June 21, 2011
On July 1, the Chinese Communist Party’s ninetieth birthday, many will celebrate its extraordinary economic achievements, and the political and military power they sustain. Even human rights critics acknowledge China’s impressive progress in health, housing and education. Greater openness at home and expanding global exchange are also helping to transform an increasingly urban people into a more sophisticated society. China has indeed “stood up”.
During its tenth decade, however, the costs of the party’s success are likely to become more apparent. Massive official corruption and the growing gap between rich and poor are eroding Communist legitimacy, and environmental disasters loom ever larger. The struggle over land and other scarce resources is daily spawning social conflicts. Management-labor tensions have been rising rapidly. The number and breadth of mass protests, better known to Party leaders than to the world, cry out for a governmental system that will adequately reflect popular demands and effectively respond to widespread grievances.
The party’s refusal to create democratic institutions and credible political mechanisms for resolving social conflicts has led many Chinese to turn to the courts, but the result often proves disappointing. First, the party sometimes prohibits courts from handling disputes, frequently those that most trouble communities. Second, it uses its influence over judges to preordain the results in many “sensitive” cases. Third, despite significant advances in legal education, many Chinese judges, especially the older generation, lack professional competence. Fourth, personal relationships, political connections, corruption and the felt need to protect local interests often distort judicial decision-making. Finally, substantial litigation requires lawyers, but, in less developed areas, lawyers are few, and everywhere they have to avoid offending local authorities.
Disappointed litigants generally turn to the system for petitioning government agencies, which rarely yields a happy ending. The internet and social media offer important outlets for venting personal frustrations, if not resolving disputes, but censorship is thorough, and those who cross an unclear line are punished severely. Indeed, the party’s reaction to what it considers objectionable exercise of the political and religious freedoms protected in the Chinese Constitution continues to be harsh repression. This became more pronounced after the 17th Party Congress in 2007, moved into higher gear after last year’s announcement of the Nobel Peace Prize for Liu Xiaobo and has been particularly intense since this year’s Jasmine revolutions.
Repression requires punishment, causing the leadership’s increasing reliance on the party’s Central Political-Legal Committee, which coordinates the ministries of public security, state security and justice, as well as the courts and prosecutors. This committee — currently headed by former Minister of Public Security Zhou Yongkang, now a member of the all-powerful Politburo Standing Committee — also influences, via the Politburo, the legislative norms that regulate the administration of criminal punishment.
Since 1979, when the party allowed the National People’s Congress to adopt the nation’s first codes of criminal law and procedure after three decades of frequently horrendous lawlessness, criminal legislation has been undergoing fitful changes as law enforcers struggle with reformers to develop mutually acceptable detailed measures for an effective, yet fair, punishment process. Earlier in this decade, the police successfully resisted an attempt by influential scholars and lawyers to persuade the NPC to abolish “re-education through labor”, which confers virtually unfettered power on the police to incarcerate people for up to several years of allegedly “non-criminal” punishment. Yet law reformers have persisted in their efforts to make progress wherever possible, despite the now more conservative political climate.
Last year, for example, China’s legal institutions, in the hope of combating endemic police torture of suspects, jointly promulgatedprocedures and standards for the exclusion of illegally obtained evidence in criminal prosecutions. In order to curb unfairness and inequality in criminal sentences, they later issued “guiding opinions” prescribing procedures and criteria for limiting judicial discretion. This year the NPC reduced from 68 to 55 the number of offenses punishable by death. It has also scheduled an overhaul of the Criminal Procedure Law, last comprehensively revised in 1996. Revisions may confirm defense lawyers’ rights to have unrestricted access to detained clients and to conduct their own unhampered investigations, rights that were granted by the 2007 Law on Lawyers but denied by police. There are also reports that the NPC might establish the principle of the presumption of innocence and even a suspect’s right to silence during police interrogation, a momentous reform.
Nevertheless, experience cautions against optimism. With the backing of party leaders, China’s police have proved formidable opponents of legislative reform. With the acquiescence of both prosecutors and judges, they have also turned any legislative defeats into practical victories by failing to implement norms they oppose, distorting legislative exceptions and manipulating legal concepts to defeat legislative intent. Moreover, they increasingly harass those lawyers who seek to use the law to defend their clients.
Most dangerously, in some cases police — often the national security division of local public security bureaus — have gone outside the already permissive criminal justice and administrative punishment systems. Building on precedents such as their mistreatment of many Falun Gong adherents and their confinement of petitioners in “black jails”, they now simply kidnap certain human rights lawyers, hold them incommunicado in undisclosed locations and subject them to physical and psychological torture that compels written confessions and guarantees of cooperation. When released, these victims face continued monitoring and control. “Soft detention” and “house arrest” sound too bland to accurately portray their plight.
Apart from the dynamic rights lawyer Gao Zhisheng, who seems to have been permanently “disappeared”, perhaps the most egregious known example of these lawless abuses has been that of the blind “barefoot lawyer” Chen Guangcheng and his courageous wife, Yuan Weijing. Shandong police are not content with the slow death that Chen faces after over four years of imprisonment, long-untreated illness, inadequate diet and the total isolation inflicted since his return home. A letter recently smuggled out reveals that in both February and March seventy or eighty police and thugs led by a deputy party secretary broke into their farmhouse, beat Chen unconscious and left Yuan crippled, stripping them of virtually all remaining possessions including their five-year-old daughter’s books and toys. At the letter’s end, Yuan expresses the hope that the couple’s Beijing lawyer friends can stimulate prosecution of those who assaulted and robbed them. She could not know that all the lawyers she names are already suffering various forms of police restraint.
Is this the way the party wants to celebrate its birthday?
This Article was published with some editing in the South China Morning Post on June 21, 2011, online under the title “Fitful progress of China’s legislative reform and in print under the title “Happy Returns?” It was published in Chinese in the China Times (Taiwan) on June 23, 2011. Illustration from SCMP. (繁体中文）（简体中文）．
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