24 years after June 4, party must loosen grip on China's court system
Jerome A. Cohen says the Communist Party's sustained efforts since June 4 to influence China's courts for its own ends may be easing, but judicial independence is still a long way off
Twenty-four years after the June 4 massacre, China is finally releasing from prison the last of the Tiananmen protesters who were convicted of "counter-revolutionary" offences, but spared execution. They are a tragic lot - seriously ill, often mentally as well as physically. Yet their release hardly writes finis to one of the saddest chapters of modern Chinese history.
The influence of June 4 lives on in many ways, especially the muzzling of any discussion concerning it and the continuing persecution of democratic activists and civil rights advocates. One of the less obvious, but abiding consequences of what the Communist Party now euphemistically refers to as "the political turmoil" is the ongoing struggle among party leaders and law reformers to determine the extent of the party's control of the judiciary.
The 1980s witnessed a decade of post-Cultural Revolution legal development that survived both the party's 1983 "strike hard" campaign against common criminals and political enemies and its subsequent assault against "bourgeois liberalism".
Not long after assuming the mantle of party leadership in 1987, the progressive Zhao Ziyang boldly ordered an end to the practice whereby the party "political-legal committee" in every area used its power to "co-ordinate" activities of local police, prosecutors, justice officials, lawyers and judges to decide the outcome of any civil, administrative and criminal cases it deemed "sensitive", including those involving multiple government agencies. Zhao and other reformers within the party sought to bolster the autonomy and legitimacy of China's much-maligned courts by freeing them from the committee's interference in individual cases.
Zhao's ousting in the events leading up to June 4 and the party's all-out mobilisation of the courts to severely punish "counter-revolution" in the years that followed the massacre ended party reformers' efforts to begin to vindicate the promise of "judicial independence" enshrined in the constitution. Ren Jianxin, president of the Supreme People's Court at that time and concurrently head of the Central Party Political-Legal Committee, minced no words in commanding the courts to carry out the party's mission by serving as instruments of suppression.
Many months later, when a superficial calm had settled on Beijing, the capital's Foreign Correspondents' Club invited me to give a talk assessing prospects for renewing China's progress towards the rule of law. When the Voice of America broadcast excerpts of the talk, it reportedly infuriated Premier Li Peng who, with Deng Xiaoping's approval, had presided over the June 4 slaughter.
Although Li welcomed my support for China's pending World Trade Organisation candidacy and the anticipated stimulus that would provide further legal development, he was apparently outraged by my statement that the courts had been reduced to instruments for suppressing people.
Two days after the broadcast, as I was checking out of the Jianguo Hotel, I was confronted by the deans of the most important law schools in Beijing. They had been ordered to wait for me in the lobby in order, as they said, "to register a solemn protest" against my statement.
They asked how I could have made such an allegation. I told them that I had merely quoted chief justice Ren, who had openly instructed the courts to suppress counter-revolutionaries. But that was different from "suppressing the people", the deans said, since counter-revolutionaries, being enemies, could not be classified as among "the people". I was sure the deans did not believe that argument and were embarrassed by their task.
Echoes of that view, implicitly invoking Mao Zedong's famous, but fuzzy dichotomy between the enemy and the people and endorsing the harshest punishment for those labelled "enemies", can still be heard among law enforcement officials in today's repressive climate in China.
In the wake of June 4, the powers of the Central Party Political-Legal Committee and its subsidiary units grew rapidly because of its overall responsibility for the country's internal security. In 2007, this culminated in the ascension of its chief, Zhou Yongkang , to membership in the all-powerful Politburo Standing Committee.
Yet experience with Zhou's subsequent exercise of his vast powers - including his reported support for the now fallen leader Bo Xilai , who is currently awaiting prosecution - last year led the 18th party congress to downgrade the position of his successor to "mere" membership in the Politburo, the party's top 25 leaders, rather than what is now its seven-member Standing Committee.
This diminution of the prominence and power of the Central Political-Legal Committee's leader symbolises further, less-visible efforts recently to curb the powers of its subsidiary units at the local levels. The late Zhao Ziyang would undoubtedly be pleased at reports that his ill-fated attempt to halt local political-legal committees from dictating court judgments has finally succeeded, and he undoubtedly would also welcome structural changes that are said to have reduced the local police chief's former domination of committee decision-making.
Yet, even if implementation of these reforms is not frustrated by party conservatives, the influence of the political-legal committees over policies affecting the courts and the administration of justice will continue to be significant.
Moreover, we can expect ad hoc external influences on individual court decisions to continue, whether from local government officials, legislators, business moguls, higher court officials or even national leaders, who may be motivated by corruption, protection of local economic interests or personal relationships, as well as party policies.
Finally, of course, each court has its own internal party organisation and control system that influences the decision-making of the legal professionals within the court.
Is it any wonder, then, that, in the lead-up to this year's June 4 anniversary, "judicial independence" has been one of the seven ideological "unmentionables" that the media, universities and other organisations have been forbidden to discuss?
Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. See also www.usasialaw.org