China's newest campaign of repression.
- By Jerome A. CohenJerome A. Cohen is a professor at New York University School of Law, co-director of its U.S.-Asia Law Institute, and an adjunct senior fellow for Asia at the Council on Foreign Relations.
It’s open season on lawyers in China today. To be sure, not on most of the almost 200,000 who foster economic development and international business, but on those unwise enough to become involved in human rights, criminal justice, and controversial public-interest cases. For them, law has become an increasingly hazardous profession. They risk informal warnings, 24/7 monitoring, interference with client and law firm relations, loss of their right to practice, hooded abductions, beatings, torture, "thought reform," coerced "confessions" and "guarantees," criminal prosecution, imprisonment, and incommunicado incarceration at home both before and after imprisonment.
Gao Zhisheng, once praised by the government as one of China’s outstanding lawyers, suffered all of the above and more, including an alleged assassination attempt, after he began handling sensitive cases. Incredibly, he remained unbowed even after emerging in March 2010 from a mysterious yearlong extrajudicial detention. So, a few weeks later, the authorities "disappeared" him for the second time. Nothing has been heard from him since.
The families of Chinese lawyers often suffer along with them. Spouses are harassed and restricted in their movements; children are humiliated and denied educational opportunities. To end their nightmare, Gao’s wife and children secretly fled to the United States. More sinister threats against families seem to have recently silenced some formerly outspoken rights defenders. Although no statistics are available and many incidents go unreported, the current campaign has directly interfered with at least several hundred lawyers, and thousands of their colleagues have felt the fear and been inhibited.
None of this is entirely new, of course — China is still China — and some abuses reflect the customary backlash of local authorities against "troublesome" lawyers. But the repression, and its focus on lawyers, has only intensified since the 17th National Congress of the Chinese Communist Party in the fall of 2007, when growing party concerns over internal security appear to have increased the influence of those responsible for police organizations. The subsequent publication of Charter 08, a courageous declaration of democratic principles that was ultimately signed by more than 10,000 people, added to the party’s anxiety, as did the award of the Nobel Peace Prize to the activist Liu Xiaobo, who had been imprisoned for helping to draft the charter. The 2010 government budget for the first time allocated more funds to internal security than to national defense, and when the impact of the Arab world’s "Jasmine Revolutions" reached China this February, the country’s increasingly insecure leadership cracked down even harder on lawyers as well as their controversial clients.
Yet these events only partially explain China’s recent attack on lawyers. What’s happening is fundamentally an effort to spare the party the consequences of its own success in rapidly transforming China’s economy, opening its society, and raising the Chinese people’s awareness of their rights. The extraordinary modernization process set in motion by Deng Xiaoping in 1978, which has improved the lives of hundreds of millions, has come at great cost in terms of social change and has spawned ever greater tensions and disputes in Chinese life. The alarming and widening gap between rich and poor, endemic official corruption, widespread police abuses, intolerable bureaucratic arrogance, displacement of both urban dwellers and farmers in favor of new real estate construction, migration to the cities of more than 200 million workers, and devastating land, air, and water pollution are only some of the causes of unprecedented protests and social conflicts.
Accompanying these profoundly upsetting changes have been dramatic improvements in not only popular living standards, education, and exposure to the world but also the country’s legal system. Three decades of legislative and institutional progress have overcome the chaos left by the 1957-1958 Anti-Rightist Movement, the Great Leap Forward, and the Cultural Revolution, giving China the apparatus of a formal legal system. This year, party propaganda trumpeted the completion of what the Chinese state calls the "socialist rule of law," including constitutional amendments endorsing respect for human rights and property rights. The National People’s Congress, China’s version of a legislative body, and government agencies continue to promulgate substantive and procedural rules enhancing protections as well as regulations for individuals and enterprises in civil, administrative, and criminal matters. China now boasts well over 600 law schools. Several hundred thousand people take the annual bar exam. There are more than 200,000 judges and almost as many prosecutors. Every legislative and executive office and every significant business needs legal specialists. Books, print media, and radio and television news and entertainment are awash with legal themes, as are Internet discussions.
The Chinese have thus become more aware of their rights and the possibility that courts might enforce them, whether as plaintiffs seeking civil and administrative remedies or as defendants in criminal prosecutions. Their system allows few other outlets for preventing arbitrary punishments and resolving the rising number of grievances. Democratic political institutions remain little more than a gleam in the eye of reformers. The media are under strict surveillance and are generally of limited use. Petitions to government agencies are a frustrating farce and have now become dangerous because of the establishment of "black jails" — extralegal detention facilities to prevent petitioners from disturbing the "harmony" that the party incessantly preaches. Mass street protests, though sometimes successful, usually result in harsh punishment of their organizers and cannot settle individual disputes. In any event, criminal prosecutions, a standard party response to social unrest, cannot be avoided.
Yet involvement in the courts, at best an uphill battle in sensitive cases, requires legal assistance. This is the price of China’s newly acquired legislative and procedural sophistication. Without skilled defense lawyers, few democratic activists, religious adherents, or alleged gangsters can possibly refute official accusations. Without skilled plaintiffs’ lawyers, no victims of tainted milk, shoddy school construction, illegal housing demolition, or environmental destruction can hope for judicial relief. Nor can the public even be informed of unjust judicial decisions if lawyers are intimidated from participating in such cases or informing the media about them.
This is the logic underlying the current campaign against "rights lawyers," criminal defense lawyers, and public-interest lawyers. Party leaders want the best of both worlds. They crave the reinforced status that comes from the legitimacy that a rule of law confers on governments at home and abroad. But they also want to avoid the embarrassment and loss of dictatorial control that might occur if lawyers were permitted to challenge their power, even if only before courts that remain under the party’s thumb. So their response is to mobilize all the instruments at their command — informal and formal, legal and extralegal — to intimidate lawyers from taking positions not endorsed by the party.
Some Chinese legal professionals, including judges and other officials, sympathize with the plight of the persecuted lawyers, and a few law professors and lawyers have occasionally shown their opposition. Fear, however, is corrosive, and indifference is safe. Thus, prospects for a serious pushback are dim.
In a world where the "people’s democratic dictatorship" is losing its struggle against transparency, this attack on lawyers provides further evidence that China’s "socialist rule of law," imported from the Soviet Union, is an oxymoron. No matter how many Confucius Institutes the Chinese government finances on foreign campuses, it will never attain the "soft power" it craves until it stops persecuting lawyers and starts recognizing the prerequisites of a genuine rule of law.