Jerome A. Cohen. Hu Jia, Confucius and "Soft Power". SCMP (South China Morning Post)

April 14, 2010

The application for early release on medical grounds of the imprisoned activist-critic Hu Jia offers China’s leaders a golden opportunity to begin repairing their criminal justice system — the weakest link in their campaign to bolster the country’s “soft power”.

The Chinese government wants the world to admire a “rising China” not only for its phenomenal economic accomplishments and growing military prowess but also for the quality of its civilization. Yet, no matter how many Confucius Institutes the government establishes abroad to teach Chinese language and culture, the People’s Republic will not win international respect for its political and social progress until it ceases locking up political dissidents and treats those currently detained in a more humane manner.

Indeed, Confucius himself taught government officials to show benevolence and forgiveness in governing and administering punishment. Having recently resurrected the sage, China’s Communist Party leaders should follow this advice. Although many imprisoned Chinese writers are ill and lack medical care, the case of Hu Jia, 36-year old winner of Europe’s Sakharov Prize for Freedom of Thought, would be a good place to start.

When they detained him in December 2007, claiming that his peaceful support for environmental reform, AIDS victims and political and civil rights had “incited subversion of state power”, police officials knew that Hu was suffering from cirrhosis of the liver. That diagnosis had been made shortly after his release from the 41-day “disappearance” to which police had subjected him in 2006. During that never formally-acknowledged confinement, police refused to accept from his wife, herself a human rights activist, the medication that Hu, a Hepatitis B victim, required. Consequently his health deteriorated markedly.

Hu’s 2007 detention was a formal criminal procedure, and in April 2008 he was convicted and sentenced to imprisonment for three years and six months. Prison authorities initially permitted him to take medicine for his liver disease, but, when he developed a resistance to that medicine (as is common in such cases), they failed, contrary to China’s human rights treaty obligations, to provide any feasible alternative. Therefore, during the past fifteen months his health rapidly went further down hill.

Finally, on March 30, 2010, legs shackled and hands chained, at Beijing’s central prison hospital he underwent tests to determine whether a growth detected on his liver had become cancerous. On April 7, while he was hospitalized, his wife and lawyer applied again for medical parole on his behalf. A previous application had been rejected last year. On April 12 the prison administration telephoned his family that he had been sent back to prison and that his condition was not cancerous and did not warrant medical parole. But the authorities refused to provide any written test results, leaving doubts about the accuracy and independence of the evaluation.

Apparently, Hu will not be allowed examination by independent Beijing specialists, denying him internationally-required equal treatment with non-prisoners.

Whether or not Hu has cancer, he should be released on medical parole for which he has long been eligible in accordance with Chinese law. While in prison, Hu is entitled to adequate medical treatment and accurate medical records based on international standards.

If Hu is forced to remain in prison, without expert medical treatment and adequate diet and care, until his sentence is completed on June 26, 2011, his incurable liver cirrhosis may leave him permanently disabled, with limited capacity for even blogging. Could this be the Party’s game plan?

The same question has to be asked about the treatment of other imprisoned human rights activists, such as the blind “barefoot lawyer”, Chen Guangcheng, who is nearing the end of his three years and four months sentence. Is the denial of adequate medical attention to the long-term, debilitating diarrhea that he has experienced in confinement designed to disable him from post-prison activism?

China’s political-legal officials have long experimented with a range of methods for repressing “rights lawyers” and dissidents. In many cases, low visibility harassment, including threats, illegal house arrest, loss of employment, repeated brief detentions and beatings, have proved effective. Yet, even after enduring prison or the lengthy administrative confinement of “reeducation through labor”, some activists persist in trying to reform the political and legal systems.

It is unclear, for example, whether a month in police custody followed by a year of restricted freedom on bail will subdue the distinguished scholar-reformer Xu Zhiyong. Even three years in prison have not deterred the admirable but disbarred Shanghai lawyer, Zheng Enchong, who continues to try to break out of his illegal post-prison house arrest. And it is too soon to foresee whether the terrible torture and long-term confinement in humiliating and inhumane conditions that the recently-reappeared former lawyer Gao Zhisheng has suffered will silence him; his spirits, according to those who have seen him, are largely undiminished.

Thus, although Confucius emphasized that excessive harshness breeds grievances, a leadership obsessed with achieving “stability” at all costs might be attracted to the “solution” of physically disabling “obstinate” activists.

Is this too cynical a speculation? I hope so. Surely such cruelty would violate international law and be a long way from the humanitarianism of Confucius and genuine “soft power”.

This article appeared in the South China Morning Post (Hong Kong) on April 14, 2010 under the title, “Sage advice,” and in Chinese in the China Times (Taiwan) on April 15, 2010(简体中文). 

Professor Jerome A.Cohen is co-director of the New York University School of Law’s U.S.-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations.  See also