Laying Down the Law: Jerome Cohen on the Rule of Law in China
This is part two of our coverage of Jerome Cohen’s visit to the UC San Diego, School of International Relations and Pacific Studies (IR/PS). In part one, we sat down with Professor Cohen in an exclusive, wide-ranging interview. In this segment, Staff Writer Peter Larson covers Cohen’s talk that he gave in February for the 21st Century China Program, “The Rule of Law Under Xi Jinping”. (To hear audio of the lecture, click here.) Jerome Cohen is a Law Professor at the New York University School of Law and is the co-director of the US-Asia Law Institute. Professor Cohen is a leading American expert on Chinese law and government. A pioneer in the field, Prof. Cohen began studying China’s legal system in the early 1960s.
A self-described “traveling salesman for the rule of law in China who doesn’t make many sales”, he likes to recite the poem by Alexander Pope, “Hope springs eternal in the human breast.” He is not as fond of the next line, however, “Man never is, but always to be blessed”.
This is an article that in some ways is very difficult for me to write. As a person who has lived in China and has a great respect for the country and its people, it’s difficult to hear such a frank accounting of the regular abuses that are commonplace in the Chinese legal system. And one could ask who are we to point out the flaws in another country’s legal system when we live in a country with five percent of the world’s population but 25 percent of the prisoners? Jerome Cohen began his talk, The Rule of Law Under Xi Jinping, by making this clear: we shouldn’t compare our theory and China’s practice. We have our own problems that we need to deal with. That being said, he contends that we (in the US) are better off, but we can’t be smug about it. He recognizes how difficult it is to give a fair portrayal of another country’s legal system, but as someone who has been a champion for human rights in China for over 40 years, Jerome Cohen has as informed an opinion on recent developments there than almost anyone else in the country.
When I listened to Mr. Cohen, what struck me was that this is not an academic subject for him. Many of the people who have suffered under the repressive political system are his friends. They are fellow lawyers, human rights activists, professors and legal educators who believed they could work inside the law, even if they were pushing the envelope, to fight for justice only to find out they were wrong. Despite the intimate connection Professor Cohen has with many who have ended up on the wrong side of the law, he remains optimistic that the situation can improve. A self-described “traveling salesman for the rule of law in China who doesn’t make many sales”, he likes to recite the poem by Alexander Pope, “Hope springs eternal in the human breast.” He is not as fond of the next line, however, “Man never is, but always to be blessed”.
Repression Has Increased
Key to [the increased repression in China] is the relatively unknown Security Administrative Punishment Act, which gives the police unfettered authority to detain anyone for minor offenses for up to two weeks while they decide what to do with you. 12 million people a year are prosecuted this way, which is totally outside the criminal court system of prosecutors and judges.
Mr. Cohen outlines three broad observations about the rule of law as it has progressed under Xi Jinping. First, repression has increased. He is the most repressive ruler since the post-Tiananmen crackdown in the ’90s. Freedom of association, publication and speech have all been rolled back, and individuals and groups, NGOs, human rights activists and their lawyers are being targeted. Second, law is the instrument of this repression. Rule of law does not mean the government is subject to the law, as we in the West would understand it. Rather, rule of law is the way in which the government gets people to do what they want them to do. People who are punished are punished according the criminal law, but that’s only about 1 million people each year. Third, the most pernicious aspect is police action against individuals and groups that takes place with no legal authorization. He’s referring to extrajudicial detentions, forced confessions, torture, beatings, threats to family members and intimidation at the hands of the Party. Key to this is the relatively unknown Security Administrative Punishment Act, which gives the police unfettered authority to detain anyone for minor offenses for up to two weeks while they decide what to do with you. 12 million people a year are prosecuted this way, which is totally outside the criminal court system of prosecutors and judges.
To illustrate the point, he told the story of his personal friend and fellow law professor, Teng Biao (滕彪). Teng Biao was a professor at the Chinese University of Politics and Law until he was progressively demoted and finally fired. Twice he was illegally kidnapped (Professor Cohen’s words) by the police and taken not to a police station or a courthouse, but to a “safe house”, where he was detained for over two months. There he was beaten, intimidated and threats were made against his family, but he was never formally charged with any crime. He is now a visiting scholar at Harvard Law School for a year, but the Chinese authorities will not allow his wife and oldest daughter, who are still in China, to leave the country to be with him. Teng Biao himself will most likely be arrested or detained if or when he returns. According to Professor Cohen, this is not unusual. There will be no official records of his detention, no charges, no arrest, and no mention of what happened in the press.
Recently five Chinese women now known as Feminist Five were detained on International Women’s Day under similar circumstances. They were released weeks later after an international outcry, including by major US politicians Hillary Clinton, John Kerry and UN Ambassador Samantha Power, without being charged with any crime. But as the New York Times reports, they remain under the close eye of the Chinese government. They will be monitored for a year and are unable to travel without informing the authorities. According to their lawyer, the police can detain them again at any time for further interrogation and intimidation. This just one example, but Mr. Cohen believes the arbitrary application of the law and the use of intimidation is emblematic of the rule of law under Xi Jinping.
The Anti-Corruption Campaign
“President Xi is a gambler. He is engaged in a more daring, high stakes game than China has had before.”
“President Xi is a gambler. He is engaged in a more daring, high stakes game than China has had before.” What’s clear so far is that along with cleaning up the most egregious cases of lower level corruption, which is good, the campaign has mostly been directed at President Xi’s political opponents. He’s attempting to get all of the power into his hands and it’s incredibly risky. Mr. Cohen admitted that no one knows for sure how far this will go, but the campaign is affecting the behavior of millions of people. It’s affecting the sales of luxury goods, it’s affecting the casinos in Macau, and people know that it’s not very wise to make any visits to the United States for the foreseeable future.
According to Mr. Cohen, there’s fear among the elite. They’re sending their children abroad, they’re buying up real estate in the West and a lot of money is leaving the country. They’re insecure, even those who have made tens of millions of dollars, precisely because they don’t know where this is going or how long it will continue. Anti-corruption campaigns are nothing new in Chinese politics, but what is new under Xi Jinping is the degree to which the campaign is being run by the Party, not the formal legal system.
Anti-corruption campaigns are nothing new in Chinese politics, but what is new under Xi Jinping is the degree to which the campaign is being run by the Party, not the formal legal system.
The CCP Discipline Inspection Commission is in charge of running the investigations and is widely feared. When they come for you, you don’t know how long you will be locked up. It could be a month, it could be a year or longer. There are no real protections against torture. In fact, the goal is to get people to confess. Many have committed suicide when summoned by the Party. Mr. Cohen said that while there have been real improvements in the law since 1979, none of these protections apply when you’re locked up not by the police, but by the Party. The Party will decide what to do with you. The Party will decide whether to fire you, demote you or hand you over to be prosecuted in the formal legal system. At that point, the legal protections for the accused kick in. However, all of the materials from the Party investigation are turned over including forced confessions, so the courts don’t have to violate the law to condemn you.
Mr. Cohen said that while there have been real improvements in the law since 1979, none of these protections apply when you’re locked up not by the police, but by the Party.
A Mixed Picture
There’s little doubt that China has become repressive in the two years since Xi Jinping assumed power, but there have been several positive developments as well. One of these is that laodong zhaoyang (劳动教养), or reeducation through labor, has been abolished. Another is the attempt to reform the local courts to make the application of justice less arbitrary. A major problem in the criminal justice system is not corruption, which of course is a problem, but also that of guanxi (关系), or relationships. Mr. Cohen says he’s seeing an attempt to reduce the impact of corruption on local judges and local government interference. Judges are under pressure to side with the local party in a case if the counterparty is from a different province. Local protectionism is a serious issue. Judges often place more emphasis on personal relationships with the defendant or the plaintiff than on the letter of the law. This is, according to Professor Cohen, an even more intractable problem to eradicate than corruption. It’s very difficult for local judges to make impartial decisions.
Local protectionism is a serious issue. Judges often place more emphasis on personal relationships with the defendant or the plaintiff than on the letter of the law. This is, according to Professor Cohen, an even more intractable problem to eradicate.
One of the reforms is moving the power to make promotions, hiring and firing decisions up to the provincial level to minimize the ability of local officials to intimidate the judges. Another encouraging trend is the courts are being opened up to take cases on environmental issues and discrimination cases. But while these developments are a step towards more equitable justice at the local level, they won’t affect the central authorities. The Supreme Court of China has recently been making strides towards greater professionalism, but in Mr. Cohen’s view the changes in no way make the Supreme Court more independent. Instead, they will make it so its decisions are more easily carried out at the local level. It means orders from the center will be more effective than they have been in the past. There is a tightening of central control over the local judiciary in China. Professor Cohen concludes that it’s a mixed picture, but the balance is on the side of more repression.
The Rule of Law
“It is not the rule of law, the party and the government subjecting themselves to government under law, it’s rather a continuation of an age-old Chinese tradition where the government, as it did in the imperial eras, used law as an instrument of control, of ordering the people to do what the government in power thinks they should do.”
Since the 4th plenary session there has been a lot of propaganda about the rule of law. Xi Jinping has a lot of enthusiasm for the rule of law. But there is the question of what does President Xi mean by the rule of law? Mr. Cohen’s fundamental argument is that the change in rhetoric and ideology towards the rule of law in China is not what we in the West understand rule of law to be. Instead, it is a campaign by the center to bring the localities under greater central control. The anti-corruption campaign is a tool for that. Cohen explained that the repression under Xi Jinping has affected those in the Chinese legal community the hardest. It’s very tough for lawyers, prosecutors, police and law professors in China. The new rhetoric is affecting legal education in China as well.
Legal education has flourished in the last thirty years, growing from two or three law schools after the Cultural Revolution to over 700 today by Cohen’s estimate. Hundreds of thousands of students are taking the bar exam every year – it’s a huge industry. But now their professors are being told not to teach Western values, which Cohen says are international legal standards. They are even being told not to emphasize the Chinese constitution. This renewed emphasis on rejecting Western values of course does not include the ideas of Marx, Engels or Lenin. Concomitant with this is the resurgence of Confucianism. Cohen believes that the Party has had to fill the ideological vacuum since many people no longer believe in Communism as an ideology, and they’re reluctant to use religion for that purpose, despite religion becoming increasingly popular. So the Party has had to look within the Chinese tradition to find the ideological glue to hold people together.
He recalls that when he first came to China in 1972, there was a nationwide campaign to criticize Confucius and Lin Biao, who were linked together and being blamed for everything from feudalism to obstructing progress, this despite the fact that Confucius had died some 2500 years previous. At the time, Confucius was such a persona non grata that Cohen’s Chinese name, Kong Jierong (孔傑榮) had to be changed because his surname was the same as Confucius, Kong Fuzi (孔夫子). But now he has been resurrected. We don’t know how far the attack on Western values will go, but Cohen says at least Xi Jinping has put in a plug for Chinese legal history.
At Peking and Tsinghua Universities, Professor Cohen has tried to inspire students to take an interest in Chinese legal history. Xi Jinping, too, on many occasions had said that students should look to Confucius and the school of law that has prevailed throughout Chinese history. However, he went too far on one occasion. Cohen says that Xi Jinping urged students to look not just at Confucian traditions but also the opponents of Confucianism, the Legalists. The problem with that, critics said, was that the Legalists look too much like the current regime because they used law as an instrument of repression. Xi Jinping quickly dropped his enthusiasm for studying the Legalist tradition. Cohen believes China is in a period of volatile fermentation and the legal profession is bearing the brunt of it. They know if they speak out too much they may get locked up. The legal profession itself has been largely intimidated. They’re under attack and Cohen really sympathizes with them. They’re his friends, his colleagues.
Cohen believes China is in a period of volatile fermentation and the legal profession is bearing the brunt of it. They know if they speak out too much they may get locked up. The legal profession itself has been largely intimidated. They’re under attack and Cohen really sympathizes with them. They’re his friends, his colleagues.
“The most important thing we can do is to continue to cooperate with China.” Cohen urges us to work with with legal officials, lawyers, and legal educators to have as many joint projects as we can to give them moral support. As Cohen sees it, those in the legal profession in China feel cut off from the rest of the world, like they’re in a losing fight that’s not appreciated abroad. If nothing else works, at least we can inform the rest of the world and ourselves to have a clearer picture of what’s going on. Cohen believes that Chinese leaders are not immune to the power of world opinion. “They want soft power, and a true justice system is crucial to any country’s soft power. It’s just that they want some things more than that, especially the consolidation and continuation of their own power. If that takes repression, that’s what it’s going to have.”
“The most important thing we can do is to continue to cooperate with China.” Cohen urges us to work with with legal officials, lawyers, and legal educators to have as many joint projects as we can to give them moral support.
Cohen finished his talk by wishing that China would follow the path of Taiwan. He tells a story of how he felt after the death of Jiang Jingguo (蒋经国), Chiang Kai-shek’s son and ruler of Taiwan. When Cohen first went to Taiwan in 1961, he thought Jiang Jingguo was a killer, but towards the end of Jiang’s life he had realized what Deng Xiaoping never did: you can’t go on repressing people forever. The the guomindang (国民党) had been repressing people for decades, and according to Cohen the hatred of the guomindang still runs deep to this day. But Jingguo saw that it was necessary to begin the process of political reform. And Taiwan today is a genuine democracy with a functioning constitutional court. South Korea followed a similar path. Cohen, ever the optimist, holds out hope for change in China. As he puts it, if Taiwan and South Korea, both influenced by Confucian, Buddhist traditions can do it, then there’s a glimmer of hope for China. Let’s hope he’s right.
“They want soft power, and a true justice system is crucial to any country’s soft power. It’s just that they want some things more than that, especially the consolidation and continuation of their own power. If that takes repression, that’s what it’s going to have.”