The Peter Dahlin Case: Shock, Awe and Mystery

Peter Dahlin has been released. To give confident answers about the meaning of his case we need to know much more. First, what triggered Dahlin’s detention? Did he have anything to do with the effort to smuggle Wang Yu’s son out of China, as once rumored, or was this a smear to make the detention look more understandable and not so threatening to foreign and local legal aid and training personnel? Was it the hiring of local lawyers to conduct public interest litigation instead of the mere training of lawyers generally, as many of us do? Was it (the activity of) the particular activist lawyers helped by him?

Until we hear from Dahlin it will be hard to interpret the case’s significance. Will we hear an informative response from him and when? Did his girlfriend accompany him to Sweden? Otherwise she remains a hostage to his freedom to speak. In earlier years she might well have been given “reeducation through labor” even after her foreign lover was allowed to leave.

How to evaluate the case at this point? Dahlin’s treatment undoubtedly reflects his own cooperation while in detention. What if he had refused to go on TV? What if he had remained silent and uncooperative? What if he had lashed out against his detention and captors as his colleague, who is free, did in defense of his conduct and their organization? Any such failure to show contrition and confession would have delayed his release despite the efforts of the Swedish Government. He might even then have subsequently been released after indictment, trial, conviction and a harsh sentence. I have advised in cases where, for instance, because of diplomatic pressure, the defendant was released 48 hours after receiving a ten-year sentence, the ostensible, pre-agreed excuse being the need for foreign medical treatment.

I can see why the PRC released him now. The authorities made their point, spreading intimidation and fear throughout both the domestic and foreign legal and NGO worlds. Now, having been widely condemned internally as well as externally, they ease the criticism by releasing the accused after what appears to be a reasonable, if secret, bargain. This is similar to the release of rights lawyer Pu Zhiqiang after a prosecution that shocked many and occasioned strong protests, yet ended in an apparently less harsh than expected outcome after a complex negotiation. Unfortunately, most PRC rights advocates are not protected by the fame and connections of lawyer Pu or artist-activist Ai Weiwei or by the pressures of a foreign, friendly government. For them, shock, awe and prison remain the order of the era!

Video talk: why lawyers are not dentists!

Here is my talk for a conference in Taipei earlier this month about the plight of Chinese rights lawyers in the current severe climate: "Public Lawyers in Transitional Societies – Why Lawyers Are Not Dentists!"

China charges human rights lawyers with "subversion"

My Jan. 13 BBC interview on China's crackdown on rights lawyers (5 minutes).

A biographical sketch of Mr Chen Guangcheng

I have written a short biographical sketch of Mr Chen Guangcheng, the blind “barefoot lawyer” who escaped post-prison house detention in China in 2013, sought refuge in the US embassy and eventually set foot in the US. This sketch has just been published in the Berkshire Dictionary of Chinese Biography, Vol. 4.

Those interested in how Beijing and Washington negotiated over Chen Guangcheng’s departure for the US can read Chen’s account in his book, The barefoot lawyer: A blind man’s fight for justice and freedom in China, as well as Hillary Clinton’s differing account in her own, Hard choices. I first offered my own, slightly different view of the Embassy portion of the negotiations in the Washington Post here and the Wall Street Journal here, based on long phone calls that Chen made to me during his stay in the Embassy.

Chinese Communist Party’s Persecution of Churches: China Change’s Interviews with “Pastor L”

By Jerome A. Cohen

Photo from ChinaChange: "Believers and SWAT clashed when the cross of this church in Wenzhou was removed on July 21, 2014. TIME Magazine has a video report here"

China Change has just released a remarkable interview with “Pastor L.” The interview not only updates us about the plight of Christianity in an important area of China but also offers a persuasive analysis of what underlies the Chinese Communist Party’s persecution of religions generally. Indeed, it demonstrates the similarities between the CCP’s persecution of religions and its systematic attacks on all freedoms of expression, media, teaching, research and publication, and the legal profession to which victims of suppression vainly turn for protection against an arbitrary and repressive state. This interview deserves widespread dissemination. One need not be a religious person – and I am not – to appreciate its significance.

The interview does prompt a few immediate thoughts. It consistently refers to “Christianity” without distinguishing among the varieties of organized believers who have earned that designation. Readers who are interested in how many of the affected church groups are “Protestants” of one kind or other and how many are “Catholic” can find more information in the first interview China Change released here.

The interview’s account of how local business people, a formidably successful group, have helped to spread the faith during their business trips throughout China evokes thoughts of Max Weber and the connections between capitalism and religions.

It also offers the pathetic story of how Beijing lawyer Zhang Kai, one of several counsel seeking to defend the churches but secretly detained like many of his clients, has been coerced, like them, to issue a jailhouse statement claiming that he no longer wants the help of defense lawyers. This is a vivid illustration of the “rule of law” in practice, as distinguished from the speeches of Xi Jinping, the preaching of the Party plenums and the reformist norms of the National People’s Congress and the Supreme People’s Court. Church believers could render further service by doing empirical studies of the many cases involving interaction of the legal system with their daily lives.

I look forward to further reports from the estimable “Pastor L” and China Change. 

Who gets punished?: Sons and daughters of rights lawyers - Collective punishment in China

by Jerome Cohen

Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Wang Yu, a leading rights lawyer detained in July during a large-scale crackdown on lawyers, must be under greater pressures than ever. Not only is she detained, but also her teenage son Bao Zhuoxuan has been prevented from leaving China to study abroad. When the boy tried to escape China days ago, he was caught in Myanmar and brought back to the country. Chinese media now claim that this is “a plot by external forces, who forcibly drew a minor into the vortex of politics and used the case to vilify China's rule of law.” Wang Yu, detained for more than three months now, appeared on state TV to condemn the supposed smuggling of her son (See Verna Yu’s report here). Meanwhile a son of another prominent rights lawyer, Liu Xiaoyuan, has also been denied permission to leave China to pursue an overseas education.

There is no doubt that in fact, not in formal law, the Chinese Government has been resorting to collective punishment of the family members of those it regards as political offenders. Indeed, the People’s Republic has been doing this for a long time in order to punish people it deems to be dissidents and to force them to “confess” to alleged crimes they have not committed.

Such formal collective punishment was abolished over a century ago in China as part of reformers’ efforts to bring Qing dynasty justice up to the standards of the Western imperial powers and end the incubus of “extraterritorial” foreign jurisdiction. Yet it persisted in practice under China’s post-imperial, pre-Communist regimes. Chiang Kai-shek’s government continued to secretly mete out collective family punishment on Taiwan. Many still recall how Kuomintang (Nationalist Party) police even killed the children and mother of a distinguished Taiwan independence advocate while he was in prison.

Is collective punishment happening more often in the PRC today than in the past? It’s impossible for outside observers to know. Surely the Internet and social media keep us better informed than in the past.

The authorities evidently think it is an effective tool, since it can transform even the most courageous dissident into the Communist Party’s compliant victim.

This vicious practice may soon backfire, however, since knowledge of its use is increasingly widespread and leaves in tatters any further attempt by the Xi Jinping regime to resort to “soft power”. I am glad Xi’s daughter had the opportunity for a Harvard education. It is a disgrace that he so often denies this opportunity to the children of so many worthy citizens.

Remarks for the opening of "Aboveground—40 Moments of Transformation” -- A photography exhibition of young feminist activism in China

Jerome Cohen's video remarks for the opening of "Aboveground—40 Moments of Transformation” -- A photography exhibition of young feminist activism in China

Cohen says, "It's hypocritical to have Xi Jinxing and his wife speak out about women's rights (at the UN) after what they have done to many women activists and women lawyers in China, especially the Feminist Five, who although no longer are held in jail, but still under important constraints. Receiving "Qubao houshen," a bail arrangement, that requires them for one year to stay wherever they're located and to report regularly and to restrict what they say as well as what they do is really a disgrace to China. It's a restriction on freedom of expression and personal freedom that the Chinese government should cancel. I hope that seeing these wonderful photographs and in meeting together, we can gain further sustenance and support for continuing effort to support women's rights, women lawyers in china, human rights activities and the role of legal profession generally."

Guo Yushan (郭玉閃) "released" prior to Xi Jinping's visit to the US

by Jerome Cohen

Less than ten days before Xi Jinping's visit to the US, scholar Guo Yushan (郭玉閃) and his colleague He Zhengjun (何正軍) have been released after almost a year’s detention (see the SCMP report here). Guo is now placed under "qubao houshen (取保候審)" (obtaining a guarantee pending further investigation), which is often a face-saving device for the Chinese authorities if they want to release someone during investigation. 

This form of “release”, while not as severe as “home confinement”, means that for one year the released people are under various constraints including continuing stigma although they have not been found guilty of anything or even prosecuted. They cannot leave their city without police approval, they have to report regularly on their activities, they are often shadowed and can be taken back into custody and prosecuted at any moment. The police often silently drop the case at the end of the year unless they come up with evidence, but unauthorized surveillance often continues. Plainly, this is very different from a true release and termination of police interference with one’s life. 

Guo Yushan (photo by BBC中文網)

Guo is a great person. He found himself in the public eye after his role in rescuing the blind barefoot lawyer Chen Guangcheng became known, but in fact he's done much more than that. His research NGO, the Transition Institute (傳知行), has conducted a lot of good studies on social issues. As the Transition Institute was already shut down by the authorities, and Guo is now under "qubao houshen", it’s unlikely his research work can continue.

Threats to academic freedom in Hong Kong

Jerome Cohen

Here is an article by David Matthew today on how Hong Kong academics critical of Beijing have been put under pressures, subtle or flagrant. It reports, “Press attacks and council control…have been the weapons of choice against the most prominent academic figures in Hong Kong’s pro-democracy movement. But some believe that the highly politicised environment in Hong Kong is also beginning to affect the climate for day-to-day teaching and research.”

Johannes Chan Man-mun (Photo by Voice of America Tang Huiyun, 美國之音湯惠芸)

This further development is disturbing. The current struggle over the appointment of former law school dean Johannes Chan as pro-vice chancellor at University of Hong Kong is a more visible litmus test. HK is no longer a safe haven for holding conferences or even informal exchanges with scholars and lawyers from China, as again illustrated by today’s news that five Mainland human rights lawyers have just been stopped from leaving for HK.

On his impending visits to the US and UK, Xi Jinping should be questioned on every occasion about this as well as his vicious repression of human rights lawyers, IF any of his hosts – official or unofficial – have the wit and guts to insist on allowing unscripted questions.

Today’s very moving BBC interview with the wife of LI Heping, a genuinely great human rights lawyer and friend, only adds fuel to what may become a bonfire. Xi Jinping is evidently putting into practice his belief that China should be guided by the ancient dictatorial philosophy of its notoriously repressive Legalists rather than by the “universal” legal values reflected in the 25 international human rights documents to which his predecessors voluntarily committed the PRC. Beijing’s new slogan for governance might be “Leninist Legalism”. Or should it be “Legalist Leninism”? 

The ABA's statement about the crackdown on lawyers in China

The recent crackdown by the Chinese government on human rights lawyers has raised the question of what is an appropriate response by foreign organizations working on the rule of law in China. The statement released by the President of the American Bar Association on August 4 has further prompted such discussion as well as frustration of those who want to see a stronger statement of the ABA in support of China’s beleaguered lawyers, as in this op-ed by Robert Precht in the Washington Post.

Below are some thoughts of Professor Jerome Cohen about the ABA statement and the broader question of what considerations foreign organizations, including bar associations, universities and NGOs, have when they think about how to respond to the recent challenge.

Jerome A. Cohen

August 4, 2015

First of all, I am impressed by how little interest has been expressed in the ABA statement. Perhaps it’s the mid-summer doldrums and holiday schedules, perhaps many people feel what the ABA says is of little significance in influencing the PRC to cease its attack on human rights lawyers, and perhaps there is little appreciation of the importance of human rights lawyers and the Party’s attack on them.

The ABA statement does not meet my standard for what would have been appropriate. I had helped draft a stronger statement, yet one that also emphasized the ABA’s hard work over the past 17 years and the importance of continuing, indeed expanding this effort with the support of some of the other lawyers’ organizations that condemned the PRC purge. Some of the language of our draft is in the compromise final draft decided upon by the ABA president.   I think the final statement is adequate since it shows the ABA is not happy with what the PRC is doing, which is a lot more than the original draft produced by the staff of its Rule of Law Initiative did. So I think the statement is helpful, since it adds to the protest the voice – however timid – of one of the world’s greatest bar organizations. Of course, even the outpouring of protest is not likely to be helpful in the sense of persuading XJP to call off the hounds, but it surely is helpful in supporting the victims and their colleagues and families and the hundreds of thousands of Chinese legal officials, judges, prosecutors, lawyers, legislators, law professors, journalists and activists who have been coerced into suffering this abomination in guilty silence. It is also helpful in letting the American legal profession and general public know more about reality in China today.

ABA's logo on its website: americanbar.org

It would be painting too quickly and with too broad a brush to say the mild ABA response is a result of meretricious, mercenary motives on the part of law firms, universities, or NGOs.  Individual American law firms with offices in China or otherwise engaged in China practice have never shown the slightest interest in human rights problems. That surely is for business reasons. Yet bar associations have often been active regarding PRC transgressions as well as those taking place in many other countries. I am glad to say the NY City Bar has in this case, as in many others, made its condemnation loud and clear, n Chinese as well as English.  The Hong Kong Bar Association, whose opinions really carry some weight in China, is terrific in this respect.

The situation with universities has its own characteristics. Universities and their centers and institutes seldom go on record as institutions condemning Chinese human rights violations, but many individual faculty members and research scholars do express themselves even while many keep silent for their own good reasons. I do not think that the failure of universities and centers to speak out can generally be attributed to concerns over loss of money, although some might suffer financial consequences from doing so. I think there are other explanations readily available, some reflecting worthy considerations and some not (does visa denial constitute primarily a monetary concern?).

NGOS also need careful analysis. Human rights NGOs that cannot set up shop in China have no hostages to fortune. Those like the ABA that have labored long and hard in China, with some staff devoting their lives to this kind of work, have a lot to lose if their protests lead to their ouster and the closing of their office. That was the principal articulated consideration motivating those within the ABA who preferred no statement or one that would have been ludicrous in the eyes of the world. Of course, one can say that their view too is based on money since their jobs and funding could be cut off by a hostile PRC reaction, but I think that a genuine zeal for law reform and a belief that their efforts have already produced tangible progress and will in the long run bear greater fruit was their primary motivation. Concern was also expressed that a strong statement might lead the PRC to impose sanctions against the persons of their American and especially Chinese staff in Beijing, an idea that seemed to carry weight with some within the ABA who know little about China.

So ABA leaders were called on to balance conflicting considerations, essentially to balance the speculative consequences of a strong statement against the less speculative consequences of failing to meet the challenge, including the ongoing but impossible to stop attack on China’s human rights lawyers and the damage to ABA’s reputation. Hence the compromise. Many ABA lawyers were undoubtedly unhappy with the outcome, judging by their words and votes during various group discussions. I know nothing about ABA practices and procedures but what I witnessed from afar (I did my pro bono consulting by phone, skype and email from the soothing beaches of Cape Cod!) made me think a bit of law reform is overdue within the organization!

A SEPTEMBER 7 POST-SCRIPT: The ABA’s dilemma has surely not ended. Public criticism has begun to rise at summer’s end. Some within the organization are properly calling for further consideration in a special meeting. There is already an effort under way to persuade the ABA to seek to add to the agenda of its long-scheduled November conference with Communist Party-controlled Chinese lawyers a discussion of the current repression of human rights, public interest and criminal defense lawyers.