Lao Dongyan's Essay on Facing the Real World

By Jerome A. Cohen

Here is an extraordinary essay that was shared before it was quickly removed from WeChat (translated by David Cowhig). It’s a good thing it’s so long. Otherwise it would not have lasted two hours! Many China-watchers will find it a worthy read. It is, of course, the seldom-published weeping of many law professors whose voices have been silenced, not only at one of China’s major law schools – Tsinghua. I wonder whether Professor Lao, a younger scholar whom I did not know during my 2002-3-4-5 autumn semesters teaching there, will now suffer the fate of her former colleague, the ex-communicated, shunned and impoverished Professor Xu Zhangrun, who is being quietly and informally but severely punished for his brilliant and courageous critiques of Xi Jinping’s repression.

This essay is not only about the plight of legal scholars, lawyers, free speech and the abuse of criminal justice. It is a Chinese intellectual’s effort to confront contemporary life. It is also a meditation on arriving at middle age (recall the PRC movie from the early post-1979 era “Ren Dao Zhongnian”) and on the responsibilities of raising children to cope with the contradictions of China’s present political, social and economic environment. Professor Lao offers many admirable sentences, and I like her concluding quotation of J.K.Rowling’s speech to Harvard graduates, which urges a path that we all might well follow.

The forthcoming trial of two of China's greatest human rights lawyers and would-be political reformers–Xu Zhiyong and Ding Jiaxi

Ding Jiaxi (left) and Xu Zhiyong

By Jerome A. Cohen

After torturing these two admirable people for almost two years, the PRC finally appears ready to bring them to secret trial, probably between Christmas and the New Year in order to minimize foreign publicity. Here is a reliable two-page summary of their plight written by Lawyer Ding’s remarkable wife, Sophie Luo, who is now working in the United States for a European company while devoting all other energy to attempting to secure her husband’s freedom. She is not only as well-informed as possible about this non-transparent prosecution but also unusually articulate, thoughtful and balanced in her analysis of the overall PRC human rights situation. A Council on Foreign Relations Round Table Dialogue with her is tentatively scheduled for December 14.

One of the questions worthy of exploration is why the PRC bothers with secret and distorted legal trappings in many cases like this while using even less transparent methods to silence other reformers and critics. What purposes are served by the Chinese Communist Party’s criminal justice charades? How much has Xi Jinping learned from Stalin and how much has he “improved on” Stalin’s widely-condemned techniques?

Jiang Tianyong's Continued House Arrest

Jiang Tianyong (image via Frontline Defenders)

By Jerome A. Cohen

Here is the latest report on the continuing police detention of disbarred lawyer Jiang Tianyong, whose home, like that of many others ostensibly released from prison, has been turned into his prison. This, as the report indicates, is a classic example of the widespread but little-recognized practice that I long ago termed “Non-Release Release” (NRR). Although Jiang still has another year to serve of the three-year “deprivation of political rights” (DPR) to which he was sentenced in addition to his formal two-year prison sentence, there is no way that his continuing NRR can be justified as falling under DPR, and I have seen no serious attempt to legally support that claim. This is simply another instance of arbitrary police action against which there is no appeal. It is, of course, a blatant violation of Jiang’s rights under both international law and China’s domestic laws. 

I am especially aware of the tragic injustice that Xi Jinping’s Communist Party is inflicting in this case. I have known and admired Jiang for over fifteen years since he made his career change from public school teacher to human rights lawyer because he believed that would enable him to do more to promote democracy, freedom and human rights for the country. We cooperated in 2004-05 in the vain effort to protect the famous blind “barefoot lawyer” Chen Guangcheng. Jiang proved to be an able and fearless colleague. He and his family have long suffered as a result of his many similarly courageous efforts.

Much more should be done to expose, condemn and prevent such blatant injustices.

The Continuing Attack on China's Human Rights Lawyers

By Jerome A. Cohen

Human rights lawyer Ding Jiaxi

The title of this latest valuable message from IAPL Monitoring, “Rights lawyer Ding Jiaxi remains under police investigation,” sounds much too innocuous to encapsulate what is taking place. “Remains under police investigation” does not do justice to the gross injustice being perpetrated by the Linyi Public Security Bureau (PSB), the PSB that so abused the blind “barefoot lawyer” Chen Guangcheng in so many ways from 2005 until his extraordinary escape in 2012. 

Human rights lawyer Ding has been held incommunicado for almost one year since his detention following the small HR lawyers meeting last December in Xiamen. If the experience of so many others is a guide, he is undoubtedly being subjected to tortures of various kinds.

What is interesting about this latest sad report of the plight of “disappeared lawyers” is the apparent refusal of the local procuracy to accept the PSB’s recommendation for prosecution on two occasions, presumably because the police are not deemed to have made out the case for “inciting subversion of state power”. In these circumstances Ding should be released free and clear or at least granted the PRC equivalent of “bail” if there is need for the investigation to continue. 

The PSB rejects this proper course and continues to try again. The procuracy should order the PSB to at least grant the defense lawyer’s request for bail. Yet, in order to avoid embarrassment and accountability for the police and to avoid sanctions against the procuracy itself, it continues to send the case back for more evidence. The procuracy is caught in a dilemma, trying to do its duty to carry out the legal protections prescribed in the PRC Criminal Procedure Law to prevent an unjustifiable indictment and yet not run afoul of the Communist Party’s insistence that the police, procuracy and courts operate as “a single fist” in such cases.

I assume the Linyi City Party Political-Legal Committee will resolve the problem since, legally, the procuracy cannot continue at this point to keep sending the request for prosecution back to the police for further “investigation”.

DING’S LAWYERS GROUP WAS A MODERATE CIVIL SOCIETY ORGANIZATION. If I were a Hong Kong lawyer working for civic, political and legal reforms, I would take note of the Mainland precedents and be very worried about Hong Kong’s deteriorating constitutional prospects and my own future. For example, Dennis Kwok, the able and dynamic lawyer representing the Hong Kong legal profession in the Legislative Council until his Wednesday ouster by the NPCSC, intends to return to law practice and continue, as a citizen as well as a barrister, his opposition to the new National Security Law. Should he be prepared for detention and “investigation” for alleged “inciting subversion against state power”? Now that the Mainland security organizations have come to dominate HK, will he be subjected to the same incommunicado “investigation” procedures and punishments as Mainland lawyer Ding?

The Ongoing Detention of Lawyer Li Yuhan

By Jerome A. Cohen

Lawyer Li Yuhan, image taken from Front Line Defenders.

Recently, Lawyers for Lawyers wrote a letter calling for the release of Li Yuhan, a Chinese human rights lawyer who was detained three years ago for “picking quarrels and provoking trouble.” The letter cites urgent medical conditions and calls for her immediate release. The case of Li Yuhan is another sad example of how in the PRC the Communist Party, police, prosecutors and judges continue, despite various legislative reforms and Xi Jinping’s frequent orders to “do everything according to law,” to act “as a single fist” in coercing confessions, even from human rights lawyers. In every political system, vigorous lawyers are sometimes thought by some people to “provoke trouble.” This is what happens to them in the PRC.

I don’t know Ms. Li Yuhan but she is apparently among the many courageous Chinese lawyers who, despite severe health disabilities and massive physical and psychological pressures, has persistently sought to resist being coerced into false “confessions.” What seems to be unique about this case is the reported promise – made not by Party, police or prosecution but by the very court scheduled to determine guilt or innocence in a supposedly impartial public trial – that, if only she would finally “confess,” they would restore her right to practice law again after her release. I have never heard of this mode of coercion before, a new addition to the repulsive bag of tricks that the PRC has perfected into an art form. How and why Ms. Li has managed to hold out against these horrendous pressures remains a mystery, of course, and I wonder how much longer she can do so, with what consequences. One reason why she has not succumbed to this promise may well be an understandable skepticism that the promise would be fulfilled.

Also notable about this case, although certainly far from unique, is the length of time she is being detained prior to “trial,” far exceeding the maximum prescribed in  the Criminal Procedure Law unless special approval has been obtained from the highest national government authority. I wonder whether evidence of such approval exists. Here one also has to wonder about the restrictions imposed on the lawyer allowed to represent her, who apparently has finally had access to her and learned about the unsuccessful judicial coercion almost a year ago.

Perhaps the only recourse available to Ms. Li’s family and others seeking her freedom is to invoke the ancient Chinese legal tradition of seeking to block the emperor’s procession in order to have him hear their cries of injustice. But, as they well know, this would only lead to the endless detentions of those engaged in the effort. So much for the vaunted “trial-centered justice” that current reforms claim to implement!

I assume (and hope), because of the publicity surrounding the detention of the “Hong Kong 12,” that they will not receive similar treatment to Ms. Li’s.

Thoughts on Human Rights Lawyer Wang Quanzhang’s Interview

By Jerome A. Cohen

Human rights lawyer Wang Quanzhang

Here is the latest report on the famous, now released from prison, human rights lawyer Wang Quanzhang. Its description of the torture and many other abuses he suffered while being convicted on national security grounds in China should be of interest to all in Hong Kong who might fall into the category of “the very small number” of people whose prosecutions for violations of the forthcoming National Security Law might subject them to central authorities.

The report is a curiosity in several respects. Why has the PRC allowed this first “face to face” media interview with Wang as well as his earlier interviews with overseas media? This is not normal “non-release release” for PRC ex-political prisoners.

Why does the interview feature only the torture and other charges that Wang has already made known but says nothing about his earlier vow to pursue justice and try to review his case in PRC courts? Has Wang made any progress in this notoriously uphill struggle? How has he tried to proceed? Is he refusing to talk to foreign media about this current effort in order to avoid possibly prejudicing it because of adverse PRC official reactions?

The translation of the interview seems a bit odd in places, especially to call the abusive police, prosecutorial and judicial measures taken against Wang “sloppy.” I wonder what the Chinese term Wang used was.

Support silent supporters of the rule of law in China

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

Here is a stimulating op-ed by Chinese law scholar and activist Teng Biao. I hope US funders, public and private, will take it into account. I believe, after giving due regard to Teng Biao’s admonition against funding the oppressors, funders should continue to support those non-Chinese institutions that do not pull their punches in studying and reporting on legal developments in China while also continuing to conduct legal and human rights education of not only Chinese lawyers but also Chinese judges, prosecutors, justice officials and even police.

The point that needs greater recognition here is that hundreds of thousands of legal specialists in China are extremely unhappy with Xi Jinping’s oppressive policies, policies that they feel forced to live with and practice while awaiting a less repressive regime and the renewal of true legal reforms. At a time when they are being ordered to reject universal human rights values, we should not abandon these silent supporters of the rule of law, but should keep up contacts and professional nourishment that will sustain them until a better day dawns.

Years ago, the late Senator Arlen Specter asked me to emphasize this point in a letter to then House Majority Leader Nancy Pelosi, recalling the importance of foreign funded legal education and training given to officials of the Chiang Kaishek dictatorship in Taiwan and the Park Choon-Hee dictatorship in South Korea. Those efforts paid rich dividends when political circumstances permitted legal liberalization. Indeed, they helped fuel legal officials’ opposition to dictatorship, as occurred when Taiwan prosecutors and judges rebelled against their masters and successfully established their independence of political interference.

The U.S. Congress, other countries and private foundations should also fund basic research on the many complex aspects of the evolving Chinese legal system, not only education and training in China but also efforts to enhance foreign understanding of both contemporary events and the country’s political-legal culture.

In addition, there is a great need to fund the support and activities of the increasing number of Chinese refugee lawyers, law professors and human rights activists who, like Professor Teng, are turning up outside China as a result of the terrible situation they confront in China.

Finally, in fairness to the America Bar Association, we should note that, after long internal debate spawned by external criticisms, it has decided to establish an international human rights award and next week at its annual meeting in San Francisco this new award will be bestowed, in absentia, on another of China’s courageous human rights lawyers, Ms. WANG Yu, who, sadly, is jailed in China and awaiting criminal conviction and a long prison sentence. 

China's 709 Crackdown on Human Rights Lawyers: One Year On

It is encouraging that petitions, protests, reports, documentaries, editorials, op eds and blogs seek to alert the world to the first anniversary on July 9 of the Party’s most recent and intense crackdown on human rights lawyers, collaborating activists and their loyal families. It is discouraging to realize how little impact all these efforts will have on Xi Jinping and his spear carriers or even on the Chinese people, most of whom are deprived of their right under China’s Constitution to know about such efforts. The scholarly work of Eva Pils, Terry Halliday, Liu Sida and others helps us to understand the motivations of these martyrs to the cause of political and civil rights. Yet how long can we expect even the bravest and most dedicated human rights advocates to endure in the cruelly punishing conditions that Xi Jinping has imposed upon them?

Although signs of internal friction and power struggles increasingly emerge from Xi’s non-transparent polity, the odds still favor his continuing to rule for another five years after the 2017 Party Congress, and some insiders doubt that he will voluntarily surrender the throne in accordance with Party rules in 2022. This recalls the examples set by Marcos in the Philippines and Park Choon-Hee in South Korea. Yet those East Asian precedents for illegally extending dictatorship, like the unspeakable abuses of Mao Zedong, in each case led to a public reaction that produced a more civilized, lawful regime. In China, unfortunately, the post-Mao reaction proved to be halting and incomplete, and Xi Jinping’s four years have featured repression more than progress. Comparisons are stimulating between the Xi regime and Russia under Putin, who successfully reversed his country’s post-Soviet democratic tide of the early 1990s. Will Xi, who admires Putin, seek some similarly imaginative formula for legitimizing the extension of his rule? How long will China’s human rights heroes have to suffer and sustain their faith?

A biographical sketch of Mr Chen Guangcheng

I have written a short biographical sketch of Mr Chen Guangcheng, the blind “barefoot lawyer” who escaped post-prison house detention in China in 2013, sought refuge in the US embassy and eventually set foot in the US. This sketch has just been published in the Berkshire Dictionary of Chinese Biography, Vol. 4.

Those interested in how Beijing and Washington negotiated over Chen Guangcheng’s departure for the US can read Chen’s account in his book, The barefoot lawyer: A blind man’s fight for justice and freedom in China, as well as Hillary Clinton’s differing account in her own, Hard choices. I first offered my own, slightly different view of the Embassy portion of the negotiations in the Washington Post here and the Wall Street Journal here, based on long phone calls that Chen made to me during his stay in the Embassy.

Chinese Communist Party’s Persecution of Churches: China Change’s Interviews with “Pastor L”

By Jerome A. Cohen

Photo from ChinaChange: "Believers and SWAT clashed when the cross of this church in Wenzhou was removed on July 21, 2014. TIME Magazine has a video report here"

China Change has just released a remarkable interview with “Pastor L.” The interview not only updates us about the plight of Christianity in an important area of China but also offers a persuasive analysis of what underlies the Chinese Communist Party’s persecution of religions generally. Indeed, it demonstrates the similarities between the CCP’s persecution of religions and its systematic attacks on all freedoms of expression, media, teaching, research and publication, and the legal profession to which victims of suppression vainly turn for protection against an arbitrary and repressive state. This interview deserves widespread dissemination. One need not be a religious person – and I am not – to appreciate its significance.

The interview does prompt a few immediate thoughts. It consistently refers to “Christianity” without distinguishing among the varieties of organized believers who have earned that designation. Readers who are interested in how many of the affected church groups are “Protestants” of one kind or other and how many are “Catholic” can find more information in the first interview China Change released here.

The interview’s account of how local business people, a formidably successful group, have helped to spread the faith during their business trips throughout China evokes thoughts of Max Weber and the connections between capitalism and religions.

It also offers the pathetic story of how Beijing lawyer Zhang Kai, one of several counsel seeking to defend the churches but secretly detained like many of his clients, has been coerced, like them, to issue a jailhouse statement claiming that he no longer wants the help of defense lawyers. This is a vivid illustration of the “rule of law” in practice, as distinguished from the speeches of Xi Jinping, the preaching of the Party plenums and the reformist norms of the National People’s Congress and the Supreme People’s Court. Church believers could render further service by doing empirical studies of the many cases involving interaction of the legal system with their daily lives.

I look forward to further reports from the estimable “Pastor L” and China Change. 

The struggle of Chinese public interest lawyers to have their voice heard by their lawyers associations

by Jerome Cohen

According to this report, some public interest lawyers in China are now calling for abolition of the national lawyers professional group, the All China Lawyers Association, which is organized and controlled by the Ministry of Justice and has rarely lent support to lawyers attacked by the government.

In fact, there were efforts in the past to try to reform the lawyers associations in China, such as calls by some public interest lawyers in 2008 for the Beijing Lawyers Association to hold direct elections, in the hope of making the group more autonomous (see Jerome Cohen, "The Struggle for Autonomy of Beijing’s Public Interest Lawyers," April 2009). Obviously, the struggle is still ongoing today, especially given the current severe crackdown in which the local and national lawyers associations have not only remained silent but also continued to aid the government, for example, by not renewing the license to practice law of some lawyers unwelcome by the authorities. 

The ABA's statement about the crackdown on lawyers in China

The recent crackdown by the Chinese government on human rights lawyers has raised the question of what is an appropriate response by foreign organizations working on the rule of law in China. The statement released by the President of the American Bar Association on August 4 has further prompted such discussion as well as frustration of those who want to see a stronger statement of the ABA in support of China’s beleaguered lawyers, as in this op-ed by Robert Precht in the Washington Post.

Below are some thoughts of Professor Jerome Cohen about the ABA statement and the broader question of what considerations foreign organizations, including bar associations, universities and NGOs, have when they think about how to respond to the recent challenge.

Jerome A. Cohen

August 4, 2015

First of all, I am impressed by how little interest has been expressed in the ABA statement. Perhaps it’s the mid-summer doldrums and holiday schedules, perhaps many people feel what the ABA says is of little significance in influencing the PRC to cease its attack on human rights lawyers, and perhaps there is little appreciation of the importance of human rights lawyers and the Party’s attack on them.

The ABA statement does not meet my standard for what would have been appropriate. I had helped draft a stronger statement, yet one that also emphasized the ABA’s hard work over the past 17 years and the importance of continuing, indeed expanding this effort with the support of some of the other lawyers’ organizations that condemned the PRC purge. Some of the language of our draft is in the compromise final draft decided upon by the ABA president.   I think the final statement is adequate since it shows the ABA is not happy with what the PRC is doing, which is a lot more than the original draft produced by the staff of its Rule of Law Initiative did. So I think the statement is helpful, since it adds to the protest the voice – however timid – of one of the world’s greatest bar organizations. Of course, even the outpouring of protest is not likely to be helpful in the sense of persuading XJP to call off the hounds, but it surely is helpful in supporting the victims and their colleagues and families and the hundreds of thousands of Chinese legal officials, judges, prosecutors, lawyers, legislators, law professors, journalists and activists who have been coerced into suffering this abomination in guilty silence. It is also helpful in letting the American legal profession and general public know more about reality in China today.

ABA's logo on its website: americanbar.org

It would be painting too quickly and with too broad a brush to say the mild ABA response is a result of meretricious, mercenary motives on the part of law firms, universities, or NGOs.  Individual American law firms with offices in China or otherwise engaged in China practice have never shown the slightest interest in human rights problems. That surely is for business reasons. Yet bar associations have often been active regarding PRC transgressions as well as those taking place in many other countries. I am glad to say the NY City Bar has in this case, as in many others, made its condemnation loud and clear, n Chinese as well as English.  The Hong Kong Bar Association, whose opinions really carry some weight in China, is terrific in this respect.

The situation with universities has its own characteristics. Universities and their centers and institutes seldom go on record as institutions condemning Chinese human rights violations, but many individual faculty members and research scholars do express themselves even while many keep silent for their own good reasons. I do not think that the failure of universities and centers to speak out can generally be attributed to concerns over loss of money, although some might suffer financial consequences from doing so. I think there are other explanations readily available, some reflecting worthy considerations and some not (does visa denial constitute primarily a monetary concern?).

NGOS also need careful analysis. Human rights NGOs that cannot set up shop in China have no hostages to fortune. Those like the ABA that have labored long and hard in China, with some staff devoting their lives to this kind of work, have a lot to lose if their protests lead to their ouster and the closing of their office. That was the principal articulated consideration motivating those within the ABA who preferred no statement or one that would have been ludicrous in the eyes of the world. Of course, one can say that their view too is based on money since their jobs and funding could be cut off by a hostile PRC reaction, but I think that a genuine zeal for law reform and a belief that their efforts have already produced tangible progress and will in the long run bear greater fruit was their primary motivation. Concern was also expressed that a strong statement might lead the PRC to impose sanctions against the persons of their American and especially Chinese staff in Beijing, an idea that seemed to carry weight with some within the ABA who know little about China.

So ABA leaders were called on to balance conflicting considerations, essentially to balance the speculative consequences of a strong statement against the less speculative consequences of failing to meet the challenge, including the ongoing but impossible to stop attack on China’s human rights lawyers and the damage to ABA’s reputation. Hence the compromise. Many ABA lawyers were undoubtedly unhappy with the outcome, judging by their words and votes during various group discussions. I know nothing about ABA practices and procedures but what I witnessed from afar (I did my pro bono consulting by phone, skype and email from the soothing beaches of Cape Cod!) made me think a bit of law reform is overdue within the organization!

A SEPTEMBER 7 POST-SCRIPT: The ABA’s dilemma has surely not ended. Public criticism has begun to rise at summer’s end. Some within the organization are properly calling for further consideration in a special meeting. There is already an effort under way to persuade the ABA to seek to add to the agenda of its long-scheduled November conference with Communist Party-controlled Chinese lawyers a discussion of the current repression of human rights, public interest and criminal defense lawyers.