Fine words lack specifics
Jerome A. Cohen
America's legendary Supreme Court justice Oliver Wendell Holmes Jnr long ago opined that: 'General propositions do not decide concrete cases.' Holmes was, of course, referring to domestic court cases. Today, this famous maxim applies, in a way he never envisaged, to the international arena as well.
To bolster their 'soft power', most national governments, endorse general international law propositions, such as the importance of protecting civil and political rights. Former US president George W. Bush, for example, assured the world that the US 'does not torture'. Independent journalists and activist lawyers punctured that myth and stimulated remedial processes.
Since it entered the UN in 1971, the People's Republic of China has increasingly talked of human rights. Its recently issued 'National Human Rights Action Plan of China (2009-2010)' is the most comprehensive in a series of documents that review its impressive accomplishments in economic and social matters, put a bold face on its failure to implement civil and political rights, and set forth goals for meeting its obligations under 25 international human rights conventions.
Any Chinese leader thinking about making another speech claiming China is free to handle human rights in its own way should read the plan. It shows the great extent to which China has exercised its sovereignty by committing itself to meet international standards.
The plan's weakest part - indeed, the weakest part of China's burgeoning legal system - concerns protection of the person against the state and its police. It is good to learn from China, once again, that police may only detain people in accordance with law; that wrongful or prolonged detention should be prevented; that torture and coerced confessions are prohibited; that systems will be established for restraining and monitoring police behaviour and for punishing abusers; that lawyers will be guaranteed the rights to meet, correspond with and review files of persons in custody and conduct investigations and collect evidence; and that victims of police abuse are entitled to compensation, remedies for their release, and rehabilitation.
Yet will the unchecked power of police to send people to years of 're-education through labour' finally be curbed? Will law-abiding protesters no longer be sent to undisclosed 'black jails' or psychiatric wards? Will petitioners continue to be confined for 'legal education'? Will police stop using thugs to beat people? Will police searches and seizures be subject to the approval of prosecutors or judges?
How should illegally obtained evidence be dealt with? Can lawyers, family or friends be present when detainees are interrogated? Will interrogations be reliably recorded? When will China finally ratify the International Covenant on Civil and Political Rights, which it signed in 1998? And how will any legal reforms affect the detention and interrogation of Communist Party members by the party's discipline and inspection commissions? The action plan is silent on all this.
It does mention a few specific measures that ought to be taken to protect the rights of detainees. 'All interrogation rooms must impose a physical separation between detainees and interrogators', and detainees should be physically examined before and after questioning. Detention facilities should also have complaint boxes and allow detainees access to supervising prosecutors or administrators.
Inevitably, good faith administration and effective supervision are essential to protect detainees' rights. Yet that is precisely what is in question as long as lawyers are restrained from playing the roles assigned to them. Here lies the biggest gap between theory and practice. It is comforting to know the action plan 'encourages' reforms of the Criminal Procedural Law to bring it in line with provisions of the revised Lawyers Law that allow more vigorous challenges to the police.
The reality is that the state issues the plan with one hand while suppressing defence lawyers with the other. Yet, without vigorous representation by counsel, there will be little likelihood of applying commendable general propositions to concrete cases.
Today is the 88th day since the unexplained 'disappearance' of Gao Zhisheng, the most outspoken of Beijing's rights defenders and himself previously the victim of torture. Now, during his fourth year in jail, the health of Chen Guangcheng Shandong's heroic, blind 'barefoot lawyer', is deteriorating rapidly from being denied adequate medical treatment.
Will the action plan end these, and similar, outrages? If not, will it have any positive effect? Wouldn't it be nice if general propositions did decide concrete cases?
Jerome A. Cohen is co-director of New York University's US-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations in New York