by Joseph Shieber
More than any other, one article I read last Friday, June 24, brought home to me how difficult it is to maintain respect for the law in the face of injustice.
You’re probably thinking that it was one of the articles reporting on the United States Supreme Court’s having struck down the 50 year old precedent in Roe v Wade, constitutionally guaranteeing to women in the United States the right to exercise control over their own bodies. It wasn’t.
Rather, it was an article in the South China Morning Post announcing the death, on Friday in Beijing, of the lawyer Zhang Sizhi at the age of 94.
Zhang, known as the “conscience of the lawyers” in China, was born in Henan province in 1927. After serving for three years in the Chinese Expeditionary Force, Zhang began studying law in 1947, graduating from the Renmin University of China in 1950. Zhang was only able to handle a few cases in the 1950s before being thrown into a reeducation camp as a “rightist” and intellectual. He spent 15 years in prison.
After his release, Zhang resumed his legal practice and began a career as a defender of the developing Chinese rule of law – and the principle of the freedom to dissent – that spanned over thirty years, from the 1980s to the 2010s.
Zhang first achieved notoriety when he was asked by PRC leadership to lead the defense team in the 1980 trials of the “Gang of Four”, including Chairman Mao’s third wife, Jiang Qing. The PRC used the trials of the Gang of Four as a way to acknowledge the devastating and repressive policies implemented during the Cultural Revolution, while at the same time obscuring Mao’s own role in ordering those policies.
(I remember my introduction, at the age of 10, to the Gang of Four – courtesy of Gary Trudeau and Doonesbury, for example, here.)
Zhang did not represent Jiang herself, since she rejected the authorities’ appointed defense lawyers. Rather, Zhang represented a number of the other members of the so-called “counter-revolutionary clique” affiliated with the Gang of Four.
In her article on Zhang for the South China Morning Post, Josephine Ma briefly sketched many of the other notable trials in which Zhang mounted a spirited defense:
In the decades following the landmark trials, Zhang represented defendants in many sensitive cases that no other mainland lawyers dared to touch, including famous dissident Wei Jingsheng; Wang Juntao, accused of being one of the “black hands” behind the 1989 Tiananmen student protests; and Bao Tong, secretary to reform-minded former party chief Zhao Ziyang.
… He was remembered by mainland media for representing defendants in other controversial cases, such as Zhuang Xueyi, a forestry bureau chief in northeast China held responsible for a massive forest fire in 1987; and Shanghai land rights lawyer Zheng Enchong, who was charged with obtaining state secrets.
Zhang was also remembered for helping the relatives of Nie Shubin, a 20-year-old man executed in 1995 for raping and killing a woman, launch an appeal in 2007. Twenty one years after his execution, a court ruled that Nie had been innocent.
In 2008, Zhang received the Petra Kelly Prize awarded by the Heinrich Böll Stiftung. The Prize announcement, presented in Berlin by Brigitte Zypries, the German Justice Minister at the time, praised
Zhang Sizhi’s outstanding engagement for the preservation of human rights and the development of the rule of law and the legal profession in China. As a defense attorney he has committed himself for decades to ensuring that every accused in China receives a trial according to the rule of law. Zhang Sizhi’s appeals demonstrate that in many cases in trials against Chinese dissidents injustice is committed under the cover of law. His life’s journey reflects the paradoxical development of the People’s Republic of China. He has influenced the difficult journey of China in the direction of the rule of law, continuing until the present, as few others have.
Why, then, reading about Zhang’s inspiring and heroic life in service of the rule of law, would I reflect on how difficult it is to retain respect for the law in the face of injustice?
Frankly, it’s because, for all Zhang’s heroism, Zhang’s career is a record of noble defeats, as the case of the wrongly executed Nie Shubin illustrates.
Even worse, Zhang’s career and prominence as a champion of human rights might simply have been a way for the authorities to forestall any meaningful institution of human rights or the rule of law by feigning a commitment to such ideals. For example, in her article Ma notes that, even with respect to the Gang of Four Trials that cemented Zhang’s reputation,
[i]n his memoir and interviews years later, Zhang said although he was appointed by the authorities, his team of lawyers was told that the authorities had already decided the defendants were “counter-revolutionaries” and all the litigation had to be conducted within that scope. He was also told not to mention Mao in the courtroom.
Relatedly, in a report on a 2004 interview commissioned by the Congressional-Executive Commission on China, Zhang is described as having
… expressed frustration with the futility of working to present compelling arguments in court but having no impact on the final judgments, decided in advance by the authorities. In such cases, he said, “the lawyers perform a defense in name only. It is like a play, in which they simply accompany their clients across the stage. This constitutes a fraudulent deprivation of the right to legal defense.”
Given such a situation, I couldn’t help wondering whether Zhang’s career will ultimately be seen as a stepping stone on the way to a more just People’s Republic of China, one with respect for human rights and the rule of law, or as a tool of a repressive ruling power, one that profits from the appearance of a genuine defense under a system of laws, without guaranteeing genuine rights to its citizens.
The tragedy of Zhang’s situation is that the final determination of the meaning of his life’s work is not up to him. Only the future development of the rule of law in China will allow us to determine whether Zhang was a pathbreaking harbinger of ever greater respect for human rights and the law or an unwitting puppet serving to cloak a regime’s underlying lawlessness with the appearance of law.
What is ultimately so dispiriting about the recent United States Supreme Court decisions is not that they reveal the Supreme Court as a deeply regressive – if not repressive – institution. We should have already known that to be the case.
Here’s what is so dispiriting. The period from roughly the 1950s to 1970 genuinely seemed to be a time in which the Court finally recognized its role as a guarantor of respect for human rights and the rule of law. Even the post-1970 period seemed to be one that human rights supporters, eager to see the Court as an ally, could see as one in which defeats (e.g., Shelby County v Holder) could be weighed against sometimes unexpected triumphs (e.g., Obergefell v Hodges).
What is so dispiriting is that it is becoming increasingly clear that the post-1970 victories, like Obergefell, were just window-dressing as a way of maintaining legitimacy for the Court as it paved the way – through cases like Bush v Gore and Shelby County – to lock in permanent Republican control over the levers of power so that there will be no longer be a need even to cloak the Court’s repressive agenda through occasional victories in human rights cases.
What is so dispiriting is that the heyday of the 1950s through 1970, in which the Court turned increasingly toward a commitment to human rights and the rule of law for all, increasingly seems not like a harbinger of a more enlightened — and less regressive — Court, but as a mirage. The current Court is poised quite literally to erase any remnant of that earlier Court’s achievements.
Reading about Zhang’s life, I admit that I couldn’t help thinking that the pessimistic interpretation – that his heroism in the service of the rule of law in China will ultimately prove futile – might regrettably be the correct one. Living through the past week in the United States, I can’t resist similar pessimism about developments closer to home.
(Header image taken from Zhao Tingyang, “Can this ancient Chinese philosophy save us from global chaos?”)