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.
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