WHITE PAPER On the case of Dr Wang Bingzhang Citizen of the People’s Republic of China v. The People’s Republic of China Authors: Wallenberg Advocacy Group at McGill University Faculty of Law1 & Jonah Diamond, Raoul Wallenberg Centre for Human Rights DATE: 4 September 2020 1Authors: Ayelet Ami, Nicholas Doiron, Camila Franco, Joshua Shapiro, Emma Walsh, and Jeremy Wiener. Thank you to Marie-Laurence Desgagné and Simon Filiatrault for helping to ensure that the footnotes conform to the Canadian Guide to Uniform Legal Citation, 9th ed. Table of Contents 1. Biographical Information 3 2. Pro-Democracy Movement in China 3 3. Political Persecution of Dr Wang Bingzhang 4 4. New Exonerating Evidence: The Falsified Case Against Dr Wang 6 5. Legal Analysis 7 I. Violation of Dr Wang’s Fundamental Freedoms 7 a) Freedom of Expression and Opinion 7 b) Freedom of Association 8 c) Permissible Limitations Are Inapplicable 8 II. Violation of Dr Wang’s Due Process Rights 9 a) The Right to be Free from Arbitrary Arrest 9 b) The Right to a Timely Trial 10 c) The Right to a Fair Trial 10 i) The Right to a Free and Public Hearing 10 ii) The Right to an Attorney at Trial 10 iii) The Right to Present a Defence 11 d) The Right to Non-Interference with Legal Counsel 11 III. Dr Wang’s Prolonged Solitary Confinement Constitutes Torture 12 6. Conclusion 14 ii 1. Biographical Information Family name: Wang First name: Bingzhang Birthdate: December 30, 1947 Nationality/Nationalities: Chinese Profession: Founder of the overseas Chinese democracy movement 2. Pro-Democracy Movement in China The People’s Republic of China (PRC) affirms that it “attaches great importance to the promotion and protection of human rights,” and that its legal system has “the Constitution as its core and the law […] as its backbone…”.2 Yet since the Tiananmen Square massacre in 1989, violations of international and Chinese domestic constitutional and criminal procedural law have become increasingly prevalent.3 According to Human Rights Watch’s Executive Director, we are witnessing the “most pervasive and brutal oppression in decades” in President Xi Jinping’s China.4 Dr Wang founded the overseas Chinese democracy movement in 1982. He was a self-declared patriot of China who sought to better his country, yet was arbitrarily detained by the PRC in 2002.5 His persecution serves as a looking-glass into the persecution of countless others struggling for democratic reforms in China. Persecuting ‘Charter 08’ Democracy Activists In December 2008, 303 Chinese activists issued "Charter 08", a petition calling for greater human rights and democratic freedoms in China, continuing the struggle for freedom Dr Wang engaged in decades earlier.6 Liu Xiaobo was a leader in the Charter 08 movement. He was detained hours before the Charter’s online release,7 and was charged with “inciting subversion of State power” in 2008.8 One year after Liu was awarded the Nobel Peace Prize for his “long and non-violent struggle for fundamental human rights in China,” the UN Working Group on Arbitrary Detention held his detention to be arbitrary, and urged his release.9 Instead, Chinese 2 National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, UNHRCOR, 31st Sess, UN Doc A/HRC/WG.6/31/CHN/1 (2018) at paras 4, 11. 3 See Arch Puddington, “China: The Global Leader in Political Prisoners” (26 July 2018), online: Freedom House <freedomhouse.org> [perma.cc/7H8H-RAC8]. 4 Kenneth Roth, “China’s Global Threat to Human Rights” in Human Rights Watch, World Report 2020 : Events of 2019 (2020) at 3, online (pdf): Human Rights Watch <www.hrw.org> [perma.cc/3VE7-RRY3]. 5 See Working Group on Arbitrary Detention, Civil and Political Rights, Including the Question of Torture and Detention : Opinions adopted by the Working Group on Arbitrary Detention, UNESCOR, 60th Sess, UN Doc E/CN.4/2004/3/Add.1 (2003), Opinion No. 10/2003 at para 27 [Opinions adopted by the UNWGAD]. 6 See Blake Hounshell, “Charter 08” (8 October 2010), online: Foreign Policy <foreignpolicy.com> [perma.cc/H3ZZ-2K2B]. 7 See “Independent Scholars Detained: Start of 2009 Crackdown?” (09 December 2008), online: Human Rights in China <wayback.archive-it.org> [perma.cc/CG26-GPZX]. 8 See Michael Wines, “A Manifesto on Freedom Sets China’s Persecution Machinery in Motion” (30 April 2009), online: The New York Times <nytimes.com> [perma.cc/VAM4-74NS]. 9 See The Nobel Prize, Press Release, “The Nobel Peace Prize for 2010” (8 October 2010), online: The Nobel Peace Prize 2010 <https://www.nobelprize.org/prizes/peace/2010/press-release/> [perma.cc/582X- A99K]. 3 authorities placed his wife under house arrest, where she has since remained, and it is questionable whether Liu received the urgent medical care he required to treat his liver cancer. Liu died on 13 July 2017.10 The Liu Xiaobo Conscience Award was created by Liu’s supporters to highlight the increasing number of imprisoned human rights and democracy activists. The 2018 prize was awarded to human rights activist Qin Yongmin. Qin founded China Human Rights Watch in 1988. He is a leading Chinese human rights advocate, and was nominated for the Nobel Peace Prize.11 Still, the PRC has imprisoned him numerous times. He was most recently detained incommunicado in 2015 for three years before being sentenced to 13 years in prison for “subversion of state power” by the Wuhan Intermediate People’s Court. As in the case of Dr Wang, Qin’s due process rights were wholly violated.12 3. Political Persecution of Dr Wang Bingzhang Dr Wang Bingzhang is a “pro-democracy activist and the founder of the overseas Chinese democratic movement.”13 After studying and practising medicine in China, Dr Wang obtained a Ph.D. in medicine at McGill University in 1982. Less than one year after completing his studies, Dr Wang published an open letter in the largest Chinese newspaper in America in which he declared: “The road ahead for me in medicine would have been smooth and bright, [but] I have decided to abandon medicine and to devote myself to China’s contemporary democracy movement.”14 He began his activism by organizing a few like-minded people, inside China and out, to start China Spring, a magazine dedicated to reflecting the “ideals of the Chinese democracy movement.” China Spring’s inaugural issue proclaimed the necessity to “firmly raise the flag against feudalism and dictatorship, against bureaucracy and privilege, and to push for the realization of true democracy, rule of law, freedoms and human rights in China.”15 The second issue of the magazine elaborated on the political reform they believed necessary in China, which included lifting bans on free press, the formation of political parties, and freedom from the military’s political interference. Other major goals proposed included abolishing one-party rule, separating the branches of government, and establishing a market economy. Later in 1983, China Spring announced the formation of the Chinese Alliance for Democracy, an organization dedicated to promoting democracy in China. China Spring was widely read around the world, including in the United States and China. In 1997, Dr Wang published a pamphlet titled, The Path to China’s Democratic Revolution, also known as the Handbook of the Democratic Movement. 10 See Chris Buckley, “Liu Xiabo, Chinese Dissident Who Won Nobel While Jailed, Dies at 61” (13 July 2017), online: The New York Times <nytimes.com> [perma.cc/N9A6-43EB]. 11 See “Qin Yongmin: Prominent Chinese dissident jailed for 13 years” (11 July 2018), online: BBC News <www.bbc.com> [perma.cc/K3KF-FXKW]. 12 See Part 5 of this document, Violation of Dr Wang’s Due Process Rights, below, for more on this topic. 13 See Special Procedures of the Human Rights Council, UNHRCOR, UN Doc CHN 5/2014 (2014) at 1; See Special Procedures of the Human Rights Council, UNHRCOR, UN Doc UA CHN 8/2016 (2016) at 1 [Special Rapporteur 2016 Urgent Appeal]. 14 See Dr Wang Bingzhang, cited in Richard Bernstein, “Student from China Defects to Establish New Rights Journal” (18 November 1982), online: The New York Times < nytimes.com> [perma.cc/ATY2- M94W] [Bernstein]. 15 See Yaxue Cao, “In the Prison of China – The Journey of Dr. Wang Bingzhang” (7 October 2013), online: China Change <chinachange.org> [perma.cc/3D6L-DWZ2] [Yaxue]. 4 In the mid-1980s, Dr Wang tried to renew his passport with the Chinese Consulate in New York, but was told that his citizenship had been revoked. In 1989, he attempted to go back to China through Japan to participate in the Tiananmen protests, but was again denied access. In 1998, he snuck into China, where he helped lay the groundwork for the founding of the Democratic Party of China (also known as the Chinese Democracy Party). It was the first known attempt to register a formal opposition party in the People’s Republic of China. Many of its members were arrested, and it was banned. As a pro-democracy activist, Dr Wang advocated for freedom of expression, a free press, protection of human rights, respect for the rule of law and an independent judiciary, workers’ rights, freedom from religious or faith-based persecution and discrimination, and the need for a corruption-free government. In June 2002, Dr Wang went to Vietnam to meet with people he was led to believe were Chinese labour activists. On 26 June 2002, at a town called Mong Cai near the Vietnam-China border, a group of men claiming to be police assaulted and kidnapped Dr Wang and his two traveling companions and fellow activists.