China’s hollow constitution

by Frank Ching

In many ways, the Chinese Constitution is a marvelous document. It guarantees Chinese citizens a host of rights, including “freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”

The problem is that these rights exist only in theory, not in practice. The latest human rights report on China released by the U.S. State Department shows just how far removed from reality these rights are for many Chinese citizens.

Last year was supposed to see a marked improvement in human rights, with the unveiling of a National Human Rights Action Plan. The trouble is, by the end of the year, the plan had not yet been implemented.

The human rights report talks about extrajudicial killings, executions without due process, torture and coerced confessions of prisons and the use of forced labor.

What is most depressing is the realization that these things go on even though they are contrary to the constitution and the law that the government is supposed to uphold.

Let us look at how things are supposed to work in theory and how they actually work in practice, beginning with the detention of a suspect.

Under Chinese law, most suspects have the right to seek legal counsel shortly after their initial detention and interrogation but, in reality, as the report says, “police frequently interfered with this right.”

But let’s say you, the suspect, are lucky and get to choose a lawyer. However, it turns out, the lawyer may not be allowed to accept your case. Lawyers are not infrequently warned not to accept sensitive cases on pain of punishment. Well, suppose you get the lawyer of your choice and the case goes to court. The law says that courts exercise judicial power independently. But in reality, we learn, “the judiciary was not independent” and received policy guidance from both the government and the Communist Party.

One example of blatant intervention last year was the trial of Tan Zuoren, who was charged with defaming the party. He had attempted to collect the names of students who died in the May 2008 Sichuan earthquake.

On the day of his trial, “police blocked persons who tried to attend the proceedings.” Someone who traveled from Beijing to Chengdu to testify on Tan’s behalf was beaten by security forces, who “prevented him from leaving his hotel room until the trial had adjourned.”

But, even after conviction, Chinese law continues to protect individuals. Thus, we are told that “the law prohibits the physical abuse of detainees and forbids prison guards from insulting prisoners’ dignity and beating or encouraging others to beat prisoners.” That is the theory.

The reality is quite different. “In January, Lin Guoqiang died suddenly while in custody at the Fuqing Detention Center in Fujian Province,” the report says. “His family claimed that his body was swollen and covered with bruises. At year’s end there was no official investigation into the case.”

In another case, a Uighur, Shohret Tursun, was detained during the July 5 riots. “In September police returned his disfigured body to family members and ordered them to bury him,” says the report. “The family refused to do so without an explanation of his death from the police. On Sept. 20, the police surrounded the family home and forced the family to bury the body without an autopsy.”

The two most egregious cases of the year were those of Liu Xiaobo and Gao Zhisheng. Liu, who drafted a document called Charter 08 calling for human rights and democracy, was sentenced to 11 years in prison. Gao Zhisheng, a human rights lawyer, was picked up by the police in February and has since vanished from the face of the Earth.

Ironically, despite the large number of political cases, the government denies that there are any political prisoners.

A white paper on human rights issued by the government in 2002 maintains that “ideas alone, in the absence of action which violates the criminal law, do not constitute a crime; nobody will be sentenced to punishment merely because he holds dissenting political views.”

That is to say, if you disagree with the Communist Party and do not make it known, you have not committed a crime. Even if you write your thoughts down in your diary, it is not a crime. But if you show your diary to another person or somehow make your thoughts known to other people, that would constitute action and could land you in prison where, of course, your rights will be fully protected. At least in theory.

Frank Ching is a journalist and political commentator.