Michelle Goodwin, of the Claremont Law Journal, interviews NYU Law School Professor Jerome Cohen:
Human Rights and the Rule of Law in China
Goodwin: Professor Cohen, thank you for agreeing to this interview. In a previous exchange on a panel of authorities on China, you talked about how the push for the rule of law in China needs to come from the top down as well as from the bottom up. What could incentivize the Chinese Communist Party leadership to push for reform and which aspects of the rule of law would be affected if they decided to do that?
Cohen: Well, this is a current problem. On January 7 the leading figure in China, the newly all-powerful Xi Jinping – General Secretary of the Communist Party, President of the government of China, Head of the Military Commission – made a speech. It was one of a number he has made in the past year endorsing court reform, urging progress towards the rule of law, and instructing the Communist Party to not directly influence the outcome of cases that are before the courts. Now, he is not doing this out of the love of humanity or for the cause of human rights, he is doing this because the people of China are increasingly demanding justice. There has been a spate of revelations about unfair convictions and wrongful judgments, some of which have condemned people to very, very serious punishment, and that has led many people in China to distrust their courts more than ever, which have a poor reputation for many well earned reasons. Important segments of the populace are demanding reform, but Mr. Xi, the boss now, in some ways is more repressive in practice than his predecessor Hu Jintao. The party is further tightening up freedom of speech, so that there is almost no freedom of expression now in China. But, that comes at a cost and Xi is trying, as it were, to make it up to people by assuring them that he will attend to the administration of justice and introduce greater fairness, and so will gain popularity for the party and himself and credibility for the courts.
So, many Chinese are doing what they can to demand justice, and the media, to the extent it is allowed to report, is revealing abuses in the courts. The legislature is improving the relevant laws for both criminal justice and civil justice, but what has to be improved is the administration and application of law in practice. [That is] not just theory, not just having a better piece of paper, but actually making that paper part of the living law that will protect people’s rights and make them feel better about the Communist Party and their government.
Goodwin: It’s clear Xi Jinping is using the reform of the courts to curry political favor, but is that his only incentive to push for legal reform?
Cohen: Mr. Xi’s first incentive for law reform is to be known as a leader who believes in better government and assuring justice, fairness, and the opportunity to be heard by impartial judges. This is a very important ingredient of the “Chinese Dream” that he is promising the people. His major overall goal is to gather political power for himself that was previously dispersed among other party leaders, and he is doing that because he is in a power struggle and he has to win. He needs to take firm control of the police, the justice department, the prosecutor’s office, the courts, and the prisons, the levers of power that his predecessor too often left to Zhou Yongkang, a former member of the Standing Committee of the party Politburo, which runs the country. Party leaders later regretted allowing Zhou such power because he did not always act in ways that the other party leaders liked.
Indeed, for many months Zhou Yongkang has been under party and criminal investigation and perhaps will confront prosecution for corruption. The stimulus for this attack was his alleged abuse of his political power as Politburo member and head of the party’s national political-legal commission for the five years preceding the advent of the current administration. A fierce power struggle is still under way in the political-legal system, while Mr. Xi seeks to make the courts more credible and to stop the flood of petitions filed by large numbers of people claiming injustice. Chinese people are determined petitioners, and if justice is closed to them because the courts won’t take their cases or because the courts give unfair decisions when they do, they will try to go all the way to the capital in Beijing to protest. Tens of thousands of people have done that, creating political consternation among the many officials accused, and a lot of the protesters get locked up illegally in what are known as “Black Jails.” These are not authorized jails, but a highly irregular infringement on freedom. The party is desperate to stop the flood of petitions, and one way to do this legally is to provide better, more accessible justice.
Goodwin: Another area to create change would be around freedom of speech, which you spoke a little bit about earlier.
Cohen: Well, if the party were willing to allow freedom of speech and freedom of assembly, and if it were willing to allow freedom to the media, that would alleviate a lot of grievances, but it would also create what the party fears would be a lot of political instability and criticism that they don’t have the confidence they could withstand. In 1957 Chairman Mao Zedong thought that it would be good for the Communist Party to have people speak up and to “let a hundred flowers bloom”. And people did speak up, tens of thousands of them, and they inundated the party with criticism that the party didn’t expect and couldn’t tolerate. That led to the end of the Hundred Flowers Bloom period and to a crackdown where hundreds of thousands of people were arbitrarily detained by the police and sent to labor camps without the benefit of any legal protections. That campaign was known as the “Anti-Rightist Movement,” because the detained critics, many of whom criticized party lawlessness, were identified as “Rightists,” disloyal bourgeois-type critics of the Communist Party. The reverberations of that campaign remain with us to this day.
Goodwin: Which other freedoms are important to the people, and which are possibly the most dangerous to the party?
Cohen: Well right now, the struggle has come to focus on the Internet and social media. They were not in existence in 1957-58, and they have become a power instrument that the party is desperately trying to control. It does not want people to be able to denounce the party without approval of party officials, and the party is fighting more successfully than many people anticipated to keep the lid on adverse opinions. People have said very often and rather glibly that they are confident that the Internet will defeat any dictatorship – but China is the real test. So far, the dictators are doing pretty well. Adverse material that appears on the Internet may only be there for half an hour, maybe an hour, usually not more than a day. Not only are [the authorities] suppressing opinions they don’t like, they are putting out their own opinions, often payingsome people to say positive things as an antidote to the negative things other people are saying. This is a bitter, continuing political struggle over control of the Internet and social media.
Goodwin: Social media is influential worldwide, so China’s lack of support for Internet freedom must garner international criticism. Has there been backlash internationally?
Cohen: Well, China takes a lot of criticism from human rights organizations in the U.S., Europe, Taiwan, and even in Hong Kong, which is now part of the People’s Republic of China but has a largely separate administration. A few U.N. organizations also put heat on the Chinese government. That’s another reason why it is trying to demonstrate that the courts can be improved. China wants the world’s good opinion – of course, it wants to be known as a military, political and economic power, but it also wants the so-called “Socialist Rule of Law with Chinese Characteristics” to have the respect of the world community. Yet that is easier said than done.
When it comes to a clash between the rule of law and the value of repressing critics who might shake the stability of the regime, the leadership always chooses its own security even though it would love to have better world opinion. The prime objective of the government is to advance its control of the people, and everything has to be seen, according to the current party line, in terms of its potential for maintaining stability. Stability maintenance is the cry. The courts will continue to keep that in mind even if they improve laws and procedures, because the leadership wants them to.
The leadership wants to make sure that local influences will not adversely influence court decisions. Those local influences are many, including corruption, local protectionism, and Guanxi-the network of human relationships that people use to influence judges and other officials that may be more important than any law in terms of the actual handling of the case. Some judges are also not as competent as they should be. There are many distorting influences on a fair court decision. The leaders want to eliminate those influences but they are not going to give up their ability to control the courts with respect to other matters, and the judges must always keep in mind what public opinion is calling for. In a curious way this is a kind of democracy –the rabble, or the masses if you will, are often shouting for justice, sometimes rightly and sometimes wrongly, and the courts are told they must always listen to the opinions of the masses because otherwise their judgments might lead to political instability. So you have this curious situation where judges are supposed to be mindful of the law, are supposed to be impartial and are supposed to disregard all kinds of adverse influences, but on the other hand they are also told they must always keep party leadership and public opinion in mind. And recently, the leadership resurrected a slogan from the previous administration of Hu Jintao, which told the courts that there are three so-called “Supremes” they must always keep in mind: the first is the will of the party, the second is the wishes of the people, and the third, a poor third, is the law and the Constitution. So, all of that is what judges will have to continue to keep in mind, even under the reforms that are now being debated and implemented.
Goodwin: Where are the most powerful reforms happening? Are they in the appellate courts, in the Constitution, in criminal or civil courts, or elsewhere?
Cohen: Well, the proof is in the pudding, and there are many improvements in the new criminal procedure law that went into effect on January 1st of 2013. Some of those improvements, like making it somewhat easier for a defense lawyer to gain access to a detained client in prison or jail, are actually being implemented. This new law is making some improvements in practice in this respect, but in other respects improvement is not happening, because the police don’t want it to happen. It is one thing for the police to say, “ok, we will let the defense lawyer go to the detention house and meet for an hour with the detained person,” which they have often previously discouraged. It is another thing for the police themselves to be ordered to go to court and be cross-examined in court regarding whether they actually tortured a criminal suspect. Police in any country are not happy about being summoned to court and cross-examined. I used to be a federal prosecutor, so I know how these kinds of things can happen anywhere. But in China, in over 95% of the criminal cases, no witnesses appear in court. The only participant who usually appears in court besides the defendant is a prosecutor and some judges. Witnesses generally do not appear in court. You cannot cross-examine them if they are not there. What the prosecutor does is simply read out in court their pre-trial testimony as that has been taken by the police or other investigators. This is just apiece of paper – you can’t cross-examine a piece of paper.
The recent, famous trial of fallen political leader Bo Xilai was distinctive in that he was allowed to cross examine witnesses who were allowed to come to court, since the people of the country were watching. The administration wanted to put on a better-looking trial to show they were treating him fairly, even if they weren’t. Normally, witnesses do not come to court, and police certainly don’t come to court, but the new criminal procedure law requires that if the defendant makes a plausible showing that he might well have been tortured into making a confession, police are supposed to come to court to repudiate that and they therefore run the risk of cross-examination. This hasn’t happened yet in most cases where defense counsel try to use this technique to exclude illegally-obtained evidence.
So you have a situation in China of great repression of opinion and expression, accompanied by improving legislation but only a so-so picture of implementation of that legislation. What has to happen in order to bring about the kind of justice that the public demands, and that the leadership would like to have the public believes exists, is better implementation. That is going to require very, very serious party efforts. China is a huge country and has a huge population. Traditionally, the Chinese have a say-
ing, “Heaven is high and the Emperor is far away,” meaning that if you don’t live in the capital, you can get away with a lot that the central government won’t like. And that is still the situation, despite the improvements in communication, education, etc. So the real challenge for the central authorities, starting with Xi Jinping, the great leader, who is going to be more powerful in China than any leader since the demise of Deng Xiaping, is how to get cities, counties and provinces that are so far away to do what the new leadership wants… and that is not easy.
Goodwin: It doesn’t sound very easy.
Cohen: It is an enormous challenge because, although China is a Communist country built on revolution, it is actually now a very conservative place. It has become so successful, and so many people have become rich that you have many vested interests in all of these localities and they don’t want change. They fear change. And yet the masses of people who have not yet benefited from this fabulous national economic development – they want change, they want fairness, they want justice! So China is in turmoil now. The world fears China, but the world doesn’t know what the Chinese leaders know: that in the interior of China you have a serious ongoing struggle every day.
Goodwin: I believe you called China “a cat on a hot tin roof” in a recent article you wrote.
Cohen: Well that is right. Often, when you think about what the leaders of China have accomplished in overall economic development and social progress, it seems cruel that they should face the type of threat and dilemma they obviously fear. They fear that they can be easily overthrown. The protests and the ultimate crackdown in Beijing’s Tiananmen Square, and elsewhere on June 4th, 1989 proved to them how close it can be. Previous governments in China were overthrown by crowds. That is how the revolution of 1911 overthrew the Manchu/Qing dynasty, and that is not the only time revolution has happened. So you have a leadership that is running scared.
And now, you have a leadership that has been exposed as divided. They have tried for many years to present a façade of unity to the people, but now the fierce internal debates, the rivalries, the factions that inevitably exist, have come into public view and some of their dirty laundry has been really washed in public. Think of the trial of Bo Xilai and the previous trial of his wife on murder charges. Can you imagine famous party figures, a husband and wife, separately sentenced to life in prison? At the root of it is Bo Xilai’s ambition. He wanted to be number one in China. He didn’t want Xi Jinping to be leader. And now, we are all waiting to see what happens to Bo’s closest supporter in the previous Politburo Standing Committee, Zhou Yongkang, a man I mentioned earlier who was in charge of the police, the courts, the prosecution, and internal security. The other leaders were afraid that he could have taken over. Now this is all coming out in public, and it has destroyed the façade of unity that the leadership likes to present. Politics is fierce in China and they play for keeps.
Goodwin: And how long do you think it will be until there is major legal reform or at least some stability in the government?
Cohen: It is very hard to say. There are certain reforms taking place, as I indicated. Stability is another question. There is a whole question about just what is political stability. Dictatorial regimes, not only Communist but also right-wing regimes, such as the one Taiwan had under Chiang Kai-shek, or the one South Korea had under Park Chung-Hee and others-they also claimed they had to oppress people in order to ensure political stability, but that stability was always very short-run and superficial. Real stability comes from creating political institutions that allow people to process their demands and grievances, while tolerating some superficial instability in doing so. Public debate creates disagreement, but processing that disagreement through credible institutions creates long-term stability. That’s the challenge now confronting China’s leadership: they talk about political reform, but in addition to opening the courts and improving judicial conduct, are they going to provide outlets for people to express themselves, instead of this very rigid repression they have now?
Goodwin: It’s a fascinating question. Thank you so much, Professor Cohen.
Cohen: It’s been a pleasure.