Asia Times


CHAPTER 3: Inhuman rights?

3.1 A difference of clashes

Ideology is not dead, at least not yet, and it still makes a difference in the world. Even if the Bamboo Curtain - the ideological divide between East and West - were torn down, strong ideological differences would still separate China, the West, and the rest of the world. The issue is not as clear-cut as in the Cold War years, but the fact that the West advocates capitalism and China still claims to be communist stands in the way of better foreign relations, although all sides strive to push ideology aside. But whether one may want to engage China or confront it, or whether China aspires to occupy this or that position in the world, these very propositions recognize a difference between China and the rest of the world, a difference somehow deeper than that between other states.

China is separated from other countries by its ideology, cultural heritage and the size of its population, but it is united by an aspiration to economic and scientific development as defined by the West. To reach this goal, China has clearly shown in the past 20 years that it is willing to partly relinquish ideology and cultural heritage. The differences are not as deep as in the past, and it is now hard to claim a clash of civilizations: after all, Chinese statesmen have shed their traditional apparel, including the Mao suit, for the more conformist European suit. Young people surf the Net in Beijing as in New York, and the trend toward globalization is getting stronger as ever-faster and newer technologies wire the whole planet to an all-encompassing market in which money can be made or lost within minutes.

Still, globalization has not wiped out states, languages, or cultures. And globalization is often perceived as the dominance of the American media and markets over the rest of the world. Wall Street is without doubt the biggest and most powerful stock exchange in the world, and AP, Reuters and CNN set the standard for world news coverage. In this smaller world where travel and communication grow cheaper and more convenient, not everyone has given up his own peculiarities. The world is not yet a uniform Disneyland.

The differences are still there and still count a lot. These differences are most starkly revealed in contrasts of power. In spite of the growth of the free market in recent years, states have grown not smaller but bigger, and so have their ambitions and conflicts of interest. These divisions in the globalized world are enough to cause concern, without having to think about ideology. But in China ideology is still there, settled on top of a strong and demanding cultural heritage which bestows the only modern civilization stretching without major changes back to the first millennium BC. This heritage, combined with China's ideology and power structure, mark the country apart from the vast majority of states which have embraced representative democracy. Thus there is a clash of different national interests, but the clash goes deeper than that: after all, on a level of pure realpolitik, clashes occur even between countries sharing the same values and cultural references.

China, however, has been on a fast track of development for the past 20 years or so. It now is a full and important part of the world market, crucial for the world's growth, and it could become the country with the biggest GDP in dollar terms sometime around the middle of this century. The US could then become a second-rate power behind this new superpower. The prospect is enough to raise due concern in the US, and lead to all kinds of suspicions and fears throughout the planet. Any new thing - especially the emergence of a new world order - causes alarm. Besides, the Chinese comprise some 22 percent of the world's population, making China not only the most populous state in the world but also the most united cultural bloc. India, the only country with a comparable population, is divided by religions, castes and languages - differences that exist but not do not matter that much in China. A fifth of the world's population, the Chinese, then confront the rest of a planet miserably divided by hundreds of languages, creeds and beliefs. This fact makes China potentially very strong.

Certainly, many in the world fear a dominant China, and the fear arises from looking at the one area where ideology makes a tangible difference: the human rights issue. In China, cultural tenets are embedded in ancient traditions and the daily practice of ruling the country, and they are very different from those on the other side of the Pacific Ocean. But it is China's mix of ideology, cultural heritage, threatening size and urge for development that is behind the West's focus on the human rights issue, making the issue difficult to fully come to grips with. Threads seem always to be missing because the issue is often broached as separated from the background that makes it an example of a more complex difference.

So, to come to the complex background of difference, we might well start from the example of human rights. We will not deal with what human rights "are", but rather more interestingly for our purpose of understanding the divide, we will look at the "representations" of human rights.

3.2 Representing human rights

China claims that the United States approach to human rights is hypocritical. The US blames Beijing but not Hanoi, which arguably has a worse human rights record. Furthermore, the US blames Beijing now but did not 20 years ago, when human rights certainly were much worse. However, the US's representation has substance: China has a poor human rights record, it puts its political dissidents in prison.

The Chinese white papers on human rights, clearly compiled to answer Western criticism, fail to grapple with what the West sees as the crux of the matter: the fate of political prisoners. The different stands of the West and China on political prisoners shows up their ideological differences. However, China is not keen on confrontation and it is conceding some ground. Its leaders do not pretend there are no human rights abuses in their country. On the contrary, they have opened a dialogue on the issue and are aware of their faults - so much so that during a visit of European parliamentarians in early 1998, Beijing knew it had to show clean cells and inmates studying English as a sign of the improving human rights situation.

On the other side, Westerners also have changed their approach to China on human rights. In 1998, the European Community decided not to co-sponsor an American document against human rights abuses in China, and even the US seemed to want to put the issue on the back-burner and move ahead with trade relations. The new approach produced some results. Famous dissident Wei Jingsheng was released in 1997. A few months later, dissident Wang Bingzhan, exiled in America, returned to China to establish a new revolutionary party. Wang was found and arrested, but unlike in the past, he was expelled back to the US in a matter of hours without much ado.

Yet the seemingly closing gap still hides many hurdles. The Chinese words for "human rights" (renquan) and "rights" (quanli) were in fact imported from Japan in the first half of this century. When the Japanese began their modernization program in the 19th century, they translated many Western concepts using kanji (Chinese characters). In the process of studying Japan's modernization program, the Chinese adopted these new words. But whereas the word "rights" has hundreds of years of history in the West and thus has significance for most people, it had no previous meaning or history for the Chinese layman. It's like the word "postmodernism" in the West - a concept that becomes widely known to the cultural elite while remaining largely meaningless for everyone else. Adding to the confusion, the word quanli (right) has the same pronunciation (though written with a different character) as the word for "power".

The lack of an indigenous word for "rights" in the Chinese language stems largely from the nature of the traditional social relationship between the individual and the state. Whereas in Western thought, government is instituted for the purpose of protecting man's inalienable or "natural" rights to life, liberty and property, for the Chinese, whose conceptions are profoundly influenced by Confucian thought as well as Mao Zedong Thought, such a notion is to some extent incredible. In ancient China, and ever since, to rule is tantamount to keeping order (zhi) and failing to rule is chaos (luan), which brings all kinds of disasters. There is no word bearing any resemblance to the Western concept of "rights".

Far from being an autonomous being, in China the individual has traditionally been conceived of as part of a larger group. Under traditional Confucianism, an individual's interests are understood to be inseparable from those of society, and an ethical individual should always place the interests of society above his own. Marxist thought, as expressed by Mao, was able to take hold in China because of the relative compatibility of the underlying concepts of Mao's understanding of Marxism and Confucianism in this regard. Law was thus subordinated to politics and in Mao's time this went as far as abolishing the legal codes earlier adopted from the Soviet Union. The Chinese communist leaders found that Soviet law was too similar to that of the Guomindang (Kuomintang, the nationalist party defeated by the communists). In fact, both the Soviet and Guomindang legal codes were translations and adaptations of an earlier German code.

In this environment, there are in fact no rights. If one insists on looking for them, one finds that like the law, individual "rights" - perceived as creations of the state conferred upon individuals in exchange for some corresponding duty - were subject to constant change. Far from being inalienable and inviolable, they depended on a discretionary act of someone in power. There was no rule according to which one could estimate the outcome of a certain course of action (for instance, if I voluntarily kill a man I will be prosecuted and probably sentenced to death). State order was maintained by orders drafted on the basis of Mao's often erratic comments.

3.3 Deng's right

In the late 1970s, in order to promote modernization, China began to move under Deng Xiaoping toward systemization, so that laws would not change merely because of a change in the leaders' views. While a regularized legal infrastructure is now in place in China, and under the 1982 constitution citizens are conferred individual rights virtually identical to those in the West, a closer look at the document reveals that Communist Party policy is still an essential component of the constitution and of the country's civil law. Or, more precisely, the latter are tools of party policy, as they had been in the past.

Furthermore, rights continue to be bestowed by the state on the people, rather than being inherent. As the president of the Supreme People's Court stated, it "is a mistake to think that, because there is law, justice can be executed without the guidance of [party] policies". Today, in a country that has lived practically without laws but with vague "rules" for decades, the Chinese people are barely aware of the importance of concepts inscribed in the law and the constitution. The Supreme Court is not independent, because that would entail a separation of powers of the executive and the judiciary, and there is no strict concept of hierarchies of laws - eg, national laws taking precedence over local laws - because tradition has emphasized the hierarchy of power instead. Thus, there is no formal, finite definition of "informal" and "substantive" rights - or of many other legal concepts, for that matter.

In Continental Europe, laws regulate such rights, whereas in the United States and England, judges have a great deal of discretionary power to rule according to these rights. But a judicial tradition cannot simply be invented or imported overnight, especially in a large country such as China, which is grappling with the phenomenal changes brought on by several years of double-digit growth in the rush to economic success. Nonetheless, the development of "substantive rights" has made considerable headway in China - albeit always with an eye on politics. In many cases, companies and individuals acquired some kinds of civil law rights in a situation of vacatio legis. But then these new "rights" had to be backed up politically. For instance, in the late 1970s, people in Anhui and Sichuan began dividing collective land among themselves, prompting peasants all over the country to follow suit. Local political leaders who supported this reform, such as Zhao Ziyang and Wan Li, were able to protect the peasants' self-appropriated property rights.

As such cases multiply, it becomes increasingly difficult for political leaders to stop them. Instead, they must try to regulate the process. President Jiang Zemin embraced this approach at the 15th Party Congress when he made a speech pledging to push for a "legal system" in China. But whatever Jiang meant by a "legal system", it is difficult to forecast how long it will take to reach a point where individuals can sue other individuals - or the government - without political backing.

The most important part of this process seems to be the polarization of power. If there are many centers of power in the country (Beijing, the provinces, the military, state enterprises, private entrepreneurs, foreign companies) with no one of them holding sway, a kind of democratic discussion will necessarily arise. Compromises will have to be found, and someone may be left opposing the compromise.

Bearing this in mind, we can now take a more accurate look at the human rights situation in China, in terms of both its actual substance and its political content.

Regarding actual substance, almost everyone in China wants to see improvements in the human rights situation. Almost all are somewhat embarrassed about the fate of political dissidents and hope eventually for more freedom. But at the same time, the Chinese do not think their country can be compared to the Soviet Union under Stalin or Germany under Hitler. The discussion - and sometimes disagreement - is over the speed of implementing improvements. The decision-makers in Beijing are trying to cope with the threat of instability posed by mass unemployment, one of the most notable by-products of the country's economic reforms. Without strong government control - at the expense of Western "universal" human rights - many Chinese believe the country will explode. Nobody can say how big that explosion could be, but few deny it could actually occur. Thus, if China is to continue carrying out "capitalist" economic reforms, it cannot immediately liberalize society without endangering overall security and welfare.

With regard to political content, Beijing notes that though the US frequently raises the human rights issue now, it did not do so 20 years ago when the situation was actually quite a bit worse, suggesting that US pronouncements are in fact motivated by geostrategic concerns. During the Cold War, Washington and Beijing were allied against Moscow. The Chinese suspect that, now that China is of less use to the US, Washington uses the human rights issue as a tool to diplomatically and economically isolate Beijing. On the basis of this argument, some Chinese scholars have said privately that the country should try to show the US good faith on the issue, because Washington is still too strong to be ignored. But, as a result of the US pressure, it was difficult for Chinese liberals to advocate human rights at home without appearing to be in the US's pocket. So there was a vicious circle, with leftists opposing a faster pace of human rights reform.

The debate was somehow resolved in 1997 after dissident Wei Jingsheng's release. The move proved successful on all fronts. It relieved political pressure on the Chinese, the US administration was less keen on criticizing Beijing, and it divided the dissidents' ranks when they started bickering over whether Wei was a hero or not. But Wei's release should not blur our vision. The Chinese political system is a one-party system, and this will necessarily determine the pace and process of human rights development. That is the reality: reforms can either occur within the system, or the system must be overthrown.

If the system were overthrown, the result would be destabilizing chaos for China and all its neighbors. Thus, the only practical hope for improving the country's human rights situation is through slow reform, the pace of which will be at least partly conditional on resistance to foreign pressure.

3.4 Civil rights

When the early 1990s brought a flood of foreign investment, it became clear that the easy-going practices of the past would not work anymore. If businessmen were to put large amounts of cash into the country, they needed a legal hedge, a legal framework as guarantee. The true problem was, and largely still is, the lack of civil law, which in the West is the practical and philosophical base for protection of "human rights". In the West, human rights is an extension of property rights, which both limit and constitute the power of the state.

In China, encroaching substantive rights - ie the re-allocation of land and power among localities - had found their limits. They were no longer just eroding state power but the newly born "private rights" were colliding with one another. In other words, the extension of the substantive right of a peasant did not just run into weak opposition from the commune, which was, all in all, eager to give up land to the peasant, but it ran more and more into the opposition of other private owners keen on extending their substantive right by swallowing up other people's land.

A striking and extreme example of the trend occurred between 1994 and 1995 in Wangfujin, Beijing's most famous commercial street. Here, McDonald's had built one of its first and most successful Chinese outlets in early '90s. But a couple of years later, the Hong Kong developer Li Ka-shing bought a large piece of central Beijing and was tearing it down to build a huge commercial center, the Oriental Plaza. The McDonald's restaurant was on that piece of land. Li claimed that the restaurant had to go, and the Americans retorted that when they started operating, Chinese law didn't allow the purchase of land for commercial purposes, but nevertheless their substantive right had to be respected. A huge legal brawl ensued and, partly as a consequence of this, the Oriental Plaza project was stopped till 1997 and a scandal engulfed the Beijing municipal government. McDonald's did eventually move out of Wangfujin but, as compensation, won the right to open dozens of new restaurants in the capital.

This is a classic example of the on-going law-making process in China. But one has to bear in mind that the modern right to vote comes from the right to possess wealth, a right the state must protect in order to guarantee itself. In fact, the state levies taxes on citizens in return for the services it provides them, and among those services is that of protecting private property. The right to vote is the power citizens require to check that their money is effectively spent on their behalf and for their own good. The modern state represents - IS - the voters. In China, the law does not strictly protect private property, so how can we speak of human rights? Where should we pin this label? What would be the actual content of human rights?

But here we touch upon a very deep issue, concerning both communist rule and, to an extent, Chinese tradition. The Chinese Communist Party took power to cancel private property ownership. To now demand protection of property is to ask the party to betray its roots. The ideological task is daunting, yet there is no other way to shape a modern country.

China now requires economic development for its very survival. Without economic growth the party will lose power, and the ever expanding policy of reforms and opening up - on which growth is based - will end. This is the crux of the seemingly paradoxical situation of the country. Business requires a predictable environment not subject to the whims of political power. Thus laws must actually limit the scope of action of direct political power. Business must have a long time program: one must be sure that what one now earns will go to one's children tomorrow, not back to the state. Otherwise, investments and plans will all be short-term schemes to make some extra money. Long-term development requires the protection of private property. Thus reforms imply - and actually there is internal debate about it - passing laws to fully protect private property.

In the imperial past, individual "rights" had to agree with the general interest of the state to keep order and dispel disorder. For this reason, when a merchant got very rich he was under pressure to either become a mandarin or risk having all his assets confiscated. His wealth disturbed the social order: he could be regarded by the common people as superior to the bureaucrats or even the emperor whom they had to obey, and thus turn the social order upside down. In classical novels, corruption is described as the prevailing of rich people over imperial officials. The way to avoid this distortion was not to regulate the social and economic behavior of rich men and officials, but to cut out the root of the problem by seizing the assets of the rich. The measure also had a social motive: to encourage brilliant people into the official ranks of the bureaucracy, so saving them from the lure of free economic enterprise.

History has changed course and China now fully recognizes the importance of free enterprise for its own economic development. Without development, China would lag behind the West and be open to the threat of invasion or bullying by other powerful states - a destiny China is keen to avoid. Therefore, the government must protect investment. An investor must be sure a government will not seize his assets whenever it sees fit. If he has doubts about the safety of his assets, he will send his money abroad or spend it, and so endanger the financial well-being of the country - a frequent occurrence nowadays, as many financial crises prove. In all countries, the relationship between state and subject has dramatically changed. In the past, a single individual didn't have much leverage, but now, thanks to technological development and sophisticated new financial systems, an individual can, in a matter of seconds, wire important amounts of money out of a country and so destabilize it.

China is no different from the United States or England in this respect. Therefore, there must be a law that guarantees property over a long period of time, beyond routine and non-routine changes of leadership. In other words, China must have a solid, stable social, economic and political structure, invulnerable to the whims of politicians. Without this, it will be unstable, subject to possible financial and non-financial rebellions.

All these issues are bound to draw China and the world closer together. But it remains unclear how long it will take for China to develop a legal system comparable to those of modern countries. In 1997, China set the objective of establishing a "socialist legal system" by the year 2010, but it is unclear what it means by "socialist legal system" - and even less clear where China will be economically in the year 2010.

The issue of human rights is not only determined by culture but is part of an ideological approach that is already changing and will further change along with changes in economy, law and politics. But we must not forget that this ideology is also part of a political balance which holds the country together. Thus, suddenly changing the ideology is impossible without disrupting China's balance, and along with that, the world economy. Unlike the USSR, whose collapse did not make any difference to the world economy as it was largely outside the international markets, China is a driving force in Asia and thus an important international player. And markets prefer political stability.

There remains, however, the cultural and ideological confrontation between China and the West. So far, it seems this confrontation will not be a military one. China appears set to embark on a transformation toward becoming a modern society, ie, with Western-style rule of law. But this operation is like an elephant moving into a crockery shop. The animal wants to live in the shop but is bound to move around in it, breaking many vases. It will be a long time before the elephant adapts to life in the crockery shop, and during the process both the shop and the elephant will change.

China's ideological differences with the rest of the world will narrow. In two, five or 20 years, it will officially cease to call itself socialist, it will have developed a full-fledged democracy and it will be easier for foreigners - and the Chinese as well - to handle. In the meantime, friction with other countries will remain: geography and history, after all, are not matters of opinion but of fact. But in its willingness to change, China is unlike some Islamic countries that seem intent on retaining their cultural and religious heritage even if that is an obstacle to economic and scientific development.

Next week, Chapter 4: The great divides Chapter 1: Fun for the masses ( Chapter 2: Responsibilities of and to the people ( (2001-03-31 Asia Times)


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