Coronavirus and Chinese Governance: You Bet the Police are Dangerous!!

By Jerome A. Cohen

Here is Charles Parton’s article in yesterday’s Financial Times on “What the coronavirus crisis tells us about Chinese governance,” in which he lists the dangers that have been revealed by China’s treatment of the crisis (spoil alert: “The police are dangerous,” among others).

We did not, of course, need the virus to tell us the PRC police are dangerous, but it has certainly provided yet another occasion for vividly demonstrating that proposition. The whistleblowers, the late Dr. Li Wenliang and his colleagues, got off easy. They could have been “disappeared” indefinitely like the missing independent journalists covering the crisis. They could have been sentenced to four years in prison like legal scholar/activist Xu Zhiyong, who has just been recaptured after criticizing Xi Jinping’s handling of the crisis and now faces a much stiffer punishment. They could have been spirited away for six months of incommunicado detention by the local “supervisory commission” before even being handed over to the formal criminal process (note that a more senior National Supervisory Commission posse was subsequently sent down to Wuhan to dole out harsh sanctions as needed, with no participation of prosecutors, defense lawyers or judges required). Or Dr. Li and his colleagues could have been “released” by the police but neutered at home under severe restrictions and stigma that would have assured their permanent de facto “non-release” (but that would, ironically, have saved his life). 

This lawlessness is not new. Many of us can recite examples over the decades. I remember years ago the explanation given me by the Shanghai police when, in the courtyard of his apartment building, I asked what authority they had for preventing me from visiting the apartment of disbarred lawyer Zheng Enchong, who had recently been “released” from prison after a three-year term for sending a message to a foreign human rights organization. The several public security officers simply kept repeating “we are police” (women shi jingcha), plainly implying that this was all the authority needed to justify their interference with legitimate human contact!  

Implications of the Coronavirus crisis for China's legal system

By Jerome A. Cohen

Thus far the focus is appropriately on the health challenges and the extent to which they have been exacerbated by the repression of free speech, publication, assembly and demonstration. Less attention has been given to the relevance of the legal system that is called upon to enforce health regulations and associated government orders. Indeed thus far we only get occasional glimpses of the role of law and legal institutions in the unfolding drama.

The summoning, humiliation and intimidation of Dr. Li Wenliang and presumably seven colleagues by the Wuhan Public Security’s neighborhood police station turned attention to the frequent but usually low visibility means by which police enforce the minor offenses law, the Security Administration Punishment Law (SAPL, zhian guanli chufa-fa). It authorizes the police alone to suppress a broad range of vaguely defined offenses that are not deemed to be “crimes” and therefore not subject to the formal protections of the Criminal Procedure Law that involve the procuracy (prosecutors) and the courts. The SAPL, which accounts for many more punishments each year than the criminal process, is a major vehicle for low level, low visibility police oppression. Its maximum penalty, 15 days of detention (juliu) for each offense, is usually very unpleasant since shared with many others in uncomfortable and unsanitary conditions.

Nevertheless, as Dr. Li’s case demonstrates, actual formal detention is often unnecessary since an informal “chat”, a stern warning and insistence upon the summoned suspect’s signing a statement of apology and vow to reform is the condition for release. As Dr. Li told the NY Times: ”I felt I was wronged, but I had to accept it.”

It is interesting that Xi Jinping himself, in responding to his felt need finally to respond to Dr. Li’s death, not only did not dispatch another top notch medical team to investigate but also did not send down the type of joint law enforcement team composed of police, prosecutors and judges that the central Party apparatus has traditionally relied on to investigate local abuses. Instead, Xi invoked the resources of the new and all-powerful Supervisory Commission established in 2018, an agency unlike any other in contemporary Communist systems that is not subject to the legal constraints of the traditional criminal justice agencies. Although the media continue to describe it as an “anti-corruption” committee, its jurisdiction ranges far and wide to embrace any violations of what may be deemed to constitute “Party discipline”, whether or not those investigated may, like Dr.Li, be Party members.