What you need to know
Lee Ming-che's sentencing to five years in prison in China for the crime of 'subversion' has had a marked chilling effect on the actions and communications of Taiwan's NGOs. The case also suggests Taiwan's wider population faces an insidious dilemma: whether or not to self-censor.
Updating Nov. 29:
On the morning of Tuesday Nov. 28, Taiwanese activist Lee Ming-che (李明哲) was sentenced to five years in prison by a Chinese court for subversion of state power. Lee had been held by Chinese authorities for 254 days since his arrival in Guangdong province in southern China earlier this year. The 42-year-old had pleaded guilty to the charges in September in what many deemed to be a televised sham trial, but the courts had delayed sentencing – potentially to avoid turbulence during the critical period of the 19th National Congress of the Chinese Communist Party held in mid-October.
Chiu E-ling (邱伊翎), secretary general of the Taiwan Association for Human Rights (TAHR), led widespread condemnation of the verdict by Taiwanese NGOs by lambasting the Chinese government's suppression of freedom of speech, drawing parallels with the recent quelling of protests by migrant workers in Beijing displaced in the name of urban safety improvements following a recent fire.
"Much of the Lee case, from his detention and arrest to the trial and its verdict, has violated international human-rights standards and also China’s own Criminal Procedure Law," Chiu said. "Most importantly, it has been an obvious breach of jurisdiction by China. As the first Taiwanese tried for 'subversion of state power', the evidence used against him were peaceful expressions of speech conducted on social media while he was in Taiwan." Chiu also called for China's authorities to safeguard Lee's health and safety during his time in prison, and to observe his rights to family visits.
Chiu added that the sentence is likely to compound the chilling effect already rippling through Taiwan's NGO community following Lee's initial arrest, as discussed in depth below:
As a young reporter, I had the misfortune of becoming persona non grata in the eyes of China’s Ministry of Foreign Affairs (MOFA). I had irredeemably offended a higher-up in the country’s national media, resulting in a permanent black mark against me that ensured I would never receive accreditation as a journalist in China.
The government did not go as far as to expel me though, so I turned to freelancing. One evening while celebrating my birthday in Beijing, I was approached by two men. I assumed them to be friends of friends. At first they were convivial, but the conversation soon turned to the nature of my work and visa status (no, I did not have the right visa). The larger of the two, a thick-set, square-jawed fellow, gave me a business card that I later found to be from a fictional telecommunications company. I tried to change location, only for them to reappear later as silhouettes in the shadows on the edge of a dancefloor.
My interpretation of this exchange was that the public security authorities knew who I was, when I was born, and through my mobile phone (not at that time a smartphone), where I might happen to be at any given time. And that they possessed a nasty sense of humor.
The result was that I began to self-censor. I took on financial and economics stories on the basis that they were “safest.” I became acutely aware of the unwritten line in China’s sand – the Rubicon beyond which lies “sensitive territory,” discussion of which would likely result in official pushback. As a result of a well-timed, non-violent intervention, the authorities had managed to subvert my attitude and my work.
In Taiwan, the disappearance of activist Lee Ming-che (李明哲) in March as he traveled from Macau to Zhuhai in Guangdong Province, his re-emergence after more than 170 days in detention, subsequent confession and apology is having a similar chilling effect.
Members of the country’s small but active civil society have been hardest hit, not least due to speculation that Lee had been detained under China’s newly introduced Overseas NGO Domestic Activities Management Law. Lee had previously worked with Taiwanese NGOs including Covenants Watch (CW), a coalition of NGOs that monitors the government’s fulfillment of human rights conventions. CW Chief Executive Yibee Huang (黃怡碧) told The News Lens International that she had no knowledge of Lee’s interest in human rights or democracy at the time of their interaction, and court proceedings confirmed he had acted independent of NGO support in his attempts to spread understanding of democratization to interested groups.
Lee had been in China entirely off his own bat, but his detention under the criminal charge of "subversion" did send a signal to Taiwan’s NGO community, according to Human Rights Watch’s (HRW) China Researcher, Maya Wang.
“It’s not that his prosecution on a criminal charge has nothing to do with the foreign NGO law – it has everything to do with it. Such tightening and control is part and parcel of the political impetus that put that law in place,” she said.
That impetus reflects the wider context of ongoing frosty relations between Beijing and Taipei over the refusal of the Tsai Ing-wen (蔡英文) government to acknowledge that Taiwan is part of China under the 1992 Consensus. Moreover, it is a consequence of President Xi Jinping’s drive to bolster the legitimacy of Chinese Communist Party (CCP) ideology and his own place within its pantheon. This drive is now at fever pitch as we head into the 19th National People’s Congress (NPCs) in Beijing next month, a twice-a-decade event during which Xi hopes to cement his grip on power. He is well on his way – just last week it was revealed that Xi’s theories will be enshrined in the CCP’s constitution, though doubt remains as to the nomenclature.
“The NGO law, like the slew of security legislation on topics such as counter terrorism and cybersecurity, spells out political intention – to impose a stricter legal and regulatory framework on these groups,” Wang said. “The law is not meant for criminally prosecuting individuals – it’s a cage to put over their activities and to make the Ministry of Public Security responsible for supervising NGOs rather than the Ministry of Civil Affairs.
“Taiwan NGOs have probably woken up to the fact that they are now also being included on the crackdown in human rights in China,” Wang added. “In the past there was a sense that they were either not noticed or by virtue of them not being nationals of the PRC that they would be somehow treated better. That was exactly the sense of people here a few years ago – that if they hold a Hong Kong passport and live in HK that they are generally treated differently when they report on China human rights issues, whether they are journalists, NGOs or lawyers. That illusion has evaporated.”
Taiwan’s NGOs respond
Lee was actually charged with subversion, an offense under China’s Crime Law defined as the “incitement to subvert the political power of the state and overthrow the socialist system by means of spreading rumors, slander or other means”.
The concept of “other means” is open to very broad interpretation, according to Chen Ching-hui (陳靜慧), Assistant Professor of Law at National Taipei University (NTU). “Even communication of thoughts and ideas or, for that matter, opinions, without intent to commit any violent or criminal act, may be regarded as subversion,” Chen said.
This nebulous definition and its arbitrary application in Lee’s case has caused considerable alarm. NGO observers were particularly taken aback by prosecutors’ focus on Lee’s online activities, notably his attempts to promote democratic ideas on web forums and through instant messaging services. The proceedings suggest that whatever a user says on any social media, wherever they might be – in this case a highly politicized and open democracy like Taiwan – could be interpreted as subversion in China.
“We really were shocked when the prosecutor charged him via FB posts,” said CW’s Huang. “Most of the evidence submitted took place here in Taiwan. We are increasingly scared. There is a chilling effect.”
“More and more Taiwanese NGOs are afraid that what we say or do on Twitter and Facebook will be a crime in China,” added Chiu E-ling (邱伊翎), secretary general of the Taiwan Association for Human Rights (TAHR). “We are worried that if we enter HK or China we will be arrested by the PRC police.”
The evidence has also prompted NGOs in Taiwan to take more precautions around cyber security.
“In the past we were not so sensitive on cybersecurity but the case has raised awareness,” said Chiu. “With everything we will be more careful. We will choose safer apps to communicate - like Signal and WhatsApp.”
“It has changed the way that we communicate,” agreed CW’s Huang, before raising a controversial idea – namely that Lee was naive in the way he went about conducting his affairs. While his means of entry into China via Macau suggests he was trying to keep a low profile, his prior online activity had made no attempt to hide from China’s censors.
“I learned from our counterparts in Hong Kong that Taiwanese advocates, especially in human rights, are naive,” Huang said. “We are so accustomed to sharing everything and broadcasting on the internet, even our plan to rescue Lee. That’s very different from how Chinese advocates or even those in Hong Kong act, at least those working with Chinese advocates. They are safer with communication tools – they use Signal or WhatsApp.”
Civil rights and environmental groups are also feeling the cold. The Taiwan Gender Queer Rights Advocacy Alliance (TGQRAA) has close relationships with Chinese grassroots organizations, with which they share membership of TCI-Asia (Transforming Communities for Inclusion of persons with psychosocial disabilities, Asia). The alliance had previously hosted Chinese NGOs in Taiwan.
“After the ‘Lee Ming-che incident,’ we do feel threatened,” said Nelson Hu (胡勝翔), TGQRAA secretary general. “We intended to go to China to visit some Chinese civil rights advocacy organizations, but now we have concern about facing the same situation as Mr. Lee. We also worry about whether our communication with Chinese partners is under surveillance.”
A spokesman for a Taiwan-based environmental NGO, who did not want to be named because the group conducts projects in China and has close ties with advocates there, also acknowledged that the Lee situation had affected the way that they would conduct operations. “After Lee Ming-che’s case, it is natural for workers outside of China to feel more cautious about safety within China,” the person said, adding that it is those within China who face the real jeopardy. “Organizations from within China are all embedded in social and political networks — they face a lot more political restrictions. In a collaborative relationship, it is absolutely essential to prioritize the political risks of the other party.”
China advocates are reassessing those risks as well, according to Huang. “There's also a chilling effect for Chinese organizations themselves. We were organizing a Convention on the Rights of Persons with Disabilities training workshop here and we invited Chinese to attend but they said no due to the connection with CW.”
Huang’s self-questioning over Lee’s naivety and NGOs’ reassessment of the way that they communicate has wider implications. It opens up what must become a wider debate about the nature and extent of self-censorship in Taiwan.
Millions of Taiwanese have relatives in China or need to travel there themselves for business. Lee's case has caused many to think twice about what they say on social media, either to protect themselves or those living in the mainland, according to Huang. How Taiwanese people respond to the shadow that the Lee case has cast represents a major test.
The environmental NGO spokesman neatly captured the dilemma: “What role should the public play in response to Lee’s case?” he asked. “When cross-Strait relations become tense, should a more confrontational stance be taken? Should we strengthen our defense along or should we attempt to create more people-to-people interactions and understanding, even under unfavorable circumstances?”
But how would these interactions take place? This week, WhatsApp largely stopped working for users in China, indicating the severity of the increasing threat posed to freedom of speech by China’s actions and policy direction. Any outreach would force advocates onto Chinese platforms and into the arms of the censorship dilemma.
“In order to communicate with people in China you have to communicate with them on WeChat,” said HRW’s Wang. “Some are more careful and you can ask them to talk on Signal and WhatsApp, but there is a large community of people who are more easily contactable on WeChat. There is no way around it. The fact is that if you enter PRC territory then you could be held responsible for whatever you say or who you contact.”
The NGO community is disappointed in the failure of Taiwan’s government to protect its citizen.
“All the Taiwanese government has done is recommend NGOs don’t go to China,” said TAHR’s Chiu. “We don’t think Lee will be the last case. There will be more. The Taiwanese government should figure out a resolution to deal with this kind of case where someone is detained or arrested arbitrarily by the PRC. What can the Taiwanese government do? They are afraid to aggravate the PRC government.”
In response, Taiwan’s MOFA maintains a reserved position. “MOFA has from the beginning actively participated and provided coordination,” MOFA press officer Lee Mei-yu wrote in an emailed reply. “In addition to cooperating with measures taken by relevant government agencies, the ministry has rendered necessary assistance to family members.”
In terms of jurisprudence, China is in contravention of an existing framework – that of the Cross-Strait Judicial Agreement, according to NTU’s Chen. The agreement stipulates that China should inform the Taiwan government when a Taiwanese person has been arrested or detained, and let the family visit. “However, because of present political situation, China is not currently upholding the agreement,” NTU’s Chen said, adding that the agreement lacks a dispute settlement mechanism.
As for China’s own law, the Crime Procedure Act provides that the family members of the detainee should be informed within 24 hours of detention, excluding, among other things, crimes that endanger national security. “China therefore didn’t formally violate that provision,” Chen said.
NGOs are keen to move away from arguments over the interpretation of existing law and on to a debate over China’s failure to bring its law into line with international standards. “There is limited space to challenge this incompatibility,” said Huang. “Maybe the UN Universal Periodic Review on China might be a good space to review this. We are interested in working with international human rights NGOs on this.”
As it stands, Taiwan is attracting increasing attention from international donors interested in investing in or working through Taiwan. “Previously a lot of Chinese advocates would be trained in the U.S. or HK,” Huang said. “Nowadays the space for civil society is shrinking in Hong Kong and a lot of training is happening here. Taiwanese NGOs previously solely focused on Taiwanese matters are now training Chinese advocates through the sponsorship of U.S. donors, for example the Taiwan Alliance to Promote Civil Partnership Rights.”
“The movement to Taiwan is related to HK’s situation and freedoms as well,” agreed HRW’s Wang. “There is a sense that there is more surveillance here in Hong Kong. There is more fear that if an event is hosted in Hong Kong that it would be immediately be reported back to HK, so it goes beyond Lee’s case.”
Lee Ming-che’s case has crystalized the slow creep of China’s ever increasing authoritarianism for Taiwan’s NGOs and wider society. The threat of detainment is real – at the last count, 57 Taiwanese people had had their freedom of movement impeded while traveling in China.
That is still a relatively small amount, but the consensus is that it will grow. Still, the invisible threat, the toxic blanket of self-censorship will affect a far greater number of people. Taiwan’s NGOs are on the frontline of the response, but the question of whether to self-censor and how is a question for every Taiwanese internet user with a connection to China.
Editor: Olivia Yang