“First They Came for the Lawyers”

Jerome Cohen has a new article in Foreign Policy talking about Beijing’s war on lawyers. The entire thing is, as always with Cohen, worth a read. His conclusion:

The Chinese have thus become more aware of their rights and the possibility that courts might enforce them, whether as plaintiffs seeking civil and administrative remedies or as defendants in criminal prosecutions. Their system allows few other outlets for preventing arbitrary punishments and resolving the rising number of grievances. Democratic political institutions remain little more than a gleam in the eye of reformers. The media are under strict surveillance and are generally of limited use. Petitions to government agencies are a frustrating farce and have now become dangerous because of the establishment of “black jails” — extralegal detention facilities to prevent petitioners from disturbing the “harmony” that the party incessantly preaches. Mass street protests, though sometimes successful, usually result in harsh punishment of their organizers and cannot settle individual disputes. In any event, criminal prosecutions, a standard party response to social unrest, cannot be avoided.

Yet involvement in the courts, at best an uphill battle in sensitive cases, requires legal assistance. This is the price of China’s newly acquired legislative and procedural sophistication. Without skilled defense lawyers, few democratic activists, religious adherents, or alleged gangsters can possibly refute official accusations. Without skilled plaintiffs’ lawyers, no victims of tainted milk, shoddy school construction, illegal housing demolition, or environmental destruction can hope for judicial relief. Nor can the public even be informed of unjust judicial decisions if lawyers are intimidated from participating in such cases or informing the media about them.

This is the logic underlying the current campaign against “rights lawyers,” criminal defense lawyers, and public-interest lawyers. Party leaders want the best of both worlds. They crave the reinforced status that comes from the legitimacy that a rule of law confers on governments at home and abroad. But they also want to avoid the embarrassment and loss of dictatorial control that might occur if lawyers were permitted to challenge their power, even if only before courts that remain under the party’s thumb. So their response is to mobilize all the instruments at their command — informal and formal, legal and extralegal — to intimidate lawyers from taking positions not endorsed by the party.

Some Chinese legal professionals, including judges and other officials, sympathize with the plight of the persecuted lawyers, and a few law professors and lawyers have occasionally shown their opposition. Fear, however, is corrosive, and indifference is safe. Thus, prospects for a serious pushback are dim.

In a world where the “people’s democratic dictatorship” is losing its struggle against transparency, this attack on lawyers provides further evidence that China’s “socialist rule of law,” imported from the Soviet Union, is an oxymoron. No matter how many Confucius Institutes the Chinese government finances on foreign campuses, it will never attain the “soft power” it craves until it stops persecuting lawyers and starts recognizing the prerequisites of a genuine rule of law.

Expect that conflict- between a Chinese public that is increasingly aware of its rights, and a government that is loathe to actual deliver on them- to figure prominently in the years to come.

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Filed under China, courts, intimidation, law

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