Disappearance of Chinese human rights lawyer: what it means to be placed under “residential surveillance” in China

It’s been reported that (ex) human rights lawyer Jiang Tianyong, who disappeared on November 21, has been placed under “residential surveillance” (RS) by Chinese police. This sad experience shows how the new provision in the 2012 Criminal Procedure Law (CPL) – Article 73 – regarding RS has been abused by the police and the Party.

Lawyer Jiang Tianyong

My hope, rather vain in the current political climate, is that Jiang’s case will ventilate the problem of “residential surveillance” so thoroughly that it will create pressure for reform, as did Ai Weiwei’s case in 2011. At that time, if the government’s target maintained a residence in the jurisdiction of the police, the police were forbidden by Ministry of Public Security (MPS) rules to detain him in any residence but his own, i.e., to restrict him to genuine house arrest. What the police often did, however, as in Ai’s case, was to detain suspects they deemed undesirable in places designated by the police that were neither suspects’ homes nor regular police detention houses that, whatever their failings, were at least regulated by normal criminal procedures and protections. This was a plain violation of MPS regulations if the suspect maintained a local residence.

As a result of the Ai case and others that resulted in protests, when the CPL was revised in 2012 a specific provision was inserted into the new code authorizing RS “at a designated location”, i.e., in police custody, even in cases where the suspect maintained a local residence, but limiting this new authorization to three circumstances, i.e., cases involving national security, terrorism or serious bribery. As is so often the case, the relevant legislative language is vague, especially the provision that permits police to impose this six-months incommunicado sanction whenever they decide that the suspect may have committed a crime related to “national security”, an exercise of discretion that, unlike their desire to formally “arrest” someone, which must be approved by the procuracy within a 37-day period, the PRC system does not permit any other agency to review. Thus, as in Jiang’s case, all they need to do to inflict RS is assert a suspicion that the case might involve some aspect of national security.

Without even meeting any standard such as “probable cause” to believe the crime was committed by the suspect, the police detained Jiang ostensibly because he might have “incited subversion of State power”. This gives the police six months, without interference from any lawyer, family, friends or media, to subject the suspect to a whole range of pressures and punishments including torture in a highly coercive, sealed-off environment.

At the end of that very long period the police decide, based on the suspect’s degree of “cooperation” as well as other factors, whether the evidence elicited via their techniques warrants criminal prosecution in accordance with prescribed procedures leading to “arrest”, indictment, trial, conviction and sentencing. The final formal charge may indeed claim a violation of “national security” such as “subversion of State power” or merely “incitement” to such subversion. But the charge may turn out to be for a lighter offense the long incommunicado investigation of which would not have been authorized by the RS legislation.

So was the 2012 revision a reform? On the one hand, it prohibits police from giving RS in a “designated location” to a local person suspected of tax irregularities, for example, as Ai Weiwei supposedly was. On the other, it now for the first time authorizes incommunicado RS for local people any time the police choose to investigate conduct they wish to claim might constitute a type of “national security” violation (or a serious bribery or terrorism-related case). The result is that police, and the Party, now enjoy virtually unlimited freedom to arbitrarily detain and punish for six months anyone they think may be a dissident. This needs to be kept in mind when considering the progress made by the formal abolition of the police administrative punishment of “reeducation through labor”.

It should also be pointed out that Party members, who are subject to the feared Party “discipline inspection” procedures of “shuanggui”, which can extend incommunicado detention for longer periods than RS, are not immune from RS either, although it would take unpermitted empirical research to determine how often this type of RS is used against them.

International Human Rights Day

Reports about human rights advocates in China suffering in detention and abuse such as this one on Hada, an Inner Mongolian dissident and this one on rights lawyer Wang Quanzhang certainly inspire feelings of sadness and even hopelessness. Yet the odd thing is that many Chinese human rights lawyers and other advocates continue to enter the fray, even though now fully aware of the potential consequences. Efforts are gradually being made to learn what makes them tick. Infectious Western political ideology? Religion, Eastern or Western? The psychology of martyrdom?

Some even now maintain that the numbers of human rights activists are growing, a claim that is plainly difficult to verify. It all reminds me of the situation in South Korea in the ‘70s under General Park while China was still in Cultural Revolution. The late Kim Dae-jung seemed to be motivated by Jeffersonian democracy, indeed believed that the tree of liberty has to be periodically nourished by the blood of patriots, and was prepared to die for the cause, as he almost did on at least three occasions. He was also a devout Roman Catholic and strongly supported by his highly religious wife. South Korea, well over a decade later, experienced a stressful but largely peaceful revolution, and Dae-jung was liberated, vindicated and empowered.

Prospects for his Chinese heirs seem very gloomy at present. Yet, as we mark International Human Rights Day today, we should admire them, wish them well and hope that the UN Declaration on Human Rights, which was adopted with considerable pre-1949 Chinese input, will soon prevail in China too.

Human rights lawyer Jiang Tianyong has disappeared for nine days after visiting 709 family in Changsha

Photo: China Human Rights Lawyers Concern Group

Jiang Tianyong, a prominent Chinese human rights lawyer, was apparently abducted on November 21 after visiting the family of another human rights lawyer who has fallen victim to China’s crackdown starting from July 9 last year (709 crackdown). Jiang’s wife as well as family members of the rights lawyers who have been detained since the crackdown and fellow lawyers have issued a statement demanding the Chinese government to launch an investigation and reveal Jiang’s whereabouts.

Let us hope that Jiang will soon be released. He is a hardy veteran of such intimidations but this time he may be held for much longer than before. The police may have secretly detained him in the guise of “residential surveillance”, which would give them the power to hold him incommunicado for six months if they claim that he falls into one of the three categories of supposedly exceptional circumstances that allow detention apart from the conventional criminal process. Or he may be detained in the guise of the regular criminal process, according to which the police, again because of their very broad interpretation of another narrow legislative exception, allow themselves 30 days to hold a suspect before being required to charge the suspect before the prosecutor’s office or release him. Or, as often happens, the police or their hired thugs may have simply detained Jiang with no legal authority, in effect kidnapping him as they have so many others including one of his early clients, the blind “barefoot lawyer” Chen Guangcheng.

I first met the courageous Jiang in Beijing in 2005 when he and his law partner Li Heping, who has long since been confined as a result of criminal prosecution, were representing Chen, and we all lunched together. Jiang told me at that time how, as a young public school teacher, he had decided to become a lawyer in order to try to improve China’s human rights situation.  Shortly after lunch, Chen was abducted by Shandong police who had come to Beijing without seeking permission of their local counterparts.

For more than a decade since that meeting Jiang himself has had to play “cat and mouse” games with the security police in an effort to avoid the long-term detention that would stop his human rights work. For example, a few weeks after Chen’s abduction I telephoned Jiang to tell him that Chen, in a quick, furtive call to me, had asked that Jiang take the night train from Beijing to Shandong to try to visit Chen. Jiang agreed to try, despite the serious risk that he would be beaten by police thugs who were guarding Chen’s village. An hour later, however, Jiang called me back to report that he had received a call from the local judicial bureau ordering him not to travel to Shandong. The judicial bureau had evidently been contacted by whoever had been listening to my first call with Jiang. As a result, he did not make the trip but did manage to send an assistant, who was indeed abused by the local Shandong thugs.

Similarly, some years later, shortly after arriving in Beijing, I called Jiang to invite him to dinner that night. He said he would have to call me back in half an hour because he needed to ask for permission from the police “minder” stationed outside his law office. When he did call me back, he declined my invitation because the “minder”, whom Jiang evidently knew quite well, said that if Jiang wanted to return to the office the next day he had better not see me that night. Jiang, however, told me that his assistant would be permitted to join me for dinner, as he did, undoubtedly under surveillance.

Yet, despite such commendable caution, police have on some occasions detained and abused Jiang, but not for the long term that he might now confront.

A Conversation With Ai Weiwei

Here are the video and transcript of a conversation I had yesterday at the Council on Foreign Relations in New York with the courageous and outspoken Chinese artist/activist AI Weiwei.

My interview with the Diplomat on legal reform, human rights and judicial independence in China

From the Diplomat, September 1 (Link here)

More on rights lawyer Wang Yu’s “confession and release” and China’s revival of “brainwashing” practice

There is no doubt whatever that Wang Yu will not be free to resume her practice of human rights law or her previous professional or even personal friendships. Her hope must be to obtain her husband’s release from jail, to be able to see her son and to procure for him the right to study abroad, as was originally planned. The elements of the deal struck will gradually emerge.

To say that her statement was “probably” the product of coercion is silly since she has been held in an immensely coercive environment for over a year. These “confessions” are reminiscent of the “brainwashing” era of the 1950s for which the new China became infamous. Brainwashing was based on long-run confinement in a coercive environment combined with heavy doses of thought reform and the realization that release depended on adopting, at least temporarily, the “new truth”.

The regime obviously altered Wang Yu’s restrictions (it did not “let her go”) because of the enormous international pressures brought to bear. The American Bar Association’s annual meeting at which the award is to be granted is about to be held. Her alleged repudiation of the award, which was a brilliant decision by the ABA to recover its loss of prestige from earlier inadequate criticism of the PRC, is the PRC’s attempt to discourage all foreign legal organizations from further attacks on the PRC’s human rights violations.

Of course, some lawyers and their legal assistants have been released during the past year while other lawyers are still detained and awaiting criminal conviction and prison punishment as well as the loss of their right to practice law, unless they too succumb to the brainwashing and other coercion to which they are being subjected. Even legal assistants such as Zhao Wei have not been spared the “confession and release” farce.

Non-release “release” of human rights activists and their confessions

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

Chinese human rights lawyer Wang Yu has been “released” on bail, as reported in today’s Wall Street Journal. Wang Yu was seen in a video making a confession. “I also wrote inappropriate things online and accepted interviews with foreign media. For this, I feel ashamed and express remorse,” She said. As to the inaugural American Bar Association (ABA) International Human Rights Award given to her, she was quoted as saying she did not “acknowledge, recognize or accept” the award.

It’s obviously too soon to analyze with confidence but it sounds like another of the curious deals that are being struck between PRC oppressors and courageous but hapless human rights victims, deals involving the welfare of spouses, children, parents, lovers etc as well as the target whose captivity and torture are at stake.

This is all so sad, not only for the oppressed, broken victims but also for China and its standing in the world. These pathetic, ludicrous “confessions” and charges are obviously designed for a Chinese audience, but tens of millions of Chinese are not foolish enough to believe these farces.

Yet the damage to China that these torture-inspired fairy tales inflict abroad is incalculable. Does the Chinese leadership not see this? Xi Jinping is holding himself and the country up to increasing worldwide ridicule. This is the Chinese Communist Party’s distinctive contribution to the playbook of international Communist abuse of the legal system and promises to rank in notoriety with Stalin’s infamous purge trials, although so far no Chinese victims have been formally executed!

I’d like to think that if the ABA, in its new vision, could honor every detained human rights lawyer in China, it could guarantee them some minimal concession from their oppressors, but we know that international prizes can only be helpful in a few cases and certainly cannot free even Nobel Prize winners!

I don’t know what this foretells re the ABA’s work in China. Certainly it adds fuel to the fire of the continuing debate over what the appropriate ABA response to the vicious repression of human rights lawyers should be. If this case results in the termination of the ABA’s praiseworthy activities in China, it would be another classic instance of what Beijing propagandists like to call “dropping a rock on your own foot”.

Support silent supporters of the rule of law in China

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

Here is a stimulating op-ed by Chinese law scholar and activist Teng Biao. I hope US funders, public and private, will take it into account. I believe, after giving due regard to Teng Biao’s admonition against funding the oppressors, funders should continue to support those non-Chinese institutions that do not pull their punches in studying and reporting on legal developments in China while also continuing to conduct legal and human rights education of not only Chinese lawyers but also Chinese judges, prosecutors, justice officials and even police.

The point that needs greater recognition here is that hundreds of thousands of legal specialists in China are extremely unhappy with Xi Jinping’s oppressive policies, policies that they feel forced to live with and practice while awaiting a less repressive regime and the renewal of true legal reforms. At a time when they are being ordered to reject universal human rights values, we should not abandon these silent supporters of the rule of law, but should keep up contacts and professional nourishment that will sustain them until a better day dawns.

Years ago, the late Senator Arlen Specter asked me to emphasize this point in a letter to then House Majority Leader Nancy Pelosi, recalling the importance of foreign funded legal education and training given to officials of the Chiang Kaishek dictatorship in Taiwan and the Park Choon-Hee dictatorship in South Korea. Those efforts paid rich dividends when political circumstances permitted legal liberalization. Indeed, they helped fuel legal officials’ opposition to dictatorship, as occurred when Taiwan prosecutors and judges rebelled against their masters and successfully established their independence of political interference.

The U.S. Congress, other countries and private foundations should also fund basic research on the many complex aspects of the evolving Chinese legal system, not only education and training in China but also efforts to enhance foreign understanding of both contemporary events and the country’s political-legal culture.

In addition, there is a great need to fund the support and activities of the increasing number of Chinese refugee lawyers, law professors and human rights activists who, like Professor Teng, are turning up outside China as a result of the terrible situation they confront in China.

Finally, in fairness to the America Bar Association, we should note that, after long internal debate spawned by external criticisms, it has decided to establish an international human rights award and next week at its annual meeting in San Francisco this new award will be bestowed, in absentia, on another of China’s courageous human rights lawyers, Ms. WANG Yu, who, sadly, is jailed in China and awaiting criminal conviction and a long prison sentence. 

China's 709 Crackdown on Human Rights Lawyers: One Year On

It is encouraging that petitions, protests, reports, documentaries, editorials, op eds and blogs seek to alert the world to the first anniversary on July 9 of the Party’s most recent and intense crackdown on human rights lawyers, collaborating activists and their loyal families. It is discouraging to realize how little impact all these efforts will have on Xi Jinping and his spear carriers or even on the Chinese people, most of whom are deprived of their right under China’s Constitution to know about such efforts. The scholarly work of Eva Pils, Terry Halliday, Liu Sida and others helps us to understand the motivations of these martyrs to the cause of political and civil rights. Yet how long can we expect even the bravest and most dedicated human rights advocates to endure in the cruelly punishing conditions that Xi Jinping has imposed upon them?

Although signs of internal friction and power struggles increasingly emerge from Xi’s non-transparent polity, the odds still favor his continuing to rule for another five years after the 2017 Party Congress, and some insiders doubt that he will voluntarily surrender the throne in accordance with Party rules in 2022. This recalls the examples set by Marcos in the Philippines and Park Choon-Hee in South Korea. Yet those East Asian precedents for illegally extending dictatorship, like the unspeakable abuses of Mao Zedong, in each case led to a public reaction that produced a more civilized, lawful regime. In China, unfortunately, the post-Mao reaction proved to be halting and incomplete, and Xi Jinping’s four years have featured repression more than progress. Comparisons are stimulating between the Xi regime and Russia under Putin, who successfully reversed his country’s post-Soviet democratic tide of the early 1990s. Will Xi, who admires Putin, seek some similarly imaginative formula for legitimizing the extension of his rule? How long will China’s human rights heroes have to suffer and sustain their faith?

Abduction of Hong Kongers by the Party

By Jerome A. Cohen

I don’t know how Lam Wing-kee was persuaded to tell the truth and finally demolish the “bedtime story” that the PRC government has been using to ridicule itself and insult the world’s intelligence. Bravo to Albert Ho and his colleagues and to the SCMP for bringing reality to our attention. This case offers classic instruction about the arbitrary power of the Chinese police to detain and torture any of us within China and to reach beyond China’s borders to silently kidnap and force to China even foreign nationals!

This story reveals on many levels the nature of the PRC legal system. We have long heard about “two Chinas” in the international realm, but there have always been two Chinas in the realm of criminal justice– the China of written law including the Constitution – and the China of real life Communist party and police practice, which often ignores, defies or distorts the published rules.

This case is especially interesting for the light Mr. Lam now sheds on the special investigating group that operates as a secret instrument of the central Party authorities. He also confirms that the case is not the product of some out-of-control local officials in southern China but emanates from the Party center.

The attempt to discredit Lam through untested statements made by people who remain under PRC control and whose fate will be determined by their responsiveness to the demands of their captors is pathetic – for them and for the reputation of the PRC. 

China and the American Bar Association – Another Sad Story

By Jerome A, Cohen

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

The report by Isaac Stone Fish in Foreign Policy, “Leaked Email: ABA Cancels Book for Fear of ‘Upsetting the Chinese Government’,” stirred up a lot of discussion over the weekend. The American Bar Association’s 2015 reversal of its initial decision to publish a book by the famous Chinese rights scholar/activist Teng Biao was allegedly market-driven, the ABA belatedly claimed, and not based on fear of China as originally explained by the ABA employee in charge of book negotiations.

Did the ABA tell the truth in seeking to explain its reversal of the original decision to publish? The fable from the ABA reminds me of the stories the PRC has recently put out to try to explain China’s kidnappings of certain Hong Kong publishers. Reasonable people could argue about the ABA’s discouragingly timid statement last August about the oppression of China’s human rights lawyers, which I wrote about here, but what can one say about the Teng Biao incident other than that it is a pathetic chapter in the history of the world’s leading bar association?

Commissioning a book by ex-professor and lawyer Teng – a genuine hero of the legal profession now unable to return to China, accepting his outline for the book’s publication and then changing its mind out of fear of offending Beijing was surely bad enough. But then to belatedly seek to retract an apparently truthful explanation of its bad judgment by spinning a yarn that is an insult to our intelligence is contrary to the ethics and integrity for which the ABA purports to stand. Heads should roll over this incident, but not the head of the whistle-blower! 

As to the real reason – fear that China might terminate the ABA’s valuable law reform work in Beijing, we heard it given last August in defense of the initial insistence of ABA’s Rule of Law Initiative (ROLI) that there be no protest whatever and, under fire, that any protest be a timid one. This was months after the reversal over Teng’s book. I don’t think any of us who opposed ROLI’s view last August knew about the book reversal and the ABA did not disclose it. If it had done so, this would have added significant fuel to the fire against its position.

Within the ABA, ROLI impressed me as a tough, no-holds-barred bureaucratic infighter against other ABA units that challenged its view, such as the Human Rights committee. For example, I was told that, when, as the internal debate within ABA over whether to make a statement raged, ROLI scheduled a meeting with the State Department on behalf of the ABA, it did not notify the ABA human rights people, thereby precluding them from being included in the ABA delegation to the meeting.

The ABA is a huge, unwieldy organization that desperately needs – at a minimum – better coordination regarding China so that its various entities know what each other is up to and can develop a coherent, respected policy toward a major country that will continue to present many challenges. We have not heard the last of this story and perhaps the ABA head office will issue a clarification in the next few days. Surely the incoming president should give this matter a high priority.

Since we have been discussing disclosure, I should mention what many know – that Teng, since last summer, is no longer at Harvard but has been a Visiting Scholar at our NYU US-Asia Law Institute.  I suppose I should also disclose that in 1966, I think it was, I published a letter in the NY Times, taking the ABA House of Delegates to task for uncritically endorsing American military actions in Vietnam as consistent with international law.

China’s miraculous recent efforts to reform people into “socialist new men”!

Photo: Voice of America, January 2016

Lee Bo, one of the Hong Kong Publishing Five whose disappearances last year have been widely reported, now says he will never publish banned books again.

Let’s try to look at the possible bright side to the PRC’s recent successful attempts to insult our intelligence and challenge our credulity. One of the more idealistic aspects of the Bolshevik Revolution was the honest aspiration of Lenin’s first Minister of Justice to create a new, truly revolutionary system of punishment that would transform criminals into “new socialist men”. Chairman Mao’s first decade in national power prominently featured a similar goal, one that gradually, almost imperceptibly, yielded to the reality that it is easier for governments to kill people than transform them.

But is it now possible that Xi Jinping has outdone his much-admired Helmsman by miraculously transforming, in jig time, the Hong Kong Publishing Five and other alleged offenders who have recently confessed their sins in public, even without being prosecuted, not to mention convicted? By the time we mark the 100th anniversary of the Bolshevik Revolution next year, will there be further evidence that it has belatedly achieved one of its most ambitious goals?  

Lawyer-client meeting in “national security” cases in China

My colleague Yu-Jie Chen has just sent around her comments below on the police’s written decision to reject the lawyer-client meeting (“不准予会见犯罪嫌疑人决定书”) in recent cases related to the oppression of lawyers and other human rights advocates since July 9 last year (“709”). With her permission, I’m pasting her comment below, followed by my response.

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“This kind of decision to reject the lawyer’s request to meet with the criminal suspect seems to have been standardized into a form and used in several cases of the 709 activists and lawyers, including lawyer Wang Yu (here), Li Heping’s 24-year-old assistant Zhao Wei (here), law scholar Liu Sishin (here), and activist Wu Gan (the latest 不准予会见 decision in his case was issued on Feb. 6). All these decisions have been issued by Tianjin City public security authorities (including its Hexi branch), which has been in charge of the 709 crackdown as far as I know. In addition, the case of lawyer Zhang Kai, who has been detained in Wenzhou, also saw such a document issued by the Wenzhou police (here). I’m sure there are many others that I haven’t seen.

The basis invoked by the police is Article 37 (3) of the Criminal Procedure Law, which, in cases involving crimes endangering State security, terrorist activities or significant amount of bribes, asks defense lawyers to obtain the approval of investigating agencies before meeting with their clients.

However, we should note that in the September 2015 regulation issued by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security and Ministry of Justice to protect lawyer’s rights to practice (“关于依法保障律师执业权利的规定”), the police are required to provide reasons (说明理由) in rejecting the lawyer-client meeting. I don’t think simply producing a form as a formality meets this standard. But in reality, I wonder if there is any remedy for such a violation.” 

Written notice rejecting the request of ZHAO Wei's defense lawyer to meet with Zhao

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 Written notice in WANG Yu's case

The use of such a form reveals the cavalier manner in which the police violate their nation’s Criminal Procedure Law by arbitrarily denying the right to counsel in their attack on rights lawyers and other human rights advocates whom they have detained. Indeed, the police are doing exactly what Article 9 of the major September 2015 Five-Institution Regulation interpreting the 2012 Criminal Procedure Law explicitly forbids. They are failing to give lawyers requesting a meeting with their detained clients the reasons for rejecting the meeting.

They simply fill in the bare details identifying the case on a printed police form that claims the requested meeting would interfere with their “national security” investigation OR reveal state secrets, without giving any facts or justification of such alternative claims. This flies in the face of Article 9’s stern admonition that investigating agencies may not interpret “as they wish” the “national security” and other exceptional provisions authorizing them to deny counsel their right to meet detained clients in certain circumstances. This admonition, based on decades of experience demonstrating how in practice the police always turn narrow legislative exceptions into broad arbitrary rules, is specifically designed to prevent the police from arbitrarily restricting the right of lawyers to meet their detained clients.

According to the law, lawyers should be able to vindicate their rights by seeking administrative review of the police refusal at the next higher police level and by asking the local procuracy to investigate the arbitrary police refusal. Such efforts are apparently being made but no one is holding his breath in the expectation that this will bring relief. For example, over 15 years later I am still waiting for the office of the Supreme People’s Procuracy in Beijing to send me its promised report reviewing the lawless detention of a Sino-American joint venture’s Chinese CFO by the city of Jining in Shandong Province.

In most cases, initially and repeatedly, police denial of lawyer access to detained clients seems to be orally communicated. Issuance of a written form seems to be done belatedly and reluctantly as part of a customary effort to block or at least delay any review of the decision.

The Hexi District Sub-Bureau of the Tianjin Public Security Bureau seems to have attracted a very large number of detention cases related to the 709 crackdown. I note that the September 18, 2015 Decision denying her lawyer’s access to young Ms. ZHAO Wei is numbered 1,082 for the year!!! That does not mean that the huge number of such cases that preceded it last year were all 709 cases but it seems likely that many of them were such supposed “national security” cases. And we do not yet know how many more such cases occurred last year after September 18. Moreover, there may be some double counting since defense counsel sometimes try a second time later in their client’s detention. The Five-Institution Regulation authorizes the meeting of lawyer with client in alleged “national security” cases once the meeting will no longer prove an obstacle to investigation or the risk of revealing state secrets is gone.  

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."