HRIC Hong Kong Roundtable: Discussion Part One

Emily Lau (Hong Kong Legislative Council, China Human Rights Lawyers Concern Group): I think this opportunity for us to get together and exchange views is very, very important and beneficial.

The China Human Rights Lawyers Concern Group (CHRLCG) looks at issues mainly through our work and contacts with human rights lawyers in China. My colleague, Patrick Poon, has almost daily contact with them, and they tell us the situation is very, very bad, and getting worse. One thing I always ask them if they manage to come here to attend our work- shops is: if you get into trouble, what do you want us to do? Do you want us to scream or do you want us to deal with it quietly? They always say, “Yell! Yell from the rooftop!”

And what we always do is get Patrick to take a picture of them—this is very important, because you have to put a face to a name. If they get arrested, then we go to the Central Government Liaison Office¹ and protest.

We also try to watch international actions as well, because that’s what the lawyers want. Today we are meeting behind closed doors, but I hope there will be more public meetings, actions, and so on, so as to stir up local and international interest. I just returned from Berlin, where I attended a seminar on China, and my contribution’s title was “Who’s Afraid of Ai Weiwei?” Of course, the Germans loved it—many Germans know Ai Weiwei. And many people in the international community also know him. And maybe the Chinese government doesn’t like us to go abroad to “bad-mouth China.” I hadn’t done it in a while, so why give up a habit of a lifetime? I invite all of you to do it, because these people who are suffering there want us to do it. Of course, if you want to do it in a very low-key way, they’ll respect you, but they also want us to scream from the rooftops. For those of you who say, “Well, there are consequences,” I would say, “That’s life, whatever you do, there are consequences.”

I think we, in the CHRLCG, are concerned about these lawyers. We do our best to push their cases, and sometimes it’s not for us to choose whether a case is high profile or not. Very often we go to the Central Government Liaison Office to protest, and no journalists will turn up for the event. And sometimes when we do something, suddenly, there would be 100 journalists there. Then the story would be all over the world.

This leads to the question of self-censorship amongst the media. I went to Berlin. I told the media there that nobody here in Hong Kong is interested in these issues. Journalists won’t even write something bad, saying, “Oh, Emily Lau is just doing her thing, bad-mouthing China.” They will just pretend that nothing has hap- pened. This is something that maybe Professor Fu will have to add to his list of the behaviors of Hong Kong people trying to adjust to “one country, one system.”

That’s the question that I put to Professor Leung Tin Wai, Head of the Department of Journalism and Communication, Hong Kong Shue Yan University, when I invited him to come onto our web TV program a few days ago. I asked him: What is happening to press freedom in Hong Kong? The University of Hong Kong did a survey which showed that people think press freedom is disappearing fast in Hong Kong. And Leung Tin Wai said, “Well, they are trying to adapt to ‘one country, one system.’—the news media, Asia Television, and the rest.”

I just want to urge you, if you can, speak out more loudly, don’t just hide under the table. Maybe you think that’s a more effective way, and we all do things our way. But I tell you, we know from the people we meet from the mainland that they want us to speak out for them, and speak very, very loudly. And, of course, they may get into trouble, and we may get into trouble; but they say that if they get into trouble, speak even louder.

Melissa Lam (Independent Art Curator): I have a question for Professor Fu. In your article, “The Varieties of Law in China” in the China Rights Forum, you spoke about the difference between “extra-extra law” and the law.²

But when Ai Weiwei was detained, we didn’t think of it as extra-extra law, we just thought that the Chinese government was just violating their own legal principles. Can you speak a little more about the difference between the abuse of criminal procedures and extra-extra law?

Fu Hualing (University of Hong Kong): I think if you go back 30 years, there was only extra- extra law and nothing else. Over the years, China has tried to build up the legal system for the trade and commerce sectors, but criminal justice cannot be developed this way. In all, probably about ten percent of criminal cases are governed by what we’ d call “law”; the rest are governed by what I would call “extra law.” I guess the point is that the Party state will behave in a particular way—it tells the legal institutions, in specific cases, that these cases are not the legal institutions’ business, and that these matters are under the Party’s directive.

One example is corruption cases. Officials who are suspected of corruption will be detained under the Party’s internal mechanism. That, of course, is outside of the formal legal institutions. In the cases of a few dozen rights lawyers and activists, including Ai Weiwei, I would say they were never subjected to any legal regime from the very beginning and were simply detained. In a way, I still call this “law,” but this use of law is ironic. And in many respects, of course, it is not really “law” as we understand it. If the Communist Party decided that the law is not relevant to it, that it has a different set of rules, then I think you still have to call it “law” if it has legal force. It’s just a different type of law.

Christine Loh (Civic Exchange): It’s the failure of our language to not have a word for this phenomenon, which isn’t part of the organized structure. Is that why you call it “extra-extra law”?

Fu Hualing: If you look at the structure of the security and police apparatus, it is organized as part of the government establishment. The human rights lawyers and activists are not being detained by members of organized crime; they are being detained by the legally-constituted police force.

Bao Pu (New Century Press): I want to follow up on one point Emily Lau brought up. Emily’s position is something that people in the human rights community are always debating when we take on a case with a victim. Do we do it quietly, would it help them more, or do we, as Emily put it, speak more loudly?

I think that that debate should be over, because in the past 30 years, one probably could not find even one case which can convincingly show that more attention means the victims themselves became worse off. Attention has always made the victim’s situation better. So I think, if we have a case, we should just not waste time debating whether we should approach it quietly or more prominently.

Christine Loh: We had a case that we were all somewhat involved with in Hong Kong, the case of Ching Cheong.³ Originally the family was very keen to keep it low-key. But in such cases at some stage, even families that don’t want a high profile get disappointed. The Ching Cheong case is very interesting because it’s not that the family members don’t understand the system. They chose to go the quiet route until much later.

Emily Lau: I think you’re right to raise that. And it’s also right that the family thought they could do better [for Ching] by getting a very powerful personality to do all the talking quietly. Of course, it didn’t work. At some stage, the family felt exasperated, and they said, “OK, let’s go all-out,” and then, of course, it worked. And then afterwards when we asked Ching Cheong about this, he said we should speak out.

Bao Pu: For families it’s understandable; often, it’s the first time that they deal with this issue, and it’s a legitimate concern. But if you see these kinds of cases one after another over the course of 20 or 30 years, you know they all go through this, and that eventually they will go the press.

Joshua Rosenzweig (Independent Human Rights Researcher): I think another case in which Hong Kong arguably played an important role, the result of which was, perhaps, more ambiguous, is that of Zhao Lianhai, the organizer of the parents of the victims of the tainted milk scandal.⁴

The so-called “resolution” of that case, in which Zhao Lianhai was given medical parole after his conviction, was clearly—though there’s no way to prove this—a response to pressure, much of which was generated by Hong Kong’s pro-Beijing delegation to the NPC and CPPCC. Zhao Lianhai was not sent to prison, but in the resolution of that case, he and we gave up a certain amount of our claims for justice and for his legal rights. And I think it was interesting that all of the pressure that initially mounted from Hong Kong very quickly dissipated when Zhao Lianhai was released into a form of house arrest. In other words, for some people, this resolution was sufficient.

Albert Ho⁵ was one of the few people who said that Zhao Lianhai’s being forced into giving up his right to appeal is not exactly justice. When we think of Hong Kong as a base for action—as opposed to these other things that Fu Hualing mentioned, sort of an object of desire and a space for action, a space for acting out new possibilities—we have to think about what the goals of our actions are, particularly when it comes to human rights. Is it simply to get people out of the danger that they’re potentially in? In other words, is that sufficient, as opposed to pushing it even further?

Christine Loh: I see the point that you’re making; in fact, in Zhao’s case, perhaps if Hong Kong were better organized, something could be better sustained. For those of us interested in doing this kind of work, obviously, there are other people who are not regarded as part of the activist community whose assistance we can call on. But this kind of work perhaps can be more sustaining if we were more literate about what to do and how to do it. I’m not quite sure what the lesson is in that case, but there’s clearly a lesson there.

Phelim Kine (Human Rights Watch):With regard to the issue that Bao Pu and Emily Lau raised about speaking out, I think one of the disincentives for both individuals and NGOs in speaking out is the fact that governments who interact with China to a large extent have left the stage in terms of being active in speaking out about human rights. I think one of the great victories the Chinese government created in the last few years is convincing other governments that if they want to do business within the People’s Republic of China, issues of rights must be discussed privately, not publically. And I think that this has caused huge harm, because, obviously, this plays right into the Chinese government’s hands in terms of marginalizing and down playing these issues.

The second point that I want to make refers to what Andy Nathan said—obviously a point that we all make—that is, the importance of Hong Kong to China, for many reasons. But I think it needs to be recognized that this importance and the values that are able to be expressed here are fragile. One of the things that we’ve noted in recent years is what you might refer to as the increasing “mainlandization” of protests and crowd control here in Hong Kong. Of course, this was writ large in how things were handled during Vice Premier Li Keqiang’s visit.⁶ These are factors that really need to be paid attention to.

Christine Loh: We have a number of Hong Kong citizens—apparently most of them are businessmen—who have been arrested and are in jail or in detention somewhere in China. And the Hong Kong administration over time has tried to intercede here and there. Emily, do you know where we are with that?

Emily Lau: Well, I don’t have the exact number. I think there may be thousands, or less. Some of them have come to Hong Kong’s Legislative Council (LegCo) to ask for help. As far as I know, none of them presented the cases as human rights cases.

Joshua Rosenzweig: I think the numbers are actually quite high. Unlike foreign nationals, there’s no consular agreement in which the Chinese government has to notify the Hong Kong government that a Hong Konger has been imprisoned. That doesn’t exist, so it has to be through other channels.

Fu Hualing: In the case of detention, I think the local authorities have to report to the central government if a detainee is from Hong Kong or Taiwan. And the police must inform the Beijing office of the Hong Kong government. So, the government must have data on this.

Phelim Kine: I just want to make one more macro point brought up by several people here, and that’s the idea of “image,” one of the things that protects Hong Kong. Han Dongfang, you were mentioning how the Chinese government is moving toward collective bargaining in some areas because of concerns about its image. In 2007, before the Olympics, I would have agreed with you, but when I think of the events over the past four years, I’m more and more convinced that this government really is less and less concerned about its international image. There is a strain of triumphalism that we’ve seen with the Chinese government, particularly as Western economies have fallen into chaos, and that it’s less and less concerned with how it looks on the international stage. The obvious examples are having the world’s only imprisoned Nobel Peace Prize laureate and kidnapping Ai Weiwei. Everything that’s happened since February, beginning with crackdown on the Jasmine gatherings, really reinforces that the image thing really isn’t such a factor right now.

Sharon Hom (Human Rights in China): I think that there’s distinction between China managing its image poorly and making bad decisions that’s like shooting themselves in one foot and then the other foot, versus not caring. In fact, the Chinese government is investing huge resources into spreading its soft power. For example, in New York, there’s a huge Xinhua electronic billboard in Times Square, and it’s right on top of the Samsung and Coca Cola signs and beneath the Prudential sign. This is part of a worldwide campaign to tell China’s official story through public relations, advertising campaigns, as well as over 30 foreign media outlets. All of this indicates that the government does care. But whether it is effective is another story.⁷

China’s authorities are reaching out to the foreign exchange groups which make their first port of call Hong Kong. So, academic institutions, cultural institutions, and media institutions, are all outreach targets. They are targeted for exchange of views, and also for investment. So, for example, there are more and more Confucius Institutes, not fewer.⁸ There are more mainland-driven curricula being pushed abroad, not fewer, in efforts to control what is taught, including how Chinese language is taught, and especially what Chinese history is taught, or erased from the curriculum. I think what we see is a real intensification and a more sophisticated development of strategies and resources.

So, on the one hand, there is a strain of triumphalism from the authorities at different levels. But there’s also deep concern that they don’t really have the story under control domestically or internationally.  I think the Chinese government knows that it didn’t calibrate some international issues correctly, such as with Liu Xiaobo and the Nobel Peace Prize. Their over-the-top reactions made them look really bad, not at all like a confident strong power.

One policy point that we often try to make to foreign governments is: “In the face of threats and political bullying, you backed down too soon. Although you don’t really have enough leverage in trade or economics, you give away cost-free the soft power you have, i.e., your recognition of China as a respected member of the international community.” But foreign governments are not only backing down, they are also self-censoring on human rights in international exchange and debates.

In the face of this, China is successfully pushing its regional and international agendas. The Shanghai Cooperation Organization (SCO) is a good example; it is welcomed and accepted into the UN bodies without conditions, or guarantees for greater transparency and accountability within the international human rights system. The serious human rights records of the six SCO member states—China, the Russian Federation, Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan—are conveniently ignored.⁹

We need to also address these issues in the cultural arena. When we premiered the Tiananmen Mothers documentary at the Asia Society in New York in 2009, the Asia Society received pressure and calls from the Chinese authorities. So they do care about control over these cultural venues. As an exchange example, at the 11th hour, HRIC was not issued a visa to attend the EU-China Human Rights Seminar in Beijing in September. The EU Ambassador to China really surprised the Chinese authorities when he very publically stated his concern, and the European Commission and the EU issued a public statement at the close of the seminar, referencing this incident.¹⁰

Our strategy discussion so far has highlighted some key issues. Bao Pu is urging that we not waste a lot of time among the community discussing, “Should work on cases be high or low profile?” I think different groups are situated in different places, and we can adopt different strategies—simultaneously—and they all will be helpful in some way.

Another key strategy issue is the question of who gets to make the decision about a particular strategy. I think that decision-making should not be limited to any human rights group. As HRIC, we try to recognize that decisions should be made by the people who will pay the cost for and bear the impact of the decision. Of course, that’s been very difficult. Take Zhao Lianhai, for example. We had a big internal discussion about what to do when he accepted medical parole in late 2010 and issued a statement asking people not to publically discuss his case. We decided to pull our translation of material on his case from the China Rights Forum that was about to go to the printer. There was disagreement among staff members—many said that we should leave the material in because they felt that Zhao Lianhai had to say in public that he wanted the discussion to stop but actually he did want that. But what if our guess was wrong? At the end, we made our decision based on the one concrete piece of information we had: his public statement.

Some final strategic questions I would throw out for further discussion are questions about impact and assessment: When we say a strategy works we need to also ask, “What do we mean by ‘working’? What are the specific impacts? How do we measure results or progress, and what is the relevant timeframe?”  I don’t think there are clear or simple answers, but we need to ask these questions to be accountable to the people we work with and to ourselves.