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?