When Will the People in China Gain Habeas Corpus?

In America, Habeas corpus (a Latin phrase means “that you have the body”) “as is even known to women and toddlers” (a Chinese saying or idiom, and it is a typical Chinese discrimination on one’s sex and age). It means nobody can restrict your personal liberty without due process of law. The earliest version of Habeas corpus appeared in British’s Magna Charta (a Latin phrase means “Great Charter”) in 1215. It stated that “No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land.” The idea of due process of law was also from Magna Charta; it is best known as one governed by law, not by man.

Habeas corpus is considered as the most important human right in the Constitution of the United States. It enhances the power of judicial branch, not executive branch in the government. When “you have the body”, your right of “pursuit of happiness” is truly protected, unless your happiness endangers others; when “you have the body”, your right to “freedom of speech” is truly protected, unless your speech endangers others; when “you have the body”, your right to be “against every government on earth” (words from Thomas Jefferson, 1743 – 1826) is truly protected, unless your opposition is not peaceful.

Why did British King John grant such a great right to his people? The fact is, this right was fought out by king’s resentful barons for tax relief. The rebellious barons requested the power weakening king to guarantee their rights, and won. What were the Chinese doing at that period of time? The Chinese Song Dynasty (960 – 1279) was weakening, losing its empire to the northern minorities. First it was threatened by Liao Dynasty (907 – 1125), then lost most of land to Jin Dynasty (1115 – 1234), and finally eliminated by Yuan Dynasty (1271 – 1368). Chinese elites did not act like their counterparts in British, demanding the weakening emperors a grant for their own political rights. Instead they acted like the elites in other Chinese Dynasties and begged the emperors to be merciful on them. Sima Guang (1019 -1086) even wrote his history book Zizhi Tongjian (The Comprehensive Mirror for Aid in Government) to the Emperor, hoping that the ruler would treat people kindly. I read most of the Modern Chinese Edition of Zizhi Tongjian, translated by Bo Yang (1920 – 2008); what impressed me is the Chinese people’s suffering and the rulers’ cruelness in every period of ancient China. Furthermore, Confucius (551 BC – 479 BC) and his disciples had already done the exactly same thing by writing the book, the Spring and Autumn Annals1,500 years previous to that event. However, the emperors kept failing the people. The Chinese people had never successfully and efficiently protected themselves by restraining the rulers’ power at law. That is the reason so many Chinese people never heard of the existence of Habeas corpus in this world. And by contrast, almost every Chinese knows the Confucius’s doctrine, “King is king, vassal is vassal, father is father, and son is son”. What the Chinese elites wanted people to be exactly as the rulers wanted people to be, which is to be absolutely obedient the rulers. They usually did not care much about the cost people had taken as long as the ruler’s Dynasty can be kept. They dreamed one day in China there would be an enlightened ruler with strong army to protect public safety, by then the Chinese would get more freedom; Immanuel Kant (1724 -1804) described the consequence of this scenario: the enlightened ruler would order his people that “Argue as much as you want and about what you want, but obey!” Would this be what the Chinese elites were dreaming about after they advocated preserving king’s divine right by sacrificing man’s divine right? I don’t know when the Chinese elites lost their conscience and how they lost their conscience. My guess is that they might never really have had a conscience. I would be more than happy to offer my apology for my ignorance if there indeed is an elite with conscience. I do believe that there exist some elites may win my respect, but not my apology, for the Chinese people have not gained the Habeas corpus yet.

Although almost another 800 years has passed, China still has not adapted the writ of Habeas corpus seriously. When Professor Fang Lizhi (1936 - ) was exiled by Deng Xiaoping (1904 – 1997) in 1989, did anyone question that the exile of a person should be based on the writ of Habeas corpus and he deserved due process? When Mr. Chen Liangyu (1946 - ), the highest-rank communist officer charged as corrupt, was detained for “investigation in designated time and designated place” (Shuanggui in Chinese) before he had a trial in a court, did anyone question that detaining a person should be based on the writ of Habeas corpus, and he deserved due process? I have no intention of defending Mr. Chen for his conducts. However, I am losing my confidence in China for if a high-ranked officer like Mr. Chen could not get the writ of Habeas corpus, what about the ordinary people?

I do believe that China has lost a golden chance for enacting the writ of Habeas corpus. For many times of suffering the political detention, Deng Xiaoping did not correct such an error of detention without law by Mao Zedong (1893 – 1976). Instead, he repeated the same action of Mao, further jailing or exiling his prominent political enemies without due process of law. Deng should not do that for his own experience sake, but he did. I wonder if he ever heard the writ of Habeas corpus, yet I doubt he would respect the writ even if he knew, since he had once laughed at America’s three branches of government system. He neither understood nor believed in human rights at all.