Two types of lawyer

The news last week that China has strongarmed yet another batch of its lawyers into submission has been the cause of much hand-wringing both abroad and within sections of the Chinese law community. The closure of the Beijing-based Open Constitution Initiative (Gongmeng) is the latest step of an energetic, jack-booted dance over the shoots of China's civil society (such as it is) seemingly choreographed by the country's ruling elite to commemorate the 60th anniversary of their country's founding.

Gongmeng's founders have been rightly lauded for going head-to-head with the authorities on high-profile 'sensitive' cases involving Tibetan dissidents and earthquake victims. However, waving the law like a flaming sword in the face of one’s opponents is not necessarily an approach universally favored by those seeking to use it as a tool for real, long-term change.

Lingering antipathy and mistrust on the part of the government means that founding an NGO in China is a bit like thinking up a creative variety of alternative descriptions for a spade. One way is to dress it up as something else, registering it as a private company. This was the approach adopted by Gongmen,g which was eventually scuppered last week by the imposition of an impossibly large fine for the late payment of taxes.

Another way of camouflaging one’s NGO is to hide it under the wing of an academic institution, and it is here, concealed in the legal departments of dozens of universities across the country, that a different brand of legal activist continues to flourish. Often guided with the tacit help of foreign NGOs, such institutions run low-profile grassroots initiatives such as legal aid programmes for peasants, or labour law education courses for factory workers. In doing so, they encourage people to resist bullying from above and exploit the system as it stands to maximum possible advantage.

Huang He* is the assistant-director of just such an institution, based in central Hubei province. It would be hard to unearth a man with a more unshakeable, almost religious conviction in the law as a sacred panacea for almost any problem, anywhere. In his delivery, the word always emerges somehow dressed in the pomp and magnificence of a proper noun in some 18th century difcourfe.

But his convictions are matched by a subtle and realistic assessment of the hopeless muddle competing political interests and incoherent or unclear statutes that makes up the bulk of the present legal system (as a basic example, China currently has no presumption of innocence or guilt built into its legal framework at any level).

Counter-intuitive as it might seem, the key to the success of his institution and others like it lies in ‘communication and co-operation’ with the government. By highlighting the role that strong legal institutions can play in reducing the risk of social instability, they have skillfully co-opted local government officials as advocates, rather than opponents. In doing so, they have so far navigated themselves around the dubious honor of officialy imposed martyrdom.

Even so, convincing officials that they pose no threat to the sovereignty of the independent kingdoms they have carved for themselves often involves resorting to creative diplomatic measures. “At the beginning of our project, we did have a crisis of trust with the Justice Department of Hubei Province, and they want to retreat from the project, fearing the risk of rural movements. So, we invited the leaders of the department to a feast, and had a very significant communication with them with the help of wine. After that, the project was revived.”

These two contrasting approaches represent different attitudes to working within the system. Institutions like Gongmeng work hard to make sure the constitutional rights theoretically extended by the People’s Republic to its citizens are upheld. Without their work, acts of criminal injustice meted out to some of the most vulnerable members of Chinese society would go unnoticed and unchallenged. However, the confrontational nature of their work means that as instruments of change, they are fighting a battle against impossible odds.

Huang He is confident that his work represents a much more sustainable approach, a driving force just behind the leading edge of change that preserves itself by avoiding exposure to the unpredictable realms that lie beyond. “The inevitable trend is that the political climate will be more and more opening and tolerant… We just follow the mainstreaming of human rights.” Although they would like nothing better than to keep themselves out of the press, and the Western press in particuler, the continued presence of these hidden cultivators of grassroots change in China must not be overlooked, even as sexier, more dynamic warriors for reform are suppressed with the customary unpleasantness.

*name changed for obvious reasons