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Chen case highlights Beijing’s misrule of law

by Michael A. Fitts and Amy Gadsden

A last-minute deal between the United States and China may afford human-rights lawyer and activist Chen Guangcheng the opportunity to enroll in law school in New York. But, even if a way out of the diplomatic debacle is at hand, much about the case remains troubling. In particular, despite more than three decades of legal reform in China, Chen had precious little recourse to fight harassment and house arrest at the hands of the Chinese authorities.

Indeed, 23 years after dissident Fang Lizhi took refuge in the U.S. embassy following the crackdown in Tiananmen Square, Chen’s only option was to take the same last-gasp leap into the arms of American diplomats. Chen’s case reveals weaknesses in China’s legal system, and it should spark a push to build stronger ties between China’s human-rights activists and the broader legal profession.

Chen rose to prominence as a self-educated legal activist after he challenged harsh enforcement of the government’s family-planning policies. His approach reflected a larger trend of rights-based resistance in China that began in that late 1990s; Chen was part of a coterie of lawyers and activists, some well-known and many others not, who wanted to see the government behave according to its own rules.

This activism was interpreted as a sign of an emerging rule-of-law culture in China. But Chen’s career as a legal activist met an abrupt end with a conviction for disturbing public order, and most experts inside and outside of China considered his ensuing confinement to be unlawful.

Chen’s case, like so many others in China, reminds us how incomplete Chinese legal reform has been. Despite the many laws enacted, lawyers trained, courtrooms built, and millions of technical-assistance dollars spent, China’s legal institutions remain weak, especially when the cases brought before them have — or acquire — political implications.

Legal activism in China is not unprecedented. In 1923, more than 100 Chinese judges, prosecutors, and clerks resigned en masse to protest trumped-up corruption charges against the then-finance minister. Their primary concern was the government’s interference in the legal process in its pursuit of the case. “We have labored diligently and carefully. … [to see] that a strong foundation of our judicial system should be laid,” they wrote in their resignation letter. As a result of the government’s threat to the independence of the judiciary, they concluded, “the bone and sinew of the results of our long and hard labors thus become as running water.”

Lawyers argue unpopular positions. They challenge the establishment. Chen has paid a terrible price for living up to the ideals of the profession. At a time when the legal academy and the profession are under attack in the United States, Chen’s case is a reminder of what strong lawyers and legal institutions provide to a society.

Last June, we led a delegation of nine U.S. law school deans to a two-day summit with ten peers from China’s top law schools, which culminated in a joint statement declaring that both sides recognize and support the rule of law, and agree on the importance of promoting the integrity of the legal profession. The Chen case provides another reminder that the integrity of the profession is under pressure.

Activist lawyers in China pursue their cases with little explicit support from the legal academy or the profession. They are not able to speak at law schools, much less teach or recruit students to work for them. Many Chinese lawyers and legal academics wish that the rule of law in China were more robust, and a few of them, such as Jiang Ping, have warned about backsliding. But, in cases like that of Chen, even sympathetic legal colleagues are often afraid to speak out, much less take action.

China’s top law deans and professors now have a chance to turn rhetoric into reality. Law schools should be a place where students and professors can engage with the full range of Chinese law and legal activity. That means studying how Chinese law is developing and being deployed in the protection of rights, and creating opportunities to interact with those who are at the forefront of these movements in all areas of law.

Not long after Chen left the U.S. embassy for Beijing’s Chaoyang hospital, China’s government issued its usual denunciation of U.S. interference in its internal affairs. But China’s leaders should expect nothing else so long as they maintain a system where lawyers face persecution when they advocate for the weakest groups in its society.

Chen had to turn to American diplomats to be his advocates, but it would augur better for China’s future if the country’s legal profession came together to urge the authorities to uphold the rule of law in even the most sensitive cases. That would help to ensure that three decades of legal reform is more bone and sinew than running water.

Michael A. Fitts is dean and Amy Gadsden is associate dean for international affairs at the University of Pennsylvania Law School. © 2012 Project Syndicate