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Xu Zhiyong Arrested: How Serious Can Beijing Be About Political Reform?

A ChinaFile Conversation

Donald Clarke:

When I heard that Xu Zhiyong had just been detained, my first thought was, “Again?” This seems to be something the authorities do every time they get nervous, a kind of political Alka Seltzer to settle an upset constitution. I searched the web site of The New York Times to confirm my intuition. Although my hopes were briefly raised by a pop-up ad that optimistically proclaimed, “We know where Xu Zhiyong is” and offered me his address, telephone number, and credit history, the stories in the results list were depressingly as expected: “A leading human rights advocate is detained in Beijing” (July 13, 2013); Xu Zhiyong “in the company of security agents and unable to talk” (Feb. 20, 2011); “Just before dawn on Wednesday, the founder of Gongmeng, Xu Zhiyong, was taken into police custody, and he has not been heard from since” (July 31, 2009). Two other detentions, on June 7, 2012 and in June 2011, didn’t show up. There may be more I’ve missed. In any case, this is clearly a man who knows his way around the back seat of a Black Maria.

Today’s topic is what, if anything, this detention means for the broader question of political reform in China. Let’s be clear: Xu Zhiyong is an extremist in his moderation. As Jeffrey Prescott, then at Yale’s China Law Center, said in 2009, “He is someone of rare idealism, judgment, commitment to law, selfless dedication, and fundamental decency. So that makes his detention very hard to understand.” Unfortunately, it is hard to understand only if we think that those responsible for detaining him share his values. Xu Zhiyong does not throw bombs. Unlike, say, Wei Jingsheng, he does not say insulting things that hurt the tender feelings of the leaders. He is the soul of reason and respectful discourse with all, including his police tormentors. Yet even this man is apparently intolerable.

Xu’s offense this time seems to have been his advocacy of asset disclosure by officials. (The charge, “assembling a crowd to disrupt order in a public place,” is the same laughably implausible one brought against Chen Guangcheng – both were under informal house arrest and constantly guarded at the time of their alleged offense.) The move against him is of a piece with recent detentions and harassment of citizen anti-corruption campaigners.

For some reason new leaders in socialist dictatorships are always thought to be reformers—even KGB boss Yuri Andropov upon his ascension to the Soviet leadership was hoped to be a closet liberal because he liked jazz and spoke English. The same expectations, with about the same justification, have greeted Xi Jinping. So far, he has not had time to do much. What he has done—for example, the anti-corruption campaign—he may well be quite sincere about; I see no reason to write it off as a show designed just to keep the masses distracted while the looting continues. But what he has not done is to show any sign of plans to make the Party accountable to the people. This does not mean that he and other leaders don’t want real reform in certain areas, or that they can’t accomplish it. But it does mean that reform will not involve outside accountability. We’ll handle it ourselves, thank you very much. Sorry, citizens: it’s really none of your business.

Responses

We don’t know who makes decisions like this, but my best guess is that it is usually not the political generalists in the government but the security professionals. They are tasked with keeping social order and protecting the regime. For them, the most frustrating antagonists are not rioters and demonstrators, terrorists and saboteurs, thieves and murderers, but those who operate within the letter of the law and attract widespread social support—people such as Liu Xiaobo and Chen Guangcheng.  Liu penned an eloquent appeal for the regime to obey its own constitution, got hundreds of intellectuals to sign it, and received the Nobel Peace Prize.  What could be more offensive?  Chen wrote appeals for women illegally coerced by family planning authorities and became a darling of Beijing intellectuals and the international community.  Such arrogant nonsense!  These are the most maddening antagonists for the security men.

Xu Zhiyong is such a person—fighting for good causes without violating a single law, and gaining widespread respect and affection for doing so. In the eyes of the security men, what could be more devious, more perverse?  The absurdity of the charge against him sends an intentional message. Just as Liu was charged with mobilizing others to subvert state power because he defended the Chinese constitution and Chen was charged with obstructing traffic even though he is blind and under house arrest, so Xu Zhiyong, who also has been under house arrest, is accused of  “assembling a crowd to disrupt public order.”  The message is, “The law is for us; it is not for you.”

 

Xu Zhiyong’s detention is hardly a surprise. What I do find surprising is that some observers still believe that there are reformist elements in the Party that are powerful enough to bring about meaningful change. This belief reminds me of Bertrand Russell’s cosmic teapot, originally an argument for atheism, but it makes complete sense when thinking about meaningful political reform in China in 2013. To paraphrase Russell: Nobody can prove there is not a miniature teapot between the Earth and Mars revolving in an elliptical orbit, but nobody thinks the existence of this teapot is likely enough to to be taken into account in practice. So with political reform in China in 2013, under Xi Jinping.

I think a better guide to the way the Party thinks about reform is to read the works of Eric X. Li and Daniel Bell: The system is excellent and meritocratic and probably better than Western political systems. Why would anyone want significant change?

So Xu Zhiyong has now been arrested for disturbing public order. These are the same charges as those brought against Chen Guangcheng back in 2006.

In fact, the state’s behavior with regard to China’s rights activists is becoming a part of a disturbingly repetitive pattern: Activist attempts to use existing legal channels to protect citizen rights, gaining a certain degree of notoriety in the process; State becomes increasingly uncomfortable, and begins closing down said channels; Activist moves on to more mobilized, less institutionalized forms of activism; State then ends up arresting said activist on criminal charges. (See Don’s discussion of Xu Zhiyong’s success in the Sun Zhigang case above).

For Chinese authorities, this is just a necessary part of maintaining social stability in an increasingly tumultuous society.

Really? They might want to take a look at their own history.

Take, for example, the case of Du Wenxiu (1823-1876). A young intellectual from the southwestern province of Yunnan, he also attempted to petition authorities in Beijing, seeking to call the Qing emperor’s attention to the failure of Yunnan officials to protect local residents in the face of mounting abuse and widespread violence. Jailed for bringing false charges, he returned home, dejected and having lost faith in the imperial system.

Oh, yes. One more thing. Then Du ended up organizing a coalition of the disaffected across Yunnan and launching a 17-year long rebellion against Qing imperial rule. The death toll? Hundreds of thousands.

Now explain to me again, very slowly, how Chinese state policies of a) curtailing the growth of authorized legal and political channels for resolving popular grievances and b) suppressing the very individuals who are attempting to encourage citizens to use them, produces real social stability for China, instead of fueling an extremely dangerous spiral of social and political radicalization.

It is with no small amount of sadness that I write about Xu Zhiyong’s detention.  Back in 2003, he was one of three young PhD’s who, following legally prescribed procedures, petitioned the National People’s Congress to abolish the system of “custody and repatriation” (which permitted the police to detain migrants and forcibly send them back to the countryside) on the ground that the system violated the Chinese constitution.  A few months later, without explicitly ruling on the petition, Premier Wen Jiabao announced the abolition of “custody and repatriation.”  Many observers of the Chinese legal scene thought that this augured a new, more robust period for the Rule of Law in China. Perhaps the rights enshrined in the Chinese constitution could even be made meaningful in daily life.  The abolition of “custody and repatriation” became a signature achievement of the early years of the Hu-Wen administration.

However, hope for a new dawn in Chinese Rule of Law was short lived.  After a summer of hope, the word went out to stop discussing the constitution and voices for significant reform were quieted.
 
Nevertheless Xu Zhiyong became a popular lawyer and was even elected as a delegate to his local party congress. It is unclear exactly when the authorities began to view Xu differently. Perhaps it was his investigation and exposure of “black jails,” another form of unlawful official detention used by provincial governments to prevent petitioners from presenting their complains to central government offices. The NGO he founded, Gongmeng, was more or less disbanded but he continued to use the law to advocate for reforms.

To an outside observer, Xu Zhiyong’s “offense” appears to be taking the government and the party at its word. As in the past, Xu Zhiyong always seems to be taking the law seriously even when the message from the powers that be is to ignore the law and follow political instructions.
 
When the new leadership announced that combating corruption was one of its top priorities, Xu Zhiyong and others decided to advocate publicly for a requirement that high level officials disclose their financial assets.  This is not a novel idea and has been discussed in Chinese academic circles for years. Moreover, public participation in rule making and law making has been a policy of the Chinese government for many years now.

Experienced China watchers will say that of course, everyone knows that in China reading the political winds is more important than reading the constitution or the law, and perhaps that is true. But what does it say about China in 2013 that it still uses the power of the State to silence even its most responsible public advocates? The seemingly spiteful detention of even one lawyer or citizen for merely advocating legal reform undermines the positive image China is trying so hard to create for itself around the world.

China’s leaders could stop the damage now by releasing Xu Zhiyong and his fellow advocates and either taking up their reform proposal or explaining why they are not ready to do so.  

Donald Clarke is a professor at the George Washington University Law School in Washington, D.C., where he specializes in modern Chinese law, focusing particularly on corporate governance,...
Andrew J. Nathan is Class of 1919 Professor of Political Science at Columbia University. He is also chair of the steering committee of the Center for the Study of Human Rights and chair of the...
Jeremy Goldkorn is the Founder and Director of Danwei, a research firm that tracks Chinese media and Internet. Danwei has been publishing a popular website about Chinese media since 2003. After...
Carl Minzner is Associate Professor of Law at Fordham University. An expert in Chinese law and governance, Minzner has written extensively on these topics in both academic journals and the popular...
Ira Belkin is Executive Director of the U.S.-Asia Law Institute at New York University. Before joining NYU, he was a program officer at the Ford Foundation in Beijing, where he worked on law and...

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