A Discussion with Chinese Legal Activist Chen Guangcheng

Chen Guancheng
Chen Guancheng (Getty)

Remember this guy? Back in May he was on the cover of the Economist, this past week, three of the Sturm College of Law’s students got to hear him speak at International Law Weekend at Fordham University Law School in New York City. Did we mention we also represented yours truly, the Denver Journal of International Law and Policy?

Chen Guancheng

Mr. Chen is a blind, self-taught legal activist from China. Prior to April of this year, he had been on house arrest for 19 months after he took on the local party over the abortions and sterilizations it enforced as part of China’s strict one-child policy. On April 22, 2012, he fled to the American Embassy in Beijing, where he stayed temporarily. His departure from the Embassy raised some questions about whether the US had offered him enough support. But that seems water under the bridge now – Mr. Chen is currently our co-student and is getting his J.D. from New York University.

Your author, at least, considers it a great honor to be attending law school at the same time as someone who has done so many great things in the name of the law. His dedication, courage, and compassion serve as an example of what all of us can be. Not to mention, when we feel like complaining about finals coming up, remember this guy taught himself law and then took to the streets as a “barefoot lawyer” – putting himself at risk to help those in need. Finals indeed may be one of those “first world problems.” So study on, my friends.

Below are some highlights from his conversation with the moderators and the audience. Jerome Cohen, Professor at NYU Law, was the moderator and translator. Ira Belkin, Executive Director of the US Asia Institute at NYU Law, was also a panelist.

Q: How did you get interested in the law in China?

A: I recognized that people’s rights were being violated, it was the government. Disabled people couldn’t find [or] afford lawyers. So the only thing was to learn the laws ourselves, protect ourselves. To wait for the government was not practical.

Q: What is your educational background?

A: I didn’t go to school until I was 18, but I was educating myself on society and social problems before then. At that time, I really valued the opportunity to go to class. It was difficult for me to follow the curriculum, but I did the best he could to keep up. I first started learning Braille, but then I took the regular curriculum. My major was traditional Chinese medicine, traditional massage. There wasn’t a lot of opportunity to go to university.

Q: Describe the first case you handled.

A: In 1991, there was a new law passed for people with disabilities. There were provisions people in the countryside who could not work didn’t have to, as well as providing other protections. But it didn’t really work out that way –disabled people were still discriminated against. At that time there was a village Party Secretary who went on a tirade against people with disabilities, saying they were useless to society and if it was up to him they would kill them. When I heard about this case, I showed my friends the law about people with disabilities, and we decided to do a administrative law suit.

Q: Why didn’t you find a local lawyer to support you?

A: This is a case suing the government. You can offend them –most lawyers didn’t/don’t want to take on those cases. Disabled people tend to be poor –that’s another reason. Legal aid lawyers in China were useless as well. Its only when other lawyers get interested that they become interested.

Q: Did the Association of Disabled Persons help you?

A: In terms of protecting fundamental rights, they’re not of great help. They’re an arm of the government.

Belkin: Deng Xiaoping’s [former “paramount leader” (head of the Party) in China] crippled son, Deng Pufang. Funny thing was when they needed help, they didn’t get it from ADP, they had to look locally.

Q: Can you share with us some of your early experiences in court in China?

A: In the first case I handled, the judge was sympathetic and gave us a just verdict. But later on, the judges were influenced by the Party Legal Committee, and were basically in the league of the government and weren’t helping us either. In the beginning, courts just refused to take cases. Local officials said to me that the law may be on paper, but actually enforcing it is up to us. We would go to one court, they would say we needed to go to another level court, and so on. We would do that –it was difficult for people with disabilities –but in the end, the courts didn’t help us. So in the end, I mailed the case file to the court so they could make a decision, so they accepted the case, but didn’t give us a just verdict anyway.

Belkin: It’s important to understand that geography is destiny. The village is so far from the various levels of government. The cost, time, work, money –it’s a challenge to try to use law in those circumstances.

Q: Why do you still have faith in the law?

A: The law can be a social tool, a tool to accomplish things in society. I hope that one day in China there will be rule of law, and it can be used as a tool. But right now the government is using it as a tool, so its not playing the positive role that it should.

Q: At the School for the Blind University, was he already interested in constitutional law?

A: The Constitution is a basic law –everyone should it obey it. It is only when everyone obeys it that we can all be safe and the law can be of use to us. I feel that the law not only can regulate life, provide a standard set of rules for living. But more importantly it can also control and limit government officials –create a zone in which they must act –prevent them from abusing their power. Morality, rules of ethics, can be important for people, but they don’t have any effect on the people in power. Its really the law that should serve that purpose.

Q: With regard to the role of the local Political Legal Party Committee –one of the major questions confronting the new leadership next month is are they going to reorganize the scope of authority of the party political leadership? Not only in the central government, but in the localities.

A: In China, the Party is separate from the government. It’s really the party that decides and controls how the government makes decisions –on all levels. The Party Secretary is the top official, the government is below them. The Political Legal Committee (PLC) is part of the party, that controls the government. It controls all judicial organs –police, Procurator General (Prosecutor)s, courts. So for example the public security officials should be deciding whether to investigate based on the law, but they have to do get permission from the PLC and do what the PLC says to do. The Chinese Procurator General (Prosecutor)s have a corruption case, they have decide whether to investigate, how far, whether to turn over to judicial. They have to take directions from the PLC. When it comes to the courts, especially in high visibility cases, the court needs to listen to the Party Secretary, the PLC, about what type of sentence to impose. There’s no independence of the governmental organs. When you bring it up, the government officials will say we know these decisions are wrong, but there is nothing we can do, this is what the PLC wants us to do.

Belkin: Right now, Mr. Chen’s nephew, Chen Kegui is before the Procurator General (Prosecutor)’s office. It was sent there by the police after holding him incommunicado for many months. We’re waiting to see what the Procurator General (Prosecutor) will do. Will he follow the recommendation of the police to indict the nephew  despite the nephew’s evident good case of self defense? Will he be charged intentional infliction of harm? And therefore since almost everyone the police ask to be indicted gets indicted and everyone who the Procurator General (Prosecutor) indicts gets convicted, will be be then sentenced to 2-3 years in prison at least?

Mr. Chen: This is a very typical case when the Party infringes on the rights of citizens. In this case, people climbed over the walls of my nephew’s house in the middle of the night, entered his house. My nephew just tried to protect himself and his family, but the law doesn’t protect him and hasn’t protected him. In these situations people within and without China are really afraid to confront the government. But we should be very clear when we face injustices like this we should just tell the government no.

Q: (from audience) What can US lawyers do?

A: Have US lawyers associations register their complaints with Chinese lawyers associations. Granted, Chinese lawyers associations are part of the government. Help people that are suffering speak out.

Belkin: They are trying to get NY law firms that do business in China to be interested in this. It hasn’t been very successful –you can imagine the practical difficulties –they don’t want to give up their competitive advantage. When I was in practice, other American law firms tried to use the fact that I had protested publicly and wrote things publicly against June 4, 1989 to prevent my firm from getting registered in Beijing. But what can we do practically? At least broaden people’s knowledge –let people know that we’re aware of it. Ask our firms what their positions are. The best work is through US Bar Associations –NY Bar is active.

Q: (from audience) Following the Constitution might not be the best. The Bill of Rights is kind of a laundry list of rights without any obligations. What was the actual and potential role of the Procurator General (Prosecutor) in trying to extend the rule of law in China?

A: He was meaning that the rule of law already exists, which it doesn’t yet. He knows the laws need to be amended, there are lots of bad laws now. As for the second question, it’s the Party Secretary that occupies the highest position, and the Vice Party Secretary occupies the second highest position. The Procurator General (Prosecutor), the head of police, or the head of the court, are assistants to the Party and VP Secretaries. So they work for the Party, and have to listen to them. So really they can’t make the difference because they don’t make the decisions themselves.

Belkin: They’ve revised Constitution a few times to protect human rights, foster the rule of law. The problem is its just not happening. The Procurator General (Prosecutor) is supposed to be more than just a Prosecutor – he’s supposed to be the watchdog. This was inherited from the Soviet Union, which got it from imperial Russia, which brought it in from Sweden. The idea is you have an official who would go out and investigate the legality of the conduct of government officials –something like the role that our Congressional Committees do –an investigatory role.

Q: (from audience) What role is social media having in China?

A: Its been very useful. In the past the media was completely controlled by the government. But now with social media the people can have their own voice and be a watchdog on the government. Now people inside and outside can hear other perspectives besides the governments.

Belkin: Of course it can be a two-edged sword. Sometimes the media has been mobilized in ways that have countered the rule of law –sometimes leading to the execution of people the courts didn’t think should have been executed. The government has also learned how affirmatively to misuse the media through their own hired staff –to have their own version of public opinion. This is a struggle. By and large, however, this is the most encouraging thing that has happened in the development of rule of law.

Jaime Menegus is a second year law student, on the Executive Board of the International Law Society, and a member of the Denver Journal of International Law and Policy.