Proper Procedures
By Shakhar Rahav
The application of justice, or rather its perceived absence, in the People’s Republic of China in the past month has been the subject of much commentary in the popular media, as several high-profile cases surfaced. The two most prominent cases concerned a British drug smuggler and a Chinese dissident. On December 29th Akmal Shaikh – a British citizen convicted of smuggling roughly 4kg of heroin into Xinjiang– was executed. Literary critic and well-known dissident Liu Xiaobo was convicted of incitement to subvert state power and sentenced to 11 years in prison. Drawing less attention was a case of an academic, Professor Feng Chongyi, who sued Chinese customs for confiscating books he had in his possession upon his reentry to China after a visit to Hong Kong (detailed accounts and critiques can be found at Danwei and China Daily, December 24, 2009).
Judging by the various press reports about the cases, Liu Xiaobo’s case – following his role in the composition and circulation of “Charter 08” – appears to be the only one that was overtly political; the charter explicitly challenged the existing political system and the political system responded swiftly and harshly. But the other two cases did not challenge the system as such. Shaikh’s actions would be illegal in most countries. Feng’s books might arguably challenge the party-state’s authority, but only indirectly. What then comes to the fore as the subject is the aspect of procedure (see, for example, Jerome Cohen’s “Arbitrary Justice” South China Morning Post article from December 23, 2009), leading both critics and supporters of the Chinese government’s actions to debate the legality of the cases and whether procedure has been properly followed. Yet why has procedure, rather than justice, emerged as the focus of debate?
If we accept that the Chinese government defines political justice in terms different than those of Western democracies (where the term “democratic dictatorship” – which appears in the conviction of Liu Xiaobo – seems an oxymoron) then there is no real ground for debate. After all, conceptions of justice have to do with fundamental values and assumptions, and it seems that there is clear disagreement about these between Western human-rights activists and the Chinese government. If that’s the case, then arguing over issues of justice is futile; and, as so many commentators have done in the past weeks, critics have instead focused on issues of procedure.
Procedure is easier to deal with – it is clearly defined and it is easier and safer to allege that the state deviated from the procedures it has itself defined. Most importantly, focusing on procedure avoids the big questions of values. So even if the state concedes that it deviated from procedure, this will still not disqualify its larger objectives.
Now, justice is of course something quite different from procedure. In a democracy we are devoted to procedure, and it is often on these grounds that criticisms are raised against the Chinese party-state focus on procedure. Why? The premise is that while in a democratic system we might not be able to agree on what is just (Should drugs be legalized? Should drug dealers be jailed or executed?), we can conceivably agree on the legal, political, or bureaucratic procedures that will get us to a decision point.
Laws and procedures form a convenient focus for debate because they allow dissidents and critics to point out the disparity between the state’s own image of itself (e.g. a law-abiding, just, embodiment of a nation) and reality and use that gap to put pressure on the state without actually challenging the state’s right to rule. Both sides can thus avoid a “showdown” situation.
The post-Mao reforms entailed adopting, formalizing, and publicizing procedures, which gives citizens recourse to the law. This often meant trying to hold the state true to its stated procedures. The adoption of procedures does impose some restrictions on authority and office-holders, but the outcome of procedures remains subject to manipulation. This becomes clear if, for instance, we try to think when – despite cases in which citizens, such as professor Feng, try to use the law and occasionally even sue government organs – did we last hear of a stinging rebuke of the Chinese state from one of its courts?
One way for the state to defend itself from excessively critical citizens who object to certain policies is to reinforce nationalism and the image of the party-state as loyal representative of the nation. Nationalist feelings have been promoted by the state for several years – witness, for example, the finely orchestrated ecstatic celebrations of the 60th anniversary of the PRC, or the national sentiments invested in hosting the Olympics. This gives the party-state legitimacy to manipulate outcomes of procedure in its favor. Thus, even if Mr. Shaikh was not treated exactly properly, this is dwarfed by the foreign attempt to intervene in Chinese sovereignty, as some Chinese responses have alleged.
State legitimacy will be threatened only if a large number of Chinese see their individual welfare threatened. The market reforms that fragment society into niches make this unlikely – since for every citizen who feels hurt by certain reforms, another citizen profits from them. Thus, even if critics successfully argue that the state failed to live up to its own procedures and did not grant Akmal Shaikh a fair trial, or that customs officials were over-zealous in confiscating Professor Feng’s books, the public will remain indifferent. After all, who cares about a British (shades of the Opium War!) drug-smuggler? Who but a handful of academics cares about confiscating scholarly books?
Allegations against the state for failing to live up to its perceived image can emerge local and small-scale protests (from the riots two years ago in Weng’an to the protests after the Sichuan earthquake over shoddy school construction). And in these cases procedure is pursued as if it was supposed to provide justice, its absence leading to state failings.
Yet some cases can even lead to support for illegal actions. For instance, AP reports that a young man in northern China has been sentenced to death for murdering a hated and allegedly corrupt local village official, yet that 20,000 local residents have petitioned the court for a more lenient sentence (Gillian Wong, “China teen seen as hero for killing local official” Washington Post, January 20, 2010). It seems then that when perceptions of justice are unequivocally clear, procedure may once again be marginalized in favor of justice.
Shakhar Rahav is an assistant professor at the Department of Asian Studies at the University of Haifa.