DOES CHAIRMAN MAO RULE CHINESE JUSTICE FROM THE GRAVE? - U.S. - Asia Law Institute

Prof. Jerome Cohen's eloquent protest regarding recent mistreatment of law professor Teng Biao (China University of Political Science & Law) links this incident to Mao's discussion of contradictions among the people vs. contradictions between the people and the enemy. I have doubts about how far this doctrinal argument goes. Every society defines some as enemy and some as within the pale. We struggle with that limit (witness the recent excesses in rhetoric about terror suspects).

But it is clear, at least to me, that China draws those lines much too narrowly. The jailing of the Nobel Prize winner Liu Xiaobo and the PRC's overreaction to the award are prime examples. Today's CPC leaders would have been purged as "capitalist roaders" and "revisionists" forty years ago. China needs to find stable places to draw the line and identify the principles to apply.  Jailing those who criticize permanent one-party rule is clearly the wrong place. Chinese history tells us that dynasties and China change.  - GWC

This article was published in the South China Morning Post on January 5, 2011 under the title “Maoist Thought Police.” It was published in Chinese on January 6, 2011. (简体中文）（繁体中文）. Illustration from South China Morning Post.

by Jerome A. Cohen

Almost thirty-five years after Mao Zedong’s death, China-watchers still debate his influence. Does his distinctive adaptation of Marxist-Leninist ideology continue to guide the policies, politics and practices of an increasingly powerful Party-state that now confronts challenges that the Chairman never had to face? Some maintain that Maoism long ago lost its ability to affect official conduct and today serves mainly to project an image of communist continuity amid profound national transformations. Other observers see, a least in certain aspects of government, the persisting relevance of Maoist thought, especially since 2007, when the 17th Communist Party National Congress launched an effort to recreate the “red culture” of the Party’s revolutionary pre-”Liberation” past.

The administration of criminal justice is surely one prominent area where the Chairman’s thinking has left an indelible impact, despite the large body of laws, regulations and interpretations promulgated since 1979. Beijing’s increasingly expert legal officials, like law reformers in other countries, seek the right balance between protecting basic rights of all suspects and ensuring punishment of the guilty, and some legislative progress continues even in the present conservative political environment. Nevertheless, foreign observers, not to mention China’s able criminal defense lawyers and legal scholars, daily encounter cases where “politics takes command” over law, not only among police and prosecutors but also among judges and justice officials. Indeed, this politicization of criminal justice follows the public instructions of China’s highest leaders. The legacy of “Mao Zedong Thought,” enshrined in China’s Constitution, is evident in the insistence of President and Party General Secretary Hu Jintao, Party Political-Legal Commission chief Zhou Yongkang and Supreme People’s Court President Wang Shengjun on the primacy of Party over law, in practice as well as theory.

The December 23, 2010 detention and brutalization by Beijing police of law professor Teng Biao and a fellow human rights defender explicitly illustrates the impact of Maoist thought on current police practice. In a horrifying report posted online the day after his ordeal, Teng describes how, after trying to persuade his captors that they had no legal authority to interrogate, detain and beat him, the police station atmosphere suddenly became more threatening when an officer named Xu Ping learned that Teng had just visited the mother of a house-church Christian and legal scholar under house arrest elsewhere: Officer Xu shouted: “Oh, that’s how it is! In that case, this just became a contradiction between the enemy and us!!….In that case we don’t have to talk about law at all! And you motherf,,,,, won’t get out of here again. You traitors, you dogs! Counter-revolutionaries!….You keep insulting the Party. We will treat you just like an enemy!”

Teng, who teaches at China University of Politics and Law, one of the country’s leading law schools, realized the seriousness of an accusation placing him among “the enemy”. He knew this referred to Mao’s famous 1957 speech “Problems Relating to the Correct Handling of Contradictions Among the People”, which instructed officials, when dealing with alleged offenders, to distinguish between two types of social contradictions: those “between the enemy and us” and those “among the people”. The former were to be handled with the unremitting severity of dictatorship.

Teng, attempting to turn repression into research, asked officer Xu:”How do you treat your enemies?” Xu answered: “Like Falun Gong.” When Teng added, “And how do you treat Falun Gong?”, Xu responded:”You’ll find out by and by”. This sent a shiver through Teng, since, in addition to the thousands of Falun Gong worshipers who have been formally sentenced, large numbers of others have been illegally tortured, killed or “disappeared” while in police custody. At that point, Teng reports thinking to himself: “This little police officer is younger than 30; how is he so well-versed in the Maoist doctrine of the ‘contradiction between the enemy and us’?”

The fact is that Mao’s amorphous doctrine, which originated in the pre-1949 revolutionary struggle to suppress “reactionaries” and establish the “people’s democratic dictatorship”, continues to serve as a crude rationalization for whatever repression Party leaders deem desirable. Many Chinese legal officials and scholars unsuccessfully sought to clarify the criteria for persuasively distinguishing the “enemy” from the “people”. Mao himself admitted that it was easy to confuse the two and that many good people had been mistakenly liquidated as “counterrevolutionaries.” Indeed, as Teng’s recent experience reminds us, there have only been two certainties: the Party decides who is the “enemy”, and anyone so identified loses the protections of the law.

In tense times, even law professors have had to accommodate the Chairman’s rhetoric, as I can personally testify. In February 1992, after the Voice of America broadcast excerpts of a talk I had just given to the Beijing Foreign Correspondents’ Club noting that Chinese courts were instruments of suppression, five Beijing law school deans were ordered to lie in wait in my hotel lobby “to register a solemn protest”. They asked how I, “a friend of China”, could make such a claim. I told them I had merely been quoting speeches made by Ren Jianxin, then President of the Supreme People’s Court.and head of the Party Political-Legal Commission, in the months after the 1989 Tiananmen slaughter. “Oh,” they said, “Ren was only telling the courts to suppress counterrevolutionaries, not the “people”!

So long as Mao’s pernicious doctrine persists, no Chinese citizen can be safe.

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DOES CHAIRMAN MAO RULE CHINESE JUSTICE FROM THE GRAVE? - U.S. - Asia Law Institute

Neither Green nor Blue - Jerome Cohen's independent stance toward China and Taiwan

As someone who has developed an interest in China over the past ten years, beginning with a young scholar's interest in my writing on drug product liability law, I have tried to maintain a constructive but independent stance toward China.  I have not been pro-CP or anti-CP.  I have not been pro-unification nor anti-Taiwanese independence.  (In fact I haven't thought about Taiwan much at all.)

But I have thought a lot about China - mostly through dialog with Chinese friends, and my slow progress in studying the Chinese language - which interests me more than anything else about China.  For the past couple of years since I made his acquaintance, I have read Jerome Cohen's commentaries in the South China Morning Post, thanks to the U.S. Asia Law Institute at NYU which he directs with Prof. Frank Upham.  His latest essay `Neither Green Nor Blue' is an exemplar of his independent and constructive stance.

Neither Green Nor Blue

by  Jerome A.Cohen
This is the start of my third year publishing a biweekly column in the South China Morning Post and in Taiwan’s Chinese language China Times. Most of these “op-eds” have concerned contemporary issues of law and justice in China, Taiwan or both as well as political- legal questions arising from the cross-strait reconciliation that began in 2008 with Taiwan President Ma Ying-jeou’s inauguration.

All the problems I discuss are sensitive, whether they relate to criminal justice, the legal profession or good government. I try to play the role of a constructive critic, pointing out problems that require attention and suggesting possible improvements.

Regarding China, I am neither pro- nor anti-communist but seek improvements in the government that exists. Regarding Taiwan, I am neither “green” nor “blue” but am a supporter of the island’s remarkable democratic and institutional transformation of the past two decades, a momentous development in Chinese history.

When I started writing these columns, some Taiwan observers expected me to give all-out support to my friend and former student, President Ma. Others expected me to side with the Democratic Progressive Party (DPP) because of my friendship with another ex-student, former Vice President Annette Lu, and my opposition to the Kuomintang (KMT) repression in the island’s long authoritarian era. I am sure I have disappointed all such expectations, since I try not to allow either friendship or previous political history to influence my focus on issues of the greatest importance to me: open democratic governance, human rights and the rule of law.

I too have been disappointed — by those  in Taiwan who analyze issues of law and government in terms of their impact on one side or the other in the island’s overheated partisan politics, rather than on their merits. Paradoxically, in China, where no opposition political party is tolerated, criticism and suggestions for reform, at least superficially, have often focussed on the merits of the topic discussed rather than partisan implications. Of late, however, a rising nationalistic tide has led an increasing number of writers to substitute patriotic rhetoric for responsible analysis.

Against this background, I was not surprised to read a recent, long attack on my scholarly standpoint by a researcher on Taiwan affairs at Shanghai’s Institute of International Studies, Zhao Nianyu. Like nationalists in many countries including my own, he asks why foreigners who don’t agree with him don’t “mind their own business.”

Why would a foreign commentator suggest that the very important cross-strait Economic Cooperation Framework Agreement (ECFA) ought to receive article by article scrutiny before Taiwan’s legislature approves it? Why would he maintain that the corruption conviction of Taiwan’s ex-president Chen Shui-bian should be based on a trial that did not raise serious doubts about the actions of prosecution and court? Why would the commentator urge the Ministry of Justice to stop trying to discipline Chen’s dynamic defense lawyer? Why would the commentator call for an independent commission to investigate allegations that corruption prosecutions may have been “selective”? And why would he ask the Taiwan government to grant an entry visa to Rebiya Kadeer, a leader of the Uyghur independence movement living in exile in Washington, D.C.?

To Zhao, there is only one possible answer. After studying many of my essays, he concludes that I must be “Green”. He accuses me of appearing to be an objective observer who has Taiwan’s best interests at heart, but covertly advocating Taiwan independence and the fall of   President Ma’s KMT government.

Zhao pays little heed to the reasons I have voiced to support my recommendations. To him, strengthening parliamentary democracy and transparency, giving an indisputably fair trial to a former president, protecting vigorous criminal defense lawyers, restoring public trust through independent investigation of allegations about selective prosecutions, and maximizing freedom of information by admitting controversial visitors — all such policies are merely false screens designed to frustrate peace and reconciliation between Taiwan and China.

To be sure, Zhao has difficulty confronting inconvenient truths. He cannot find any statements by me in support of Taiwan independence or the DPP. Moreover, he has to recognize that, in the very article about ECFA that he censures, my colleague and I praised President Ma’s achievement in successfully negotiating more than a dozen important agreements with Beijing culminating in ECFA, despite the fact that the two sides have reached no common understanding of the “one China” policy.

Any objective reader would have to infer that we favor ECFA and the reconciliation process introduced by Ma. Yet, Zhao claims that even these paragraphs, if properly understood, are cleverly phrased in lawyer’s language that implicitly casts doubt upon the legality of Ma’s cross-strait accomplishments!

Zhao attributes my recommendations for various legal reforms in Taiwan, which he claims to be covert advocacy of Taiwan independence, to my failure to comprehend Chinese culture, especially China’s legal culture. Apparently his argument is that, if I did understand Chinese culture, I would not have suggested strengthening parliamentary democracy and government transparency, giving a fair trial to Chen Shui-bian, protecting criminal defense lawyers, establishing an independent commission to erase doubts about prosecutorial impartiality, or enhancing public access to relevant information. Although Zhao doubts whether I personally am capable of a deep understanding of Chinese culture, he holds out the hope that “any instigator” who lives in China and Taiwan for twenty years might become enlightened enough to appreciate the correctness of the “one China” policy.

I too share the Confucian belief  in the educability of man. Yet I hope it won’t take Zhao another twenty years to appreciate the intrinsic desirability of executive branch responsibility to an elected legislature, due process of law, vigorous criminal defense, independent investigative commissions and unrestricted information.Moreover, as C.V.Chen, a leading Taiwan lawyer and prominent KMT advisor recently emphasized: “the rule of law is the essential foundation of enduring stability and peace in the cross-strait relationship.” And he’s no “Green.”

Professor Jerome A. Cohen is co-director of NYU School of Law’s US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. See alsowww.usasialaw.org

Prof. Jerome Cohen: Sage Advice to the PRC on the Hu Jia case

This article appeared in the South China Morning Post on April 14, 2010 under the title, “Sage advice,” and in Chinese in the China Times.

By Jerome Cohen

The application for early release on medical grounds of the imprisoned activist-critic Hu Jia offers China’s leaders a golden opportunity to begin repairing their criminal justice system — the weakest link in their campaign to bolster the country’s “soft power”.

The Chinese government wants the world to admire a “rising China” not only for its phenomenal economic accomplishments and growing military prowess but also for the quality of its civilization. Yet, no matter how many Confucius Institutes the government establishes abroad to teach Chinese language and culture, the People’s Republic will not win international respect for its political and social progress until it ceases locking up political dissidents and treats those currently detained in a more humane manner.

Indeed, Confucius himself taught government officials to show benevolence and forgiveness in governing and administering punishment. Having recently resurrected the sage, China’s Communist Party leaders should follow this advice. Although many imprisoned Chinese writers are ill and lack medical care, the case of Hu Jia, 36-year old winner of Europe’s Sakharov Prize for Freedom of Thought, would be a good place to start.

When they detained him in December 2007, claiming that his peaceful support for environmental reform, AIDS victims and political and civil rights had “incited subversion of state power”, police officials knew that Hu was suffering from cirrhosis of the liver. That diagnosis had been made shortly after his release from the 41-day “disappearance” to which police had subjected him in 2006. During that never formally-acknowledged confinement, police refused to accept from his wife, herself a human rights activist, the medication that Hu, a Hepatitis B victim, required. Consequently his health deteriorated markedly.

Hu’s 2007 detention was a formal criminal procedure, and in April 2008 he was convicted and sentenced to imprisonment for three years and six months. Prison authorities initially permitted him to take medicine for his liver disease, but, when he developed a resistance to that medicine (as is common in such cases), they failed, contrary to China’s human rights treaty obligations, to provide any feasible alternative. Therefore, during the past fifteen months his health rapidly went further down hill.

Finally, on March 30, 2010, legs shackled and hands chained, at Beijing’s central prison hospital he underwent tests to determine whether a growth detected on his liver had become cancerous. On April 7, while he was hospitalized, his wife and lawyer applied again for medical parole on his behalf. A previous application had been rejected last year. On April 12 the prison administration telephoned his family that he had been sent back to prison and that his condition was not cancerous and did not warrant medical parole. But the authorities refused to provide any written test results, leaving doubts about the accuracy and independence of the evaluation.

Apparently, Hu will not be allowed examination by independent Beijing specialists, denying him internationally-required equal treatment with non-prisoners.

Whether or not Hu has cancer, he should be released on medical parole for which he has long been eligible in accordance with Chinese law. While in prison, Hu is entitled to adequate medical treatment and accurate medical records based on international standards.

If Hu is forced to remain in prison, without expert medical treatment and adequate diet and care, until his sentence is completed on June 26, 2011, his incurable liver cirrhosis may leave him permanently disabled, with limited capacity for even blogging. Could this be the Party’s game plan?

The same question has to be asked about the treatment of other imprisoned human rights activists, such as the blind “barefoot lawyer”, Chen Guangcheng, who is nearing the end of his three years and four months sentence. Is the denial of adequate medical attention to the long-term, debilitating diarrhea that he has experienced in confinement designed to disable him from post-prison activism?

China’s political-legal officials have long experimented with a range of methods for repressing “rights lawyers” and dissidents. In many cases, low visibility harassment, including threats, illegal house arrest, loss of employment, repeated brief detentions and beatings, have proved effective. Yet, even after enduring prison or the lengthy administrative confinement of “reeducation through labor”, some activists persist in trying to reform the political and legal systems.

It is unclear, for example, whether a month in police custody followed by a year of restricted freedom on bail will subdue the distinguished scholar-reformer Xu Zhiyong. Even three years in prison have not deterred the admirable but disbarred Shanghai lawyer, Zheng Enchong, who continues to try to break out of his illegal post-prison house arrest. And it is too soon to foresee whether the terrible torture and long-term confinement in humiliating and inhumane conditions that the recently-reappeared former lawyer Gao Zhisheng has suffered will silence him; his spirits, according to those who have seen him, are largely undiminished.

Thus, although Confucius emphasized that excessive harshness breeds grievances, a leadership obsessed with achieving “stability” at all costs might be attracted to the “solution” of physically disabling “obstinate” activists.

Is this too cynical a speculation? I hope so. Surely such cruelty would violate international law and be a long way from the humanitarianism of Confucius and genuine “soft power”.

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

China: Jerome Cohen on Akmal Shaikh execution

NYU law professor Jerome Cohen, in an opinion piece in the South China Morning Post, laments China's courts' refusal to allow psychiatric evaluation of the defendant in the drug smuggling prosecution of a British citizen, Akmal Shaikh, who is to be executed tomorrow. China's obstinacy in the face of an appeal by British Prime Minister Gordon Brown on behalf of the UK citizen has drawn much criticism.

Cohen observes:

in some recent highly publicised capital cases, in which mentally disturbed defendants were charged with heinous offences such as multiple murders, the Supreme People's Court failed to insist on psychological evaluations in accordance with fair procedures. Last year's execution of police-killer Yang Jia is only the most notorious illustration.

Yet, Chinese courts have sometimes met the challenge. Several years ago in Beijing, for example, an American, ultimately diagnosed as a paranoid-schizophrenic, killed his Chinese wife because of the delusion that she was poisoning him. The trial court called for a thorough examination by experts at a local mental hospital.

Sadly, it is now too late for a similar evaluation in Shaikh's case, although British clemency pleas may yet succeed. In any event, the National People's Congress should enact legislation that will confirm detailed procedural protections to guarantee a fair and accurate mental assessment whenever the defence reasonably requests.

China's leaders continue to affirm their commitment to advancing the rule of law, so I welcome the passage of the tort law which I translated, and welcome the recent vigorous legislative discussion of the State Compensation Law - a means of redress for governmental misconduct.

But China's leaders are equally committed to disappointing those of us who want to see adherence to the norms that we have come to consider elementary. The other day Lu Xiaobo, author of a liberal manifesto, was sentenced to 11 years in prison for incitement of subversion under Art. 105 (2) of the Criminal Code. The judgment was by a court of the first instance and is subject to second instance trial and appeal.

But there is little reason for optimism that liberal advocacy such as Lu's will be tolerated, given the breadth of the statute's prohibitions. Banned are efforts to subvert the socialist system by "publishing, printing, reproducing, disseminating or airing publications", according to an Interpretation by the Supreme Peoples Court. ( 最高人民法院关于审理非法出版物刑事案件具体应用法律若干问题 的解释)."

Similar advocacy was criminalized in America 60 years ago in the Smith Act under which the leaders of the Communist Party were tried and convicted in U.S. v. Dennis. This law was determinedly beaten back by the Communists, their sympathizers, but more consequentially by civil liberties advocates, and, ultimately, the members of the United States Supreme Court who in the Yates case, 354 U.S. 298 (1957) limited prosecution to speech which presented a clear and present danger. Finally, in Brandenburg v. Ohio (1968) the United States Supreme Court limited criminal prosecution to speech "likely" to produce "imminent" lawless action.

The prospects for successful push back against anti-libertarian measures in China is markedly poorer than it was in the United States. The Chinese constitution's rights measures are not guaranteed by a court system that has neither a tradition of autonomy nor of using the Constitution to provide protections not afforded by legislation. That a legislative majority can amend the Constitution of China deprives the courts of a foundation for independent interpretive judgment.

Nor does China have the tradition of the trial as contest that is embedded in the 6th Amendment to our Constitution. The right to counsel, to confrontation of witnesses, to compel favorable testimony are not similarly embedded in Chinese criminal law or practice. It is the lack of the tradition of the trial that perhaps most dramatically divides our criminal justice system from China's. The things that flow from that - autonomous bar organizations and a bar committed to preserving the right and duty of vigorous advocacy - are absent in China. Disappointment is likely our fate - but for us, as observers, it matters little. For citizens of China the consequences are great.

Images: Akmal Shaikh, Gordon Brown, Jerome Cohen