Ai Weiwei and his legal team have, since 2011, fought allegations, arrests and fines for tax evasion case widely regarded as "political retaliation" by the Chinese goverment.
Show Hide image

The Ai Weiwei papers

On 27 September, the Chinese courts rejected Ai’s second appeal against a £1.5m fine for tax evasion. Here, his legal team sets out the facts of a case riddled with corruption and secrecy.

An Introduction
Jerome A Cohen

The New Statesman is rendering a great public service in making available an English-language account of the Chinese government’s use of its tax laws to persecute the innovative and courageous Chinese artist and activist Ai Weiwei. Having been pressured by world opinion to release Ai from the harsh and blatantly illegal confinement to which its police had subjected him for almost three months, the Chinese government decided to crush him by resorting to economic measures whose illegality would presumably be less apparent both to its own citizens and to the outside world.

Fortunately, thanks to the presentation that follows this introduction, the unfairness and abuses that have marked this tax case have been unmasked. As Ai’s lawyers make clear, at both the administrative and the judicial levels the proceedings against him have been a farce. Much of the evidence apparently used against Ai was unlawfully collected and retained by the police and the tax authorities. Administrative hearings that purported to determine his alleged tax liability were truncated and plainly in violation of international standards of due process of law, and the subsequent judicial reviews were no better.

I personally am saddened at this spectacle for reasons that transcend our friendship and my admiration for Ai. It is nauseating to witness the damage that the Chinese government has chosen to inflict on its reputation through the misuse of its criminal justice and tax systems. As an international lawyer and a law professor seeking to assist in China’s economic development, I spent over 20 years co-operating with Chinese officials who were seeking to develop a legal  system that would earn the confidence of its own people and of the foreign business community. Beginning in 1979, for several years I enjoyed especially close relations with the National Taxation Bureau, which, during the early period of the Deng Xiaoping reform era, led the way for other government agencies in establishing impressive regulations and procedures for carrying out its responsibilities and for developing a legal process worthy of respect.

The handling of the Ai Weiwei case has been totally inconsistent with that earlier accomplishment. Neither the Chinese nor the foreign communities can afford to ignore the scandalous mistreatment of Ai. If he can become the victim of criminal and commercial injustice, no one in China or who deals with China can feel safe.

Jerome Cohen is a professor of law at New York University and an expert in Chinese law

The Fake Cultural Development Ltd tax case

1. Process summary

On 3 April 2011 in the morning, Ai Weiwei was taken away by police at passport control at Beijing Capital International Airport.

On 3 April 2011 at midday, Beijing Public Security searched Ai Weiwei’s residence for almost 12 hours. They confiscated 127 items, including computers and CDs. Ten people were taken to the police station for questioning until the early morning.

On 3 April 2011 at midday, Ai Weiwei’s assistant Wen Tao was kidnapped by four plainclothes police officers and went missing. He was illegally detained at a secret location and not released by public security until 24 June. Before this, his family was unaware of his location and received no official notification.

On 6 April 2011 in the evening, Beijing Municipal Public Security went to Beijing Huxin Ltd, the bookkeepers of Fake Ltd. They searched company information, including bookkeeping records and financial statements, dating from its establishment. Xinhua News Agency then published an English bulletin: “Ai Weiwei is suspected of economic crimes and is now being investigated according to the law.”

On 7 April 2011, Beijing Public Security brought the company accountant, Hu Mingfen, who was visiting family in Lanzhou, back to Beijing. After being put in a detention centre for one month, she was transferred to a secret location and detained illegally until she was “granted bail” on 13 June. Her family received no official notification.

On 8 April 2011, the Second Tax Inspection Bureau and Beijing Public Security searched and confiscated all of Fake’s financial and accounting information, contracts and seals from 2005 to 2010.

On 9 April 2011, the Fake shareholder and manager Liu Zhenggang was kidnapped by four men in plain clothes. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 11 June. His family was unaware of his location and received no official notification.

On 10 April 2011, the driver Zhang Jinsong was taken away. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 23 June. During this time, his family was unaware of his location and received no official notification.

On 12 April, Beijing Local Taxation Bureau Second Tax Inspection Bureau questioned Fake’s legal representative, Lu Qing, for the first time. On 20 May 2011, Xinhua News Agency published a bulletin stating: “Public Security has investigated the alleged Ai Weiwei economic crimes case. The preliminary finding is that Beijing Fake Cultural Development Ltd, under the actual control of Ai Weiwei, has committed offences including evading a large tax payment and deliberately destroying accounting records.”

On 22 June 2011, after 81 days in detention, Ai Weiwei was released “on bail” and returned home. His family members received no official notification. They could not get information about his suspected crime, what forceful measures were used and where he had been detained.

On 14 July 2011, the Bejing Local Taxation Bureau Second Tax Inspection Bureau held a closed hearing.

On 1 November 2011, the Beijing Local Taxation Bureau Second Tax Inspection Bureau decided that Fake had committed tax evasion and was required to pay 5,263,756.61 yuan in back taxes, a 3,190,331.52 yuan late-payment penalty and a 6,766,822.37 yuan fine. The three payments totalled 15,220,910.50 yuan (£1.5m).  n 29 December 2011, Fake asked for an administrative review at the Beijing Local Taxation Bureau. On 29 March 2012, the Beijing Local Taxation Bureau turned down the request for a review.

On 13 April 2012, Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chaoyang District People’s Court. The trial opened on 20 June 2012. On 20 July, the court rejected the entire Fake case.

On 3 August 2012, Fake lodged an appeal at Beijing Second Intermediate People’s Court. On 27 September 2012, in the company’s second and final appeal, the intermediate court upheld the original decision.

2. Points of controversy in the tax case

The Fake tax case contains grave problems and controversy in terms of both procedure and facts.

1. Points of controversy in the procedure

Procedure is essential in implementing justice.

Although Fake repeatedly raised serious procedural issues, the tax authorities and courts gave
no response. The main problems at each stage of the procedure are as follows:

1.1. Beijing Municipal Public Security Bureau
1.1.1. Public security exceeded its authority in the Fake tax case.

According to the Criminal Law Amendment (7) and the regulations on the administrative pre-procedure related to “Provisions (II) of the Supreme People’s Procuratorate and the Ministry of Public Security on the Standards for Establishing Criminal Cases under the Juris - diction of the Public Security Organs for In - vestigation and Prosecution”, only after the offending party has declined to implement tax administration penalties and after the tax organs have transferred the case to public security organs can public security organs establish a criminal case against the responsible parties. The Second Tax Inspection Bureau made its decision against Fake only on 1 November 2011. It is clear that in April 2011 public security detained five people in secret, including Ai Weiwei, on the grounds of “tax evasion”. They searched and confiscated Fake financial information, which was exceeding their authority and handling the case illegally.

In the Fake tax case, the tax organs were completely reliant on the Public Security Bureau for their evidence, and the police were pushed to the legislative foreground, which strengthened the contradiction and artificially produced   case of “major impact”. The police administration was brought into the government administration mechanism, which in essence weakened the function of legal and responsible adminstration.

1.1.2. “Arrest before investigation” is a violation of the law. On 3 April 2011, public security took Ai Weiwei away. They then detained four people, including a Fake shareholder and the company accountant. However, of the evidence  in the file put together by public security, none was collected before 3 April 2011. The essence of “an arrest before investigation” is assuming that a suspect is guilty.

1.1.3. The authorities confiscated all the company’s account books and refused to give them back. During the Fake case review, first hearing and final hearing, the company’s account books were confiscated by Beijing Municipal Public Security and not given back.

1.2. Beijing Local Taxation Bureau Second Tax Inspection Bureau

The Bureau was responsible for the adminis - trative handling of the case. The following problems existed in its administration and law enforcement:

1.2.1. More than 95 per cent of the evidence came from public security and was obtained illegally. The Second Tax Inspection Bureau issued the following statement on the composition and source of the “evidence list”:

“1. Account books, certificates and related tax documents were provided to the defendant after they were obtained by public security  organs from the plaintiff’s bookkeeping company;

2. Third-party account books, certificates, instructions and other materials were provided to the defendant after public security organs obtained them;  

3. Notes from public security questioning were taken by public security and then provided to the defendant;

4. Bank statements etc were provided to the defendant after they were obtained from the bank by public security;

5. Inspection process documents and notes were produced by the defendant; 6. Tax records, inspection materials and certificates from tax organs were obtained by the defendant.”

This indicates that most of the evidence that the defendant cited in the Fake tax case and for making a decision came from the Public Security Bureau.

Fake believed that: first, the evidence “transferred” from public security organs was obtained while violating legal procedures. It therefore constituted illegal evidence and should be discounted. Second, the Law on the Administration of the Levy and Collection of Taxes has given tax organs tax inspection rights through legal means. This is the responsibility of the tax organs, and the public security organs should not be investigating on their behalf.

The Second Tax Inspection Bureau argued that the public security organisations exercise judicial authority. According to the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes, tax organs have the right to obtain relevant documents from organisations including public security organs. Based on this, obtaining evidence from public security organs is legal.

Fake believed that the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes gave tax organs the right to investigate “relevant organizations and individuals, regarding taxpayers, withholding agents and other parties and their situation regarding tax payments or tax withheld and remitted or collected and remitted”. This is completely different from public security investigating taxpayers and transferring evidence, so the defendant’s response was irrelevant.

1.2.2. None of the evidence had been crossexamined. This should be regarded as a lack of factual basis. During the hearing procedure, the bureau presented only part of the review document. It had not been checked. During the trial, the plaintiff’s right to cross-examine was also removed by the court.

1.2.3. In order to comply with public security, coercive methods were used to obtain evidence. The Second Tax Inspection Bureau and public security, on condition of “bail”, coerced Ai Weiwei, who was in prison, to sign a “recognition of alleged tax violations” on 22 June 2011.
This was self-incrimination, and was used as forceful evidence that Fake had evaded taxes. It would be hard to imagine that the “recognition of alleged tax violations” could be a legal document at the tax inspection trial stage. However, it appeared at the previous tax inspection stage, as if a man-made satellite had appeared in the Qin or Han Dynasty.

1.2.4. The tax inspection work had no statutory elements or contents.

The Second Tax Inspection Bureau did not have documents such as the “tax inspection working paper”, “tax inspection report” and “tax inspection trial report”. The contents of the “decision declaration” were incomplete. It did not mention how the “tax evasion” amount or the late-payment penalty amount were calculated.

1.2.5. The hearing process violated the law. The Second Tax Inspection Bureau did not conduct an open hearing on the basis that the case involved commercial secrets. This reason is not valid, and the facts later confirmed that the socalled commercial secrets did not exist.

1.3. Beijing Local Taxation Bureau

The bureau carried out the review. On 2 February 2012, Fake applied to the bureau for a review of the documents and hearing attendance. On 27 and 28 March the document inspection started. On 29 March, the bureau made a decision about the review. Not only did it refuse to conduct a hearing, it made a decision about the review in less than 12 hours after the lawyers finished inspecting the document. They deprived the attorney of his right to state his case and the right to defence.

1.4. Beijing Chaoyang District People’s Court

Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chao - yang District Court. The hearing was held on 20 June 2012.

1.4.1. It was called an open trial but in fact it was a secret trial. A trial as conspicuous as this was arranged in a small court, which could hold five spectators only. Five insiders were arranged to take up all the seats, and Fake was not allocated any spectator seats.

1.4.2. The court did not carry out its obligation in collecting evidence. Fake had previously requested the court to provide evidence of the plaintiff’s account books and certificates that were confiscated by public security, but the court had decided not to collect the evidence prior to the court session, nor had it sent a notification to the plaintiff saying that collecting this evidence was not allowed.

When Fake asked the court about this, the collegiate bench said, “We will answer this after the trial opens.”

1.4.3. The court did not carry out its obligationto call witnesses. Fake applied to summon Liu Zhenggang, Hu Mingfen and others as witnesses, but the court did not inform them. It claimed that the obligation to notify lay with the plaintiff. Fake asked for the defendant’s law- enforcement officials – ten people, including You Pengnan – to testify, but the court did not arrange for it.

On the contrary, however, after the court opened, You Pengnan appeared, representing the defendant. Fake raised an objection, but the collegiate bench replied that the company should raise it again after the trial.

1.4.4. The court removed the plaintiff’s right to present evidence. Fake requested evidence
from the collegiate bench prior to the opening of the court, but received no response. On 20
June in the morning, Fake went to the Three Shadows Cultural Exchange Centre and obtained evidence partly sufficient to overrule the decision. In the afternoon of 20 June, before the court opened and three times during the court session, the evidence was presented to the collegiate bench, but the court did not accept it, because it “overran the deadline for presenting evidence”.

1.4.5. The court refused to investigate the legitimacy of the sources of the evidence. According to law, the defendant can collect his own evidence, but it was all collected by public security authorities. More than 95 per cent of the evidence on administrative behaviour presented by the defendant was collected by public security organs.

Public security intervened in the tax case illegally, and the evidence was illegally obtained from detainees, which was not legitimate. Therefore, the plaintiff asked for the above evidence to be discounted. However, the court claimed that “the legitimacy of the public security investigations is not within the range of this court’s hearing”.

1.4.6. The court refused the plaintiff’s legitimate request to check the original evidence documents, and illegally removed the plaintiff’s right to cross-examination. During the session, the defendant failed to present any original documents for evidence. The presiding judge, Wu Nan, upon the request to see the documents, repeatedly struck his gavel and said, “As for the documents, the court has already made a decision; do not bring it up again!”

The court “summarised” when questioning the evidence and did not control the questioning time reasonably. Pieces of evidence numbering a thousand pages were given five minutes for questioning: on average, less than one second for every page of evidence. If the time exceeded five minutes, then the questioning would be regarded as abandoned.

1.4.7. The court removed the plaintiff’s right to debate. The plaintiff’s speech was repeatedly interrupted by the judges and was counted down. During the debate stage, three attorneys spoke for only ten minutes in total. The plaintiff could not fully express an opinion.

1.4.8. For these reasons, the plaintiff considered that the collegiate bench could not carry out this trial justly, and therefore requested the court to withdraw the case.

After the court was adjourned, the collegiate bench refused the request. The plaintiff appealed the decision, and the Chaoyang District Court refused orally, refusing to offer any written documentation.

1.4.9. The court refused to allow the litigants and the representatives to copy the court notes.
After the hearing, the court administrative divisional director promised the defendant that the following day at two o’clock in the afternoon they could come to the court to copy the notes, but the next day when they went to court, copying was no longer permitted, the court citing internal regulations.

1.4.10. The order of legal procedures was swapped when the court refused Fake’s request for evidence only after the trial. On 7 June 2012, Fake made its “application for collecting evidence” to the court.  The court did not respond. Yet after the court opened on 4 July, it decided not to allow any evidence to be collected. The reason given was that the defendant “did not meet the conditions for requesting evidence”. However, the decision did not contain a notification, required by law, to specify “which group and which piece of evidence violated which condition for evidence collection”.

2. Focus of controversy over the facts of the case 

Global Times, a subsidiary of the Chinese official newspaper the People’s Daily, published an editorial, entitled “The law will not bend for mavericks”, on the Ai Weiwei tax case, saying that certain western governments and “human rights organisations” had attacked China with strong commentary without understanding the true situation.

What is the truth behind the Ai tax case? Fake Ltd was established by the shareholders Lu Qing and Liu Zhenggang. Lu Qing was the legal representative and the wife of Ai Weiwei. Liu Zhenggang was business manager, responsible for company operations. The company’s income came mainly from design services. Ai Weiwei was not a staff member of Fake, but provided guidance and advice to the design services of Fake as an independent artist.

Fake went into operation in 2001. The tax organs believed that, over ten years of operation (until 2010), Fake concealed three counts of income, totalling 15,823,724.36 yuan. They pursued unpaid taxes of 5,263,756.61 yuan, a fine for overdue payment of 3,190,331.52 yuan and a penalty of 6,766,822.37 yuan, totaling 15,220,910.50 yuan.

Regarding the facts, the parties were in controversy over the following:

2.1. Who was the tax-paying entity for these three projects with alleged tax issues?

The standard for determining the tax-paying entity depends not on form, but on substance. This is the so-called principle of substance over formality in tax law. The heart of the problem is, who was the true controller of these three projects? Usually the actual controller is determined by who has the right to dispose of and the right to benefit from income. In tax law, the object of the test to determine the right to dispose of and the right to benefit from income is the sum of income. The public security organ, tax organ and the lawyers of Fake all acknowledged that Liu Zhenggang disposed of and controlled the project funding in the case. It is a shame that the conclusion drawn by each party was very different.

2.2. Was it tax evasion?

Regardless of whether the tax-paying entity was Ai Weiwei, Fake Ltd or Liu Zhenggang, the fact that tax duty had not been declared on the income for the three engineering projects is not in dispute. The key to the problem is, does the failure to declare taxable income constitute tax evasion?

According to China’s Law on the Administration of the Levy and Collection of Taxes, there are generally three types of failure to declare tax duty:

2.2.1. “Tax evasion”: falsely filing or deliberately failing to file taxes, causing an underpayment
of tax, following Term 63 of the Law on the Administration of the Levy and Collection of Taxes. This is breaking the law. If it reaches a certain ratio, it constitutes a crime.

According to Term 201 of the Criminal Law, it is the crime of evading payment of tax. The constituents must consist of the resulting elements, namely underpayment of tax and of a clear amount.

2.2.2. “Tax leakage”: not deception or concealment, but human error causing underpayment of tax, according to Term 64, Article 2 of the Law on the Administration of the Levy and Collection of Taxes. It counts as a normal administrative offence, not a criminal offence.

2.2.3. “Making up tax”: underpayment of tax caused by reasons not related to the actor (including incomplete factors in levying tax), as in Article 35 of the Law on the Administration of the Levy and Collection of Taxes. For example, where, although it is clearly income, the expenditure can’t be verified. The tax organ, by approving the profit rate, makes complete the factors in levying tax to realise the aim of levying tax. This type of underpayment of tax is the result of the expansion of administrative powers of the tax organs. It is not breaking the law, so the authorities cannot levy an overdue payment fine or penalty fine.

The contention of this case is focused on the dispute between “tax evasion” and “making up tax”. A simplified breakdown illustrates:

According to the law, when the cost is difficult to verify, an estimated tax should be levied. It should not be handled as a case of tax evasion. When the costs and expenses of a project cannot be checked, it cannot be asserted that the party has been evading tax.

2.3. The issue of verifying costs and expenditures for the three projects

The Second Tax Inspection Bureau said, “The defendant, upon confirming the total amount of taxes that the plaintiff should have paid, has also confirmed the costs related to the taxable income and subtracted it according to regulations.”

The plaintiff believed that the three projects that the tax bureau considered as evading taxes are defined by incomes that greatly mismatch with their costs. The Second Tax Inspection Bureau verified the income of the Boya Garden project as 1,107,716.00 yuan and its costs as nil. That goes against common sense. Income from the Three Shadows and Upper House projects was 14,716,008.36 yuan, the confirmed cost was nearly 1,047,349.39 yuan and the rate of profit was 92.88 per cent.

The costs were ridiculously low because the public security and tax organs jointly and deliberately concealed evidence of costs. For example, it has already been proved that Three Shadows, upon requests from the public security organ, presented it with receipts for expenditure of 3,738,551.06 yuan for materials used in the project. However, the total cost for all three projects that the tax organ received from the public security organ was only 1,047,349.39
yuan, less than a third of the cost for one project. Through this kind of deliberate selection of evidence, the profits of the projects were artificially enhanced to frame the company.

3. Conclusion

When one looks at the overall progress of the case, it is clearly an erroneous lawsuit. How could it have proceeded so smoothly? Because all the processes had already been arranged. The tax law-enforcement organ, the administrative review organ, the judicial court or representative lawyer were all following a set course. Administrative surveillance, independent trial and lawyer participation had no opportunity to exercise their rightful functions.

Tax cases such as that of Fake are ubiquitous in China. Unjust cases of sanctioning a party through tax means are also common. Most of the affected parties choose to remain silent in exchange for a reduction of the penalty by the tax organisation.

Fake used all means to fight its case, exposing illegality at each stage. This is unprecedented. The wish is that, through the heavy price paid by Fake, through the price for freedom paid by a person who doesn’t believe in following trends and who dares to speak the truth, we can make progress in China’s law enforcement.

The information used in this article was provided by Ai Weiwei’s lawyers

This article first appeared in the 22 October 2012 issue of the New Statesman, Ai Weiwei guest-edit

Amanda Edwards/Getty Images
Show Hide image

“Never be afraid of stridency”: Richard Dawkins’ interview with Christopher Hitchens

Is America heading for theocracy? How worrying is the rise of the Tea Party? Christopher Hitchens and Richard Dawkins discuss God and US politics.

The 2011 Christmas issue of the New Statesman was guest edited by Richard Dawkins. This is his interview with Christopher Hitchens from that issue. It was to be Hitchens' final interview; he died as it was published. A sensation at the time, it is now available to read online for the first time.

Richard Dawkins (left) and Christopher Hitchens in conversation

Richard Dawkins Do you have any memories of life at the New Statesman?

Christopher Hitchens Not that I want to impart. It seems like a different world and a different magazine and it happened to a different person. I’d love them to interview me one day about it, for an edition about the role of the Statesman, but I’d really rather you and I focus on the pulse of the issue, which is obviously our common cause.

RD I’ve been reading some of your recent collections of essays – I’m astounded by your sheer erudition. You seem to have read absolutely everything. I can’t think of anybody since Aldous Huxley who’s so well read.

CH It may strike some people as being broad but it’s possibly at the cost of being a bit shallow. I became a journalist because one didn’t have to specialise. I remember once going to an evening with Umberto Eco talking to Susan Sontag and the definition of the word “polymath” came up. Eco said it was his ambition to be a polymath; Sontag challenged him and said the definition of a polymath is someone who’s interested in everything and nothing else. I was encouraged in my training to read widely – to flit and sip, as Bertie [Wooster] puts it – and I think I’ve got good memory retention. I retain what’s interesting to me, but I don’t have a lot of strategic depth. A lot of reviewers have said, to the point of embarrassing me, that I’m in the class of Edmund Wilson or even George Orwell. It really does remind me that I’m not. But it’s something to at least have had the comparison made – it’s better than I expected when I started.

RD As an Orwell scholar, you must have a particular view of North Korea, Stalin, the Soviet Union, and you must get irritated – perhaps even more than I do – by the constant refrain we hear: “Stalin was an atheist.”

CH We don’t know for sure that he was. Hitler definitely wasn’t. There is a possibility that Himmler was. It’s very unlikely but it wouldn’t make any difference, either way. There’s no mandate in atheism for any particular kind of politics, anyway.

RD The people who did Hitler’s dirty work were almost all religious.

CH I’m afraid the SS’s relationship with the Catholic Church is something the Church still has to deal with and does not deny.

RD Can you talk a bit about that – the relationship of Nazism with the Catholic Church?

CH The way I put it is this: if you’re writing about the history of the 1930s and the rise of totalitarianism, you can take out the word “fascist”, if you want, for Italy, Portugal, Spain, Czechoslovakia and Austria and replace it with “extremeright Catholic party”. Almost all of those regimes were in place with the help of the Vatican and with understandings from the Holy See. It’s not denied. These understandings quite often persisted after the Second World War was over and extended to comparable regimes in Argentina and elsewhere.

RD But there were individual priests who did good things.

CH Not very many. You would know their names if there were more of them. When it comes to National Socialism, there’s no question there’s a mutation, a big one – the Nazis wanted their own form of worship. Just as they thought they were a separate race, they wanted their own religion. They dug out the Norse gods, all kinds of extraordinary myths and legends from the old sagas. They wanted to control the churches. They were willing to make a deal with them. The first deal Hitler made with the Catholic Church was the Konkordat. The Church agreed to dissolve its political party and he got control over German education, which was a pretty good deal. Celebrations of his birthday were actually by order from the pulpit. When Hitler survived an assassination attempt, prayers were said, and so forth. But there’s no doubt about it, [the Nazis] wanted control – and they were willing to clash with the churches to get it. There’s another example. You swore on Almighty God that you would never break your oath to the Führer. This is not even secular, let alone atheist.

RD There was also grace before meals, personally thanking Adolf Hitler.

CH I believe there was. Certainly, you can hear the oath being taken – there are recordings of it – but this, Richard, is a red herring. It’s not even secular. They’re changing the subject.

RD But it comes up over and over again.

CH You mentioned North Korea. It is, in every sense, a theocratic state. It’s almost supernatural, in that the births of the [ruling] Kim family are considered to be mysterious and accompanied by happenings. It’s a necrocracy or mausolocracy, but there’s no possible way you could say it’s a secular state, let alone an atheist one. Attempts to found new religions should attract our scorn just as much as the alliances with the old ones do. All they’re saying is that you can’t claim Hitler was distinctively or specifically Christian: “Maybe if he had gone on much longer, he would have de-Christianised a bit more.” This is all a complete fog of nonsense. It’s bad history and it’s bad propaganda.

RD And bad logic, because there’s no connection between atheism and doing horrible things, whereas there easily can be a connection in the case of religion, as we see with modern Islam.

CH To the extent that they are new religions – Stalin worship and Kim Il-sungism – we, like all atheists, regard them with horror.

RD You debated with Tony Blair. I’m not sure I watched that. I love listening to you [but] I can’t bear listening to . . . Well, I mustn’t say that. I think he did come over as rather nice on that evening.

CH He was charming, that evening. And during the day, as well.

RD What was your impression of him?

CH You can only have one aim per debate. I had two in debating with Tony Blair. The first one was to get him to admit that it was not done – the stuff we complain of – in only the name of religion. That’s a cop-out. The authority is in the text. Second, I wanted to get him to admit, if possible, that giving money to a charity or organising a charity does not vindicate a cause. I got him to the first one and I admired his honesty. He was asked by the interlocutor at about half-time: “Which of Christopher’s points strikes you as the best?” He said: “I have to admit, he’s made his case, he’s right. This stuff, there is authority for it in the canonical texts, in Islam, Judaism.” At that point, I’m ready to fold – I’ve done what I want for the evening. We did debate whether Catholic charities and so on were a good thing and I said: “They are but they don’t prove any point and some of them are only making up for damage done.” For example, the Church had better spend a lot of money doing repair work on its Aids policy in Africa, [to make up for preaching] that condoms don’t prevent disease or, in some cases, that they spread it. It is iniquitous. It has led to a lot of people dying, horribly. Also, I’ve never looked at some of the ground operations of these charities – apart from Mother Teresa – but they do involve a lot of proselytising, a lot of propaganda. They’re not just giving out free stuff. They’re doing work to recruit.

RD And Mother Teresa was one of the worst offenders?

CH She preached that poverty was a gift from God. And she believed that women should not be given control over the reproductive cycle. Mother Teresa spent her whole life making sure that the one cure for poverty we know is sound was not implemented. So Tony Blair knows this but he doesn’t have an answer. If I say, “Your Church preaches against the one cure for poverty,” he doesn’t deny it, but he doesn’t affirm it either. But remember, I did start with a text and I asked him to comment on it first, but he never did. Cardinal Newman said he would rather the whole world and everyone in it be painfully destroyed and condemned for ever to eternal torture than one sinner go unrebuked for the stealing of a sixpence. It’s right there in the centre of the Apologia. The man whose canonisation Tony had been campaigning for. You put these discrepancies in front of him and he’s like all the others. He keeps two sets of books. And this is also, even in an honest person, shady.

RD It’s like two minds, really. One notices this with some scientists.

CH I think we all do it a bit.

RD Do we?

CH We’re all great self-persuaders.

RD But do we hold such extreme contradictions in our heads?

CH We like to think our colleagues would point them out, in our group, anyway. No one’s pointed out to me in reviewing my God book God Is Not Great that there’s a flat discrepancy between the affirmation he makes on page X and the affirmation he makes on page Y.

RD But they do accuse you of being a contrarian, which you’ve called yourself . . .

CH Well, no, I haven’t. I’ve disowned it. I was asked to address the idea of it and I began by saying it’s got grave shortcomings as an idea, but I am a bit saddled with it.

RD I’ve always been very suspicious of the leftright dimension in politics.

CH Yes; it’s broken down with me.

RD It’s astonishing how much traction the left-right continuum [has] . . . If you know what someone thinks about the death penalty or abortion, then you generally know what they think about everything else. But you clearly break that rule.

CH I have one consistency, which is [being] against the totalitarian – on the left and on the right. The totalitarian, to me, is the enemy – the one that’s absolute, the one that wants control over the inside of your head, not just your actions and your taxes. And the origins of that are theocratic, obviously. The beginning of that is the idea that there is a supreme leader, or infallible pope, or a chief rabbi, or whatever, who can ventriloquise the divine and tell us what to do. That has secular forms with gurus and dictators, of course, but it’s essentially the same. There have been some thinkers – Orwell is pre-eminent – who understood that, unfortunately, there is innate in humans a strong tendency to worship, to become abject. So we’re not just fighting the dictators. We’re criticising our fellow humans for trying to short-cut, to make their lives simpler, by surrendering and saying, “[If] you offer me bliss, of course I’m going to give up some of my mental freedom for that.” We say it’s a false bargain: you’ll get nothing. You’re a fool.

RD That part of you that was, or is, of the radical left is always against the totalitarian dictators.

CH Yes. I was a member of the Trotskyist group – for us, the socialist movement could only be revived if it was purged of Stalinism . . . It’s very much a point for our view that Stalinism was a theocracy.

RD One of my main beefs with religion is the way they label children as a “Catholic child” or a “Muslim child”. I’ve become a bit of a bore about it.

CH You must never be afraid of that charge, any more than stridency.

RD I will remember that.

CH If I was strident, it doesn’t matter – I was a jobbing hack, I bang my drum. You have a discipline in which you are very distinguished. You’ve educated a lot of people; nobody denies that, not even your worst enemies. You see your discipline being attacked and defamed and attempts made to drive it out.

Stridency is the least you should muster . . . It’s the shame of your colleagues that they don’t form ranks and say, “Listen, we’re going to defend our colleagues from these appalling and obfuscating elements.” If you go on about something, the worst thing the English will say about you, as we both know – as we can say of them, by the way – is that they’re boring.

RD Indeed. Only this morning, I was sent a copy of [advice from] a British government website, called something like “The Responsibilities of Parents”. One of these responsibilities was “determine the child’s religion”. Literally, determine. It means establish, cause . . . I couldn’t ask for a clearer illustration, because, sometimes, when I make my complaint about this, I’m told nobody actually does label children Catholic children or Muslim children.

CH Well, the government does. It’s borrowed, as far as I can see, in part from British imperial policy, in turn borrowed from Ottoman and previous empires – you classify your new subjects according to their faith. You can be an Ottoman citizen but you’re a Jewish one or an Armenian Christian one. And some of these faiths tell their children that the children of other faiths are going to hell. I think we can’t ban that, nor can we call it “hate speech”, which I’m dubious about anyway, but there should be a wrinkle of disapproval.

RD I would call it mental child abuse.

CH I can’t find a way, as a libertarian, of saying that people can’t raise their children, as they say, according to their rights. But the child has rights and society does, too. We don’t allow female – and I don’t think we should countenance male – genital mutilation.

Now, it would be very hard to say that you can’t tell your child that they are lucky and they have joined the one true faith. I don’t see how you stop it. I only think the rest of society should look at it with a bit of disapproval, which it doesn’t. If you’re a Mormon and you run for office and say, “Do you believe in the golden plates that were dug up by Joseph Smith?” – which [Mitt] Romney hasn’t been asked yet – sorry, you’re going to get mocked. You’re going to get laughed at.

RD There is a tendency among liberals to feel that religion should be off the table.

CH Or even that there’s anti-religious racism, which I think is a terrible limitation.

RD Romney has questions to answer.

CH Certainly, he does. The question of Mormon racism did come up, to be fair, and the Church did very belatedly make amends for saying what, in effect, it had been saying: that black people’s souls weren’t human, quite. They timed it suspiciously for the passage of legislation. Well, OK, then they grant the right of society to amend [the legislation]. To that extent, they’re opportunists.

RD But what about the daftness of Mormonism? The fact that Joseph Smith was clearly a charlatan –

CH I know, it’s extraordinary.

RD I think there is a convention in America that you don’t tackle somebody about their religion.

CH Yes, and in a way it’s attributed to pluralism. And so, to that extent, one wants to respect it, but I think it can be exploited. By many people, including splinter-group Mormons who still do things like plural marriage and, very repulsively, compulsory dowries – they basically give away their daughters, often to blood relatives. And also kinship marriages that are too close. This actually won’t quite do. When it is important, they tend to take refuge in: “You’re attacking my fundamental right.” I don’t think they really should be allowed that.

RD Do you think America is in danger of becoming a theocracy?

CH No, I don’t. The people who we mean when we talk about that – maybe the extreme Protestant evangelicals, who do want a God-run America and believe it was founded on essentially fundamentalist Protestant principles – I think they may be the most overrated threat in the country.

RD Oh, good.

CH They’ve been defeated everywhere. Why is this? In the 1920s, they had a string of victories. They banned the sale, manufacture and distribution and consumption of alcohol. They made it the constitution. They more or less managed to ban immigration from countries that had non-Protestant, non-white majorities. From these victories, they have never recovered. They’ll never recover from [the failure of] Prohibition. It was their biggest defeat. They’ll never recover from the Scopes trial. Every time they’ve tried [to introduce the teaching of creationism], the local school board or the parents or the courts have thrown it out and it’s usually because of the work of people like you, who have shown that it’s nonsense. They try to make a free speech question out of it but they will fail with that, also. People don’t want to come from the town or the state or the county that gets laughed at.

RD Yes.

CH In all my tours around the South, it’s amazing how many people – Christians as well – want to disprove the idea that they’re all in thrall to people like [the fundamentalist preacher Jerry] Falwell. They don’t want to be a laughing stock.

RD Yes.

CH And if they passed an ordinance saying there will be prayer in school every morning from now on, one of two things would happen: it would be overthrown in no time by all the courts, with barrels of laughter heaped over it, or people would say: “Very well, we’re starting with Hindu prayer on Monday.” They would regret it so bitterly that there are days when I wish they would have their own way for a short time.

RD Oh, that’s very cheering.

CH I’m a bit more worried about the extreme, reactionary nature of the papacy now. But that again doesn’t seem to command very big allegiance among the American congregation. They are disobedient on contraception, flagrantly; on divorce; on gay marriage, to an extraordinary degree that I wouldn’t have predicted; and they’re only holding firm on abortion, which, in my opinion, is actually a very strong moral question and shouldn’t be decided lightly. I feel very squeamish about it. I believe that the unborn child is a real concept, in other words. We needn’t go there, but I’m not a complete abortion-on-demand fanatic. I think it requires a bit of reflection. But anyway, even on that, the Catholic Communion is very agonised. And also, [when] you go and debate with them, very few of them could tell you very much about what the catechism really is. It’s increasingly cultural Catholicism.

RD That is true, of course.

CH So, really, the only threat from religious force in America is the same as it is, I’m afraid, in many other countries – from outside. And it’s jihadism, some of it home-grown, but some of that is so weak and so self-discrediting.

RD It’s more of a problem in Britain.

CH And many other European countries, where its alleged root causes are being allowed slightly too friendly an interrogation, I think. Make that much too friendly.

RD Some of our friends are so worried about Islam that they’re prepared to lend support to Christianity as a kind of bulwark against it.

CH I know many Muslims who, in leaving the faith, have opted to go . . . to Christianity or via it to non-belief. Some of them say it’s the personality of Jesus of Nazareth. The mild and meek one, as compared to the rather farouche, physical, martial, rather greedy . . .

RD Warlord.

CH . . . Muhammad. I can see that that might have an effect.

RD Do you ever worry that if we win and, so to speak, destroy Christianity, that vacuum would be filled by Islam?

CH No, in a funny way, I don’t worry that we’ll win. All that we can do is make absolutely sure that people know there’s a much more wonderful and interesting and beautiful alternative. No, I don’t think that Europe would fill up with Muslims as it emptied of Christians. Christianity has defeated itself in that it has become a cultural thing. There really aren’t believing Christians in the way there were generations ago.

RD Certainly in Europe that’s true – but in America?

CH There are revivals, of course, and among Jews as well. But I think there’s a very longrunning tendency in the developed world and in large areas elsewhere for people to see the virtue of secularism, the separation of church and state, because they’ve tried the alternatives . . . Every time something like a jihad or a sharia movement has taken over any country – admittedly they’ve only been able to do it in very primitive cases – it’s a smouldering wreck with no productivity.

RD Total failure. If you look at religiosity across countries of the world and, indeed, across the states of the US, you find that religiosity tends to correlate with poverty and with various other indices of social deprivation.

CH Yes. That’s also what it feeds on. But I don’t want to condescend about that. I know a lot of very educated, very prosperous, very thoughtful people who believe.

RD Do you think [Thomas] Jefferson and [James] Madison were deists, as is often said?

CH I think they fluctuated, one by one. Jefferson is the one I’m more happy to pronounce on. The furthest he would go in public was to incline to a theistic enlightened view but, in his private correspondence, he goes much further. He says he wishes we could return to the wisdom of more than 2,000 years ago. That’s in his discussion of his own Jefferson Bible, where he cuts out everything supernatural relating to Jesus. But also, very importantly, he says to his nephew Peter Carr in a private letter [on the subject of belief]: “Do not be frightened from this inquiry by any fear of its consequences. If it ends in a belief that there is no God, you will find incitements to virtue in the comfort and pleasantness you feel in its exercise and the love of others which it will procure you.” Now, that can only be written by someone who’s had that experience.

RD It’s very good, isn’t it?

CH In my judgement, it’s an internal reading, but I think it’s a close one. There was certainly no priest at his bedside. But he did violate a rule of C S Lewis’s and here I’m on Lewis’s side. Lewis says it is a cop-out to say Jesus was a great moralist. He said it’s the one thing we must not say; it is a wicked thing to say. If he wasn’t the Son of God, he was a very evil impostor and his teachings were vain and fraudulent. You may not take the easy route here and say: “He may not have been the Son of God and he may not have been the Redeemer, but he was a wonderful moralist.” Lewis is more honest than Jefferson in this point. I admire Lewis for saying that. Rick Perry said it the other day.

RD Jesus could just have been mistaken.

CH He could. It’s not unknown for people to have the illusion that they’re God or the Son. It’s a common delusion but, again, I don’t think we need to condescend. Rick Perry once said: “Not only do I believe that Jesus is my personal saviour but I believe that those who don’t are going to eternal punishment.” He was challenged at least on the last bit and he said, “I don’t have the right to alter the doctrine. I can’t say it’s fine for me and not for others.”

RD So we ought to be on the side of these fundamentalists?

CH Not “on the side”, but I think we should say that there’s something about their honesty that we wish we could find.

RD Which we don’t get in bishops . . .

CH Our soft-centred bishops at Oxford and other people, yes.

RD I’m often asked why it is that this republic [of America], founded in secularism, is so much more religious than those western European countries that have an official state religion, like Scandinavia and Britain.

CH [Alexis] de Tocqueville has it exactly right. If you want a church in America, you have to build it by the sweat of your own brow and many have. That’s why they’re attached to them.

RD Yes.

CH [Look at] the Greek Orthodox community in Brooklyn. What’s the first thing it will do? It will build itself a little shrine. The Jews – not all of them – remarkably abandoned their religion very soon after arriving from the shtetl.

RD Are you saying that most Jews have abandoned their religion?

CH Increasingly in America. When you came to escape religious persecution and you didn’t want to replicate it, that’s a strong memory. The Jews very quickly secularised when they came. American Jews must be the most secular force on the planet now, as a collective. If they are a collective –which they’re not, really.

RD While not being religious, they often still observe the Sabbath and that kind of thing.

CH There’s got to be something cultural. I go to Passover every year. Sometimes, even I have a seder, because I want my child to know that she does come very distantly from another tradition. It would explain if she met her greatgrandfather why he spoke Yiddish. It’s cultural, but the Passover seder is also the Socratic forum. It’s dialectical. It’s accompanied by wine. It’s got the bones of quite a good discussion in it. And then there is manifest destiny. People feel America is just so lucky. It’s between two oceans, filled with minerals, wealth, beauty. It does seem providential to many people.

RD Promised land, city on a hill.

CH All that and the desire for another Eden. Some secular utopians came here with the same idea. Thomas Paine and others all thought of America as a great new start for the species.

RD But that was all secular.

CH A lot of it was, but you can’t get away from the liturgy: it’s too powerful. You will end up saying things like “promised land” and it can be mobilised for sinister purposes. But in a lot of cases, it’s a mild belief. It’s just: “We should share our good luck.”

RD I’ve heard another theory that, America being a country of immigrants, people coming from Europe, where they left their extended family and left their support system, were alone and they needed something.

CH Surely that was contained in what I just . . .

RD Maybe it was.

CH The reason why most of my friends are non-believers is not particularly that they were engaged in the arguments you and I have been having, but they were made indifferent by compulsory religion at school.

RD They got bored by it.

CH They’d had enough of it. They took from it occasionally whatever they needed – if you needed to get married, you knew where to go. Some of them, of course, are religious and some of them like the music but, generally speaking, the British people are benignly indifferent to religion.

RD And the fact that there is an established church increases that effect. Churches should not be tax-free the way that they are. Not automatically, anyway.

CH No, certainly not. If the Church has demanded that equal time be given to creationist or pseudo-creationist speculations . . . any Church that teaches that in its school and is in receipt of federal money from the faith-based initiative must, by law, also teach Darwinism and alternative teachings, in order that the debate is being taught. I don’t think they want this.

RD No.

CH Tell them if they want equal time, we’ll jolly well have it. That’s why they’ve always been against comparative religion.

RD Comparative religion would be one of the best weapons, I suspect.

CH It’s got so insipid in parts of America now that a lot of children are brought up – as their parents aren’t doing it and leave it to the schools and the schools are afraid of it – with no knowledge of any religion of any kind. I would like children to know what religion is about because [otherwise] some guru or cult or revivalists will sweep them up.

RD They’re vulnerable. I also would like them to know the Bible for literary reasons.

CH Precisely. We both, I was pleased to see, have written pieces about the King James Bible. The AV [Authorised Version], as it was called in my boyhood. A huge amount of English literature would be opaque if people didn’t know it.

RD Absolutely, yes. Have you read some of the modern translations? “Futile, said the preacher. Utterly futile.”

CH He doesn’t!

RD He does, honestly. “Futile, futile said the priest. It’s all futile.”

CH That’s Lamentations.

RD No, it’s Ecclesiastes. “Vanity, vanity.”

CH “Vanity, vanity.” Good God. That’s the least religious book in the Bible. That’s the one that Orwell wanted at his funeral.

RD I bet he did. I sometimes think the poetry comes from the intriguing obscurity of mistranslation. “When the sound of the grinding is low, the grasshopper is heard in the land . . . The grasshopper shall be a burden.” What the hell?

CH The Book of Job is the other great non-religious one, I always feel. “Man is born to trouble as the sparks fly upward.” Try to do without that. No, I’m glad we’re on the same page there. People tell me that the recitation of the Quran can have the same effect if you understand the original language. I wish I did. Some of the Catholic liturgy is attractive.

RD I don’t know enough Latin to judge that.

CH Sometimes one has just enough to be irritated.

RD Yes [laughs]. Can you say anything about Christmas?

CH Yes. There was going to be a winter solstice holiday for sure. The dominant religion was going to take it over and that would have happened without Dickens and without others.

RD The Christmas tree comes from Prince Albert; the shepherds and the wise men are all made up.

CH Cyrenius wasn’t governor of Syria, all of that. Increasingly, it’s secularised itself. This “Happy Holidays” – I don’t particularly like that, either.

RD Horrible, isn’t it? “Happy holiday season.”

CH I prefer our stuff about the cosmos.

***

The day after this interview, I was honoured to present an award to Christopher Hitchens in the presence of a large audience in Texas that gave him a standing ovation, first as he entered the hall and again at the end of his deeply moving speech. My own presentation speech ended with a tribute, in which I said that every day he demonstrates the falsehood of the lie that there are no atheists in foxholes: “Hitch is in a foxhole, and he is dealing with it with a courage, an honesty and a dignity that any of us would be, and should be, proud to muster.”