Written by Eva Pils.

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 travelled;’ 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 (被精神病). 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 Jinping’s party leadership.

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 urbanisation. 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-politicised. 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 Jinping 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, which, inter alia, 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 an 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 Draft Foreign NGO Management Law  followed this trend by treating foreign civil society organisations 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 reorganisation 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, labour 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.

Dr Eva Pils is a Reader in Transnational Law at King’s College London and a senior nonresident research Fellow at the U.S.-Asia Law Institute at New York University. Her research interests lie in the areas of human rights, comparative constitutional law, law and development, legal philosophy and the law in China.  Image credit: CC by Leon Fishman/Flickr.