On April 3, the Chinese Communist authorities secretly detained the well-known artist Ai Weiwei. Neither his family nor friends were notified of what happened to him, why he was seized or where he was. Like everyone else, they have now learned from the Xinhua News Agency that he is under investigation for “economic crimes.”
This action against one of China’s most well-known cultural figures recalls the opening shots of the Cultural Revolution, when the Maoist regime removed ideologically inconvenient artists, writers and intellectuals from the scene at will without any pretense to legal procedures.
After the long march toward the rule of law China has been tentatively treading since the end of the Mao era, this return to outright lawlessness is shocking even to a hardened dissident like me. If the authorities can detain a figure of such stature arbitrarily and hold him incommunicado as long as they want with no access to family or legal counsel, then no one in China is safe from the whims and anxieties of those in power.
This episode reveals not only the essence of a system where the individual has no rights, but also the evolution of a new brand of repression: the perverted “rule by law” instead of the “rule of law.” In other words, the application of legal loopholes to violate human rights instead of protect them.
“Residence under surveillance” — where one is detained with no habeas corpus rights — is one of those legal loopholes.
A little background on the evolution of this tool of “rule by law.” In the spring of 1994, the Chinese Communist Party was facing sanctions from the United States. At that time, the Clinton administration was preparing to ease the sanctions by de-linking trade and human rights, which encountered strong resistance in Congress. The opinions of the Chinese dissidents became the key bargaining chip.
President Jiang Zemin sent his police to detain me for negotiations. They even initiated a few conditions to improve human rights and the rule of law in exchange for me not to speak out against the de-linking of trade and human rights. I did not agree at first. But, eventually, the compromise reached was that in exchange for releasing dissidents and also opening freedom of expression and loosening up on some union activities, I would keep silent on the issue of human rights and trade.
This agreement encountered great resistance within the Communist Party factions that opposed Jiang’s initiative. As a result, I was seized again, with a certificate of summons for interrogation. Held incommunicado for two days, I protested with no recourse.
I said: “First, in accordance with the Criminal Procedure Law, a summons for interrogation is just to talk to me. You have violated the law by interrogating me for more than 24 hours. Second, the continued interrogations should not be more than three times, and today is the last time. If you cannot produce a document that meets legal procedures to arrest or detain me, then I am sorry but I must be free to leave.”
Concerned about the impact if I bolted and exposed the deal, they assured me: “Do not worry, we will go get the right document from the Procuratorate now and give it to you tomorrow.”
The following day, I asked: “Is the document here yet? If not, I am ready to go home.”
The old policeman said with hesitation: “Yes, it is here and you cannot go home yet.”
When he handed over that piece of paper, I laughed. It was a certificate of “residence under surveillance.” So I said: “Look, without evidence, you cannot even get a detention warrant from the Procuratorate.”
He replied: “This ‘residence under surveillance’ (which allows continuous detention without charge) writ by the Public Security Bureau also works.”
I said, “This is illegal detention. I will be looking for lawyers to file against you.” We had a quarrel. Then the authorities who had negotiated with me requested to talk to me alone.
I was told that the situation within the party leadership was very complicated. The anti-Jiang faction wanted trouble. If Jiang Zemin did not carry out the already reached agreement, or if there were unexpected protestations from my side, it would cause the breakdown of the deal with President Clinton. They told me that on the outside, the implementation of the agreement was still in effect, and the people I asked to be release were released.
People like Wang Dan were still active, and the authorities had not arrested them despite pressure. So they hoped that I would not resist my detention, be patient, and give some face to Jiang Zemin for the sake of the country.
I weighed the pros and cons, and decided to accept their “residence under surveillance” document — while maintaining my rights of suing them for illegal detention at a later time.
After that, Bill Clinton successfully de-linked trade and human rights.
When the authorities later took me to court, it turned out that even the court would not recognize that my detention had been legal under the Criminal Procedure Law requiring the approvals of the court and Procuratorate to deprive people of their freedom. But, they held, detaining a person without charge under “residence under surveillance” was a legal act.
Since then, depriving people’s personal freedom in the name of “residence under surveillance” became “legal.” It is now routine under this public security tool for the state to deprive personal freedom arbitrarily. The law serves the authoritarian state, not the individual.
The Ai Weiwei case once again reveals the essence of the Chinese state for all the world to see. This is China’s legal system today: the rule by law for the authorities instead of the rule of law for the people.
By Wei Jingsheng, a leader of the Chinese democracy movement who spent 15 years in prison for authoring The Fifth Modernization, which he posted on the Democracy Wall in Beijing. He lives in exile in the United States.