Jerome A. Cohen. China's Shame Over Ai Weiwei. Wall Street Journal

June 23, 2011

Before his arrest, Ai Weiwei was tireless in condemning the arbitrary nature of China's government. But his impact as an activist paled in comparison with how his April 3 disappearance into a secret Beijing police "safehouse" exposed the unfairness of the country's criminal justice system. By detaining him on suspicion of vague "economic crimes," China's leaders made him an international cause celebre whose case clearly illustrated the helplessness of any individual when confronted by the untrammeled power of the state.

Mr. Ai's release late Wednesday represents a humiliating climbdown for Beijing. He and his family seem to have attained the best possible outcome in exceedingly difficult circumstances. And it's notable that they did it not by relying on the rules of Chinese criminal procedure, which are full of loopholes and exceptions that the police, with assists from prosecutors and judges, skillfully manipulate to give them unchallengeable leverage over any suspect. Rather they did it the Chinese way, drawing on the high level connections bequeathed to them by Mr. Ai's father, the famed revolutionary poet Ai Qing, himself badly abused by the Communist Party during his son's youth.

Although the family had access to outstanding civil liberties lawyers who were prepared to take the case despite police intimidation of various kinds, they never formally retained counsel, knowing that the efforts of criminal defense lawyers would be futile at best and probably counterproductive. This was no ordinary tax case but a politically motivated investigation designed to silence an increasingly popular critic.

As such, the case had to be confronted politically and behind closed doors. We may never know the course of the negotiations, which appeared to break down not long ago but ended with a compromise. The state media is presenting it in a way that saves face for Party leaders, but nothing can conceal their profound embarrassment.

In an effort to put an end to international public protests and pressure from foreign governments, the authorities granted Mr. Ai the equivalent of bail, literally "obtaining a guarantee pending trial." Under Chinese law this measure is available to only those suspects whose alleged crimes are thought to be relatively minor and not very harmful to society. It is telling that he was apparently never formally arrested, not to mention indicted, tried, convicted or sentenced.

This is the first human rights case in many years in which the Chinese government felt obliged to yield to world opinion. China's entry into the WTO a decade ago assured it continuing access to American and other markets despite its human rights record, and since that time its government has proved largely immune to foreign protests over rights violations.

That said, Mr. Ai's release late Wednesday, after 80 days of almost uninterrupted detention in an unknown place, leaves him far from free. Despite the fact that he was never formally arrested in the first place, he may find himself detained again if he publicly exults in the government's embarrassment.

Mr. Ai still cannot leave Beijing without special permission, but he now has the physical freedom to be at home with his family and to move around the city for up to one year while the police ostensibly continue their investigation into charges of tax evasion and destruction of records. Actually, their investigation of these charges, which they gradually leaked to the media over the course of Ai's detention, has been substantially completed. The announcement of his release said that he had already confessed to these crimes and had repeatedly "volunteered" to pay back taxes. In these circumstances, bail is simply a way of relieving the pressures on the Chinese government while limiting his freedom of expression, even though he seems to have never been charged with any offense.

Mr. Ai made clear on arriving home that he is no longer free to speak and criticize in the ways that made him world famous. He will not be using Twitter, Facebook, email, public meetings, interviews, books and art exhibitions to mock the Communist authorities as he previously delighted in doing.

Like others before him, Mr. Ai is now acutely aware that any misstep can lead to his renewed incarceration, undoubtedly for much longer than his initial confinement. Nobel Peace Prize winner Liu Xiaobo, after all, is serving an 11-year sentence, and even some foreigners have been sentenced to as many as 16 years for tax evasion. Moreover, any "misbehavior" on his part could adversely affect the fates of four of his colleagues who remain detained outside the international spotlight.

China is preparing to revise its Criminal Procedure Law later this year. Perhaps the international attention stimulated by Ai Weiwei's plight, which highlighted the techniques of police repression, will provide additional impetus for the introduction of meaningful protections for future suspects, especially those who lack Mr. Ai's stature and connections.

The current political climate may not be conducive to law reform, but Party leaders also know that societal pressure is building against the abuses of one-party rule. Widespread police misconduct is fueling a rising sense of injustice among many groups. Undertaking such reforms is the Party's best option for defusing public anger and avoiding future embarrassments like the detention of Mr. Ai.

This article was published in the  Wall Street Journal, Opinion Asia section on June 23, 2011. Available online here. Story image appearing on created by Cain and Todd Benson.

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.