12/07/2023, 14.24
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Rules passed off as justice is how China undermines the rule of law in China and the world

by Chow Hang-tung *

Lawyer and pro-democracy activist Chow Hang-tung writes a “J’accuse” from her cell in a Hong Kong prison. “It is indisputable that the current international order is heavily dominated by the West, and thus still quite far from the ideal of law-as-values. But the way to improve it is not by giving more voice to the non-western dictators, which could only deepen the silence of the hitherto voiceless.”

Hong Kong (AsiaNews) – The Council of Bars and Law Societies of Europe (CCBE) recently decided to award its 2023 Human Rights Award to Chinese lawyers Chow Hang-tung, Xu Zhiyong and Ding Jiaxi, all of whom are currently in prison, jailed for “their courage, determination and commitment to defending human rights and the rule of law in China.”

Chow Hang-tung has been imprisoned in Hong Kong since 2021 for her involvement in pro-democracy movements; Xu Zhiyong and Ding Jiaxi, founders of the "New Citizens Movement" in Shandong that is openly critical of Xi Jinping, were convicted of "subversion".

Just as the award was announced, Chow Hang-tung managed to get a long acceptance speech out of the prison. A very lucid analysis on the relationship between rules and law, her text is a harsh indictment of the erosion of the idea of justice by China through the courts in Hong Kong and the mainland with serious repercussions for the international community.

We publish below extensive excerpts of her speech.

There is a certain irony in a prisoner of law receiving a prize given by lawyers. Something must have gone very wrong when one who pledged to serve the law receives recognition instead for allegedly breaking the law. So perhaps this is a good opportunity to reflect on the lawyer’s relationship with the law, or more broadly, the rules-based order – whether national or international ones.

A common refrain by politicians across the world these days is the need to uphold a “rules-based international order.” Not rights-based, not values-based, but rules-based.

Perhaps the concept of “rules” is seen to be less political, more neutral, less divisive. Agreeable to both democrats and autocrats alike. But herein lies the catch - autocrats like this formulation too precisely because a rules-based order can serve them just as well.

The Holocaust did not happen because of a lack of rules, but because of rules made by the Nazi. Apartheid was not a natural order, but the result of rules imposed by a white minority. Millions of Uighurs were not interned because of arbitrary reprisal, but because of a systematic policy implemented through a plethora of rules and regulations. And in the city I call home, a national security law unilaterally imposed by Beijing made “criminals” out of many friends of mine, who are scholars, legislators, lawyers, journalists, unionists and activists – namely, law-abiding citizens doing what they have always done, what they consider their duty.

An unjust system also needs rules to function and to perpetuate, just as much as a just system needs them. Indeed, rules can often cloak injustice with a veil of institutional legitimacy, facilitating the implementation of evil at scale through bureaucratic efficiency and indifference.

When the Great Firewall of China becomes a routine fact of life backed up by the authority of laws, few continues to acknowledge it as the gross human rights violation that it is anymore. But surely this massive infrastructure to wall off free information is a daily violation of the rights to information, expression and communication of billions. Further, in producing a trapped audience that amounts to one sixth of the world’s population, it provides a solid base for disinformation and prejudice to take root and spread, which in turn exports pressure to censor and poisons debates well beyond the Chinese border. Yet tech companies – local and foreign alike – are untroubled by their participation in the world’s largest attempt at thought control, since they can always say that they are merely “complying with legal requirements.” Law thus becomes an excuse to calm our conscience, numbing us to the part we play in evil.

In Hong Kong, thousands of protesters are currently incarcerated by a colonial-era law on public order, not by a Beijing-made law. Our police’s favourite weapon for bludgeoning free speech is a long dormant British law, the law on sedition. And last month, a man who took some photos on a hilltop with hand-held slogans was arrested for allegedly breaching regulations protecting the countryside. We also see money laundering laws cited as reason to refuse bank service to NGOs and dissidents, laws on foreign agents abused to strangle and slander rights organisations, and fire and building regulations weaponised to harass shops and groups with pro-democracy sympathy.

The opposite side of the same coin is the increasing impotence of so-called “good” laws, chief among them being human rights laws. Yes, our constitution largely adopts the ICCPR, but that has not stopped the continuing crackdown on civil society. Officials unabashedly proclaim their respect for rights while trampling on them with impunity. Without people committed to – and with the power to – realising them, human rights laws are but decorative frills on the statute book.

Dictators have little qualms in publicly “committing” to the loftiest principles since they are not bound by them. Instead of allowing such commitments to constrain their action, they use those words to constrain how reality can be perceived, such that their “righteousness” can never be shaken. Forced labour in Xinjiang does not exist. Allegations of torture is foreign propaganda. Nothing happened on Tiananmen Square on that fateful day 34 years ago. With the law on the side of the state, contradictory voices and facts are easily suppressed, discredited and eliminated from view. As shown by the fact that I must speak to you from prison, and the fact that most Chinese people would never know why Xu Zhiyong and Ding Jiaxi are imprisoned – or even heard of their names.

Impunity at home transposes to impunity abroad. In a world order built on the concept of sovereign states, a government’s global action is constrained only in so far as effective constraints exist domestically. Thus the Chinese government is not shy of acceding to, or themselves proposing, rules of international engagement that sounds fairly high-minded, because hardly anyone – least of all its own people – can hold it to account.

If the problem is just about empty promises and misused provisions, then the rules-based order is perhaps still salvageable. All we need to do is to call out the rule breakers, and when the opportunity comes, reactivate those neglected provisions. Or can we?

Not if the meaning of the rules has completely changed.

Again the experience of Hong Kong provides a cautionary tale. Much of the worst violations in human rights of the past few years were sanctioned by or enforced through the courts, but not because judges suddenly forget our human rights laws. Rather those laws are reinterpreted in a way that is compatible with gross human rights violation, through a subtle shift in the meaning of words and concepts integral to that discourse.

In a similar vein, the scope of what counts as peaceful protests has been steadily compressed by an ever-looser interpretation of “violence,” which led to lengthy jail terms for thousands of protesters who have not themselves committed any act of violence, but were merely present at, or near to, scene where violence erupted. Thus we find even first aiders and mediators sentenced to years of imprisonment as “rioters,” all while the right to “peaceful” demonstration is expressly honoured.

Thus while on the surface we still speak the same language of rights as adopted from international instruments and precedents, in practice a huge gulf has emerged between our courts’ understanding of rights and international standards. Words and their meaning are ultimately, malleable, and judges are not miraculously insulated from how the wider society perceives words and constructs narratives. Where such conversation is largely free and democratic, we might manage to approach justice; but where such conversation is stunted or captured by partisan interests, or worst, by an overbearing state, legal discourse suffers.

What happened in Hong Kong is not an anomaly but a warning. The Party’s power to redefine words and subvert their meaning does not stop at the Chinese border. And while during the Cold War, where one can identify and counter a distinct communist ideology and phraseology, today’s China is instead speaking the same liberal language of rights, democracy and peace. Crucial differences, of course, still exist, but are camouflaged under a raft of comforting phrases. For those of us who live under the Party’s rule, we know, of course, these familiar terms carry very different meanings in Party-speak. Rights are not about what individuals can assert against the state, but about empowering the state to safeguard the “rights” of the people. Democracy is not about citizens holding leaders accountable through free association, expression and elections, but about leaders “graciously” listening to the voice of the people through controlled channels. And peace is about ensuring submission to the Party’s order through whatever means, not the rejection of war nor hatred.

If what we are after is a just order, we must also work on building a just distribution of power instead of just worshipping rules. Only when power is genuinely shared could laws be the shared expression of a community instead of the will of a few. Only when values hold greater power than force, could laws function as a rational system of principles instead of a litany of brute commands. And only when laws faithfully express a community’s values could they deem the members’ respect and allegiance, instead of evoking only fear and resentment.

Defending the rights of people everywhere is far more than just about helping others, but is at the heart of the battle to define ourselves and the order we have built. Are we truly a community of principles, or are we just as cynical as the dictator next door? Are we sincere about building a world order based on values, or are we happy with whatever kind of order so long as we are on the winning side?

It is indisputable that the current international order is heavily dominated by the West, and thus still quite far from the ideal of law-as-values. But the way to improve it is not by giving more voice to the non-western dictators, which could only deepen the silence of the hitherto voiceless. Rather ordinary people must be empowered to join in the conversation on values through the building of democracy everywhere. Again, a difficult and not uncontroversial task, often decried as “interference” when such efforts and solidarity are extended across borders. Yet if we are to abandon the quest for democracy, we shall have no hope of ever building a just international order based on values.

As lawyers, our trade is needed in any kind of rules-based order, good or bad, just or unjust. Yet the dignity of our profession cannot survive in just any kind of order. Instead, it is bounded up with the dignity of the law, with whether the law reflects our autonomy or denies it. In that sense the building of democratic institutions that alone can safeguard the law’s dignity is also a lawyer’s duty, which is why all three of us receiving this prize today are jailed for working for democracy in China, a fight that may seem unrelated to our profession but is in fact, central to it. It is a fight we cannot waver from, even when knowing that the laws we served would likely condemn us. For sometimes confronting the law-as-it-is is the only way to respect the law-as-it-should-be – and the highest service a lawyer can offer her fellow men.

* Hong Kong lawyer jailed for taking part in pro-democracy movements

Photo: Iris Tong/Wikimedia

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