After June 4, China is still fumbling towards respect for rights of all
Jerome A. Cohen says despite the changes made to China's human rights legislation after June 4, progress has been slow and the plight of those advocating for democracy little improved
We are entitled, 25 years later, to ask about the enduring legacy of June 4. Its immediate impact on China's legal system and civil and political rights was, of course, disastrous. For several years, savage repression decimated a system that, only a decade earlier, had begun its post-Cultural Revolution reconstruction.
The mid-1990s, however, spurred by Deng Xiaoping's 1992 "southern tour" and the Communist Party's effort to attract foreign direct investment, marked a return to the cautious but persistent legal progress of the 1980s. This, despite "strike hard" campaigns and other setbacks, seemed to promise greater protection of human rights, not only in theory but also in practice.
The past 20 years have witnessed a continuation of China's legislative progress. But what has not continued, despite attractive constitutional amendments and generally progressive procedural and substantive laws, is the promise of gradually realising the freedoms of expression, association, assembly, demonstration and religion enshrined in China's constitution. Nor, in practice, has the police-prosecutorial-judicial system over which the Communist Party presides protected the criminal justice and litigation rights of those unfortunate enough to become involved in "sensitive" cases, broadly defined.
Democratic activists and the human rights and public interest lawyers who dare to represent them have been subject to especially disgraceful abuse.
Indeed, in recent years, despite China's impressive economic development, the situation for civil and political rights has significantly deteriorated, and prospects for the immediate future appear grim. The long-time criminal detentions of the distinguished human rights advocate Gao Yu , the able public interest lawyer Pu Zhiqiang and many others are a sobering reminder of reality.
Was this situation avoidable? It is a far cry from the China that my wife, Joan Lebold Cohen, and I experienced when, after a number of visits beginning 1972, we were finally allowed to live in Beijing at the start of 1979. Those were the heady days of Democracy Wall, an exciting period for all, whether Chinese or foreigners, social scientists or visual artists. Speech was really free, and "sit-ins" took place in front of city hall. The Central Academy of Fine Arts invited my wife to give lectures on contemporary American art before hundreds of artists and students who gasped at their first glimpses of slides of Western abstract paintings, in an atmosphere that was electric with questions and comments.
We knew it couldn't last, and it didn't, but this brief transition did introduce a decade of limited progress in many fields. Yet the democratic ferment generated by the 1980s proved hard to contain, as demonstrated by the fall of the reformer, party general secretary Hu Yaobang , in the 1986-87 campaign against "bourgeois liberals", and by the events leading up to the June 4 massacre after Hu's death two years later.
One question that has long plagued me is whether those crackdowns might never have occurred if vast popular protests could have been avoided. After the fall of Hu, I remember surprising some friends, and even myself, when, on Ted Koppel's Nightline, I said that, while it was heartwarming to see thousands of students in the streets shouting "freedom", one nevertheless had to ask whether that was indeed a good thing if the result was not more freedom but less.
Although the mid-1990s moderated the vicious oppression that followed June 4, it did not end the revival of Maoist ideology that had contributed to criminal injustice in the aftermath of the slaughter. In early 1992, I was exposed to a vivid application of Mao's theory of contradictions. The Voice of America broadcast excerpts of a talk on the impact of June 4 on the legal system that I had just delivered to the Beijing Foreign Correspondents' Club. Although premier Li Peng reportedly liked my endorsement of China's desire to enter the World Trade Organisation, my theme that the courts had become an instrument for suppressing people angered him.
Thus, two days later, as I was preparing to leave the Jianguo Hotel to visit several provincial law schools on behalf of the Ford Foundation, no fewer than five Beijing law school deans, who earlier in the week had been courting me to recommend continuing Ford support for their schools, were lying in wait for me in the lobby. There they sternly "registered a solemn protest" concerning my remarks about the courts. How, they asked, could I, a friend of China, make such an outrageous observation?
I told them I had based my remarks on the repeated published instructions of Supreme People's Court president Ren Jianxin, who was also head of the party's Central Political-Legal Committee. He admonished judges to mercilessly suppress counter-revolutionaries. "Oh," they replied, "counter-revolutionaries are not among 'the people'"! Amazingly, many Chinese legal officials, particularly police, cling to this mode of "analysis" to this day.
The lesson of the past 25 years for our purposes seems to be that economic and social progress, enactment of better legislation, improvements in legal institutions, and reformist official policy statements do not guarantee either the enjoyment of civil and political rights or the protection of political and religious activists and their lawyers against the arbitrary exercise of state and party power.
This is not to say that no legal progress is being made in related areas of human rights. Despite efforts to restrict the influence of the internet and social media, public opinion is being listened to in some respects, and party leaders are slowly allowing legal institutions to respond to demands to vindicate rights in certain fields, including labour, environment, gender discrimination and ordinary civil and criminal cases. Yet there is little evidence that such progress is likely to improve the lot of political and religious activists and their lawyers, at least in the near future.
In order to avoid ending on a despondent note, it is worth mentioning the vastly different experience of Taiwan during the past 25 years. On June 4, 1989, the island, which shared much of the mainland's history and political-legal culture, was just embarking on its extraordinary journey from Chiang Kai-shek's version of harsh Leninist dictatorship to a democratic political system that increasingly features the rule of law and freedoms of expression that are the equal of any country. That achievement deserves our respect, study and support. It also offers mainland human rights advocates a ray of light at the end of today's dark tunnel.
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. This article is based on a speech delivered by video to a conference at City University of Hong Kong on May 30 marking the 25th anniversary of the Tiananmen massacre