Why do China’s activists keep getting arrested over its Constitution?

Cao Shunli died in custody at Beijing’s 309 Military Hospital on March 13. En route to Geneva for a United Nations Human Rights Council training session, the 52-year-old “disappeared” at the Beijing airport in September 2013, and was formally arrested that October for “picking quarrels and provoking troubles.”

Cao was trying, unsuccessfully, to provide input on China’s Universal Periodic Review, a human rights report compiled by the Chinese government and delivered to the U.N. in October 2013. A week after her death, the government released their responses to the council’s human rights recommendations, and continued the cat and mouse game of activism in China, said Sophie Richardson, China director of Human Rights Watch.

“After the death of an activist who had been in prison precisely because she had wanted to participate, for the Chinese government to get up and claim that they do not suppress the freedom of expression of human rights defenders just begs questions about the degree of honesty and integrity they bring to this (report),” she said.

Drafted by the Ministry of Foreign Affairs, report authors claimed to accept or have already implemented the majority of the working group’s recommendations, arguing the Constitution has guaranteed rights such as press freedom, freedom of speech and the right to assembly for almost 60-years to Chinese citizens, and that they are enjoyed freely nationwide.

“It just can’t be read as truthful,” said Neil Diamant, professor of Asian Law and Society at Dickinson College. He argued the state’s “what do you want from us, it’s there on paper’” reasoning directly contradicts president Xi Jinping’s recent crackdown on rights lawyers and activists. A year ago, Xi came to power campaigning for greater adherence to the Constitution, but during his time in office, more than 300 “’democracy activists’, I guess you’d call them” Diamant said, called for constitutionalism and were arrested for crimes such as “exploiting social topics for public concern.” Many were part of China’s New Citizens Movement, a group that believed, in-part, that rule of law is more powerful than rule of the Communist Party, and that the CCP should be subject to the same constitutional restraints as everyone else.

But, the Constitution has no actual enforcement mechanism in China. “Although the latest Constitution provides many rights to the people, the lack of independent judiciary means these are rights only on paper,” Yang Jianli, a prominent Chinese dissident who now lives in the United States wrote in an email. Originally drafted by the state, the government has revised the document four times without citizen input, and enacted many laws and regulations that limit the scope of freedoms it guarantees. When the report says activists enjoy freedom of expression “according to China’s Constitution,” what it means is: The organization must be “in accordance with the law” and can’t “harm the social, national, collective interests” of the state.

Among China’s security-minded, activists are often viewed as taking two, unrelated issues, framing them as a “human rights” violation, and then using the issue to appeal to Western governments and attack the legitimacy of the state. “It’s seen as a direct threat to single-party rule,” Diamant said. In the report, activist’s role in society is explained, “As for the individuals or organizations engaging in illegal activities in the name of safeguarding human rights, they will be duly prosecuted by the Chinese government.” After a two-month sit-in outside the Ministry of Foreign Affairs, prosecution was Cao’s fate.

The 52-year-old began her activist career in 2008, after she was sacked from her job at a government ministry for protesting over worker benefits. In the years that followed, Cao was detained four times, served two prison sentences and worked a year of Reeducation-Through-Labor, fighting to include her citizen-compiled human rights report in China’s 2009 and 2013 Universal Periodic Reviews. She argued the report should be included in the civil society section of the UPR, a portion the U.N. Human Rights Council requires for the document to be considered complete. After almost a summer-long sit-in, Cao “disappeared” at the Beijing airport. A year later, the 52-year-old died in custody from tuberculosis.

“Although many activists, such as Ms. Cao and Liu Xiaobo, recognize China’s Constitution is severely flawed, they still want to defend their rights within the Chinese Constitutional legal framework,” Yang wrote. “In the hope that the Chinese people can really enjoy these rights enumerated in the Constitution and political reforms can take place to improve those rights, (that they are) not just empty promises on paper.”