Non-release “release” of human rights activists and their confessions

Photo: Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Chinese human rights lawyer Wang Yu has been “released” on bail, as reported in today’s Wall Street Journal. Wang Yu was seen in a video making a confession. “I also wrote inappropriate things online and accepted interviews with foreign media. For this, I feel ashamed and express remorse,” She said. As to the inaugural American Bar Association (ABA) International Human Rights Award given to her, she was quoted as saying she did not “acknowledge, recognize or accept” the award.

It’s obviously too soon to analyze with confidence but it sounds like another of the curious deals that are being struck between PRC oppressors and courageous but hapless human rights victims, deals involving the welfare of spouses, children, parents, lovers etc as well as the target whose captivity and torture are at stake.

This is all so sad, not only for the oppressed, broken victims but also for China and its standing in the world. These pathetic, ludicrous “confessions” and charges are obviously designed for a Chinese audience, but tens of millions of Chinese are not foolish enough to believe these farces.

Yet the damage to China that these torture-inspired fairy tales inflict abroad is incalculable. Does the Chinese leadership not see this? Xi Jinping is holding himself and the country up to increasing worldwide ridicule. This is the Chinese Communist Party’s distinctive contribution to the playbook of international Communist abuse of the legal system and promises to rank in notoriety with Stalin’s infamous purge trials, although so far no Chinese victims have been formally executed!

I’d like to think that if the ABA, in its new vision, could honor every detained human rights lawyer in China, it could guarantee them some minimal concession from their oppressors, but we know that international prizes can only be helpful in a few cases and certainly cannot free even Nobel Prize winners!

I don’t know what this foretells re the ABA’s work in China. Certainly it adds fuel to the fire of the continuing debate over what the appropriate ABA response to the vicious repression of human rights lawyers should be. If this case results in the termination of the ABA’s praiseworthy activities in China, it would be another classic instance of what Beijing propagandists like to call “dropping a rock on your own foot”.

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?

Abduction of Hong Kongers by the Party

By Jerome A. Cohen

I don’t know how Lam Wing-kee was persuaded to tell the truth and finally demolish the “bedtime story” that the PRC government has been using to ridicule itself and insult the world’s intelligence. Bravo to Albert Ho and his colleagues and to the SCMP for bringing reality to our attention. This case offers classic instruction about the arbitrary power of the Chinese police to detain and torture any of us within China and to reach beyond China’s borders to silently kidnap and force to China even foreign nationals!

This story reveals on many levels the nature of the PRC legal system. We have long heard about “two Chinas” in the international realm, but there have always been two Chinas in the realm of criminal justice– the China of written law including the Constitution – and the China of real life Communist party and police practice, which often ignores, defies or distorts the published rules.

This case is especially interesting for the light Mr. Lam now sheds on the special investigating group that operates as a secret instrument of the central Party authorities. He also confirms that the case is not the product of some out-of-control local officials in southern China but emanates from the Party center.

The attempt to discredit Lam through untested statements made by people who remain under PRC control and whose fate will be determined by their responsiveness to the demands of their captors is pathetic – for them and for the reputation of the PRC. 

China and the American Bar Association – Another Sad Story

By Jerome A, Cohen

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

The report by Isaac Stone Fish in Foreign Policy, “Leaked Email: ABA Cancels Book for Fear of ‘Upsetting the Chinese Government’,” stirred up a lot of discussion over the weekend. The American Bar Association’s 2015 reversal of its initial decision to publish a book by the famous Chinese rights scholar/activist Teng Biao was allegedly market-driven, the ABA belatedly claimed, and not based on fear of China as originally explained by the ABA employee in charge of book negotiations.

Did the ABA tell the truth in seeking to explain its reversal of the original decision to publish? The fable from the ABA reminds me of the stories the PRC has recently put out to try to explain China’s kidnappings of certain Hong Kong publishers. Reasonable people could argue about the ABA’s discouragingly timid statement last August about the oppression of China’s human rights lawyers, which I wrote about here, but what can one say about the Teng Biao incident other than that it is a pathetic chapter in the history of the world’s leading bar association?

Commissioning a book by ex-professor and lawyer Teng – a genuine hero of the legal profession now unable to return to China, accepting his outline for the book’s publication and then changing its mind out of fear of offending Beijing was surely bad enough. But then to belatedly seek to retract an apparently truthful explanation of its bad judgment by spinning a yarn that is an insult to our intelligence is contrary to the ethics and integrity for which the ABA purports to stand. Heads should roll over this incident, but not the head of the whistle-blower! 

As to the real reason – fear that China might terminate the ABA’s valuable law reform work in Beijing, we heard it given last August in defense of the initial insistence of ABA’s Rule of Law Initiative (ROLI) that there be no protest whatever and, under fire, that any protest be a timid one. This was months after the reversal over Teng’s book. I don’t think any of us who opposed ROLI’s view last August knew about the book reversal and the ABA did not disclose it. If it had done so, this would have added significant fuel to the fire against its position.

Within the ABA, ROLI impressed me as a tough, no-holds-barred bureaucratic infighter against other ABA units that challenged its view, such as the Human Rights committee. For example, I was told that, when, as the internal debate within ABA over whether to make a statement raged, ROLI scheduled a meeting with the State Department on behalf of the ABA, it did not notify the ABA human rights people, thereby precluding them from being included in the ABA delegation to the meeting.

The ABA is a huge, unwieldy organization that desperately needs – at a minimum – better coordination regarding China so that its various entities know what each other is up to and can develop a coherent, respected policy toward a major country that will continue to present many challenges. We have not heard the last of this story and perhaps the ABA head office will issue a clarification in the next few days. Surely the incoming president should give this matter a high priority.

Since we have been discussing disclosure, I should mention what many know – that Teng, since last summer, is no longer at Harvard but has been a Visiting Scholar at our NYU US-Asia Law Institute.  I suppose I should also disclose that in 1966, I think it was, I published a letter in the NY Times, taking the ABA House of Delegates to task for uncritically endorsing American military actions in Vietnam as consistent with international law.

China’s miraculous recent efforts to reform people into “socialist new men”!

Photo: Voice of America, January 2016

Lee Bo, one of the Hong Kong Publishing Five whose disappearances last year have been widely reported, now says he will never publish banned books again.

Let’s try to look at the possible bright side to the PRC’s recent successful attempts to insult our intelligence and challenge our credulity. One of the more idealistic aspects of the Bolshevik Revolution was the honest aspiration of Lenin’s first Minister of Justice to create a new, truly revolutionary system of punishment that would transform criminals into “new socialist men”. Chairman Mao’s first decade in national power prominently featured a similar goal, one that gradually, almost imperceptibly, yielded to the reality that it is easier for governments to kill people than transform them.

But is it now possible that Xi Jinping has outdone his much-admired Helmsman by miraculously transforming, in jig time, the Hong Kong Publishing Five and other alleged offenders who have recently confessed their sins in public, even without being prosecuted, not to mention convicted? By the time we mark the 100th anniversary of the Bolshevik Revolution next year, will there be further evidence that it has belatedly achieved one of its most ambitious goals?  

Lawyer-client meeting in “national security” cases in China

My colleague Yu-Jie Chen has just sent around her comments below on the police’s written decision to reject the lawyer-client meeting (“不准予会见犯罪嫌疑人决定书”) in recent cases related to the oppression of lawyers and other human rights advocates since July 9 last year (“709”). With her permission, I’m pasting her comment below, followed by my response.

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“This kind of decision to reject the lawyer’s request to meet with the criminal suspect seems to have been standardized into a form and used in several cases of the 709 activists and lawyers, including lawyer Wang Yu (here), Li Heping’s 24-year-old assistant Zhao Wei (here), law scholar Liu Sishin (here), and activist Wu Gan (the latest 不准予会见 decision in his case was issued on Feb. 6). All these decisions have been issued by Tianjin City public security authorities (including its Hexi branch), which has been in charge of the 709 crackdown as far as I know. In addition, the case of lawyer Zhang Kai, who has been detained in Wenzhou, also saw such a document issued by the Wenzhou police (here). I’m sure there are many others that I haven’t seen.

The basis invoked by the police is Article 37 (3) of the Criminal Procedure Law, which, in cases involving crimes endangering State security, terrorist activities or significant amount of bribes, asks defense lawyers to obtain the approval of investigating agencies before meeting with their clients.

However, we should note that in the September 2015 regulation issued by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security and Ministry of Justice to protect lawyer’s rights to practice (“关于依法保障律师执业权利的规定”), the police are required to provide reasons (说明理由) in rejecting the lawyer-client meeting. I don’t think simply producing a form as a formality meets this standard. But in reality, I wonder if there is any remedy for such a violation.” 

Written notice rejecting the request of ZHAO Wei's defense lawyer to meet with Zhao

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 Written notice in WANG Yu's case

The use of such a form reveals the cavalier manner in which the police violate their nation’s Criminal Procedure Law by arbitrarily denying the right to counsel in their attack on rights lawyers and other human rights advocates whom they have detained. Indeed, the police are doing exactly what Article 9 of the major September 2015 Five-Institution Regulation interpreting the 2012 Criminal Procedure Law explicitly forbids. They are failing to give lawyers requesting a meeting with their detained clients the reasons for rejecting the meeting.

They simply fill in the bare details identifying the case on a printed police form that claims the requested meeting would interfere with their “national security” investigation OR reveal state secrets, without giving any facts or justification of such alternative claims. This flies in the face of Article 9’s stern admonition that investigating agencies may not interpret “as they wish” the “national security” and other exceptional provisions authorizing them to deny counsel their right to meet detained clients in certain circumstances. This admonition, based on decades of experience demonstrating how in practice the police always turn narrow legislative exceptions into broad arbitrary rules, is specifically designed to prevent the police from arbitrarily restricting the right of lawyers to meet their detained clients.

According to the law, lawyers should be able to vindicate their rights by seeking administrative review of the police refusal at the next higher police level and by asking the local procuracy to investigate the arbitrary police refusal. Such efforts are apparently being made but no one is holding his breath in the expectation that this will bring relief. For example, over 15 years later I am still waiting for the office of the Supreme People’s Procuracy in Beijing to send me its promised report reviewing the lawless detention of a Sino-American joint venture’s Chinese CFO by the city of Jining in Shandong Province.

In most cases, initially and repeatedly, police denial of lawyer access to detained clients seems to be orally communicated. Issuance of a written form seems to be done belatedly and reluctantly as part of a customary effort to block or at least delay any review of the decision.

The Hexi District Sub-Bureau of the Tianjin Public Security Bureau seems to have attracted a very large number of detention cases related to the 709 crackdown. I note that the September 18, 2015 Decision denying her lawyer’s access to young Ms. ZHAO Wei is numbered 1,082 for the year!!! That does not mean that the huge number of such cases that preceded it last year were all 709 cases but it seems likely that many of them were such supposed “national security” cases. And we do not yet know how many more such cases occurred last year after September 18. Moreover, there may be some double counting since defense counsel sometimes try a second time later in their client’s detention. The Five-Institution Regulation authorizes the meeting of lawyer with client in alleged “national security” cases once the meeting will no longer prove an obstacle to investigation or the risk of revealing state secrets is gone.  

The Peter Dahlin Case: Shock, Awe and Mystery

Peter Dahlin has been released. To give confident answers about the meaning of his case we need to know much more. First, what triggered Dahlin’s detention? Did he have anything to do with the effort to smuggle Wang Yu’s son out of China, as once rumored, or was this a smear to make the detention look more understandable and not so threatening to foreign and local legal aid and training personnel? Was it the hiring of local lawyers to conduct public interest litigation instead of the mere training of lawyers generally, as many of us do? Was it (the activity of) the particular activist lawyers helped by him?

Until we hear from Dahlin it will be hard to interpret the case’s significance. Will we hear an informative response from him and when? Did his girlfriend accompany him to Sweden? Otherwise she remains a hostage to his freedom to speak. In earlier years she might well have been given “reeducation through labor” even after her foreign lover was allowed to leave.

How to evaluate the case at this point? Dahlin’s treatment undoubtedly reflects his own cooperation while in detention. What if he had refused to go on TV? What if he had remained silent and uncooperative? What if he had lashed out against his detention and captors as his colleague, who is free, did in defense of his conduct and their organization? Any such failure to show contrition and confession would have delayed his release despite the efforts of the Swedish Government. He might even then have subsequently been released after indictment, trial, conviction and a harsh sentence. I have advised in cases where, for instance, because of diplomatic pressure, the defendant was released 48 hours after receiving a ten-year sentence, the ostensible, pre-agreed excuse being the need for foreign medical treatment.

I can see why the PRC released him now. The authorities made their point, spreading intimidation and fear throughout both the domestic and foreign legal and NGO worlds. Now, having been widely condemned internally as well as externally, they ease the criticism by releasing the accused after what appears to be a reasonable, if secret, bargain. This is similar to the release of rights lawyer Pu Zhiqiang after a prosecution that shocked many and occasioned strong protests, yet ended in an apparently less harsh than expected outcome after a complex negotiation. Unfortunately, most PRC rights advocates are not protected by the fame and connections of lawyer Pu or artist-activist Ai Weiwei or by the pressures of a foreign, friendly government. For them, shock, awe and prison remain the order of the era!

Video talk: why lawyers are not dentists!

Here is my talk for a conference in Taipei earlier this month about the plight of Chinese rights lawyers in the current severe climate: "Public Lawyers in Transitional Societies – Why Lawyers Are Not Dentists!"

China charges human rights lawyers with "subversion"

My Jan. 13 BBC interview on China's crackdown on rights lawyers (5 minutes).

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. 

Who gets punished?: Sons and daughters of rights lawyers - Collective punishment in China

by Jerome Cohen

Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Wang Yu, a leading rights lawyer detained in July during a large-scale crackdown on lawyers, must be under greater pressures than ever. Not only is she detained, but also her teenage son Bao Zhuoxuan has been prevented from leaving China to study abroad. When the boy tried to escape China days ago, he was caught in Myanmar and brought back to the country. Chinese media now claim that this is “a plot by external forces, who forcibly drew a minor into the vortex of politics and used the case to vilify China's rule of law.” Wang Yu, detained for more than three months now, appeared on state TV to condemn the supposed smuggling of her son (See Verna Yu’s report here). Meanwhile a son of another prominent rights lawyer, Liu Xiaoyuan, has also been denied permission to leave China to pursue an overseas education.

There is no doubt that in fact, not in formal law, the Chinese Government has been resorting to collective punishment of the family members of those it regards as political offenders. Indeed, the People’s Republic has been doing this for a long time in order to punish people it deems to be dissidents and to force them to “confess” to alleged crimes they have not committed.

Such formal collective punishment was abolished over a century ago in China as part of reformers’ efforts to bring Qing dynasty justice up to the standards of the Western imperial powers and end the incubus of “extraterritorial” foreign jurisdiction. Yet it persisted in practice under China’s post-imperial, pre-Communist regimes. Chiang Kai-shek’s government continued to secretly mete out collective family punishment on Taiwan. Many still recall how Kuomintang (Nationalist Party) police even killed the children and mother of a distinguished Taiwan independence advocate while he was in prison.

Is collective punishment happening more often in the PRC today than in the past? It’s impossible for outside observers to know. Surely the Internet and social media keep us better informed than in the past.

The authorities evidently think it is an effective tool, since it can transform even the most courageous dissident into the Communist Party’s compliant victim.

This vicious practice may soon backfire, however, since knowledge of its use is increasingly widespread and leaves in tatters any further attempt by the Xi Jinping regime to resort to “soft power”. I am glad Xi’s daughter had the opportunity for a Harvard education. It is a disgrace that he so often denies this opportunity to the children of so many worthy citizens.

Remarks for the opening of "Aboveground—40 Moments of Transformation” -- A photography exhibition of young feminist activism in China

Jerome Cohen's video remarks for the opening of "Aboveground—40 Moments of Transformation” -- A photography exhibition of young feminist activism in China

Cohen says, "It's hypocritical to have Xi Jinxing and his wife speak out about women's rights (at the UN) after what they have done to many women activists and women lawyers in China, especially the Feminist Five, who although no longer are held in jail, but still under important constraints. Receiving "Qubao houshen," a bail arrangement, that requires them for one year to stay wherever they're located and to report regularly and to restrict what they say as well as what they do is really a disgrace to China. It's a restriction on freedom of expression and personal freedom that the Chinese government should cancel. I hope that seeing these wonderful photographs and in meeting together, we can gain further sustenance and support for continuing effort to support women's rights, women lawyers in china, human rights activities and the role of legal profession generally."

Guo Yushan (郭玉閃) "released" prior to Xi Jinping's visit to the US

by Jerome Cohen

Less than ten days before Xi Jinping's visit to the US, scholar Guo Yushan (郭玉閃) and his colleague He Zhengjun (何正軍) have been released after almost a year’s detention (see the SCMP report here). Guo is now placed under "qubao houshen (取保候審)" (obtaining a guarantee pending further investigation), which is often a face-saving device for the Chinese authorities if they want to release someone during investigation. 

This form of “release”, while not as severe as “home confinement”, means that for one year the released people are under various constraints including continuing stigma although they have not been found guilty of anything or even prosecuted. They cannot leave their city without police approval, they have to report regularly on their activities, they are often shadowed and can be taken back into custody and prosecuted at any moment. The police often silently drop the case at the end of the year unless they come up with evidence, but unauthorized surveillance often continues. Plainly, this is very different from a true release and termination of police interference with one’s life. 

Guo Yushan (photo by BBC中文網)

Guo is a great person. He found himself in the public eye after his role in rescuing the blind barefoot lawyer Chen Guangcheng became known, but in fact he's done much more than that. His research NGO, the Transition Institute (傳知行), has conducted a lot of good studies on social issues. As the Transition Institute was already shut down by the authorities, and Guo is now under "qubao houshen", it’s unlikely his research work can continue.

Threats to academic freedom in Hong Kong

Jerome Cohen

Here is an article by David Matthew today on how Hong Kong academics critical of Beijing have been put under pressures, subtle or flagrant. It reports, “Press attacks and council control…have been the weapons of choice against the most prominent academic figures in Hong Kong’s pro-democracy movement. But some believe that the highly politicised environment in Hong Kong is also beginning to affect the climate for day-to-day teaching and research.”

Johannes Chan Man-mun (Photo by Voice of America Tang Huiyun, 美國之音湯惠芸)

This further development is disturbing. The current struggle over the appointment of former law school dean Johannes Chan as pro-vice chancellor at University of Hong Kong is a more visible litmus test. HK is no longer a safe haven for holding conferences or even informal exchanges with scholars and lawyers from China, as again illustrated by today’s news that five Mainland human rights lawyers have just been stopped from leaving for HK.

On his impending visits to the US and UK, Xi Jinping should be questioned on every occasion about this as well as his vicious repression of human rights lawyers, IF any of his hosts – official or unofficial – have the wit and guts to insist on allowing unscripted questions.

Today’s very moving BBC interview with the wife of LI Heping, a genuinely great human rights lawyer and friend, only adds fuel to what may become a bonfire. Xi Jinping is evidently putting into practice his belief that China should be guided by the ancient dictatorial philosophy of its notoriously repressive Legalists rather than by the “universal” legal values reflected in the 25 international human rights documents to which his predecessors voluntarily committed the PRC. Beijing’s new slogan for governance might be “Leninist Legalism”. Or should it be “Legalist Leninism”? 

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.