Life under Xi Jinping has seen disappearances, televised confessions, and stepped-up surveillance. Is this the 'new normal'?
- By Eva PilsEva Pils is a Reader in Transnational Law at the Dickson Poon School of Law, King’s College London, a Non-resident Research Fellow at the U.S.-Asia Law Institute at the New York University School of Law, and author of China's human rights lawyers: advocacy and resistance (Routledge, 2014)., Isabel HiltonIsabel Hilton is a London-based journalist and broadcaster. , Taisu ZhangTaisu Zhang is an Associate Professor at Yale Law School.
In the three-plus years since Xi Jinping assumed leadership of China, observers and scholars of the country have increasingly coalesced around the idea that his term in office has coincided with a shift in the tone, if not the practice, of Chinese politics. Earlier this week, legal scholar Eva Pils, writing for the University of Nottingham, cited televised confessions, abductions, new legislation on national security, changes to criminal procedure, and surveillance of civil society organizations among other developments in the political sphere that to her constitute “the rise of rule by fear.” In an essay last week, political scientist Minxin Pei, used the phrase “rule of fear” to describe a similar list of recent events, including disappearances of business leaders and booksellers and anxiety among government bureaucrats, in his assessment that China is engaged in a “revival of totalitarian scare tactics.” China, Pei wrote, “is once again gripped by fear in a way it has not been since the era of Mao Zedong,” who ruled China with an iron grip from the 1949 founding the People’s Republic until his death in 1976. How apt is this characterization? What does it mean for the prospects of political and economic reform in China? And how, if at all, should it change U.S. policy?
— The ChinaFile Editors
Eva Pils, author of China’s Human Rights Lawyers: Advocacy and Resistance:
In the course of my research on Chinese human rights lawyers over the past several years, I got to hear a lot about the techniques the government allegedly uses to control them. I came to refer to them as “fear techniques.” They included tracking and following; soft detention; “being traveled”; being asked in for “chats”; criminal, administrative, and judicial detention; violent attacks; forced disappearance; torture and — in one or two particularly disturbing instances — brief spells of medically unmotivated, forced psychiatric detention. Some of these techniques made some reference to legal rules, but in their actual use of these rules against human rights lawyers, the authorities invariably, and quite often egregiously, broke the law.
Those forcibly “disappeared,” for example, were, in addition to being locked up, reportedly pressured to “confess” and “repent.” They usually also had to promise — in writing as well as in front of a camera recording their statements — that they would stop their work as human rights defenders: stop taking on certain kinds of cases, stop meeting each other, and so on. It did not matter that there were no crimes to confess to and that promises made under duress were not binding. As one lawyer commented in 2011, “Not only did they want to make you say that black was white, you also had to explain why black was white.” The point, he thought, was to show who was master and show that no law — not even that of elementary logic — constrained the power he had tried to resist. The authorities using these fear techniques were intent on stopping the lawyers’ efforts to represent their clients and to challenge power abuses, while dreaming of (if not actually building) a better system.
As the language of reform — according to a dictionary definition, “improvement or amendment of what is wrong, corrupt, unsatisfactory” — which was so long considered axiomatic for discussions of the Chinese legal system, is now being questioned more widely, I would suggest that rule by fear should be considered as a centrally important element of the “new normal” under Xi’s Communist Party leadership.
Late leader Deng Xiaoping’s post-Mao “Reform and Opening” was driven by certain liberal ideas, including the belief that well-enforced laws protecting economic and other liberties were necessary to promote economic growth. The reality was of course more complex. For one thing, some rises in prosperity seemed unhampered by the lack of rights protection and rampant corruption. An example of this is the way land was redistributed during the process of urbanization. The methods for achieving redistribution often violate the basic rights of those being evicted, but the process is quick and effective. Another aspect of this complexity is that, especially after the repression of the 1989 Democracy Spring movement, the idea of reform was de-politicized. It shifted toward hoping for top-down “rule of law reform” and incremental growth of “civil society.” As a result, observers in and outside China were led to regard certain challenges to the government as too radical. The repression of such efforts, conversely, was dismissed as merely incidental, hence systemically insignificant departures from the (unquestioned) reform path.
In the Xi era, some changes that had been under way for some time have become more pronounced. As early as in 2013, there was an anti-liberal shift of rhetoric and attitude, for example in Document Number Nine, a leaked internal Party document which among other things dismisses the very idea of universal values. Then in 2014, there was the ominous announcement that “Party Leadership and Socialist Rule of Law are identical.” It heralded legislative changes marking a further anti-liberal re-conception of the legal process. The National Security Law framed the struggle for security as one against foreign and domestic enemies, including perceived “enemy forces” within wider Chinese society as well as those considered disloyal within the Party. The Draft Foreign NGO Management Law followed this trend by treating foreign civil society organizations as, in principle, suspect and potentially subversive.
These changes have allowed rule by fear techniques to play a more and more prominent role, and to be applied in a more and more open manner. The reorganization of the criminal process offers good insights into how rule by fear was developed and how it ties in with a general anti-liberal re-conception of law under Xi. For example, revised Criminal Procedure Law rules on “surveillance in a designated place,” effective since 2013, suspend most protections a suspect ought to have in the ordinary criminal process. Framed as rules applying to cases of suspected state security offences, they create a zone of exception from legality that is ostensibly based on legal rules. They also provide perfect opportunities for torture and terror — of which the recent attacks on human rights and public interest lawyers, journalists, labor activists, women’s rights activists, and so on have made use. In other words, whereas in 2011, the authorities made people disappear stealthily and generally without admitting that this was happening, forced disappearances have now effectively become part of the system, and the authorities carry them out “in accordance with law.”
We could see the results, as one after another distraught individual was wheeled out on national television to “confess” to wrongdoing, express repentance, and (in some cases) humbly ask to be given another chance, shortly after being disappeared. The Party-state seems intent on advertising its repression. As was quickly observed, these confessions made very little sense, but then again that was the point. Precisely because they made no sense and offended basic principles of criminal justice such as the presumption of innocence, recorded “confessions” were effective in projecting unlimited, in principle arbitrary, and all the more fearful state power.
In televising and advertising its repression, the Party-state clearly seeks to amplify these fear effects. By detaining foreigners in China and allegedly orchestrating cross-border abductions of Chinese and foreign nationals, as well as submitting the victims of these abductions to the same kinds of measures, it has taken its visual repression even further. It is not only transmitting images across its borders, but also signalling to the world that foreigners may become targets. It is thus exporting rule by fear techniques and making them a transnational phenomenon.
If there are reasons to remain optimistic about China’s trajectory of political-legal change, I think it is in considering the causes of the recent anti-liberal turn. They are likely to be the result of many perceived threats, including, it appears, threats of disloyalty and disobedience from within the Party. But at least in part, they reflect the rise of an increasingly vocal and independent civil society contending for political power. As the post-Mao liberal reform process is being closed down, this might be regarded as “Reform and Opening’s” unintended long-term consequence.
(This post was originally published by the University of Nottingham.)
Taisu Zhang, Associate Professor, Duke University School of Law:
I wonder if it is really that useful to speak generally about “fear” or “terror” in China, when the government’s policies have, up to now, been concentrated on some fairly specific groups, arguably none of which an average college-educated Chinese readily identifies with. First and foremost, the anti-corruption campaign against officials does not belong in the same category as the prosecution of rights lawyers, or increased pressures on NGOs. It targets government agents and, in the vast majority of circumstances, actually targets them for activities that the general public would readily recognize as corruption, not free speech or advocacy. Political motivations likely play a much larger role in the investigation and prosecution of more senior officials, but even there, very few, if any, are targeted due to their ideas or beliefs. The same logic applies to Chinese business leaders who have been swept up in corruption investigations: For the most part, the Party-state is targeting these people for their political ties and activities. As a general matter, there is little indication that the anti-corruption campaign per se has had a significant chilling effect on Chinese political discourse. An expansion of government oversight should not automatically trigger knee-jerk accusations of “spreading fear” among the general population.
The clamping down of certain kinds of rights advocacy and NGO activity is a different animal altogether, but one could still question whether it has really “spread fear” among the general intellectual population — or whether it even has the capacity to do so. Human rights lawyers and advocates are, in general, somewhat peripheral players in Chinese society and politics, as are foreign NGOs. One could argue, of course, that this is a lamentable state of affairs, one that is the product of decades of state pressure and conscious marginalization by a conservative and perhaps ideologically apathetic sociopolitical elite (I would not support these assessments wholeheartedly, but they are common) but that does not change that fact that, for example, relatively few legal professionals or scholars can relate to punished rights lawyers like Pu Zhiqiang, Teng Biao, or even Xu Zhiyong. As for the Hong Kong booksellers, I would bet quite a bit of money that the vast majority of the Chinese online population was completely unaware of their recent plight.
This is not to deny that a sizable number of lawyers and scholars do indeed feel threatened by recent government activity, but merely to wonder whether a much larger number simply feel no connection to these events. Quite the opposite, they continue to pursue their own careers, argue about sociopolitical issues—including the economy, democracy, and social values, but in less radical terms—and complain about government policies from time to time. Occasionally, they might openly mock certain government activities (the recent televised Spring Festival Gala, for example), and they might see their posts deleted, but they will generally move on without much fear or concern, because things have always been like this, and the people who run into trouble belong, for now at least, to fairly distant social circles. Perhaps because government censorship has been fairly effective, perhaps because of the Great Firewall, or perhaps because China’s educated population is considerably more nationalist than the outside world seems to realize, the things that have recently sent many Western observers into a state of alarm likely do not affect their lives. This can easily change, but maybe we should wait until it actually does to declare that China is “once again gripped by fear.”
Isabel Hilton, London-based international journalist and broadcaster:
Fear is part of the arsenal of every state. The difference is in how, and against whom, it is deployed, and how many citizens of a given state have reason to be fearful. In China, in the explicitly totalitarian early 1970s, fear was built in to everyday life. Foreigners had little reason to be fearful for themselves by then, but fear was so generalized in those closing years of the Cultural Revolution and so severe were penalties for unsanctioned connections with the outside world — be it through art, books, music, ideas, or personal ties — that an unexpected, unscheduled encounter with a foreigner could spark visible panic.
The coercive state was evident in the routine enforcement of ideological conformity in the classroom, in the workplace, and in the surveillance also built in to everyday life. It was also displayed in the street cabinets containing fuzzy black and white mug shots of executed citizens, red crosses crudely drawn across the faces. The prisons and labor camps were out of sight.
China still executes and imprisons more than many states. But everyday fear faded with the end of that era of all-pervasive, if inconsistent, ideology and new generations have grown up with little understanding of what their elders went through. Fear retreated from the general population to lodge in much smaller and more closely defined pockets of society. Even in the traumatic days following June 4, 1989, back in China again after an absence of some years, the routine levels of fear seemed lower to me than fifteen years before. Emotions were more complex: part shock, part disbelief, part anger, symptoms of rising expectations of great liberty that had been crushed but not eliminated.
The boom brought the confidence of growing affluence, expanding personal freedom, and the expectation the state would leave room for compliant citizens to live a life untroubled by coercion or arbitrary misuse of power. That was especially true if ambitions were confined to the material, but it also applied to those whom Eva Pils describes as reformers, those who worked to improve the system, not to overthrow it — especially those who believed that an evolving body of law could be the foundation of a new contract with the state. As the coercive state had retreated, the hope was that it would evolve into a system in which rules were codified, dependable, and relatively equitable.
The fear never quite vanished, for many who had lived through harder times, men like one eminent academic who, in a confessional moment, admitted to a stab of terror if a car pulled up beside him as he walked along the sidewalk. But there was still a choice to be made — between the Legalist and the Confucian view, between retaining the citizens loyalty through fear or through moral example, and for a period the state appeared to be moving towards the Confucian model.
For now, fear appears to be back in favor, as Pils and Pei describe. It is the instrument of a Party-state that itself appears increasingly fearful, jumping at faint shadows, crushing butterflies with a sledgehammer. China is in a difficult economic transition and success is not guaranteed. The silence and passivity that a return to fear has produced are unlikely to help.
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