November 10, 2011
Blind legal activist Chen Guangcheng served 51 months in prison because of his efforts to defend women against forced sterilization by the government. But since completing his prison sentence, he has been imprisoned in his home and abused by police in the town of Linyi in China's Shandong province for more than a year now. What's new is that despite strict censorship, the plight of Mr. Chen and his family is attracting attention within China, and sympathizers are traveling from around the country to visit him. They are turned away by plain-clothes police, often violently.
As calls for the government to explain its extra-legal punishment of Mr. Chen grow, the possibility of a tragic confrontation is worrying. However, this bottom-up pressure is the most significant new development for Chinese legal reform in years. There is a chance that Mr. Chen's cause could become a monumental struggle for freedom and justice in China.
As the recent release of artist Ai Weiwei demonstrates, a combination of domestic and foreign pressure can help dissidents. So increased publicity of Mr. Chen's case, especially within China, is indispensable.
There are three myths about Mr. Chen's plight that must be dispelled. One is that such cases of persecution and abuse of lawyers and legal activists are rare in China, and only occur when a few heroic dissidents openly invoke the law to confront injustice rather than rely less confrontational methods.
Mr. Chen never saw himself as a "troublemaker" bent on damaging social stability and harmony. He wanted to improve stability and harmony by using legal institutions to process social grievances in an orderly way as prescribed by law. His only mistake was to accept the law as it was written, as a true believer in China's legal reforms.
One day, when he was especially frustrated by the county court's refusal to accept the lawsuits he brought on behalf of impoverished pro bono "clients," he asked me: "What do the authorities want me to do? Lead a protest in the streets? I don't want to do that." Yet, in a cruel twist, he was ultimately convicted on bogus charges of interfering with traffic and damaging public property.
China's activist lawyers and non-professional advocates are under widespread, systematic official assault. Hundreds of lawyers have been persecuted for representing clients who seek to challenge arbitrary residential evictions, environmental pollution, food and drug contamination, official corruption, and discrimination against the sick or disabled. Many public interest and criminal defense lawyers never consider themselves human rights lawyers until the local judicial bureau threatens to take away their license to practice law, the police detain them in jail or at home, the authorities "suggest" that they leave the country, or officially sponsored thugs kidnap and beat them.
A second myth is that Mr. Chen's recent suffering is merely another example of local government run amok, neither approved nor condoned by the central government. Many attacks on lawyers are indeed local in origin, and Mr. Chen's case started out that way in 2005 when local authorities first sent thugs to illegally confine him and his family at home. However, the case soon came to the attention of national leaders. After representatives of the Ministry of Public Security reportedly met with local officials to discuss the situation, the authorities launched a criminal prosecution against Mr. Chen, a more conventional type of repression.
A third myth is that there must be some purported legal justification for the suffering that the Chen household has endured since his release from prison last year. Governments, even the Chinese government, normally like to maintain some veneer of plausible legitimacy for their misconduct, however thin it might be. Yet no such justification has come to my knowledge in this case, which seems to have exceeded the bounds of police ingenuity.
When, at an Oct. 28 Beijing press conference, a foreign reporter asked deputy director Li Fei of the Legal Affairs Commission of the National People's Congress Standing Committee to state the legal basis for Mr. Chen's home imprisonment, he declined to answer. He merely asserted that "in our country the freedom of a citizen is adequately protected, and the use of any compulsory measures is based on law." The question and its answer were eliminated from both the transcript and the video broadcast of the press conference.
Why are the police persecuting Mr. Chen? Of course, it reflects the embarrassment of local officials at having their illegal attempts to comply with the strict demands of the one-child policy exposed to the central government and the world. Yet it is also part of a broader, national strategy in which the Party seeks to have its cake and eat it too.
On the one hand, it strives to attain legitimacy at home and soft power abroad by constructing and promoting a socialist legal system that protects citizens' rights and creates restraints on law enforcement's powers to punish. On the other hand, it makes certain that those rights and restraints are never fully realized by crushing the lawyers and law advocates who are the only group capable of converting those promises into "living law."
If this group, including Mr. Chen, can be squelched, the Party's image of social stability and harmony can prevail, at least for now. In the long run, however, many who share Mr. Chen's frustration with the courts, but who lack his faith in the law, will truly take their grievances to the streets. This is likely to produce more instability and conflict.
The Asia Wall Street Journal published an article by Professor Jerome A. Cohen on November 3, 2011 about the human rights lawyer Chen Guangcheng. The text was adapted from his testimony before the Congressional-Executive Commission on China, which can be found here. The article was published in Chinese in the China Times (Taiwan) on November 10, 2011.
Professor Jerome A. Cohen is co-director of New York University School of Law's U.S.-Asia Law Institute and an adjunct senior fellow for Asia at the Council on Foreign Relations.