Jerome A. Cohen. Lawlessness, Public Opinion And Censorship In China. SMCP (South China Morning Post)

October 26, 2011

The Chinese government’s current suppression of rising internet protests against its barbaric abuse of the blind “barefoot lawyer” Chen Guangcheng raises fundamental questions about the impact of legal reforms on real life in China.

The Standing Committee of the National People’s Congress is now reviewing tens of thousands of responses to its unprecedented recent request for public comments on comprehensive draft amendments to the country’s Criminal Procedure Law. This revision is a complex, contentious process that, even in an authoritarian state, involves intense lobbying among law enforcement agencies, the judiciary, influential scholars and leading criminal defense lawyers.
Yet, what does improved legislation matter if the police, and the procurators who are legally required to supervise them and prosecute criminal law violations, regularly flout the law with impunity? What can be done when law enforcement officials and their hired thugs are themselves blatant and outrageous lawbreakers? This is a familiar issue to Chinese law reformers and human rights advocates. The Chen Guangcheng case is an especially poignant illustration. It began in 2005, when authorities in Shandong Province’s Linyi City launched a well-financed campaign to silence him.

By then, Chen was already known abroad for his impressive efforts to use the legal system – as a self-taught layman – to resist the Yinan County government’s discrimination against the disabled. This poor farmer’s lawsuits and legal arguments increasingly offended local officials. When he used the Internet and the foreign press to reveal the extraordinary mass incarceration of the families of thousands of women hiding from forced abortions and sterilizations, as well as some of the women themselves, the officials opened their attack. At first, police and their henchmen subjected Chen’s entire household to severe, long-term house arrest, with the informed acquiescence of China’s leaders. When Chen and his wife and collaborator, Yuan Weijing, still tried to expose official misconduct, in 2006 this helpless blindman was convicted on trumped-up charges of “gathering people to obstruct traffic” and “damaging public property”. He was sentenced to four years and three months in prison, harsh punishment for such minor offenses.. Since completion of his sentence on September 9, 2010, police, with no legal authorization, have again made his simple farmhouse a family prison, severing all communication with the outside world, attacking him and violently turning away all those journalists, diplomats, lawyers and supporters who have attempted to enter his remote village..


Is Chen destined to be illegally silenced for the rest of his life? He is about to be 40 and has the iron will and charisma of a Gandhi. He is badly debilitated, however, by six years of being denied adequate medical attention for increasingly serious gastroenteritis. His death in prison would have plainly embarrassed his captors, but dying “at home” might appear less sinister..

Neither current criminal legislation nor proposed revisions offer hope of a legal remedy. In practice the procuracy, the supposed “watchdog of legality” imported from the Soviet Union, is politically powerless to fulfill its legal obligations to hold the police to legal standards. Condemnations by United Nations experts and foreign governments, media, rights organizations and scholars have failed to move Zhou Yongkang, who was Minister of Public Security when Chen was first detained and now heads the central Communist Party Political-Legal Committee that controls all Chinese legal institutions. Popular protests against shameless injustice seem to offer Chen’s only chance.

Although domestic media are usually forbidden to mention Chen, two Chinese newspapers recently made brief references to his plight. The Internet is a more likely prospect for invoking the Party’s highly-touted but normally restricted “supervision by public opinion”.  The weeks since the first anniversary of his release from prison have witnessed a surge in microblog protests against Chen’s suffering. Some were inspired by the failed attempts of disabled activists to mark International White Cane Safety Day by visiting Chen. But many broader protests reflect widespread, perhaps growing, concern over the regime’s lawlessness. Activists undoubtedly remember how in 2003 the Internet fueled powerful national outrage against the death of university graduate Sun Zhigang while in police custody, causing the State Council to annul the notorious “custody and repatriation” regulation that had authorized his detention.

Of course, the Party Propaganda Department has an equally long memory and is trying to wipe out all Internet mention of Chen. Thisis a great challenge to the ingenuity and energy of his blogging sympathizers. Yet other possibilities also exist. Huge, peaceful pro-environment “strolls” in Xiamen, Shanghai and Dalian led to cancellation of harmful development projects. At great political risk, some 370 Shanghai people just signed a petition supporting Chen. One can imagine the boost that might come from China’s large disabled population, if awakened. Chen once estimated that almost 10% of Linyi City’s residents are disabled. Foreign protest movements on Chen’s behalf also seem to be stirring in an attempt to emulate their recent success in helping to free famous artist Ai Weiwei from his illegal detention.

Zhou Yongkang and his comrades are undoubtedly determined to hang tough. Yet reports that Chen’s six-year-old daughter has finally been permitted to attend school – under stigmatizing police escort – suggest a sop to public opinion. Unfortunately, a similar gesture toward the daughter of the long-“disappeared” human rights lawyer Gao Zhisheng only added to the pressures that battered her and did not presage release for her courageous father. Without stronger public demands for holding the Chinese Government to account for dishonoring its own legislation, Chen is unlikely to fare better.

This article was first published with some editing  in the South China Morning Post on October 26, 2011 under the title “Wrong Side of the Law.” It was published in Chinese in the China Times (Taiwan) on October 27, 2011. ( 简体中文

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