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The Battle for Justice and Free Speech in the New Superpower
“Unhappy is the land who needs heroes.”
The Battle for Justice and Free Speech in the New Superpower
Copyright © 2014 - ME Publisher - New York
First Edition: 2014
All rights reserved. No part of this publication may be reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. All the images contained in this book are in public domain and retrievable on the web
After 20 years of living in China, I was almost persuaded that a country like this could only be governed by a strong authoritarian state.
I also came to believe the state’s main responsibility was to ensure freedom from want and hunger, and that in China this could only be accomplished if other universal rights were denied, suppressed or dismissed as ‘non-Chinese.’ History seemed to support this notion. The fall of the Ming and the Qing dynasty, the humiliation suffered at the hands of foreign imperialists, the chaos after the fall of the last emperor, the tumultuous rebirth of the nation under the Communist Party –all of these cataclysmic power shifts were brought on in part by the failure of a central authority to maintain control. More or less, this was the storyline taught in the West.
Of course I knew about Mao’s mistakes too – about the ludicrous policies that doomed an entire generation and caused the unnecessary death of tens of millions. But on this point, the ability of Chinese rulers to amend, rewrite or delete entire sections of the country’s history ensured future generations would only have imprecise knowledge of these events.
When I first arrived in China in 1990, I hardly heard people talk about the Great Leap Forward or the Cultural Revolution. Ten years later, while talking to friends and colleagues, I realized that the so-called “Tiananmen incident” didn’t resonate among anyone younger than 40. The generation schooled in the 90s had only a vague idea of what happened; the Communist Party’s line was that it was a “turmoil” caused by foreign interference. That sounded fair to a lot of people. After all, the economy was getting better and better and most people were seeing tangible improvements in their livelihood. Could it be that the Chinese leadership really was getting it right?
Living in Beijing, one of the epicenters of China boom times, I had become part of the growing number of foreigners blinded by the astonishing growth rates, the burgeoning construction business and the sense of safety on city streets. How many times I heard people say, “I feel safer here than in New York,” or, “In the night, I can walk on the street freely. I wouldn’t be able to do that in Rio or Jakarta,” and “Look how fast they built this bridge or the third airport runway: in England it would take ten years, you would have people who don’t want to relocate, the local environmental protection association setting up roadblocks, unionized workers protesting impossible working hours... Look how much better it works here.”
The storyline told by the government and apparently believed by much of the new Chinese middle class is that to ensure economic growth and public order, the country needs a strong government which rewards its obedient sons and daughters and crushes those who don’t fall in line. In this contest, the rights of each individual are less important than the bigger picture, i.e. economic growth. Therefore, never mind an unpredictable legal system biased against the accused, never mind the harassment and jailing of lawyers, journalists, environmentalists and even petitioners who had their property unjustly confiscated; never mind that courts are too often subservient to the prosecution and the police; never mind the woefully inadequate health-care system; never mind the suppression of any form of association unless strictly controlled and supervised by the government; never mind the almost total control on what is written, published, shown on TV. “Look at the bigger picture,” I kept hearing not only from businessmen, but also state-owned company employees and urban white-collar workers.
As a foreigner living in a secure and secluded compound, I was of course annoyed by the heavy pollution in my city, but I also knew I would never be exposed to the most dangerous forms of contamination (this was reserved, as in every developing country, for the poorest). I also was bothered by the inability to access Facebook, LinkedIn, Twitter and YouTube – all blocked in China – cutting me off from a large swath of the greater global conversation. And occasionally I’d receive my copy of The Economist with pages missing, almost surely torn out by zealous censors. But I had a strong economic and financial interest in the continued growth of China, and therefore in the two magic words: “social stability.” Having hired an “a yi” myself, I had a personal interest in rules that make it easy to hire and fire domestic helpers at will, most of them victims of the “hukou” system (see Chapter 2); I had a personal interest that the poorest of the poor were kept away from my eyes and would never show up begging at my door. Finally, because I had to “sell” China as a business proposition to potential investors in my home country, I had an interest in the fact that the state-controlled media was hardly reporting any rebellion or protest. In other words, everything was under control.
But then on occasion I was reminded by an Indian, Indonesian or Japanese friend, and also by the foreign media, that not far away from China, other countries had taken very different paths to development. However, I decided to believe that the Chinese people were so unique, so different from other people in the world that they wouldn’t care about that.
I was almost convinced that, to quote Dr. Pangloss, this was a country where “all is for the best in the best of all possible worlds.” Then at the end of 2008 a Chinese friend gave me a copy of an astonishing document known as Charter 08.
Charter 08 was a three-page manifesto signed by more than 300 individuals, circulating for a couple of weeks before I saw it. Several thousand would later add their names. The main authors, including 2010 Nobel Peace Prize winner Prof. Liu Xiao Bo, had taken pains not to attack the government. Actually, almost all the recommendations made in the manifesto were consistent with China’s Constitution. The recommendations were in fact aimed at implementing already-established constitutional provisions. The main points of Charter 08 were as follows:
1. The people shall be at the center of any decision-making process.
2. Officials should be elected.
3. The Constitution and the Criminal Code shall be revised to ensure the fundamental freedom of speech, of association, of religion.
4. Separation of powers is key to the functioning of the state and would solve many of its ills.
5. The armed forces and the police should act within the Constitution and report to the country and not to one Party.
Charter 08 didn’t advocate the demise of the Chinese Communist Party. On the contrary, by advocating elections in a country where no organized political force could possibly rival an 80-million strong organization, it was offering the Party a chance at the legitimacy it has long strived to obtain.
Nevertheless, to sign a document advocating such broad political reform was an act of extreme courage. That courage, unfortunately, was never rewarded to the signatories by their fellow countrymen: the enormous Chinese security apparatus reacted speedily and thoroughly, erasing all traces of the document. Charter 08 attracted signatories from all quarters of Chinese society but, within a few months, all mention of it vanished from the public sphere.
Charter 08 and, especially, the reaction of the government to its publication, planted the seeds of doubt: was I right in thinking that stunning economic success could have come only at the expense of people’s fundamental rights, even those enshrined in the Constitution? And was I really correct in thinking that Chinese people were not only supportive of this concept, but also fiercely opposed to anything or anyone who suggested the contrary? Was Deng Xiaoping’s idea that political reform could only come once the country was “stabilized” accurate? And who gets to decide if and when the country is sufficiently stable?
My doubts increased after I met some of the people whose stories are in this book. I was forced to face an entirely different world beneath the sleek surface of the modern and increasingly prosperous urban realm where I lived and worked – a world made of people who have taken the words of their leaders – “governing for the people,” “right to criticize,” “freedom of speech,” “rule of law” – in earnest. A world where people are harassed and jailed for their faith in these basic concepts.
This is not exactly the world that the Chinese Communist Party promised to deliver while they fought the Nationalists during the 1945-49 civil war. The Party came to power promising to end the abuses of the Nationalist government, to achieve the protection of human rights and to guarantee justice and freedom of speech. Those promises were not fulfilled. Instead – when the policies of the Mao era led to the greatest famine in recorded history, the Great Leap Forward (see Chapter 10) and then later to the senseless violence of the Cultural Revolution – the government took pains to cast itself as the savior. Many Chinese, even those with college educations, believe the millions who died during the Great Leap Forward were victims of natural disasters and aninsidious Soviet conspiracy. The chaos of the Cultural Revolution and the fighting between “leftists” and “rightists” left an indelible imprint on the national psyche. No one wants to see a return of absurd political violence. Then in the eighties, when Deng Xiaoping instated a more pragmatic but still tight-fisted government, the economy finally shifted decisively toward development. People’s lives began to change for the better. Deng’s success reinforced the message that the government is capable of solving any problem.
In the present system, any ideological dispute can only happen behind closed doors, within the Party’s top leadership. Public debate is shunned or, in more recent years, modestly and inconsistently tolerated provided the dialogue doesn’t cross the invisible and ever-shifting line between what is and isn’t acceptable speech.
This system has an intrinsic attractiveness, one amplified by Western media’s depiction of a booming China and a declining West – a depiction that too often discounts that authoritarian systems are the exception rather than the rule among the most successful non-Western countries. Whether such a system is sustainable long-term is difficult to predict.
However, an analysis of the system’s sustainability is not the subject of this book. Through the stories of a handful of brave individuals, this book asks whether the system created since the opening up and reform era has delivered, or is capable of delivering, two simple promises made when the Communist Part took power in 1949: Justice and Freedom of Speech. These two promises, desecrated during the sixties and seventies, but once again enshrined in the 1982 Constitution, resonate through each chapter. Some of the people profiled in this book fell from favor during recent crackdowns. Others fought and lost their battles much earlier; battles which remain as critical and important today as they were then. With few exceptions, these people almost certainly don’t know each other, and likely wouldn’t see themselves as part of a defined group.
Still, I felt compelled to write about these people, because the hope of a better China – a country I love with all my heart - rests squarely in their hands and in the hands of the many others like them.
Beijing, June 2013
Deng Xiaoping announces the “Reform and opening policy.” Farming communes are disbanded. Sweeping economic changes take place.
The new Criminal Code and Criminal Procedure Law are adopted, moving the country away from the arbitrary lawlessness applied in the administration of justice in the previous 20 years. Other key laws are also adopted, including the first one regulating foreign investment in China.
The new Constitution is adopted. It includes broad guarantees for freedom of speech and due process. It recognizes that no one should be above the law, including Party officials. It also stipulates that the courts shall exercise judicial power independently. The same principle applies to the office of the prosecutor, known in China as the “People’s Procuratorate.”
The Constitution will be amended later in 1993, 1998, 1999 and 2004. The 2004 amendment will strengthen the protection of private property rights.
First “Yan Da” (hit hard) campaign, aimed at punishing crime with greater severity. There will be two more in 1996 and 2001. During these campaigns, the standards of fair trial and evidence collections have been periodically loosened. A similar campaign will take place in Chongqing in 2009 targeting organized crime.
An assessment team for the feasibility of the Three Gorges Dam project is formed.
The “General Principles of the Civil Code” are adopted; rather than a full Civil Code in the sense of the Roman-German tradition, they consist of a brief set of principles governing civil capacity and civil relationships.
Students demonstrate in Tiananmen Square. The army intervenes. Hundreds die in Beijing streets. A massive crackdown on student leaders and academics follows. Several are jailed or forced to leave the country; of these, most find refuge in the US.
Party Secretary Zhao Ziyang – sympathetic toward demonstrators – is demoted from Party leadership and put under house arrest until his death in 2005.
The Administrative Supervision Regulations are passed and later converted into law in 1997, establishing grounds for an administration based on procedural rules rather than the arbitrary “rule of man.”
The first comprehensive Civil Procedure Law is adopted.
Shanghai mayor Jiang Zemin enters the Politburo, the highest echelon of the Chinese Communist Party. He will be appointed president one year later.
Deng Xiaoping tours the south of China to make the argument for economic reform even stronger.
The National People’s Congress formally approves the construction of the Three Gorges Dam.
The Law on the Protection of the Rights and Interests of Consumers is adopted.
The Criminal Procedure Law is amended, introducing concepts such as the right to defense and the presumption of innocence. However, the law still grants police broad powers to arrest and detain suspects without trial. The new law also strengthens the prosecutorial powers.
Regulations aimed at censoring internet content are adopted. They will be followed by others in 1997 and 2000, leading to the creation of the famous “Great Firewall.”
The first “Lawyers Law” is adopted: it departs from the previous approach, which defined lawyers as “state workers” and recognizes formally the ability to set up partnerships. It also provides the right for defense lawyers to access trial files.
At the 15th Party Congress, President Jiang Zemin declares that the country should be ruled according to law, but that this should happen “under the leadership of China’s Communist Party and on the basis of people’s determination.” The words “socialist rule of law” becomes part of official rhetoric, alongside “socialism with Chinese characteristics,” one of Deng’s favorite slogans. Jiang declares the goal of building a “rule of law system with Chinese characteristics” should be achieved by 2010.
Jiang Zemin orders the People’s Liberation Army to exit all business activity (the PLA ran several prominent companies and also owned hospitals, hotels and restaurants). In many cases, the PLA maintains de facto control of these businesses even though direct ownership links are severed.
Rules are adopted for the first time to regulate the registration and management of ‘social organizations,’ with an aim to “guarantee citizens’ freedom of association,” but also to “protect the society’s legal rights and interests” and “promote social material and spiritual civilization.”
The government engages in a massive crackdown on Falungong practitioners, a religious sect with millions of adherents throughout China though its spiritual guide is in exile in the US, after thousands of adherentsstage a demonstration outside the central government compound in Zhongnanhai. In the years that follow, many members are arrested and tortured while in detention. The persecution often extends also to their defense lawyers.
The Administrative Review Law is adopted, setting out a system through which administrative decisions can be appealed to a higher-level administrative office. The law only allows for specific administrative decisions to be appealed. The law does not allow aggrieved citizens to challenge measures of broader application (including national but also local rules, notices and policies).
The Legislation Law of the People’s Republic of China is adopted in an attempt to bring order to the web of legislative sources in China and to streamline the review and approval mechanism for legislative sources. The hierarchy sees laws adopted by the National People’s Congress at the top, followed by administrative regulations issued by the State Council and by ministerial regulations issued by central level ministries. The proliferation of rules and regulations adopted by local governments at provincial or municipal level is not deterred and local governments keep adopting rules or policies of various natures, which sometimes conflict with national laws.
The “Judges Law” is amended, in an attempt to professionalize the role of justices.
China’s entry into the WTO brings about many changes to laws and regulations concerning trade, business and foreign investment.
Comprehensive rules are adopted to govern the demolition and relocation of urban properties for public needs. They contain a controversial right to carry out demolition and relocation for the purpose of “renovating old urban districts.”
Leadership handover from Jiang Zemin and Zhu Rongji to Hu Jintao and Wen Jiabao.
The revised Civil Procedure Law is adopted. It includes provisions allowing class actions, known in China as “collective actions.”
The government publishes the Measures for Disclosure of Government Information, creating a system for citizens to seek and obtain information from the government. In the legislative hierarchy, however, this law ranks lower than the Law of Guarding State Secrets.
A massive earthquake in Sichuan kills more than 50,000 people, including thousands of children who were in class at the time.
Violent protests erupt in Tibet.
China holds its first Olympic Games.
Protests followed by violent rioting erupt in Xinjiang Province among the Muslim Uyghur ethnic group.
Following the “melamine milk” scandal and other food safety-related incidents, the first comprehensive Food Safety Law is adopted.
Party mouthpiece People’s Daily declares that Jiang Zemin’s goal to build a “legal system with Chinese characteristics” has been achieved.
The Law of Guarding State Secrets is amended. It contains an extremely broad definition of “state secret” and doesn’t exclude the possibility that information already made public could be reclassified as a state secret.
The Criminal Code is amended, reducing the number of crimes punishable by death by 13 for a total of 55, a number that still includes economic crimes.
Following a spate of incidents and protests against demolition of urban properties, new regulations are adopted to improve the overall process and introduce new valuation methods for the properties expropriated and prohibit questionable methods previously used by governments to implement the demolition and relocation plans.
The Law on the Administration of Publishing Activities (originally adopted in 2001) is amended. It states that publishing activities must “adhere to the orientation of serving the people and socialism, follow the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of ‘Three Represents’ [a theory first enunciated by Jiang Zemin to explain the role of the Party] and carry out the Scientific Outlook on Development [a theory promoted by Hu Jintao].” It confirms and reiterates the government’s full control over what is being published and read in the country. Foreign and Chinese web-sites that teach people how to publish their own books are also blocked.
Leadership changes. Xi Jinping and Li Keqiang are anointed as successors to Hu Jintao and Wen Jiabao respectively. The new Standing Committee of the Politburo is composed of seven rather than nine members. Xi Jinping promises a spate of economic reforms to revitalize the economy and continue the shift of the economy from an investment-driven one towards consumption. China releases a 5-year plan to upgrade its food-safety regulations and holds its first "food safety week". Bo Xilai, the Party secretary of China's largest city (Chongqing) and a rising star in national politics, is sentenced to life in prison for corruption and abuse of power. Bo's wife, Gu Kailai, received a suspended death sentence for the murder of British businessman Neil Heywood after a disagreement about money. Heywood had known the couple and their business dealings well enough to threaten their political ascendance.
One morning in 2002, Zhao Lianhai stepped off Xuanwumen Xidajie, an expansive boulevard in west Beijing, and through the doors of the State Drug Administration to start work as an inspector.
Born and raised in Beijing, Zhao Lianhai was 30 when he took the job at the agency. Seven years earlier, when he was 23, he had received a two-year jail sentence for brawling, but by the time he began his government job that was long behind him. He simply wanted to get on with his life.
The following year, the agency merged into the newly formed State Food and Drug Administration. The official who had helmed the previous Drug Administration, Zheng Xiaoyu1, was made director of the new SFDA.
After he began work, Lianhai and his wife, fellow Beijinger Li Xuemei, moved into a middleclass neighborhood in Daxing, a south Beijing suburb, where his salary only afforded a 40 square-meter flat. In 2005, their son was born. They named him Pengrui. A son is always considered a blessing to a traditional Chinese family, and Lianhai and Xuemei were happy to have a healthy one. Life was looking up.
In September 2008, when Pengrui was three, the couple took him to see a doctor after he complained of stomach pains. During what they thought would be just a routine medical check, the parents received terrifying news that would permanently alter the course of life for their family: their toddler had a two-millimeter stone in his left kidney.
Reports of children developing kidney stones after drinking tainted milk had been cropping up for several weeks before Pengrui was diagnosed. The first official news came on September 10, when the government reported 14 babies in Gansu Province fell ill after drinking the same brand of milk powder. On September 12, 2008, Sanlu Dairy, one of China’s largest dairies and milk powder producers, admitted to selling milk products tainted with melamine. Melamine is a chemical used to manufacture melamine-formaldehyde resin, a type of plastic. It is a nitrogen-rich compound and is sometimes illegally added to food to make it appear higher in protein content. Farmers added melamine to the milk they sold to Sanlu and other dairies so it would appear richer in protein than it truly was. One farmer explained, “In the summer we milk the cows three times instead of two, but they drink a lot of water then, so the protein content didn’t meet company standards.” When eaten, melamine can cause renal and urinary problems in humans and animals (melamine was also the culprit in the 2007 pet food recalls, where tainted feed from China killed thousands of cats and dogs in North America and Europe). In humans, melamine poisoning can result in blood in the urine, high blood pressure and kidney stones, which can be fatal for infants.
A few days after Sanlu’s admission, the worst came true: two babies died after drinking contaminated milk. Soon, reports of poisoned children mushroomed across the country. By November, almost 300,000 children had fallen ill after drinking tainted milk, according to official tallies. The government asked all public hospitals to provide free care to affected children. At least six children died.
Investigations revealed Sanlu had received complaints of children getting sick from its milk as early as December 2007, and that by May 2008 the dairy knew with certainty that it was selling bad product. It wasn’t until the company’s foreign partner, New Zealand dairy Fonterra, blew the whistle that production stopped. New Zealand Prime Minister Helen Clark raised the matter directly with the Chinese government. Soon, melamine was discovered in milk from three other well-known dairies. One company, Mengniu Dairy, recalled all of its products. Virtually the entire Chinese dairy industry ground to a halt.
With the standard haste, police arrested 60 people in connection to Sanlu and its tainted milk, and 21 Sanlu executives would wound up on trial together. But it didn’t stop there: the dairy was based in Shijiazhuang, the capital of Hebei Province. Eventually the city sacked several officials, including the local Party chief, for complicity in Sanlu’s cover-up. The head of China’s Food Quality and Safety Bureau resigned in light of the massive incident. Evidence later emerged that melamine was not only added to milk; chemical traces were found in eggs, candies and other products sold as far away as Europe.
As his son was treated, Lianhai nervously followed the news, seeking out as much information as he could. He found out there were many parents in Beijing with sick children and he began connecting with them. Lianhai created a website, jieshibaobao.com (Home for Kidney Stone Babies), to host a forum and information exchange for all parents with children sickened by tainted milk.
No one can say with certainty what Lianhai was thinking when he started the website. As an employee of the government’s top consumer watchdog organization, Lianhai was probably doubly shocked at the lack of control on what went on the market.
Since 1991, Chinese citizens have had the nominal right to file class-action lawsuits (known as “collective actions”) based on China’s Civil Procedure Law. However, class-action suits have rarely been accepted by the courts. At the time of the milk scandal proceedings, several government officials made statements indicating they wouldn’t allow parents to sue, that the government would prefer to handle the compensation matter itself, presumably to avoid “social instability” - a reason often cited for shuttering citizen speech and action. The government bypassed parents and simply made tainted milk producers contribute to a compensation fund worth US $36 million, to be disbursed by the government to affected families.
Lianhai’s son was relatively lucky. Pengrui was treated and the kidney stone disappeared. But his abdominal pain persisted and he had trouble urinating. Lianhai felt that neither the government nor the primarily government-run hospitals had given sufficient information about possible long-term consequences of melamine poisoning. In an interview with The Toronto Star, Lianhai showed the reporter pictures of desecrated internal organs from animals that had died after eating melamine-laced pet food the previous year. Lianhai feared the same thing could happen to his son’s kidneys. Lianhai said he was determined to continue supporting jieshibaobao.com as a platform to exchange information and create a united front for affected families. Lianhai believed the number of ill children was grossly under-reported based on the wide distribution network of the implicated milk producers and the length of time over which product was sold. He believed the actual number could be in the millions.
In December 2009, the government introduced a compensation plan funded by 22 dairy companies: families with children who died would be offered a cash payment of about RMB200,000 (US $29,000 at that time); families with children who suffered major injuries and required extensive medical treatment received RMB300,000 (US $44,000); and families with children who suffered minor injuries received RMB2,000 (US $300). Given the uncertainty of the long-term effects of melamine poisoning, many aggrieved parents weren’t satisfied with the one-off payment. They believed the compensation was too low and that the hasty criminal trials had failed to bring many of the guilty to justice.
In January 2009, the Hebei High Court rejected a class-action lawsuit filed by a group of 10 lawyers on behalf of more than 300 families2. Around the same time, Lianhai collected 370 signatures from affected parents rejecting the government-proposed compensation plan. He posted the letter to his website.
Meanwhile, Sanlu, which had sold the most tainted milk powder, declared bankruptcy. One of its employees in charge of procurement was sentenced to death and Sanlu’s chairman was jailed for life.
Unsurprisingly, the class-action suit was struck down once again by the Court. The Court gave the reason that it couldn’t process compensation claims while the government was still investigating the dairy companies.
It is unclear why the government chose to handle the compensation as it did. It would be difficult to argue whether or not the amount offered was sufficient to cover losses suffered, but it is certainly understandable that families desired a fair and public trial where both sides submitted evidence. According to Chinese law, families were under no legal obligation to accept the government’s fund and had the right to press for legal action against the dairies, based on the Law on the Protection of the Rights and Interests of Consumers (adopted in 1994). Had the lawsuit been allowed, it would have been a unique test for the Chinese legal system, setting precedents for future complex cases with multiple plaintiffs. But that wasn’t to be. Someone, probably a member of the CCP’s politburo, decided it was time to put the matter to rest and that any action aimed at prolonging the case was unacceptable.
Article 239 of the PRC Criminal Code is the typical authoritarian regime’s ultimate legal defense weapon. It is the crime of “causing serious disturbances” (or “picking quarrels and provoking troubles”). It was added in 1997 and carries a maximum five-year sentence.