Jerome A. Cohen. Detention of Women Activists Makes a Mockery of China’s Rule of Law Aspirations. SCMP (South China Morning Post)

March 27, 2015

Jerome A. Cohen says rights campaigners deserve Beijing’s support

Although a veteran observer of Chinese efforts to secure a just and stable legal system, I was surprised when Chinese police formally detained five women opponents of sexual harassment ahead of International Women’s Day.

They are being investigated for alleged “provocation and causing a disturbance”, in violation of one of the vaguest and most abused provisions of the Chinese criminal code.

It is difficult to determine how these women could have caused a disturbance.

They were detained before they actually distributed any literature, and the literature that they planned to distribute did not challenge the authorities or urge disobedience to the Communist Party. They were merely calling for citizens to comply with Chinese law by not groping their fellow passengers in crowded subways and buses.

Nothing in their message resembled the sort of inflammatory statements that, according to Supreme People’s Court interpretations, are the intended targets of the criminal law’s notorious Section 293(4).

Chinese law forbids sexual harassment, and Beijing officials have acknowledged that sexual harassment of women on public transport is a problem.

Moreover, Chinese courts have begun to enforce gender protections. A woman recently won a 30,000 yuan (HK$38,000) landmark settlement of a sexual discrimination lawsuit. Detaining women for urging citizens to obey the law seems really odd. Will police now detain people for urging citizens to drive safely, help the elderly or pick up litter?

Even worse, police seem to be subjecting at least two of the five detainees to possibly lethal abuse.

They have reportedly not permitted Wu Rongrong to receive hepatitis medication despite her serious liver ailment. Wang Man is said to have suffered a mild heart attack under severe interrogation.

All too often, such mistreatment has proved fatal or gravely harmful to Chinese prisoners.

These events are especially puzzling because the fourth plenum of the 18th party congress last autumn trumpeted a new party commitment to the “rule of law”.

Although ambiguous, “rule of law” at a minimum suggests that the government should not persecute those who seek to reasonably support its laws and policies.

Of course, every country’s legal system needs to be rooted in local conditions. “Rule of law” in China need not mean precisely what it means in the United States or elsewhere: part of what it means to be a sovereign nation is for that nation to define its own laws, guided by its own values. Inevitably, “rule of law” in China is currently guided by the pre-eminent importance of ensuring stability and private compliance with public rules.

Yet the Chinese government would be dropping a stone on its own foot by prosecuting Wu, Wang and their fellow detainees. The government, after all, has publicly acknowledged that it needs private assistance to stop official lawlessness.

With this idea in mind, Wang Qishan, head of the Central Commission for Discipline Inspection, has created a website for private citizens to report official corruption.

Fewer Chinese citizens, however, will dare assist the government in enforcing its laws when the price for reporting corruption could be official retaliation for “causing a disturbance”.

Punishing women for condemning illegal sexual harassment encourages citizens with knowledge of lawless behaviour to keep silent.

This is not a recipe for stability but for even further lawlessness.

Fortunately, prosecutors have not yet approved the formal arrest of the five women activists.

It is not too late for the Chinese government to halt a prosecution that can only undermine its efforts to establish a stable, law-abiding China. Otherwise, later this year, when the party celebrates the 20th anniversary of the famous UN Women’s Conference in Beijing, it will be widely and justifiably ridiculed.

This article originally appeared in the March 27, 2015 print edition of the South China Morning Post under the title ” Detention of Women Activists Makes a Mockery of China’s Rule of Law.”

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. See also www.usali.org.