By Jerome A. Cohen
■ To fight for rights using existing laws? Or try to end Communist control over the legal system?
How should China’s human rights lawyers confront increasing repression under President Xi Jinping? I discussed this question several years ago with a group of Chinese activist lawyers, some of whom the Communist Party later imprisoned. Should lawyers fight for rights within the limits of existing laws and procedures, which still severely restrict their ability to wage an effective defense? Or should they advocate political change that would end the Communist Party’s monopoly of power over the legal system?
China’s public lawyers still face the same dilemma today. Though Chinese leadership has preferred lawyers to be merely technical practitioners, public lawyers are more than that. They guide society by articulating its goals, shaping its rules, institutions and procedures, and providing the personnel required to operate the evolving political-legal system. Some serve in government as legislators, administrators, prosecutors and judges. Others challenge the government as independent practitioners who safeguard society’s interests. The latter group is the most embattled of the legal profession.
Public-law practitioners have benefited societies transitioning from dictatorship to democracy. This is dangerous work because of official repression and the violent responses of reactionary groups, and it is seldom lucrative. Yet a minority of the legal profession in many countries has courageously struggled for peaceful change by working within the existing imperfect, authoritarian legal system.
Contemporary East Asia doesn’t have to look far for models. Taiwanese public lawyers gradually emerged beginning four decades ago by attempting to use law to erode the brutal dictatorship ofChiang Kai-shek and his heirs. I also admire those lawyers I knew in South Korea who fought the cruel military dictatorship there, and their counterparts in the Philippines who were oppressed by law-trained President Ferdinand Marcos.
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| Gao Zhisheng talks to journalists in a cave home in northwestern China’s Shaanxi province in 2015. Photo: Isolda Morillo/Associated Press |
It is against this background that I view the contemporary Chinese government’s repression and restriction of public lawyers. The lack of transparency in China obscures whether the ranks of these groups are growing, as some claim, despite or perhaps because of the restrictions. But it does appear that this repression is likely to endure for the remainder of Mr. Xi’s rule.
Mr. Xi is a Leninist. Lenin had a brief and unsuccessful career as a lawyer under the Tsarist regime. But once the Bolshevik Revolution succeeded and established a more capitalism-oriented economic policy in the early 1920s, he saw the need for competent lawyers who could foster economic development and attract British and French capitalists to socialist Russia. Of course, Lenin never envisioned a broader role for the legal profession as a guardian of Western-style democracy, human rights and the rule of law.
After flirting with the Soviet legal model in China in the mid-1950s, Chairman Mao Zedong lost patience with it during the Hundred Flowers Campaign—a brief period of ideological opening—and used the Anti-Rightist Movement of 1957-58 to abolish China’s Soviet-style legal profession. Although some scholars at home and abroad idealistically believed that Mao might be blazing a new, radical trail that would feature “Law Without Lawyers,” the pragmatic Deng Xiaoping failed to share their enthusiasm.
The first thing Deng did in 1978, following Mao’s death and the end of the Cultural Revolution, was to revive the abandoned Soviet model. This involved the resurrection of both “legal advisory bureaus” that resembled the Soviet colleges of advocates and the Soviet-style legal education that produced “socialist lawyers” to help stoke economic development and attract foreign investment.
But like Lenin, Deng had no intention of allowing this revived Communist version of the legal profession to spawn rights lawyers, unrestricted criminal-defense counsels or public-interest advocates. Mr. Xi has embraced Deng’s model of the legal profession. He wants lawyers to behave like skilled technicians who foster the economy and foreign-business cooperation, but who keep their noses out of public affairs.
So what should Chinese rights lawyers, criminal defenders and public interest lawyers do for the remainder of Mr. Xi’s rule? I recall my March 2006 discussion in a Beijing coffee shop with some 10 activist lawyers. The most famous was the dynamic, fearless Gao Zhisheng.
Most of the group opted for the practical choice of doing their best with one arm tied behind them. Mr. Gao disagreed and argued that China would never have a genuine rule of law until the party’s monopoly of power ended. That, he maintained, should be the focus of their efforts.
When asked for my opinion, I said that Mr. Gao was correct but that if he went on talking like that, he would soon no longer be of use to anyone because he would be imprisoned. Sadly, he was promptly silenced, and only recently emerged a broken man after years of imprisonment and torture. Once lauded as one of China’s outstanding lawyers, Mr. Gao remains under house arrest in a remote area, separated from his wife and children, who have been driven abroad by persecution.
Unfortunately, Chinese lawyers will only face more repression, since the current government is transitioning further into dictatorship. I wish Mr. Xi would heed the advice of his father, Xi Zhongxun, who returned as a party leader after suffering Maoist abuse for years. In the early 1980s, he urged the enactment of a law to protect the rights of all, arty elites and ordinary citizens, to openly disagree with the leadership.
If the current Chinese president were to honor his father’s policy, China’s prospects for transitioning from dictatorship to democracy would be brighter. So too would be the future of China’s public lawyers. I hope that they will continue the struggle, even with one arm tied behind them. It would be tragic, for both lawyers and Chinese society, if they were to become mere technical practitioners.
Mr. Cohen, a law professor at New York University, is the director of NYU’s U.S.-Asia Law Institute and an adjunct senior fellow at the Council on Foreign Relations.
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