Human Rights Dialogue 1.6 (Fall 1996): "The Human Rights Discourse in East Asia"
September 5, 1996
The number and diversity of human rights writings in Chinese have increased dramatically in recent years. Some of these current writings expose and criticize the Chinese government's violations of human rights. They are often published in the West and tend to assert that international pressure is the most effective way to promote human rights in China and condemn the communist regime. A separate category of writings, which are essentially academic reformulations of the 1991 Chinese Human Rights White Paper, serve the Chinese government's international and domestic human rights agendas. A third category of writings contribute to an academic discussion of human rights, with a view to transforming the current Chinese ideology and institutions related to human rights in a constructive way.
This latter category encompasses the Chinese academic efforts in the field of human rights since 1990. While there are many differences in term of stance, methodology, and quality within this category, the following generalizations can be made. First, these writings are the most widely read in China, yet most of them only serve to introduce and spread knowledge about human rights among students, scholars, and officers. Second, they have been successful in creating official acceptance of human rights rhetoric, in challenging die-hard ideology, and in forging a human rights consciousness among Chinese people. These writings have generally failed to escape from political and cultural predicaments: They justify human rights by quoting from classical Marxist works or the Western radical liberal writings during the Enlightenment period, instead of developing a concept of universal values and cultural identity. In this sense, these writings hve not advanced beyond those pioneering writings devoted to ideas about democracy, equality, and freedom that were popular in Chinese society at the time of the May 4th movement in 1919.
In recent years, however, more and more researchers have abandoned sterile theoretical quarrels to focus on the institutional aspects of human rights. By interpreting and modifying the clauses related to rights protection in the Chinese constitution and citing international human rights documents, these scholars have initiated and partly implemented many constructive proposals in the fields of children's rights, consumers rights, the rights of the disabled, women's rights, criminals rights, property rights, information rights, and so on. Still the analyses of these human rights issues are inadequate and research on election or democratic rights and freedom of expression remain at a preliminary stage. Some scholars are now studying the social dynamics and institutional frameworks for the development of human rights in China through empirical research, and these early studies have been published in China. The first five studies below belong to this third category and the last belongs to the first category.
Contemporary Human Rights (Dangdai renquan). Edited by the Institute of Law, Chinese Academy of Social Sciences. Beijing: Chinese Social Science Press, 1992.
The leading articles of this extensive collection of writings by Chinese scholars focus on human rights concepts: "What Does Human Rights Mean?" by Shen Zongling, "Three Categories of Human Rights" by Li Buyun, "Universal Nature and Class Nature of Human Rights" by Guo Daohui," "The Subjects of Human Rights Law and Their Rights" by Zhang Wenxian, and "The Moral Foundations of Human Rights" by Xia Yong. Other articles are devoted to an explication of the classical Marxist-Leninist works: "On Marxism's Human Rights Ideas" by Liu Han and Li Lin, "We Must Distinguish the Socialist Human Rights Idea from the Capitalist Human Rights Idea" by Gu Chunde. Other contributions deal with the right to development, the right to self-determination of a nation, and rights of particular importance in China such as constitutional rights, women's rights, and criminals rights. This book was the product of "The Symposium on Human Rights Theory" held in June 1991 in Beijing. The symposium was the first public discussion of human rights to take place since June 1989, and the first nation-wide event (since 1949) to have the words "human rights theory" in its title.
Most of the articles are intended to mobilize official recognition of human rights instead of simply dismissing human rights as a "bourgeois slogan," and they tend to describe often-exaggerated accounts of China's achievements in the field of human rights. Fundamental questions are posed: What are human rights? How do we justify them? Are there any resources available in China to identify human rights? Generally, these questions are proposed and answered in the abnormal, even preposterous manner allowed by the framework of communist ideology and institutions. Importantly, some of the researchers (before being published in this book) had significant influence on the drafting of the Chinese Human Rights White Paper of 1991 and the Chinese government's strategies for the conferences on human rights in Bangkok (1992) and Vienna (1993).
Origins of the Human Rights Concept (Renq-uan gai-nian qiyuan) by Xia Yong. Beijing: China University of Politics and Law Press, 1992.
A guide to human rights history and theories for Chinese readers, this book begins by discussing the rights concept with references to rights consciousness in primitive society, justice notions in ancient Greece, Rome, and China, and the current disputes over the definition of rights among Western scholars. It then turns to the evolution of civil rights systems and the natural rights idea, focusing n the growth of capitalism and the Enlightenment, with comparisons drawn between the British, French, and American experiences. The book ends with a discussion of the principles of human rights and the relationship between human rights and Chinese tradition. While addressing questions of why human rights should be respected, why Chinese people were not aware of human rights in the past, and the compatibility of human rights and Chinese culture, the author touches on key areas of human rights theory in China. By asserting the universality of human rights and its moral implications, particularly by defining human rights essentially as the rights of individuals against the government, the author challenges the orthodox ideas that have denied the natural and universal characteristics of human rights and intentionally stressed the rights to survival—shengcun quan—as the most important human rights. As a result, this book was criticized for being out of step with Marxist historical materialism. Nonetheless, sections of the book dealing with Chinese culture and human rights were translated in Quarterly of Chinese Social Science, No. 2, 1993, Hong Kong. Reprinted twice in China, the book received awards from the China Association of Book Reviews in 1993 and the Chinese Academy of Social Sciences in 1995.
Annotated Proposed Draft of the Revised Criminal Procedure Law of the People's Republic of China (Zhonghua renmin gongheguo xingshi susongfa xiugai jianyi gao yu lunzheng). Edited by Chen Guangzhong and Yan Duan. Beijing: Zhongguo Fangzheng Press, 1995.
This publication provides insights into the intellectual and policy debates surrounding one of the most significant recent human rights developments in China: the revision of the Criminal Procedure Law (CPL). It sets out the full text of the proposed new CPL which was prepared at the request of China's National People's Congress by a group of prominent legal academics based at China University of Politics and Law. The book contains a detailed analysis of the shortcomings of the 1979 Criminal Procedure Law and proposes ways to address them. Academics were not the only nor the most influential voice in the debates leading up to the revision of the CPL in March 1996. However, the book presents many of the changes that were ultimately adopted, such as eliminating some forms of arbitrary detention and expanding access to a defense counsel. Its broader significance lies in its frank call for increased attention to human rights protections in the criminal process and its invocation of internationally accepted human rights standards and practices as justifications for Chinese reforms.
General Survey of Capital Punishment (Si-xing tonglun) by Hu Yunteng. Beijing: China University of Politics and Law Press, 1995.
This book offers ten chapters on the ge neral history, doctrines, and policies pertaining to the death penalty, as well as the related legislation, judicial discretion, and reexamination procedure. The focus is on the debate over abolishing the death penalty in Western countries and the rethinking of China's criminal policy. Comparisons are drawn between China, the United States, Japan, Taiwan, and Hong Kong. This book argues that abolishing the death penalty represents great progress for human civilization and that it is not impossible for the Chinese people to think about and eventually abolish the death penalty. Through positive analyses, the author points to serious problems in China's current criminal law, arguing that too many categories of crime are punishable by death, and the conditions and procedures for application of the death penalty are inferior and too flexible. Finally, the author offers a realistic proposal for reforming Chinese current criminal law, which would control the application and reduce the use of the death penalty.
Toward the Age of Rights: Research on the Development of Chinese Citizens Rights (Zou xiang quanli de shidai: Zhongguo gongmin quanli fazhan yanjiu). Edited by Xia Yong. Beijing: China University of Politics and Law Press, 1995.
This book represents the first comprehensive attempt to analyze rights protection and its relationship to the broader forces of social change in China. These essays, by eighteen young Chinese legal scholars and sociologists from leading Chinese academic institutions, draw on a wide range of empirical sources, including survey data, to address different elements of the rights protection system in China. These elements include: rights concepts and consciousness, major institutional actors (courts, lawyers, mediation bodies), key substantive rights issues (property rights, criminal justice), and particular rights bearers (women, criminal defendants, rural residents). Not surprisingly, given the embryonic state of Chinese empirical research on law and rights, the essays are somewhat uneven in quality. Overall, however, they provide a refreshingly frank, non-polemical look at the current status and future trends of rights protection in China. Professor Xia Yong's introduction sets out a tentative model of rights development in China which serves as a theoretical framework. Non-Chinese readers will find the essays a rich source of firsthand information, even on sensitive issues such as rights protection in the criminal justice system. The book's preface states that it is just one of the products of the authors collaborative research into social development and rights protection in China. In fact, many of the essays appear to have used only sparingly the results of the groups survey questionnaire (which is published as an appendix). Still, this book is an encouraging endeavor whose success bodes well for further research into this important but largely unexplored field.
"Human Rights and the Legal System in China" ("Zhongguo de renquan yu fazhi") by Guo Luoji. Democratic China, vol. 67, no. 2, 1995, Tokyo.
The author, one of China's most famous dissidents now residing in the United States, places human rights in three categories—natural rights, legal rights, and actually realized rights—and argues that it is impossible to protect human rights under the current Chinese legal system. In making his argument he points to the inadequacies of rights protection provisions in the Chinese constitution, the absence of positive laws to implement the rights clauses in the constitution, and the lax implementation of existing law such that legal rights are not actually realized. His proposal to improve human rights in China includes greater supervision of the constitution, a review of legislation, and recognition of the principle of the presumption of innocence.
Reviewers are Xia Yong, currently a visiting scholar of East Asian Legal Studies at Harvard Law School, and Jonathan Hecht, a research fellow of East Asian Legal Studies at Harvard Law School. (Mr. Hecht wrote the third, fifth, and sixth reviews.) Professor Xia Yong is also a postdoctoral fellow at the John F. Kennedy School of Government and an associate professor of law at the Chinese Academy of Social Sciences. His current research focuses on the development of law and human rights. Mr. Hecht's current research focuses on comparative law, Chinese criminal procedure, and women's rights in China.