Law, Stability and Sliding Reform

New York University law professor Jerome Cohen argues that China’s efforts to build soft power are doomed to failure by its use of the criminal justice system as an instrument of political repression. This tendency seems likely to continue in spite of legal reforms. Cohen cites the cases of figures as varied as his protégé Chen Guangcheng, Chen’s nephew Chen Kegui, “the world’s most powerful artist” Ai Weiwei, and fallen Chongqing Party chief Bo Xilai, as well as others less well known. The article is republished at NYU’s U.S. Asia Law Institute:

Nothing more vividly illustrates this injustice than the restrictions imposed on an accused’s right to effective counsel. These restrictions are not apparent from a reading of China’s ever-improving legislation. The 2007 Lawyers Law eliminated some of the obstacles confronting defence counsel under the 1996 Criminal Procedure Law, but police skirted that reform, saying they are not governed by the Lawyers Law. This year, many of those 2007 changes were incorporated into the Criminal Procedure Law itself, so that, starting on January 1, when the revised law takes effect, police can no longer rely on that feeble excuse.

Unfortunately, as Shakespeare might note today, legislative improvements keep the promise to the ear, but Communist Party- controlled legal institutions break it to the hope. If current events are any guide, the situation is unlikely to change under the revised Criminal Procedure Law. Recent cases remind us of the authorities’ continuing refusal to implement the right to counsel in good faith.

[…] These cases are legion and make a mockery of China’s claims to have established “a socialist rule of law with Chinese characteristics”. Until the right to effective counsel is recognised in practice as the cornerstone of criminal justice, China’s “soft power” efforts are destined to fail.

Cohen’s fears that the new Criminal Procedure Law will not be faithfuly implemented are widely shared, as are his concerns at the enshrinement of “a murky, two-tier legal regime” in which political prosecutions are subject to far fewer restrictions than ordinary criminal cases. At The Wall Street Journal, Carl Minzner warns that the overall direction of China’s justice system is not merely ineffectual progress, but active regression. He suggests that despite, or even because of, its frequently professed commitment to rule of law, Beijing’s obsession with stability at all costs threatens to reverse the gains of the 1980s and 90s.

[…] Beijing worries that decades of official rule-of-law rhetoric are fueling surging numbers of petitions, protests and suits by citizens who seek to protect their legal rights. The idea of rule of law is even leading some officials to perceive law as superior to Party policy. Authorities also fear that China’s growing public interest lawyers might emerge as the core of Arab Spring-style protest movements.

This new line from the central government is an integral component of hardline “stability maintenance” political policies that have swept through the Chinese state in recent years. Central signals to local authorities are clear. Contain all disputes at the local level. Hold down the numbers of court cases. And, at all costs, prevent disgruntled petitioners from reaching Beijing.

Following the “reinstatement of his political rights” last month, activist Hu Jia writes that democracy is the only real way to maintain stability in China. From The Washington Post:

For 63 years, China has been engaged in a civil war, between its people and the party, over dignity and rights. In recent decades, the Tiananmen massacre, the suppression of Falun Gong and religious freedom, and violent “family planning” policies all have contributed to a human rights disaster. In a democratic system, this government would have been impeached hundreds of times. Consider just the one-child policy that has produced countless tragedies. Millions of infants have been killed. The daily abuses of power feed more disasters. China has institutionalized abuse of power, through the Political and Legal Affairs Committee, and individuals within the system, such as Bo Xilai and Wang Lijun, also take advantage of their positions.

Amid the global tide of democratization, China’s stagnation is equal to retrogression. The question of who succeeds Hu Jintao and Wen Jiabao is not important now. Citizens are the most important force for political reform — and what matters is our courage and wisdom, what actions we take, and how many citizens wake up.

[…] Turning China into a democratic and lawful society in the next 10 years is the only peaceful option. Conciliation will never arrive without truth or confession. The sooner the Communist Party wakes up, the smaller the cost will be.