by Jim Geheran
Recently, the Congressional Executive Commission on China held a roundtable discussion of the challenges faced by lawyers defending human rights cases in China. The panelists, including distinguished New York University Law Professor Jerome Cohen and religious freedom advocate, Mr. Bob Fu, detailed, the Orwellian “Catch 22” faced by human rights lawyers in China: you can get licensed to practice law, but if you practice human rights law, you have a good probability of being disbarred or even sent to jail. Professor Cohen characterized this legal situation in China as “Lawlessness without lawyers.”
The round table panelists surfaced so many illustrations of government harassment of human rights lawyers, ranging from forfeiture of license to imprisonment, one can only conclude that these actions indicate a deliberate strategy by the government to subvert rather than promote the rule of law.
The recent arrest of Liu Xiaobo, the highly respected Chinese intellectual, is a case study of how the Chinese government replaces the rule of law with rule by fear as a strategy for maintaining its monopoly on power.
Most observers associate Mr. Liu’s arrest with his involvement in the drafting and distribution of Charter 08, a manifesto calling for political reforms in China. This assumption is exactly what the CCP wants its citizens to make. The problem for the Chinese government is that there is nothing in Charter 08 that violates any Chinese law. While it perceives the widespread endorsement of Charter 08 as a serious threat to its legitimacy, it is, therefore, reluctant to build its case against Mr. Liu around Charter 08.
Instead, the actual charge of “inciting subversion”, as reported by the state run Xinhua news agency, makes no mention of Charter 08, and is decidedly vague. The vagueness of the charges serves two purposes: 1) to give the CCP the flexibility to put Mr. Liu in jail for a long time while hiding behind a sham of judicial process. 2) to send a chilling message to the Chinese people that they can be arrested and jailed at will for crossing a deliberately ambiguous line between innocuous talk and subversive activity. The fear, combined with deliberate ambiguity, generates a climate of aggressive self-censorship among the Chinese people. Over time, this fear-driven self-censorship precludes all but the bravest citizens from questioning the actions of the government. This strategy of control through self-censorship is well articulated and documented by the scholar Perry Link in his article The Anaconda in the Chandelier. In his article, Mr. Link states that, “the highest priority of the top leadership of the Communist Party remains, as in the past, not economic development, or a just society, or China’s international standing, or any other goal for the nation as a whole, but its own grip on power. Thus it continues to ban any public expression of opposition to itself and continues to crush any organization that it does not control or could not easily control if it needed to.”
The rule by fear strategy seals Mr. Liu’s fate. Calls for his release will go unheeded. His jail sentence will send another chilling message to the Chinese people to be extra careful not to step over that ambiguous line. The fear will continue to ferment and fuel protests and riots, such as the one in Xinjiang region. Ironically, this strategy fosters the very instability that the CCP claims its authoritarian rule prevents. The victims of this modus operandi are not just the accused and the vilified, but all of Chinese society.
Given the above, calling for Liu’s release may not be the best strategy for obtaining his freedom or for advancing the rule of law in China. An approach which calls for an open and fair trial for Liu Xiaobo might be considered. Call on the Chinese government to televise the trial and to broadcast it over the Internet. Let justice be served in the light of day. If Mr. Liu’s offenses are so great, let the people see the evidence. Let the Chinese government show the world how justice is served in the PRC. Such a demand will likely not be met. However, it will put the Chinese government on the defensive and highlight the absence of the rule of law in China and the reality that the arrest of Liu Xiaobo is not about protecting the state but rather perpetuating the fear that enables the CCP to rule without law and without regard for the rights of its citizens.
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