Following are excerpts from a recent conversation among Chen Guangcheng, the blind legal activist who was recently permitted to leave China and is currently a distinguished visitor at New York University School of Law; Jerome A. Cohen, Professor of Law and Co-Director of the US-Asia Law Institute at the NYU School of Law, who was active in securing Chen Guangcheng’s release; and Ira Belkin, Executive Director of the US-Asia Law Institute. For this exchange, Professor Cohen would put a question to Mr. Chen in Chinese and then summarize it to the audience at the New School in New York City. Ira Belkin then translated Mr. Chen’s replies into English.
Jerome Cohen: I wanted to ask Chen Guangcheng if tomorrow he had a chance to meet with the new leader of China, Xi Jinping, what would he ask him about with respect to law, human rights, the rule of law? What suggestions would he make about this?
Chen Guangcheng: First I just want to make sure, will Xi Jinping come to see me tomorrow? I just want to say that Xi Jinping probably understands the situation in China very clearly. I guess I would say to him that to have a truly stable and safe society you need a society that has fairness and social justice, and to have that kind of society you need to have a constitutional government, fairness, and free speech.
I want to use an old Chinese saying, the meaning of which is that a society has to allow the good in people to come out in order for that society to be stable. So in Chinese culture from a very long time ago there was a saying that if something is good, even if it is a very trivial matter, don’t refrain from doing it, even if it’s a small matter, and if something is evil or bad, don’t do it just because it is a small evil. And this is part of ancient Chinese culture.
Today a lot of people are imprisoned just because they spoke the truth. This is not a good way. This is not a way to bring out the good in people.
JC: I’m saying so far Chen Guangcheng has given us a rather abstract simplified version of things. He can give us of course many more specifics and I asked him, for example, does he want to discuss the case of his nephew who was recently imprisoned for three years and three months, in what many people interpret as an act of revenge by the local authorities because of the embarrassment he caused them by escaping at the end of April 2012?
CG: I would say that in China right now there are many good laws that are consistent with justice and there are just a few bad laws that are inconsistent with justice, but it seems like the good laws often are not enforced and the bad laws are enforced quite widely. So many people may know of the case involving my nephew, Chen Kegui. It is really a continuation of my own case and right now he is in prison in China.
Chinese law is very clear. Under the Chinese constitution a Chinese citizen’s right to have privacy in his or her own home cannot be infringed. To enter someone’s home illegally should be punishable under Chinese criminal law by ten years in prison. Chinese criminal law is also very clear that people are allowed to act in self-defense to protect their personal safety or their personal property and that if they do so it is not a crime.
But what we see, in reality, is that local officials and the deputy village chief gathered a group of thugs and entered the home of Chen Kegui and beat him and beat his family and destroyed his property. He just tried to defend himself, just to avoid being beaten to death. The intruders were not pursued, were not prosecuted, but instead my nephew, who was just defending himself, was prosecuted. I think anyone no matter where they are or who they are would recognize that this kind of situation is not lawful, is not just. The law is very clear and the people in China see the illegality of the situation but there is nothing they can do about it.
The legal system in China is kind of upside down where black is white and white is black and lawyers cannot fully represent their clients. This is the legal system in China today. If the secretary of the Communist Party doesn’t obey the law, how can you expect ordinary people to obey the law? Many years ago in China, Confucius said—and now there are Confucius institutes all over the world—don’t do unto others what you would not have them do unto you. If the leaders act appropriately then everyone under the leaders, the ordinary people or their underlings, wouldn’t dare to not act appropriately.
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JC: I asked what about his nephew; didn’t he have a defense lawyer?
CG: During this whole incident, this whole case from beginning to end, Kegui wasn’t allowed to see his own lawyers. The government arranged for two lawyers to represent him and what’s very funny is that those two lawyers came from the same law firm that was chosen to represent me in my case many years ago.
I’ll tell you a bit of news: after the trial was over and the family members met with Kegui, it was clear that his lawyers never had a chance to talk to him about his right to appeal; and he just accepted that he should waive his right to appeal. And the local Party secretary, Ma Chenglian, visited Chen Kegui in prison several times and tried to deceive him and threaten him. He told him that the case has already gotten to the point that if you cooperate with us we’ll make sure you get the lightest sentence possible, but if you don’t cooperate, we’ll make sure you get the heaviest sentence. And if you don’t accept the lawyers that we’ve arranged for you, we are not going to let you see the lawyer hired for you anyway.
JC: I’m asking him about the trial, so-called.
CG: The whole trial really wasn’t conducted in a lawful way. The night that this incident happened it was after midnight and Chen Kegui called the police to report the intruders several times. The family never received a copy of the indictment and they didn’t receive notice of the trial until just a few hours before it was to start. All of these things are in violation of Chinese law. Forcing two lawyers on Chen Kegui that he didn’t choose for himself is also against the Chinese Criminal Procedure Law and the Chinese Lawyers’ Law.
JC: What about Chen Kegui’s parents? They were involved. They could have been witnesses. Did they in fact testify? Were there other witnesses at the trial?
CG: His parents asked to attend the trial but they were told that they were witnesses so they couldn’t attend and they were put inside a police vehicle outside the courthouse on the street and they had to stay there for the duration of the trial. In the whole county of Yinan, there were police vehicles all along the streets preventing anybody from outside coming into the area, preventing journalists who wanted to come and see the trial. If his parents tried to leave the vehicle at any time, there were many, many police in the area who would just go up to them and say: “You have to get back in the car. You have to get back in the car. Why are you getting out of the car?”
After the trial was over and they had not been called as witnesses to give any testimony, they saw that there were police vehicles and they wanted to go over and ask if they could see their son but the police vehicles had windows that were blacked out and they couldn’t see through them. The government said that this was a public trial. There’s a very simple phrase in China: “If you’ve done nothing wrong, why wouldn’t you want other people to see it?” They knew that what they were doing was wrong and they didn’t want other people to see it.
JC: Before Chen Guangcheng left China the Chinese government promised that, as to his own case in Shandong province, they would investigate fully and give him a complete report. I want to ask him about that.
CG: Yes, before I left they said very clearly—they promised me on behalf of the central government—that they would investigate the activity of local officials for the past several years, their illegal activity, and open up a full investigation and even allow our lawyers to participate. So they made this promise not just to me but they made it to the whole world, and in fact this promise was part of the US–China agreement about me. But not only have they not conducted any investigation, in fact the local officials who carried out these activities have all been promoted and my nephew, Chen Kegui, sits in jail.
I’ve heard that the Chinese ambassador to the United States said that he doesn’t know where I am. If any of you know how to reach him, please let him know I am here. But I think that NYU is not that hard to find. There’s another phrase in Chinese: “If people don’t trust you, if you’re not trustworthy, that’s to your disadvantage.” I would ask everyone: Do you believe what the Chinese government is saying? I hope that President Obama and Secretary Kerry can make sure that the Chinese government lives up to the promise that it made in its agreement [when I was allowed to travel to the US].
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JC: One of the questions we are always asked when people invite Mr. Chen to give a talk is how they should characterize him. The press often, in shorthand terms, say he is a dissident and that always makes me uncomfortable because he’s not your classic dissident who comes here overtly wanting to see an end to the Chinese Communist government. He’s never in China advocated overthrowing the government. His challenge to the government is to live up to its own laws. Use your own legal institutions. He wanted to be someone who used the law, not the streets, to protest various violations, and what we’re watching since he came here is that he’s getting closer and closer to being a dissident because of the frustration and the lack of response from the Chinese government.
CG: The Chinese language has another saying: “If you don’t tear down the old, you can’t build the new.” And all I’m saying is that China should have a society that’s just, that’s fair, that’s constitutional, that’s lawful, that’s democratic. This is what I want. This is what my goal is. So what I’m saying is that if the Chinese Communist Party continues to suppress civil society and doesn’t allow civil society to develop and reach these goals, maybe the Communist Party has to step aside or be pushed aside. I’m not saying that it should be pushed aside for the sake of pushing it aside. All I’m saying is that if it can’t deliver on what the people want, then maybe the people will have to get what they want without the Communist Party.
Now if the government can, in a very smooth way, follow what the people want, satisfy the people’s demands for universal values, for a fair society, for democracy, then maybe the Communist Party can do what the Kuomintang, the KMT, did in Taiwan: it can still maintain its position in Chinese society, in Chinese government. And the time for the government doing this is not that long. You know this is something that it has to do quickly. Time is getting shorter and shorter.
JC: I remember when I first met Mr. and Mrs. Chen in 2003 here in New York. They were guests of the State Department, which often gives promising people in various countries an opportunity to get acquainted with the United States. I got the feeling that this farm boy who never went to school until he was eighteen had a possible future as a leader of China. Precisely because of his background and his rural upbringing and his highly educated articulation. He is an extraordinary person.
At that point the Chinese government liked him. He was an example of a poor boy who didn’t go to law school but could have access to the courts and help fulfill the law. But he became too effective over time in challenging the local government and that is gradually how he got into difficulty. I thought it might be good to ask him, why did he start this and what causes did he embrace?
CG: Well, it’s a long story. At the time I noticed that disabled persons were being denied a lot of the rights that the law was supposed to guarantee them and in many cases the people who were infringing on those rights were government officials. Disabled persons were not req uired to work and they weren’t required to pay taxes but local officials still were trying to force them to pay taxes and to work. So in the beginning we tried to use litigation. We went to court, and we found that a lot of lawyers were not willing to take these cases. They couldn’t really make very much money and the disabled people couldn’t really afford to pay them very much and some of these cases were a little bit sensitive because they involved suing government officials.
A little later on we expanded our work to include not just disabled people but also farmers and women. Actually I would say in the beginning, in many of the cases that we were involved in, as long as the Party or Party secretary did not get involved, the cases were handled pretty well and pretty justly. But when the Party secretary would interfere in the case then it was a different story. And it was just because there were so many such cases that I decided to study the law and use the law and started down this road.
JC: This is one of the crucial questions confronting Xi Jinping and the new leadership in China. What will the relationship be between the Communist Party and the legal system? There was an attempt in the late Eighties, before the June 4, 1989, Tiananmen tragedy, to separate the Party from the government, to not have the Party officials tell the courts what decisions to make. That unfortunately didn’t last; after June 4 things tightened up, but now this idea is reviving. The aim is to keep the Party committee and the political legal committee that operate at every level of the court and legal system out of adjudication of individual cases. We don’t know whether this effort will succeed or not. It will be interesting to hear Mr. Chen’s view on that. He’s always emphasizing the role of the local political legal Party committee in telling the police, prosecutors, and courts what to do.
CG: I haven’t seen any sign yet of this idea of keeping the Party out of the courts. For example, the case of my nephew, Chen Kegui, took place after the new leaders had already taken their Party positions and new offices. “Reeducation through labor” has not yet been abolished and China has already passed a new Criminal Procedure Law, whose Article 73 is notorious and that is already being implemented. I am suspicious of this kind of rule of law.
Ira Belkin: We should explain a little bit what reeducation through labor is. Reeducation through labor is a system that was started in the 1950s. It’s a non-judicial system that is still being used where people can be in prison for up to four years but without any judicial proceeding. It’s a completely administrative process and people in China, reformers in China, have been trying to reform the system or abolish it for decades. There was a lot of news that perhaps this year it might be abolished but it hasn’t been.
In fact, last year in a sweeping reform of criminal justice and the Criminal Procedure Law there was a new provision, Article 73, that allows police alone to detain someone in special circumstances for up to six months if that person is suspected of three types of crimes: endangering state security, serious bribery, or terrorism. In these cases they can be detained not at a detention center but somewhere off-site for up to six months. After pressure from the public there was a provision added that at least families would have to be notified if someone was detained under Article 73, so that is what Mr. Chen is talking about.
CG: Well even in the case of the “Gang of Four” there was a TV broadcast of the trial. But in recent high-profile cases, such as the case of Gu Kailai (who is the wife of Bo Xilai), the case of Bo Xilai, which has not come to trial yet, the case of Chen Kegui, these things were all done out of the public view, so I ask: Is this progress?
JC: One of the questions we confront in looking at the Chinese legal system is that it’s very nontransparent. And of course the most politically sensitive cases are the ones that tend to be publicized or at least we know they should be publicized. We know they are going on even if we are not permitted to witness the proceedings. And there is always the question, to what extent can one generalize about the way the system is developing on the basis of those cases that we’re allowed to see? So transparency is another of the key issues that the new Party leadership has to confront. I don’t know. Let’s see what Mr. Chen has to say.
CG: I think they are very, very clear that if they operate in the open, people will see the bad things they are doing and it won’t be beneficial to them. So they are not looking to make things more transparent. On the contrary, they are looking to keep more things in the dark. So there’s really only one explanation for why the Chinese government is spending more money on domestic security than it’s spending on national defense. Several recent incidents show that China’s still not moving toward transparency. There’s still a great deal of censorship. The cases that we see where there’s illegality or irrationality, these are really just the tip of something much larger. Of course everyone knows about my case, but just as we’ve been sitting here talking, who knows how many other similar cases have taken place that people just don’t know about?
JC: I think another question that deserves attention is the difference between rural and urban conditions in China. Even though a couple of hundred million people have been leaving the farms to go to China’s cities, still roughly half the population lives in a very simple rural situation. They aren’t the ones that we tend to see when we go to China. We see the successful urban development, the more prosperous class, and the middle class that’s growing. And I think it is hard unless you go down to the villages to visualize how simple, how poor these places are.
Chen insisted when my wife and I first met him here in the US in 2003 that when we next met in China a few months later that we had to go down to his village and spend a few days. Seeing the conditions there makes a very big impact and you wonder, what are the prospects for bringing the rule of law to very simple places that were often villages, far from the county seat? Not to mention the city that embraces all the counties.
If you’ve seen Zhang Yimou’s film from twenty years ago, The Story of Qiu Ju, you’ll get a pretty good picture. It gives too sweet a view of the police, of course; that may have been the price of making the film. But the fact is that it gives you the sense of geography, of simplicity, of lack of education, lack of money that China still confronts. So my wife and I learned a lot and we saw how popular the Chens were with the villagers. The clientele that he helped, the poorest bunch of deformed, impoverished people that you ever saw who were his so-called clients as a barefoot lawyer, and the work he did made a very deep impression; and these are still problems in China today.
Questions from the Audience
Does Chinese law prohibit coercion and is coercion common or infrequent?
CG: First, I want to say that coerced abortions and coerced sterilizations are prohibited under Chinese law. But in China, the Party secretary has a lot of power he can use to go back to traditional methods consisting of forced abortions and forced sterilizations. According to my own research and statistics from 2005, in the city of Lingyi, in one year, there were 130,000 cases of forced abortions or forced sterilizations. There are other instances where, if authorities could not find the person who was illegally pregnant, they would detain family members or friends and use that detention to force the person who was pregnant to undergo a forced abortion. According to my investigation at the time, there were more than 600,000 people who were detained this way. At present, from the information I received, this happens in every province in China. Whether it’s exactly the same numbers, I cannot know for sure, but my impression is that it is.
Can China import Western democracy? Some say it isn’t applicable.
CG: I agree you cannot import 100 percent of Western systems…. But I think 98 percent of Western democracy could be adopted in China; but if you don’t like the West, you can just look to Taiwan. And if the Chinese Ministry for Foreign Affairs opposed this point of view, is their view that Taiwan is not a part of China?
In China, how do you seek a balance between human rights of individuals and the overall development of the entire country?
CG: I want to answer your question, first, with an example. Before I entered prison, I planted two trees outside my home. When I returned, one tree had grown thick and the other tree was thin. One way to look at this is to look at the US, which has taken over two hundred years to try to build a fair society and maybe it has been 80–90 percent successful. But China has had thousands of years and we’ve always had an authoritarian government or a dictatorship and we have only achieved fairness and justice of 10 percent plus. We can compare this kind of balance. I saw in the news today that a Chinese official in Guangdong province owns 192 luxury homes and yet, in the countryside, during the cold winter, maybe 2 or 3 percent have the conditions that allow them to stay warm.
