China is losing the ‘soft power’ campaign
Jul 6th, 2012 | By USAsialawNYU | Category: Jerome A. Cohen's Blog, Publications
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This article was published in the South China Morning Post on July 6, 2012 under the title “China is losing the ‘soft power’ campaign.” It was also published in Chinese in the China Times (Taiwan) on July 5, 2012. Illustration from SCMP.
By Jerome A. Cohen
In a global effort to attain “soft power” matching its growing economic and military prowess, China spends huge sums operating Confucius Institutes at hundreds of foreign un
iversities and internationalising its media outlets. The goal is to promote respect for its contemporary civilisation and thereby enhance the government’s political influence and image. Yet the effects of these programmes – unlike similar efforts by democratic countries – are undermined by daily reports of not only the repression of basic freedoms by the “people’s democratic dictatorship”, but also the unfair criminal justice system that is the major instrument of this repression.
Nothing more vividly illustrates this injustice than the restrictions imposed on an accused’s right to effective counsel. These restrictions are not apparent from a reading of China’s ever-improving legislation. The 2007 Lawyers Law eliminated some of the obstacles confronting defence counsel under the 1996 Criminal Procedure Law, but police skirted that reform, saying they are not governed by the Lawyers Law. This year, many of those 2007 changes were incorporated into the Criminal Procedure Law itself, so that, starting on January 1, when the revised law takes effect, police can no longer rely on that feeble excuse.
Unfortunately, as Shakespeare might note today, legislative improvements keep the promise to the ear, but Communist Party- controlled legal institutions break it to the hope. If current events are any guide, the situation is unlikely to change under the revised Criminal Procedure Law. Recent cases remind us of the authorities’ continuing refusal to implement the right to counsel in good faith.
The Bo Xilai scandal doubly demonstrates the denial of defence counsel. When, in March, Bo, removed from his post as Chongqing party secretary, disappeared into the bowels of the party’s discipline inspection commission rather than its legal system, leaders solemnly announced – with no apparent awareness of how bizarre the announcement made them seem – that Bo would be handled strictly according to law. Although rumours have suggested that Bo, weeks ago, requested access to counsel, he will remain in incommunicado party custody until it decides whether he should be transferred to the legal system for formal criminal punishment.
Yet even criminal prosecution will not assure Bo the opportunity to be defended by lawyers of his choice. His wife Gu Kailai was detained months ago on murder charges but has yet to meet a lawyer. Although her family reportedly retained Shen Zhigeng, a well-known lawyer, the police have not approved this choice, and the authorities may themselves select more politically reliable counsel.
In China, law enforcement officials frequently resort to this technique in sensitive cases. The ongoing investigation on spurious attempted murder charges of Chen Kegui , the nephew of the blind “barefoot lawyer” Chen Guangcheng , who famously escaped from illegal home imprisonment to the US embassy, offers another example. For over two months, police in Shandong have refused to recognise the right of independent, out-of-town lawyers appointed by the Chen family to contact the hapless suspect. They falsely maintain that he prefers to be represented by local lawyers appointed by the county government’s legal aid office, which, like all other legal institutions, is controlled by the local party political-legal committee.
Chen Guangcheng himself is familiar with this technique as he was victimised by it during the farcical trials in 2006 that led to his 51-month jail term for allegedly obstructing traffic and damaging property. Shandong authorities did everything possible to prevent Chen’s lawyers from appearing in court and tried to cover this misconduct by appointing as Chen’s ostensible defenders two lawyers from the same law firm that has now been foisted on his nephew under the guise of “legal aid”.
Such shenanigans are not new and are common in cases authorities deem sensitive, for whatever reason. I encountered this problem when advising the family of a detained man unwise enough to have supported the losing side in a quiet but bitter power struggle between the party political-legal secretary and the public security chief of Inner Mongolia . The accused’s Hohhot lawyer, who alienated the police by repeatedly pointing out their illegal overtime detention of her client, was herself detained and freed only after promising to cease her efforts. She was so intimidated that she not only gave up the case but also the practice of law. Police coercion also forced the two senior Beijing lawyers I persuaded to take over the case – one a former prosecutor – to abandon it.
To be sure, the party’s mistreatment of lawyers and their would-be clients often takes subtler forms. If local judicial bureaus, which operate under the Ministry of Justice but in concrete cases are usually more responsive to local power holders, do not flatly deny lawyers the right to take on certain representations, they may instead present formidable barriers to their doing so. They may insist, for example, that a lawyer bold enough to take on a controversial assignment first obtain the formal agreement of all his law firm partners, and they may dictate the terms on which the defence may be waged.
Moreover, as Gu’s would-be lawyer confirmed, the judicial bureau often forbids lawyers to have contact with the media, thereby eliminating a check on law enforcement abuses. Informal pressures, including suggested “vacations”, frequently prevent counsel from entering a case, as happened following the “residential surveillance” inflicted on the celebrated artist Ai Weiwei .
Defence counsel who refuse to toe the line risk their own prosecution and loss of their lawyer’s licence, even if the prosecution is ultimately dropped. Vengeful local officials – such as the now lawyer-less Bo was when controlling Chongqing – can secure the conviction and substantial sentencing of recalcitrant lawyers, as the case of lawyer Li Zhuang illustrated.
These cases are legion and make a mockery of China’s claims to have established “a socialist rule of law with Chinese characteristics”. Until the right to effective counsel is recognised in practice as the cornerstone of criminal justice, China’s “soft power” efforts are destined to fail.
Jerome A. Cohen, a law professor at NYU and co-director of its US-Asia Law Institute, is also adjunct senior fellow for Asia at the Council on Foreign Relations. See www.usasialaw.org
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Mr.Cohen,
You are an inspiration to all of us who wish to see a free & civil China. A China that has a government of the Chinese citizens, by the Chinese citizens, and for the Chinese citizens…regardless of whether they be Party members or otherwise.
Your contribution to the world’s understanding of the Chinese legal system is unparalleled, and will never be forgotten.
I sincerely hope that your contribution will live on to inspire the next generation of rights activists and legal scholars; both abroad, and most importantly, at home in China…
Prof. Cohen’s article is unique and excellent. The Chinese slogan which is not often cited nowadays but still subscribed to: To confess, you will be lightly dealt with; to resist, you will be severely punished. What can a defense counsel do under this slogan in trying to defend vigorously his or her client or fulfill his/her duty? Prof. Cohen is right on the soft-power issue too. To the Chinese, they confuse soft-power with state-sponsored propaganda or public diplomacy. The Financial Times article exposing the hidden wealth of the princelings (July 12, 2012) give the world an insightful understanding of the Chinese political system. All the money China spend on soft-power cannot reduce the impact of this influential newspaper’s analysis.
In china the authorities do not have the fundamental constitutional concepts that no executive directions can violate basic rights under the constitution. For example, accused persons have the right to consult lawyers. However, the district police authority can issue orders restricting the time of visit by the lawyer’ with his client in custody. There is no means to challenge this kind of abusive and arbitrary executive orders. Hence the accused person’s constitutional right is violated. The lawyer can complain to the judge or whoever in authority. But nothing can be done. The only resort the lawyer may have is either to befriend the police chief or bride the guard or do anything he could do using the Chinese system of doing things. If he is lucky or resourceful, the police may exercise discretion in his favor.
Lecturing at law schools in China: I have given talk to 40 of them, I form the following impression. Those in power thin that we western-trained lawyers are trying to teach their lawyers how to use law to undermine the authority of the Chinese Communist Party. For example, they don’t like you to talk about separation of power and checks and balance or even one party system is undesirable. Secondly, they don’t like you to compare China with the other legal systems, especially at the philosophical level. Thirdly, if you come from a funding agency in the USA they think you must be some kind of a CIA agent. They doubt your bona fides. Many of the universities do not pay you to come, unlike scientists or engineers or even finance professors. Lastly, especially in the interior part of the country, knowledge of and interest about the outside world is not that great.
Sometimes on reflection China spend so much money trying to establish a positive image outside the country but so little is achieved. China waste a lot of goodwill be appearing bullying her neighbors which appear to be economically dependent. Internally, by suppressing her people give out negative messages to outsiders. Unfortunately, China indulges in a delusion that western media is constantly and consistently embarking on an Anti-China campaign or as a conspiracy of American imperialism.
China’s use of soft power is not consistent. At times it takes up a “I don’t really care” bellicose attitude and at other times, it uses a softer approach. The classic example is its approach towards Taiwan. It can fluctuate from giving all sorts of concessions to Taiwanese business groups to having missiles aim at the island. Likewise, when the U S State Department produces its annual human rights report on China to trying to buy commercial planes from Boeing.
May be losing is not the correct word. If China did not have soft power or did not care whether it had or had not, you can’t really say that it is losing it. Can you see the logic?
About a year ago, I gave a talk to twenty young journalists in Beijing in a private discussion group. The reporter from the People’s Daily was teased by the others that he was not a genuine journalist but only a propaganda machinist. It is refreshing to discover that journalists can really think that those who are not worthy of their respect and others are professionals. May be those young journalists who can uphold their standard however precariously in their jobs will give hope to China’s future on soft power.
The recent demonstration of parents and educators in Hong Kong denouncing the introduction of patriotic education into the curriculum fully illustrates that People in Hong Kong do not trust the Beijing administration. They do not want their children be brain washed by the kind of patriotism practiced across Lowu River. Although Hong Kong people were promised that their system would continue for 50 years beyond 1997 and One Country Two Systems would be introduced. Recent events since the so-called election of CY Leung have fully shown that China’s promises are not honored. What soft power can China hope to project even beyond Hong Kong?
The empty chair reserved for Liu Xiaobo at the Nobel Prize ceremony destroys more soft power of China than an atomic bomb.
anything the Chinese authorities dislike about China being portrayed in publications outside China is “hurting the feelings of the Chinese people”.
The totally unaccounted-for disappearance of Xi Jinping does not seem to promote China’s soft power image to the rest of the world.
This week’s Economist has an interesting article on China watching. Any one who studies China outside China (including Hong Kong) should read that article. This week’s New York Review of Books reviewed three books about China. The review was written by Ian Johnson. It gave a poor review of the book by Justin Lin on China’s economy.