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Turning a Deaf Ear

Author: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies
June 7, 2011
South China Morning Post

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The Chinese government's current campaign to intimidate and suppress the country's small number of “human rights lawyers” seems to be succeeding where previous campaigns fell short. Most of the courageous lawyers already released from incommunicado detention that lasts several days to several months remain disturbingly quiet.

While in captivity, these lawyers endure humiliation, torture and endless demands to sign statements “repenting” alleged misconduct and promising “good behavior”.  Harassment continues after release, where constant surveillance, isolation, threats, restrictions and searches lead some to say it is not release at all.  Moreover, rights lawyers are well aware, as police occasionally remind them, that not only is their own welfare at stake but also that of their families.  Early twentieth century Chinese reformers abolished collective punishments for relatives of political offenders, but in contemporary China spouses and children are often informally targeted, even though the actual “offender” may never be charged with crime.  Understandably, some rights lawyers who have not yet been subjected to arbitrary police detention are frightened.

Most of China's roughly 170,000 lawyers and several thousand law professors have kept conspicuously silent about the increasingly serious plight of rights lawyers. In 2009, over 500 lawyers signed a petition protesting their colleague Liu Yao's unjust conviction, resulting in his reduced sentence, but there has been no similar outpouring of support during the current wave of disappearances and repression.  Of course, the tightly-controlled media makes it easy for legal experts to maintain willful ignorance of such unpleasantness. Besides, any expression of support  for their embattled brethren could have immediate negative consequences. It might harm a lawyer's relations with clients and even risk difficulties with the local Justice Bureau that regulates the right to practice. Local lawyers associations, controlled by the Justice Bureau, seldom fulfill their obligation to protect rights lawyers.

Chinese law professors who speak up may risk their jobs or at least favorable employment conditions. They also jeopardize their influence in important law reform projects. Criminal justice experts sometimes say it is more important for them to maintain credibility with the government, so as to be able to effectively advocate legislative reforms, than to protest mistreatment of individual lawyers. Some attempt to dismiss the significance of such mistreatment, noting that “there are not so many cases of abuse of lawyers”. A few scholars even suggest that rights lawyers should know better than to directly confront the government and should find more indirect ways to protect their clients; they imply that rights lawyers recklessly endanger the inescapably slow process of establishing a rule of law.

Fortunately, a handful of distinguished professors and lawyers occasionally manage to speak out. The grossly unfair conviction in 2009 not of a rights lawyer but of well-known Beijing defense attorney Li Zhuang,. which arose out of his defense of an alleged Chongqing gang leader, provoked a  brief inquiry from the Beijing Lawyers Association. Recently, a second indictment against Li was mysteriously withdrawn by the prosecution, in part, many believe, because of a protest from a coalition of influential law professors and lawyers.

Should legal experts outside Mainland China take note of the suppression of Chinese human rights lawyers?  Thus far, Hong Kong's legal profession has shown little  interest. The Bar Association mentioned the Li Zhuang case in a circular to its members and reportedly discussed the situation of rights lawyers during private meetings with the Beijing Lawyers Association. Although the Law Society last November issued a joint statement with the Bar Association expressing concerns about the trial of tainted milk activist Zhao Lianhai, it apparently has not gone on record about rights lawyers. By contrast, a tiny but high profile Hong Kong organization, the China Human Rights Lawyers Concern Group, has sparkplugged all lawyers' efforts outside the Mainland to protest abuses against Chinese lawyers, and its efforts have been bolstered by the publications of several Hong Kong-based scholars and leading human rights organizations.

Taiwan lawyers have recently become active in supporting Mainland colleagues. The Taipei Lawyers Association has issued various letters and statements protesting mistreatment of Chinese rights lawyers. Last week, on the eve of June 4, it joined other groups in calling upon President Ma Ying-jeou to discuss the crackdown on Chinese lawyers with the Chinese government. Also, together with the Taiwan Association for Human Rights and the Judicial Reform Foundation, it has held relevant meetings and press conferences and has conducted exchanges with Mainland rights lawyers. Taiwan scholars are also gradually showing interest.

Western lawyers' organizations have been slowly increasing their pressure, too. In February, the Council of Bars and Law Societies of Europe, representing roughly one million lawyers, sent its third and strongest protest  to the Chinese government. In March, on behalf of the 23,000 members of the New York City Bar, its chairman sent a long letter to China's Minister of Justice, giving a detailed account of many cases of abuse and asking for an investigation, an end to harassment of Chinese lawyers and reaffirmation of their rights, under Chinese and international law, to practice their profession without undue interference. Also that month, the French-based International Observatory for Lawyers published an open letter on the subject. The Committee to Support Chinese Lawyers, based at Fordham University's Leitner Center for International Law and Justice in New York,  has issued many statements highlighting the deteriorating situation. In April, the London-based International Bar Association's Human Rights Institute expressed deepening concern, noting that “an expanding catalogue of abductions by the Chinese authorities creates a climate of fear”.

What has been missing from foreign lawyers' reactions to date has been the voice of the many international law firms or individual lawyers who benefit from the world's spectacular growth in trade, technology transfer and investment transactions with China. For example, efforts to arouse interest among American law firms involved with China have fallen on deaf ears. Barring the slim possibility that all foreign law firms might band together to register their concerns, competitive considerations will probably continue to induce law firm indifference. One wonders how severe the oppression of China's rights lawyers will have to become in order to prick the conscience of foreign fellow professionals, especially those based in China. Clients are unlikely to focus their lawyers' attention on the problem. Perhaps only criticism from the often idealistic young lawyers and law students whom the firms seek to recruit can stimulate a response.

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. See also www.usasialaw.org.

This article appears in full on CFR.org by permission of its original publisher. It was originally available here.

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