Many have forgotten Chen and his family’s plight, (although I was pleased to see the New York Times running an update today). But not Professor Martin Flaherty of Fordham University Law School and a visiting professor of international relations at Princeton, who works to keep the case in the public eye. I interviewed Professor Flaherty by e-mail. (The interview has been edited for space.)
Smith: How did lawyer Chen Guangcheng manage to use the law to fight forced abortion in authoritarian China, and how did the government punish him?
Flaherty: Chen is actually not a formally trained lawyer, but rather a self-educated legal activist. (As such he is sometimes called a “barefoot lawyer,” a reference to the Maoist policy of sending non-doctors who still had some training to the countryside to fill the need for medical care.) He was able to achieve the success he did both because he is amazingly sharp and because he sought to work within Chinese law, which leaves a surprising degree of room for legal redress. That said, advocates who become too successful or take on too many sensitive causes often endure harsh retaliation. In Chen’s case, local authorities first placed him under house arrest for about a year; then he was tried, convicted, and sentenced to prison for three years for disturbing traffic; and finally held under illegal house arrest (where he and his wife, Yuan Weijing, were beaten).
Smith: The government has imprisoned his nephew, Chen Kegui, over an altercation with law enforcement officials during a raid of his family home. I take it you think that there are other agendas at work in his prosecution other than the alleged assault.
Flaherty: There is no doubt that the arrest and conviction of Chen Guangcheng’s nephew, Chen Kegui, came about in direct retaliation for Guangcheng’s escape, which could not have been more embarrassing for the authorities back home. It therefore came as no surprise that a group of about twenty local officials appeared at the home of Chen Guangcheng’s uncle in the middle of the night to intimidate the family members left behind. When Chen’s nephew defended his family’s home, he was arrested for assault. Chen Kegui was tried contrary to China’s own procedural rules, swiftly convicted, and sent to prison for three years. Sadly, punishing an activist’s family for the “sins” of the activist is all too common.
Smith: What efforts are being taken diplomatically by the USA and the international community to protect Chen Kegui and other Chinese dissidents?
Flaherty: I should first say that I would not categorize Chen Guangcheng as a dissident, in the sense of someone seeking to transform or overturn the regime, but rather an activist who seeks both to work within and reform the current system. In Chen’s case, U.S. officials in my opinion performed brilliantly; first by negotiating Chen’s freedom as well as making sure he had independent legal advice. I am confident that the U.S. pressed China privately while Chen Kegui’s trial was pending. After Kegui’s conviction, U.S. officials appropriately responded with a strong public condemnation of the trial. More generally, the U.S. has sought to use the combination of private engagement and public pressure depending upon which approach would more likely lead to constructive results.
Smith: How has the legal community acted to defend Chen Kegui?
Flaherty: The response of the legal community has been mixed. Some lawyers, legal academics, and organizations have been extremely active not just on behalf of Chen and his family, but with regard to persecuted and harassed Chinese lawyers generally. The outstanding example has been Professor Jerome Cohen of NYU Law School, who among other things has served as a legal advisor and mentor to Chen Guangcheng and his family. Joining Professor Cohen is a small NGO he helped found consisting of law professors and practitioners called, “The Committee to Support Chinese Lawyers.” Perhaps the most prominent group has been the New York City Bar Association. The City Bar did a mission and published a related report on the rule of law in China, has taken up the cause of specific lawyers, and recently honored Chen Guangcheng with an honorary membership, an award usually reserved for U.S. Presidents and Supreme Court Justices.
Conversely, large segments of the U.S. legal community remain ill-informed about the plight of Chen and other legal advocates or remain publicly indifferent. To date no major law firm has expressed concern over the persecution of their Chinese counterparts, largely out of fear of official and economic repercussions. Law schools, sadly, have tended to lag well behind. To give one example, at the height of a brutal crackdown against lawyers in 2011, the deans of self-proclaimed leading U.S. law schools met with Chinese counterparts in Beijing for a “summit” featuring photo opportunities and banquets. None of the U.S. deans expressed any concern or even awareness about the disappearance, torture, and harassment of prominent Chinese human rights attorneys. That needs to change.
Smith: I have noticed that some environmentalists have defended the one child policy because it has substantially slowed the rate of Chinese population growth. Have you had any reaction from these activists to the cases of Chen Guangcheng and Chen Kegui?
Flaherty: No, I have not heard or sought to contact any environmentalists on this point.
Smith: Our nation is terribly divided between conservatives and liberals, secularists and religionists, etc. It seems to me, though, that defending Chen and other dissidents could be an issue around which heterodox thinkers in the West could find common ground. Do you see any signs that people are willing to forget their other substantial differences?
Flaherty: Absolutely. First of all, American conservatives and liberals in theory already share common ground when it comes to the infringement of fundamental rights such as free speech, religious liberty, torture, extra-judicial killing, genocide and other basic freedoms. The rights that the regime most frequently violates appear along a broad spectrum that includes freedoms that tend to be of special concern to the U.S. liberals and conservatives, including: freedom of speech, freedom of association, reproductive freedom, as well as the right to life. It is no surprise that members of Congress as diverse as Chris Smith (R-NJ) and the late Tom Lantos (D- CA) found common cause in expressing their concern about China’s human rights record.
Smith: What actions would you ask readers to take to the oppression of Chen Guangcheng’s family?
Flaherty: Most importantly, lawyers, businesspeople and academics that do business with China should bring their influence to bear. They should take care that their activities do not contribute to human rights abuses. They should also seek to promote basic values such as the rule of law and fundamental rights. Where appropriate – and in consultation with those experienced in dealing constructively with Chinese officials, they should also raise concerns about specific cases, such as Chen’s, in their dealings.
Smith: Is there anything else readers should know about this situation?
Flaherty: One point to emphasize is that the cases of Chen Guangcheng and his nephew Chen Kegui are merely the tip of a sizeable iceberg. For every Chen Guangcheng, there are numerous lesser-known figures doing similar work and facing similar intimidation. And for every legal advocate that is persecuted, there remain behind that many more ordinary individuals who face repressive policies and actions without the hope of any legal representation or protection.
Chen demonstrates the sheer power of righteous moral conviction, one of the aspects of our species that makes us so exceptional. His courage and indomitability must be supported. Thanks to Professor Flaherty for staying on the case.