'Speaking the Truth' to Hu and Wen: Open Letters, Civil Dissension and Rights Advocacy in China

Abstract

China has experienced rapid development over the past twenty-five years, and skepticism about whether China might have any law at all has now given way to skepticism about whether its law can and will protect fundamental rights of its citizens, especially the rights of the new underclass, and of those in open disagreement with the party-state. These concerns are related to persistent institutional difficulties such as lack of judicial independence, legislative incoherence, and the conditions imposed by the one-party state. In this context, the use of public or ‘open’ letters in recent years in China, including letters released on the internet, raises interesting issues. Open letters and similar forms of expression are sometimes used in lieu of litigation – not because they are perceived to be better than litigation, but because litigation is not available in numerous cases in which citizens think that their legal or constitutional rights have been violated, and in which they or someone on their behalf wish to assert this fact. Open letters are also used by people seeking to challenge the constitutionality of legislation. There are some obvious ways in which open letters cannot functionally replace litigation. Most obviously, they may not even elicit a response, and are often unlikely to lead to a decision in favour of the author, or of the person on behalf of whom the letter is written. How even so open letters may matter to the life of the law in China, is explored in this paper.