Post-Deng China: Justice with Chinese Characteristics
Human Rights Dialogue 1.8 (Spring 1997): "Transitional Justice in East Asia and its Impact on Human Rights"
March 5, 1996
Chinese senior leader Deng Xiaoping's death has created much speculation over China's future. Some commentators believe that Deng's passing, marking the end of the revolutionary generation of Chinese leaders, creates an opportunity for establishing the rule of law and justice in China. His death, as many U.S. newspaper articles have indicated, could allow criticism of his rule. With that, there may be the possibility of reappraising the brutal events of 1989 and rehabilitating former prime minister and communist party general secretary Zhao Ziyang, now under house arrest for his refusal to use soldiers against the student demonstrators in 1989.
In light of Deng's death, will the Chinese openly put the blame for the 1989 Tiananmen Square massacre on Deng as a means of coming to terms with the past? I believe that the events of 1989 were so jarring that they will not be so easily forgotten. Rather, they catalyzed a rethinking by not only Chinese intellectuals, but also by select government leaders, of the whole Chinese system and, with it, the justice system. This gradual process of rethinking social change will continue beyond Deng. Deng's death may pave the way for more open public condemnation of the Tiananmen massacre, in much the same way as Mao Zedong's death and the Gang of Four trial unleashed criticism against the Cultural Revolution (1967–76), but formal accountability for the massacre will be a thing of the future.
It is understandable that people blame Deng and other senior leaders for the Tiananmen massacre and regard them as an impediment to political and legal reform in China. Nevertheless, popular attitudes toward the massive human rights violations they perpetrated, including those that occurred in 1989, and like those that occurred during the Cultural Revolution, need to be understood in the context of Chinese culture and society, specifically its narrow concept of justice.
Two dominant factors characterize justice in China: Confucianism and Mao Zedong's radical theory of class struggle. In Confucianism, collective security always prevails over individual rights. Various modern regimes, including both the Nationalist and Communist governments, have used this logic to justify the use of force in suppressing political dissidents. Traditional Confucian ideas discourage individuals from engaging in lawsuits, considered the last resort for dispute resolution. Thus, even today, going to court is regarded as shameful not only for those directly involved but for their families and relatives as well. Procedural justice was totally unknown to the traditional Confucian-steeped legal system, and thus its development has been severely retarded, posing a significant block to the realization of human rights in China today.
The trial of the Gang of Four in 1980 illustrates the "verdict first, trial second" form of justice common in China. Jiang Qing, Mao's widow, along with other powerful figures, was widely blamed for the massive human rights violations that occurred during the Cultural Revolution. The main purpose of the trial was to give the appearance of the new government s commitment to an effective justice system. However, Jiang and other defendants were denied many procedural rights that are fundamental to a fair trial. The accused were allowed only limited legal counseling from government-picked lawyers and were forced to testify against themselves. Jiang, who was among the few defendants who did not confess their crimes, was given the death sentence with a two-year suspension of execution. More ridiculously, long before the release of the verict, a senior Chinese leader had assured the world that nobody would be executed even if the death penalty was imposed. Such obvious perversions of justice have never concerned the general public, and even today it is a minority of intellectuals who are beginning to rethink justice in China.
Mao s theory of class struggle has also left an imprint on the Chinese justice system. He reduced society to two classes: "the people" and "the enemy." Mao's theory was reinforced by the hierarchical ideas embedded in Confucianism, resulting in a legal system that has tended to do more to violate human rights than protect them. Under Mao, law and the justice system were mere instruments of suppression reserved for punishing the enemy and protecting the people. No rights are provided to "the enemy" in the people s courts. Although Mao's radical view about justice was partially rectified in 1978 when Deng came to power and began to rehabilitate many revolutionary cadres and intellectuals mistreated under Mao, it continued to strongly influence Chinese leadership and the courts.
Given the context in which Chinese notions of justice have evolved, it becomes easier to understand how a massive injustice like the 1989 Tiananmen tragedy can be made legitimate in the eyes of the people. Under the logic of class struggle theory, once someone is categorized as "the enemy," he or she is stripped of his or her rights, and so in the 1989 Tiananmen massacre, student leaders were vilified as enemies of the people. Theirs was a counterrevolutionary rebellion, and therefore the suppression of their activities by the government was for "the good of the people." Although protest against Tiananmen has been widespread inside and outside China, it is still questionable how much it affected the ordinary peasant, the majority of the Chinese population.
This perverse notion of justice has permeated even the thinking of the Chinese intellectuals. For example, as the events of 1989 were unfolding, most Chinese intellectuals were outraged by the government s brutal crackdown on the student protests. But they acted indifferently to the concurrent sentencing by a Shanghai court of three worker dissidents to death for allegedly setting fire to a train in an attempt to stop the army from entering Shanghai and putting down the student movement. Why was the plight of these workers ignored? Partially, one could argue, because they were regarded as social rascals (a synonym for "the enemy") and partially because entrenched notions of class theory and social hierarchy lessened their worth in the eyes of the people.
Given the pervasiveness of this legal consciousness throughout Chinese society, it is unlikely that the Chinese people, not even the intellectuals, will seek immediate justice for Tiananmen or begin, any time in the near future, what would undoubtedly be a wrenching process of transitional justice. Legal groundwork must be laid first. Even though certain notable but limited legal reforms have been introduced in recent years, the current government is still holding many dissidents in custody for a variety of trumped-up political offenses.
For now, the first step toward transitional justice is rethinking and reforming Chinese mentality, culture, and tradition. Only then will there be popular support for pointing fingers at guilty individuals. Their punishment at this point will not diminish our country s larger problems. As long as the traditional notion of justice in China—a lack of recognition of individual rights and persistent discrimination based on social classifications—persists, the rule of law in its most recognizable form, not to mention the protection it affords to human rights, will not easily come into being. Transitional justice in China will be the result of a profound gradual change to the rule of law rather than the beginning of that process.
A Nation's Accountability and Responsibility: The Case of Comfort Women in Japan
—Yozo Yokota, professor of law, University of Tokyo, is a member of the Advisory Committee of the Asian Women s Fund and an alternate member of the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities.
Japanese citizens and officials are divided over the justice dilemmas raised by the claims of "comfort women." This term is used to refer to women and girls of countries occupied by Japan during World War II who were forced to perform sexual services for Japanese military men. Opinions differ with regard to the number of women involved, the level of force used, and the degree of Japanese government and military involvement. Questions regarding the nature of Japan s responsibility, both legal and moral, and the form of compensation and restitution due to the comfort women are by far the most divisive. Is the past or current government or the people of Japan responsible for the cruel, inhumane, and degrading crimes committed against the women? Under what criteria are they responsible? What actions should be taken and by whom?
The comfort women issue is a test of whether Japan is willing to come to terms with its history and accept accountability for its wrongdoings. It is also a test of Japan's commitment to human rights. By acting responsibly to resolve this issue now, the government, headed by Prime Minister Hashimoto and supported by his ministers, can demonstrate its commitment to human rights and peace in the region.
The comfort women situation became a public issue in Japan in the late 1980s after former comfort women and their advocates, especially in South Korea, began pushing for compensation and justice, arguing that Japan had violated the fundamental dignity of women. They called for investigations into the truth, apologies, memorials, and compensation for victims and bereaved families. The issue was raised openly in the early 1990s by several human rights nongovernmental organizations at the UN Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities.
At first the Japanese government demurred, claiming there was no evidence of a forced draft of comfort women. Angered, many more former comfort women came forward and scholarly investigations uncovered irrefutable evidence of large-scale, institutionalized abuses. Foreign governments, primarily South Korea, joined the comfort women in demanding justice in 1992. Not until August 1993 did the Japanese government express its remorse and apologize "to all the women for their irreparable mental and physical suffering and injuries," promising that "means of compensation would be studied, and the lessons of history squarely faced."
After the Japanese government reluctantly began to reveal the truth about the comfort women and made an official apology, they announced the creation of a private fund, the Asian Women's Fund, to collect and distribute donations from the Japanese public as atonement money to the victims. This somewhat strange and unprecedented solution was a compromise among conservative politicians, the Japanese government, the comfort women, and their supporters.
The government's official position is that all issues of legal compensation for individual damages suffered during World War II were definitively settled by the Treaty of Peace with Japan of September 8, 1951 and other related bilateral treaties. This strict legalistic argument is based on the government's fear that admitting legal responsibility and the right to compensation for the comfort women will open up the whole issue of compensation for other wartime victims, such as forced laborers. There is also a small but powerful group of conservative Japanese politicians who insist that Japan did not violate any existing international law at the time of its practice of sexual slavery. Under these circumstances, it was not easy to obtain Diet approval to appropriate budget compensation for the former comfort women.
The Japanese government has been accused of dragging its feet and displaying an insincere attitude toward war responsibility. In my opinion the tempered and slow response of the government had little to do with Japanese bitterness toward the past; there are some Japanese who believe that the Tokyo War Crimes tribunal was one-sided, but this is a minority opinion. I believe the indirect compensation of the victims has much more to do with the bureaucratic intricacies of decision making in Japan. The formulation of government policy on the comfort women issue required the input and cooperation of multiple ministries, departments, and regional departments which was difficult to coordinate. Yet, because of mounting pressure from the victims and their supporters, the government ultimately knew it had to act to alleviate their suffering—from a moral standpoint, if not a legal one.
The Asian Women's Fund was established in July 1995, and by February 1997 four million dollars had been received from over 20,000 Japanese individuals and organizations. By creating the fund, the government now sees itself as fulfilling its moral responsibility for lessening the suffering and pain of the victims.
The validity of the fund is still questioned. Because the fund is financed by private donations rather than government funds, most victims and the groups advocating on their behalf see it as a facade enabling the state to evade its own responsibilities. They assert that the Japanese state is accountable under international law for crimes committed against comfort women and therefore responsible for providing compensation to the victims and ensuring that those involved in the abuse of comfort women are punished. In protest, many victims have refused to accept the compensation amounts of $16,600 dollars per person and the accompanying letter of apology from Prime Minister Hashimoto.1
Supporters of the fund, however, believe that seeking public contributions serves to arouse public consciousness about the comfort women issue, an important step in a country where discussion of the dark side of Japanese activities during World War II is taboo. Also, many argue that in a democracy, the people should feel at least partially responsible for their government s wrongdoings and act accordingly. I believe that the great majority of the Japanese people today do feel some responsibility. It is generated out of a tradition of Japanese group thinking and culture, where the responsibility of a group is the responsibility of its members and the results of the action of one member of the group is shared by all members—even over time.
The fund is not a perfect solution, but it is as the UN Resolution on the comfort women states, a "useful step." One does wonder, however, if the Japanese government would have acted without mounting international pressure in United Nations fora. If the Japanese government would reconsider contributing money to the fund directly it might be perceived as sharing greater responsibility and commitment to human rights.
However there is one aspect of the comfort women debate that few dispute: The now aged victims are still suffering, physically as well as mentally, from their brutal wartime experiences. The little time left to ease their pain should not be spent arguing about who is more responsible and what is just compensation.
- Park Won Soon in "Transitional Justice in East Asia," a paper presented at the workshop of the Council's Human Rights Initiative, "New Issues in East Asian Human Rights," in Seoul, Korea, Oct. 2–4, 1996.
- Donna A. Sermeno, "Circumventing Agrarian Reform," Pulso, monograph no. 14, (July 1994) Institute of Church and Social Issues, Quezon City, Philippines; and Dennis M. Arroyo, "Economic Justice: Wealth Through Official Plunder," INTERSECT, November 1993, Institute of Social Order, Quezon City, Philippines; and also Antonio S. Ungson, "Power, Wealth and Distribution in the Philippines," in INTERSECT, November 1993.
- Louella A. Faigao, "The Tangled Path to Restitution," The Human Rights Agenda, vol. 1, no. 4 (May 1996), Institute of Human Rights, UP Law Center, Quezon City, Philippines, and Daan Bronkhorst, "Campaigning Against Impunity in the Philippines," in We Did Not Learn Human Rights from the Books, Philippine Information and Documentation Center (Quezon City: Justice, Peace and Integrity of Creation Commission and Claretian Publications, 1996).
- Commission on Human Rights (brochure), Pasig, Metro Manila, Philippines.
- At least 10 of the claimants have died without getting the rest of the compensation from the Swiss bank deposits due to the legal measures taken by the Marcoses and the opposition of the Philippine government. See "Ten Claimants Against Marcos Riches Dead", Philippine Daily Inquirer, Quezon City, Philippines, December 10, 1996; "Swiss Freeze Disputed Marcos Funds," the Japan Times, February 27, 1997.
- James Goodno, The Philippines: Land of Broken Promises, (Worcester: Zed Books, 1991) 193-209.
- Carlos P. Medina, Jr., ed., Custody of the Law, (Makati, Philippines: LAWASIA Human Rights Committee/Ateneo de Manila University, 1994).
- Report of Activities of the Free Legal Assistance Group 1991, (Quezon City, Metro Manila, Philippines) 2.
- Obinario, Romelino, "Asia's Cultural Values and Human Rights," Education Forum, paper presented at the meeting on "Asia's Cultural Values and Human Rights" (HURIGHTS OSAKA), January 28–31, 1997, Osaka, Japan, page 5.
- See article on previous page by Kem Sokha.
- The fund did manage to distribute some lump-sum payments to some victims in the Philippines in August 1996, and to victims in the Republic of Korea in January 1997.