue, the prices that they pay are precisely indicative of their significance and impact. During the crackdown, leading human rights lawyers were placed under lengthy and secretive detention; many were humiliated and forced to confess their sins in state controlled or arranged media outlets, some were sentenced to lengthy imprisonment terms for subverting state power, and all were placed under tight control. The post-crackdown era also witnessed enhanced professional regulation by the government regulators—the Ministry of Justice (“MoJ”) and its provincial and local counterparts. With the appointment of Fu Zhenghua as the Minister of Justice, the Party seems to be determined to disappear human rights lawyering in China once for all. Ultimately all the challenging questions boil down to this: is there a future for human rights lawyering in China as we know it? After examining the debate on the future of rights lawyering among human rights lawyers, this article proposes three overlapping alternatives for human rights lawyers in the post-crackdown era: a triviality thesis, a co-optation thesis, and a resilience thesis. While the authoritarian system can be suffocating for its enemies, human rights lawyers can struggle to create their own breathing space.