Jerome A. Cohen. Does Chairman Mao Rule Chinese Justice From The Grave? SCMP (South China Morning Post)

January 5, 2011

Almost thirty-five years after Mao Zedong’s death, China-watchers still debate his influence. Does his distinctive adaptation of Marxist-Leninist ideology continue to guide the policies, politics and practices of an increasingly powerful Party-state that now confronts challenges that the Chairman never had to face? Some maintain that Maoism long ago lost its ability to affect official conduct and today serves mainly to project an image of communist continuity amid profound  national transformations. Other observers see, a least in certain aspects of government, the persisting relevance of Maoist thought, especially since 2007, when the 17th Communist Party National Congress launched an effort to recreate the “red culture” of the Party’s revolutionary pre-“Liberation” past.

The administration of criminal justice is surely one prominent area where the Chairman’s thinking has left an indelible impact, despite the large body of laws, regulations and interpretations promulgated since 1979. Beijing’s increasingly expert legal officials, like law reformers in other countries, seek the right balance between protecting basic rights of all suspects and ensuring punishment of the guilty, and some legislative progress continues even in the present conservative political environment. Nevertheless, foreign observers, not to mention China’s able criminal defense lawyers and legal scholars, daily encounter cases where “politics takes command” over law, not only among police and prosecutors but also among judges and justice officials. Indeed, this politicization of criminal justice follows the public instructions of China’s highest leaders. The legacy of “Mao Zedong Thought,” enshrined in China’s Constitution, is evident in the insistence of President and Party General Secretary  Hu Jintao,  Party Political-Legal Commission chief Zhou Yongkang and Supreme People’s Court President Wang Shengjun on the primacy of Party over law, in practice as well as theory.

The December 23, 2010 detention and brutalization by Beijing police of law professor Teng Biao and a fellow human rights defender explicitly illustrates the impact of Maoist thought on current police practice. In a horrifying report posted online the day after his ordeal, Teng describes how, after trying to persuade his captors that they had no legal authority to interrogate, detain and beat him, the police station atmosphere suddenly became more threatening when an officer named Xu Ping learned that Teng had just visited the mother of a house-church Christian and legal scholar under house arrest elsewhere: Officer Xu shouted: “Oh, that’s how it is! In that case, this just became a contradiction between the enemy and us!!….In that case we don’t have to talk about law at all! And you motherf,,,,, won’t get out of here again. You traitors, you dogs! Counter-revolutionaries!….You keep insulting the Party. We will treat you just like an enemy!”

Teng, who teaches at China University of Politics and Law, one of the country’s leading law schools, realized the  seriousness of an accusation placing him among “the enemy”. He knew this referred to Mao’s famous 1957 speech “Problems Relating to the Correct Handling of Contradictions Among the People”, which instructed officials, when dealing with alleged offenders, to distinguish between two types of social contradictions: those “between the enemy and us” and those “among the people”. The former were to be handled with the unremitting severity of dictatorship.

Teng, attempting to turn repression into research, asked officer Xu:”How do you treat your enemies?” Xu answered: “Like Falun Gong.” When Teng added, “And how do you treat Falun Gong?”, Xu responded:”You’ll find out by and by”. This sent a shiver through Teng, since, in addition to the thousands of Falun Gong worshipers who have been formally sentenced, large numbers of others have been illegally tortured, killed or “disappeared” while in police custody. At that point, Teng reports thinking to himself: “This little police officer is younger than 30; how is he so well-versed in the Maoist doctrine of the ‘contradiction between the enemy and us’?”

The fact is that Mao’s amorphous doctrine, which originated in the pre-1949 revolutionary struggle to suppress “reactionaries” and establish the “people’s democratic dictatorship”, continues to serve as a crude rationalization for whatever repression Party leaders deem desirable. Many Chinese legal officials and scholars unsuccessfully sought to clarify the criteria for persuasively distinguishing the “enemy” from the “people”. Mao himself admitted that it was easy to confuse the two and that many good people had been mistakenly liquidated as “counterrevolutionaries.” Indeed, as Teng’s recent experience reminds us, there have only been two certainties: the Party decides who is the “enemy”, and anyone so identified loses the protections of the law.

In tense times, even law professors have had to accommodate the Chairman’s rhetoric, as I can personally testify. In February 1992, after  the Voice of America broadcast excerpts of a talk I had just given to the Beijing Foreign Correspondents’ Club noting that Chinese courts were instruments of suppression, five Beijing law school deans were ordered to lie in wait in my hotel lobby “to register a solemn protest”. They asked how I, “a friend of China”, could make such a claim. I told them I had merely been quoting speeches made by Ren Jianxin, then President of the Supreme People’s Court.and head of the Party Political-Legal Commission, in the months after the 1989 Tiananmen slaughter. “Oh,” they said, “Ren was only telling the courts to suppress counterrevolutionaries, not  the “people”!

So long as Mao’s pernicious doctrine persists, no Chinese citizen can be safe.

This article was published in the South China Morning Post on January 5, 2011 under the title “Maoist Thought Police.”  It was published in Chinese on January 6, 2011. 繁体中文).