It will come as a surprise to no one who regularly reads this blog that issues of due process of law are particularly sensitive ones for me. So those of you Readers who know a thing or two about China will be unsurprised to find me critical of Chinese criminal procedure as lacking in even the most fundamental facets of what we would call “due process.”
For starters, let’s ask ourselves what “due process” really is. In my business law class, I define the essential elements of due process as the following:
- The ability to learn what the law is
- Notice of the consequences you face for violation of the law
- Notice of the charges against you
- Unbiased decision-maker
- Ability to present evidence on your own behalf
- Confrontation of evidence and witnesses against you
- Assistance of counsel
- Public trial
- Right to appeal decision for review of procedural errors
I do not include the right a jury in this list because there are certain kinds of decisions that are not necessarily made by a jury (for instance, sentencing) in even the Anglo-American legal tradition.
Compare that to some notable aspects of the Chinese legal system:
- Arbitrary imprisonment for criticism of the government
- Confessions extracted by torture (“Common methods included kicking, beating, electric shocks, suspension by the arms, shackling in painful positions, cigarette burns, and sleep and food deprivation.”)
- Administrative detentions without charge or trial
- Arrest of Tiananmen Square protesters for “hooliganism” (140 of them have been imprisoned without charge since 1989)
- Increases in imposition of death penalty upon implementation of new “appeals” process in 2007
- Harassment of attorneys, up to and including disbarring Chinese lawyers who sought to represent Tibetan activists
- Trials conducted in absentia and without prior notice to the defendant until after the sentence was announced by an appellate court
Regarding the torture, I’ll give one example, reported by Amnesty International:
Ye Guozhu was sentenced to four years’ imprisonment in 2004 for his opposition to forced evictions in Beijing associated with construction for the Olympic games. It emerged during 2006 that Ye had been tortured while in detention. He was reportedly suspended from the ceiling by the arms and beaten repeatedly by police in Dongcheng district detention centre, Beijing, and also reportedly tortured in another prison in the second half of 2005.
The list of things like this is seemingly endless. China is an authoritarian state that ultimately rejects the rule of law in favor of the violent and arbitrary exercise of raw power with no objective other than the preservation of the state’s authority and integrity.
Why do the Chinese put up with it? In part, they don’t have much of a choice — obviously, the government keeps all the weapons in the hands of its own soldiers and police. Remarkably, on June 1, 1989, a large group of young people decided that they had put up with quite enough brutality at the ends of their own government. As we all know, they were crushed with the direct use of overwhelming military force.
But they also are in a culture with a tradition of absolute and unquestioning deference to authority that is older than the Roman Empire. Some conflate the religious and ethical teaching of Confucianism, which Chinese scholars hotly contest (perhaps a little too much?) but nevertheless, the position of respect and the obedience one owes one’s elders in a Confucian moral system are not subject to serious dispute. The traditional title in oral address of a younger person to a government official is “Grandfather.”
Look, I’m all for respecting the laws and traditions of other cultures. But I reserve the right to issue a normative judgment about them when things get really bad. When women can’t testify in a court, that’s beyond the pale. When the law protects a man who performs genital mutilation on his daughter, that’s a cultural tradition worth assaulting. And China’s centuries-old culture of deference to authority figures has been taken to such an extreme that the glove of respect and tradition is so torn and ripped that the iron fist underneath is clearly visible to anyone who cares to look.
