waiting for rights: china's human rights and china's constitutions, 1949-1989

Waiting for Rights: China's Human Rights and China's Constitutions, 1949-1989Author(s): Ann KentSource: Human Rights Quarterly, Vol. 13, No. 2 (May, 1991), pp. 170-201Published by: The Johns Hopkins University PressStable URL: http://www.jstor.org/stable/762659 .

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HUMAN RIGHTS QUARTERLY

Waiting for Rights: China's Human Rights and China's Constitutions, 1949-1989

Ann Kent*

1. INTRODUCTION

The outbreak of peaceful protest in China from April to June 1989 has served to highlight lacunae in the existing Western literature on human rights in China, both in a definitional and methodological sense. In terms of the definition of "human rights," the emphasis of Western scholars on the condition of China's civil and political rights to the exclusion of its social and economic rights has led to two main consequences. First, in the decade after 1978 China had made considerable informal progress in the condition of the freedoms of thought, speech, association and assembly. Thus, in the realm of public policy, objection to the limited extension of those rights seemed grudging and inappropriate, although at the same time Amnesty International pressured China to legally protect those newfound rights and addressed the problem of capital punishment in China.

Nevertheless, many observers, particularly foreign governments, took refuge in the expectation that it would just be a matter of time before the improvements in the informal situation of civil and political rights in China would penetrate the formal legal apparatus of rights, particularly in view of the leadership's pledge to institute a rule of law. Those who did criticize China's civil rights often objected to the Chinese practice on human rights issues canvassed in more advanced Western nations, such as birth control, the lack of free choice of work and freedom of movement, and property

* In writing this article I have benefited from discussions with Philip Alston, Peter Bailey, and J.P. Fonteyne, Faculty of Law, Australian National University, Canberra, and from comments on an earlier draft by James Cotton and Chris Buckley, Research School of Pacific Studies, Australian National University. This paper was originally delivered at the Asian Studies of Australia conference in July 1990.

Human Rights Quarterly 13 (1991) 170-201 c 1991 by The Johns Hopkins University Press



1991 Waiting for Rights 171

rights. Such objections may be less appropriate to China's human rights conditions than the basic issues of freedom of thought, speech, association, and assembly, freedom from arbitrary arrest, torture, and mistreatment, and the right to life in its broadest sense. The application of such an aggressively liberal value system to China's human rights development has only devalued the coinage of the critique.

Moreover, this one-sided emphasis on civil and political rights in many Western analyses has disguised the real erosion of social and economic rights which occurred over the decade of the Four Modernizations, 1979- 1989. These rights had been the heritage of Mao's rule and had been assumed as their birthright by most Chinese who grew up in post-1i 949 China. The very Western expectation that the decade of the Four Modernizations had not only wiped out the popular memory of the Maoist era but, via the trickle- down effect, had brought a general prosperity to the Chinese people that obviated the continuing need for a supportive social welfare and social security infrastructure was a miscalculation not limited to human rights analysts. In fact, as it turned out, the Chinese mind was rendered neither rich nor blank by the decade of the Four Modernizations. On the contrary, the April-June 1989 protests can only be understood as the unique outcome of a dual revolution of rising expectations in the arena of civil and political rights and of relative deprivation, and rising expectations, in the area of socioeconomic rights.'

II. "HUMAN RIGHTS" IN CHINA: A PROBLEM OF DEFINITION

Because human rights are a cluster of values derived from international consensus, the problem of their definition is first and foremost an international one. Both socialist and Western states at times choose, for political purposes, to interpret the concept "human rights" as representing primarily the civil and political rights which are given priority by Western states. This political sleight of hand should not disguise the essential fact that in international law, the contemporary usage of the term embraces the whole spectrum of civil, political, social, economic, and cultural rights.

This contemporary definition must be distinguished from the Western usage of the term which predates the Universal Declaration of Human Rights. Insofar as the term was used, "human rights" was taken to refer to the civil and political rights deriving from the ancient notion, of Grecian origin, of the "natural" rights of the individual. Articulated in the American Declaration

1. Ann Kent, Human Rights in the People's Republic of China: National and International Dimensions (Canberra: Peace Research Center, Australian National University, 1990) 2, 67.



172 HUMAN RIGHTS QUARTERLY Vol. 13

of Independence (1776) and the French Declaration of the Rights of Man and of the Citizen (1789), as well as in other bills of rights, these "human" or "natural" rights became known as the "first generation" of rights and were regarded by socialist and developing nations as expressions of Western culture and notions of individualism.

For this reason, the full text of the Universal Declaration of Human Rights of 1948 was not limited to the elaboration of the classical principles but added to the civil and political rights in the first twenty-one articles a set of new "economic and social" rights, or the "second generation" of human rights. After the adoption of the Universal Declaration, two covenants-the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights- were adopted in 1966. The latter foreshadowed the "third generation" of rights which emphasized the right to development and collective rights. It states that human beings form peoples who are entitled to political self-determination and control over their own natural resources as well as to live in a peaceful, healthy, and economically developing environment.

Any objective discussion of human rights, in China as elsewhere, must therefore focus on civil, political, social, economic, and cultural rights, as articulated in the Universal Declaration of Human Rights and the 1966 covenants. "Civil rights" may be understood as conferring rights of immunity upon the individual, as requiring noninterference from others and as "not normally dependent upon general social conditions."2 They include freedom of thought, conscience and religion, expression and association, residence and movement; every person's right to life, free from arbitrary killing, torture, or mistreatment; freedom from slavery, arbitrary arrest, or detention; and equality before the law.3 Political rights may be defined as rights of participation and include the individual's right to "take part in the government of his country, directly or through freely chosen representatives"; the right of access to public service; and the right of election and recall of government on the basis of "universal and equal suffrage" by secret ballot.4

Social and cultural rights, in the form of claims to benefits from the state, may be understood as rights of consumption, allowing access to social security, to education and to "the cultural life of the community." Social rights include "the right (of everyone) to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, medical care, and necessary social services, and the right

2. Eugene Kamenka, "Human Rights, Peoples' Rights," Bulletin of the Australian Society of Legal Philosophy 9 (June 1985): 157.

3. Universal Declaration of Human Rights, signed 10 Dec. 1948, G.A. Res. 217A (111), U.N. Doc. A/810, at 71 (1948); International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, entered into force 23 March 1976, G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966).

4. International Covenant on Civil and Political Rights, art. 25.




to security in the event of unemployment, sickness, disability, widowhood or lack of livelihood in circumstances beyond his control."5s Economic rights, which suggest not only the right of consumption but also the more active right of participation in the work force, include the right to work, to free choice of employment, to equal pay for equal work, and the right to "rea- sonable limitations of working hours and periodic holidays with pay."6 They also include the right to strike, which, together with the civil right of freedom of association, comprise a special category of industrial rights.

In attempting to apply these international standards to specific countries, however, one faces the intrinsic inadequacies in the formulation of the human rights doctrine. The rights formulated in the Universal Declaration and the two covenants are seen by Eugene Kamenka as "conceptually disparate and muddled, containing rhetoric and crucially important conflicts with each other."7 Most importantly, the documents' authors failed to consider "the sharp and fundamental clash between civil and political rights, that limit the power of the state, and social, economic and cultural rights that positively demand ever-increasing state organization of society."8 The only constitutions which resolve this contradiction, he observes, are the communist constitutions which provide that "all rights granted by the constitution or in the codes shall be exercised only in conformity with the social, economic and political system of the country and the purposes of building socialism."9

Inconsistencies also exist, as Peter Bailey has pointed out, at the level of basic principles, between the right to life and the allowance of capital punishment (both contained in Article 6 of the International Covenant on Civil and Political Rights); between the right to privacy and the right to freedom of expression and information (International Covenant on Civil and Political Rights, Articles 17 and 19); between the right to freedom of movement and the right to work (International Covenant on Civil and Political Rights, Article 12, and International Covenant on Economic, Social and Cultural Rights, Article 6); and between the right to self-determination and the right to an adequate standard of living (International Covenant on Civil and Political Rights, Article 1, and International Covenant on Economic, Social and Cultural Rights, Article 11).1o

In relation to China the problem of definition assumes double propor-

5. Universal Declaration of Human Rights, art. 25(1). 6. Ibid., arts. 23-24. 7. Kamenka, note 2 above, 156. 8. Ibid., 157. 9. Ibid.

10. Peter Bailey, Human Rights: Australia in an International Context (Sydney: Butterworths, 1990), 20. In pointing out these contradictions, however, Bailey differs from Kamenka in emphasizing that both groups of rights, civil/political and economic/social/cultural, involve claims on the state. He cites the right to a fair trial as an example of a very expensive claim. Ibid., 13.




tions. As a socialist country, China has conformed with the view of other socialist and third world countries which emphasize the social and economic aspects of human rights and consider the aspirations of their peoples as realizable mainly through collective social and economic action. According to this formal Marxist view, political rights and equality, or "bourgeois right," have been seen as symptoms of social and economic inequality, and true rights arise from state ownership of the means of production and the equal distribution of wealth. While Western states emphasize the universal and abstract nature of the individual's civil and political rights, with social rights as secondary, concrete, non-universal, and contingent, China emphasizes social and economic rights but views all rights as collectively based, concrete, non-universal and subordinate to state sovereignty and state security.'" China has also interpreted the collective political right of self-determination of peoples, articulated in Part 1, Article 1 of the International Covenant on Civil and Political Rights, as stipulating the liberation of non-self-governing peoples from colonial domination, which, by extension, means "the right that foreign states shall not interfere in the life of the community against the will of the government."12

This collective view of rights is, moreover, bolstered in China's case by traditional concepts of society, the state, and the law. According to the traditional Chinese view, society is an organic whole in which collective rights prevail over individual rights and the state is the ultimate arbiter of those rights. Attempts by some China scholars to link the humanist ethics, ren and yi, of traditional China with the notion of "human rights as founded in the wellbeing of the people as individual moral beings" involve a qual- itative logical leap from the collective notion of "wellbeing of the people," which it represents, to the notion of the quintessential value of the individual, which it does not.13

Wang Gungwu has convincingly established that in traditional China the quan, or rights, of the state came before the quan of its component parts. Moreover, he has shown that even in the early twentieth century when many voices were raised on behalf of individual rights, the prior need for military power to remove corruption and anarchy as well as restore unity and stability to the warring provinces of China meant in effect the decision that "finer issues of rights and duties would simply have to wait."14 The prior claims of the state in traditional China, combined with the Chinese practice of

11. Kent, note 1 above, 11. 12. Antonio Cassese, "Political Self Determination-Old Concepts and New Developments,"

cited in Kamenka, note 2 above, 155. 13. See John F. Copper, Franz Michael and Yuan-li Wu, Human Rights in Post-Mao China

(Boulder, Co.: Westview Press, 1985), 11-12. 14. Wang Gungwu, "Power, Rights and Duties in Chinese History: The 40th George Ernest

Morrison Lecture on Ethnology" (Canberra: Australian National University, 1979), 18. The title of this article, "Waiting for Rights," is taken from this lecture.




personalized justice of Cemeinschaft (community) which emphasizes mediation, reconciliation, social harmony, and hierarchical relationships, provide the traditional background to the contemporary Chinese state.'- This state, at least up until the last decade, was generally seen as ruled by politics rather than by law and as possessing a legal system which, to the extent that it was invoked, intervened on behalf of the collective interests of all individuals, vested in the sovereignty of the state.

Attempts to establish consistency between Chinese traditional values and the individual civil and political rights of the contemporary world, however well meaning, are also misguided. For human rights are not ultimately a national standard of values and do not require justification in national cultural and legal terms. In an interdependent world, sharing international norms, the luxury of cultural and legal pluralism is difficult to indulge. All states, particularly members of the United Nations, are obliged to measure their national practice of human rights against the standards established by international consensus.

The Universal Declaration, which, as Bailey remarks, was "almost mi- raculously" agreed to in 1948 by the United Nations General Assembly with forty-eight supporting votes and no dissents (but eight abstentions), together with the two covenants and the optional protocol, today form the definitive international statement of the International Bill of Rights.'6 To that Bill of Rights has been added the 1986 Declaration on the Right to Development, which deals with different aspects of the two groups of rights-civil and political rights, and economic, social, and cultural rights-and which emphasizes their inseparability.'7 It is in these human rights instruments that a relationship must be sought between Chinese national values and international values.

Common features can in fact be found, not only in respect of the social and economic rights in the Universal Declaration, the covenant on social and economic rights, and in the Declaration on the Right to Development, but also in the provisions of the covenant on civil and political rights. As has been argued elsewhere, the condition of rights in China in the decade before June 1989, wherein informal civil and political rights had been expanding, together with related Chinese activity in the United Nations, had brought Chinese theory and practice regarding human rights closer than ever before to the international standards set down by those covenants.'8 In other

15. Alice Tay, "Communist Visions, Communist Realities and the Role of Law," Bulletin of the Australian Society of Legal Philosophy 13 (December 1989): 245.

16. Bailey, note 10 above, 1. 17. Ibid., 16. 18. Kent, note 1 above, 57-63. A similar argument may be found in Wang Delu and Jiang

Shihe, eds., Renquan Xuanyan [Declarations of Human Rights] (Beijing: Qiushi Chu- banshe, April 1989), 4-5. See also Roberta Cohen, "People's Republic of China: the Human Rights Exception," Human Rights Quarterly 9 (November 1987), 448-549;




words, although human rights do not require justification in national cultural and legal terms, congruence can be discovered between Chinese national values and international norms; it is a congruence, however, issuing from Chinese theory and practice of the late seventies and early eighties, rather than from the traditional belief system.

III. HUMAN RIGHTS IN CHINA: A QUESTION OF METHODOLOGY

There are various ways of assessing the condition of human rights in China. One method is to apply a model of human rights based on the Universal Declaration and its covenants to China's actual situation of human rights. This is the approach adopted by a number of scholars.19 But perhaps the most useful methodology is a two-step process that involves first a comparison between international standards of human rights and national norms, most accurately reflected in a state's constitution or constitutions. Only when the gap between internationally prescribed ideals and national legislation has been explored should the second step be initiated: an examination of the relationship between the constitutionally guaranteed principles and changing empirical reality.20 This approach has the virtue of accurately reflecting the dynamic relationship between intern., •nal

norms, national norms, and empirical rqality; it also exploits the potential of human rights to serve as an instrument to monitor the changing political, social, and economic conditions of the nation state. It thus facilitates an understanding of some of the tensions which led to the 1989 Democracy Movement in China.21

At the same time, it must be cautioned that, for a number of reasons, such a methodology can only be an approximate, or rather, heuristic device.

Hungda Chiu, "Chinese Attitudes toward International Law of Human Rights in the Post- Mao Era," in Chinese Politics from Mao to Deng, Victor C. Falkenheim and Ilpyong J. Kim, eds. (New York: Paragon, 1989), 237-70.

19. This approach has been generally followed by Yuan-li Wu et al., Human Rights in the People's Republic of China (Boulder, Co.: Westview Press, 1988) and in Copper, Michael, and Wu, note 13 above, although reference is made to Chinese constitutional provisions. It has also been followed in James Seymour, China Rights Annals: Human Rights De- velopments in the People's Republic of China from October 1983 through September 1984 (New York: M.E. Sharpe, 1985).

20. This is the methodology adopted in R. Randle Edwards, Louis Henkin, and Andrew Nathan, Human Rights in Contemporary China (New York: Columbia University Press, 1986) but these authors give greater emphasis to the comparison between national and international norms via comparisons with the Chinese constitutions, and less to the charting of the informal exercise of those rights. It is also adopted in James Seymour, "Human Rights and the Law in the People's Republic of China," in Falkenheim and Kim, note 18 above, 271-97.

21. For this reason, the emphasis in this paper is on the rights of Han Chinese, rather than on the related issue of Tibetan and minority rights.




First, it must be observed that this approach, although using China's constitutions as a central point of reference, does not underestimate the limits of constitutionalism in China. Yash Ghai's recent findings on the limits of constitutionalism and the rule of law in Africa are also applicable to China.22 Ghai points out that in third world countries the burden placed on the constitution, in creating political order, providing for equitable development, promoting national unity and loyalties, and protecting national minorities and safeguarding human rights, has been much heavier than in the West.

On the other hand, the objective social and economic conditions of these countries make it difficult to establish a social order on the basis of general rules. The circumstances in which the state arose make it a central force in the process of accumulation and reproduction, and the nature of that accumulation reinforces the authoritarian nature of the state, leading to corruption and repression. Moreover, the ideological function of constitutions is less important than in the West, and other competing ideologies- developmentalism, religion, or racism - ideologies antithetical to democratic practices, are invoked as legitimation.

However, if constitutions are acknowledged to be frail vessels, they are nonetheless the best available guides to a state's social and political norms and institutions. In China which has had four constitutions since 1949, each promulgated in a distinctive social and political policy environment, constitutions tend to be more like political programs. But precisely because socialist constitutions like China's are more sensitive to a government's will, they act as guides to the state's prevailing values and intentions, against which the current political and social condition can be measured. The second qualification which should be stated in regard to this methodology is that the analysis of the relationship between constitutions and informal reality does not assume a fixed causal link between the nature of that relationship and the fact of social and political unrest. The main pressures for political and social disaffection come from disturbances deep within the society. But the radical divergence of constitutional guarantees of rights from the reality of their exercise in society is a barometer of these tensions and may also exacerbate them.

Finally, the focus on China's constitutions should not suggest that constitutions are the only source of legally guaranteed rights. Just as in China the state has the power to limit rights by law, so it has the power to expand rights by law. Thus China's Criminal Law and Criminal Procedure Law which came into effect in early 1980, institutionalized new civil rights such as the rights to defense and safeguards against illegal detention, rights not endorsed in the current constitutions. Conversely, between 1982 and 1983 the Na-

22. Yash Ghai, "The Rule of Law in Africa: Reflections on the Limits of Constitutionalism," Conference Papers of the Ninth Commonwealth Law Conference, Auckland, May 1990, 495-99.




tional People's Congress adopted amendments to these laws that restrict the right to defense. Again, although the constitutions contain no express provision on the subject of torture, the use of torture to obtain confessions is prohibited in the Criminal Law and the Criminal Procedure Law. Likewise, the precise ambit of the general constitutional provision of the right to elect and be elected has been fleshed out in the Election Law and in the regulations on the direct election of National People's Congress deputies at xian level and below, promulgated by the fifth congress. Nonetheless, Chinese constitutions remain the primary source and inspiration of legally guaranteed rights.

IV. CONSTITUTIONAL RIGHTS IN CHINA AND THE INTERNATIONAL BILL OF RIGHTS

The remarkable feature about China's four constitutions since 1949 is that, despite their changing character, they have shared an unchanging commitment to civil and political rights, as well as to social, economic, and cultural rights. Over time, some civil and political rights have been added and some subtracted, but a feature of continuity in all of the constitutions has been the pledge of respect for the freedoms of speech, correspondence, press, assembly, association, procession, and demonstration, and freedom of person, freedom of religious belief, the right of appeal against state functionaries, and the autonomy of national minorities. Political rights have been guaranteed under the Chinese constitutions to all citizens age eighteen and over as "the right to vote and stand for election."23 The exceptions are those persons deprived of this right by law.

Civil rights not contained in the constitutions include those rights laid down in the Universal Declaration and International Covenant on Civil and Political Rights, such as freedom of residence or movement, the right to choose one's work, freedom from forced labor, freedom from torture, and the presumption of innocence, although there is a right of defense and of a public trial.24 This formal guarantee of civil freedoms, while surprising, has a number of explanations. China, like other communist countries, is a state operating not on a common law basis but according to concepts of civil law. According to these concepts, the constitution is directed not at the courts but at the legislator, establishing the parameters of permissible practice. But since the constitution is not judicially actionable, the state faces no problem of being obliged to put the rights guaranteed in the constitution

23. 1978 Constitution, art. 44, reprinted in Peking Review 21 (17 March 1978), 13. 24. Edwards, Henkin, and Nathan, note 20 above, 32. Although the Chinese constitutions

contain no prohibition on the subject of torture, it is prohibited by law. See Seymour, note 20 above, 295-96.




into action. Moreover, civil law "sees law itself, much more so than common law tradition does, as rooted in the will of the state and the legislative provisions made by it."2s

The second constraint is that every right allowed Chinese citizens is matched by a corresponding duty, so that in exercising his rights, the citizen "may not infringe upon the interests of the state, of society and of the collective, or upon the lawful freedoms and rights of other citizens."26 Not only is there no promise of remedies to ensure the citizen's enjoyment of these rights, but the rights themselves may be cancelled (or expanded) by state laws or by Party fiat. For under the Chinese system, legality is governed less by legal codification and more by extralegal norms, such as ideology, current policies of Party and state, and the continuing Gemeinschafttendency to resort to mediation and conciliation rather than judicial action." The result has been that, as Henkin has pointed out, "rights not promised ... are not in fact enjoyed. ... [R]ights promised ... are in.fact limited by the perceived needs of socialism, of the Chinese state, or of the current government."28 Or, as Xu Bing of the Legal Research Institute of the Chinese Academy of Social Sciences observed in early 1989, "legal provisions are divorced from real life, so that some constitutional and legal rights of the citizen still remain only on paper and citizens cannot really fully enjoy them."29

Despite this restrictive constitutional framework, it would be a mistake to assume thatthe comparison between the provision of civil rights in Chinese constitutions and those in international human rights instruments is merely an exercise in empty formality. As Jerome Cohen has observed, it is one of the major unresolved puzzles of Chinese constitutionalism to ascertain why these freedoms have continued to be asserted in the face of reality, particularly when retention of such symbols of freedom courts either popular concern or the risk that large numbers of people may seek to exploit that freedom.30 in other words, as the Chinese government was to discover

25. Tay, note 15 above, 240. 26. 1982 Constitution, art. 51, reprinted in Beijing Review 25 (27 December 1982), 18. 27. A current example of the subordination of the rule of law to state policy is the provision

in Hong Kong's Basic Law that the Standing Committee of the National People's Congress will be able to declare that any existing Hong Kong law is not in conformity with the Basic Law or legal procedure, thereby returning it for reconsideration. See James Cotton, "Hong Kong: The Basic Law and Political Convergence," "Globalism and Asia-Pacific Dynamism," NIRA Research Output vol. 2, no. 2 (1989), 58. See also Tay, note 15 above, 237-52.

28. Edwards, Henkin, and Nathan, note 20 above, 33. 29. Xu Bing, "Renquan Lilun de Chansheng he Lishi Fazhan" ("The Emergence and Historical

Development of the Theory of Human Rights"), Faxue Yanjiu 3 (1989), 10. On the relationship of Chinese law to effective human rights, see Seymour, note 20 above, 271- 97.

30. Jerome Cohen, "China's Changing Constitution," The China Quarterly, December 1978, no. 76:832.




through the 1980s, the token nature of these guarantees is still always open to challenge. Moreover, the significant index of real as opposed to nominal freedoms may be sought not in the continuity of those guaranteed rights but in their discontinuity. It is where civil rights have been removed and subsequently restored, or introduced and then removed, that it is possible to identify the points at which limited civil freedoms--in the sense that all civil rights are exercised within certain defined boundaries-may have existed in China. For instance, the 1975 constitution enshrined Cultural Revolution practice in introducing the right to exercise the four great freedoms: speaking out freely, airing views fully, holding great debates, and writing big-character posters.31

It will be noted that these rights, which were subsequently removed from the 1982 constitution, appear similar to the civil rights of freedom of speech, press, and assembly, and yet they were described in the 1975 constitution as "new forms of carrying on socialist revolution created by the masses of the people."" in fact, the four great freedoms, along with the right to strike, were not introduced in order to protect individual expression or to promote material interests but to empower the masses to participate in the political struggle of the Cultural Revolution under party leadership.33 The inclusion in the 1978 constitution of these "new" rights in the same article which listed the nominal civil freedoms of speech, press, and assembly was in itself unambiguous proof of the token nature of those nominal freedoms.34 Moreover, the inclusion of the "right to strike" in both the 1975 and 1978 constitutions, but not in the 1954 or 1982 constitutions, provides an indication of what (limited) freedoms were tolerated in the 1970s; on the other hand, the restoration in the 1982 constitution of the 1954 provision of "equality before the law" is an indicator of the intention of the post-Mao leadership to establish a stricter legal framework.

In contrast, less ambiguity and fewer limitations, apart from material ones, have characterized the guarantee of economic, social, and cultural rights in all Chinese constitutions. Randle Edwards has observed that Chinese constitutional guarantees of these rights incorporate every major category of the International Covenant on Economic, Social and Cultural Rights.35 Since 1949 the legitimation of Chinese rule has been articulated chiefly in terms of the achievement not of civil and political rights but of social and economic goals. Economic, social, and cultural rights guaranteed under China's constitutions include the "right and duty to work," the "right to rest," the right to "material assistance from the state and society in old age,

31. 1975 Constitution, art. 13. 32. 1975 Constitution, art. 13, reprinted in Peking Review 18 (24 January 1975), 15. 33. Cohen, note 30 above, 833-34. 34. 1978 Constitution, art. 45. 35. Edwards, Henkin, and Nathan, note 20 above, 67.




illness or disability," the right to a system of retirement for state workers and staff, and the "duty as well as the right to receive education" as well as the right to engage in "scientific research, literary and artistic creation and other cultural pursuits."36

The material limitations are evident mainly in that, like Western social rights and the provisions in the covenant itself, Chinese social rights are defined as contingent; apart from the case of education in the 1982 constitution, all social rights are described as limited and dependent for expansion on the development of the economy. It is a feature of Chinese constitutions, however, that social and economic rights are peculiarly conjoined, in that the right of access to social security has been historically associated with the right to work. Thus, the "iron rice bowl" or the right to work has generally been regarded as China's effective social welfare system. In fact, a research project of the China Economic System Reform Research Institute, working directly for the State Council, found in 1986:

China's social security system is actually not a "social" system. There is no national system covering retirement pensions or medical care. Instead, China's social security system is largely realized by means of employment. Anyone will have welfare benefits and security so long as he or she gets a job. Peasants fall completely outside this welfare net. In addition, collective enterprises offer fewer benefits than state enterprises.37

This analysis exaggerates the exclusion of the peasantry- who until recently were guaranteed a basic rice ration, and, on a collective basis, limited health and education services-from the social welfare system, but its general assessment is valid. The focus of social and economic rights on the worker is explainable in terms of the Marxist tenet that labor is the true source of value. The right to work, which is guaranteed to the Chinese citizen under the constitution, has had the effect of compensating for the limitation to "the working people" of access to some social rights. At the same time, it must also be noted that the right (and duty) to work has been counter- balanced by the absence of some significant rights, such as the lack of freedom to choose one's job and the lack of a constitutional right for workers to engage in equal bargaining vis-A-vis their employer- two rights laid down in the International Covenant on Economic, Social and Cultural Rights. The right to work also accounts for the failure of Chinese constitutions to provide for the right to unemployment relief, as stipulated in Article 25(1) of the

36. 1982 Constitution, arts. 42-47. 37. Huang Xiaojing and Yang Xiao, "From Iron Ricebowls to Labor Markets: Reforming the

Social Security System," in Bruce Reynolds, ed., Reform in China: Challenges and Choices-A Summary and Analysis of the CESRRI Survey Prepared by the Staff of the Chinese Economic System Reform Research Institute (New York: M.E. Sharpe, 1987), 148.




Universal Declaration of Human Rights. As will be shown, the absence of this right has proved crucial to the social problems experienced in China during the decade of economic restructuring.

V. CHINA'S CONSTITUTIONS AND INFORMAL REALITY

The second step in the process of analyzing human rights in China is to compare the provisions of the state constitutions with the informal realities in society, or to compare what society expects against what actually exists. This procedure is, of course, difficult to apply in states without bills of rights, like Australia and the United Kingdom, but possible in most states established since World War II, the majority of which either incorporate rights in their constitutions or in specific bills of rights. The process is also different in liberal democracies, where a national constitution stands as a relatively fixed standard-bearer, as a statement of universal values.

In a socialist country like China, where rights are not seen as universal and immutable, constitutions tend, as has been observed, to be more like political programs. As Cohen has pointed out, the Chinese constitution is "a formalization of existing power configurations rather than an authentic institutional framework for adjusting relations between the political forces that compete for power in a dynamic relationship."38 But precisely for this reason, as has been noted, socialist constitutions like China's serve as ba- rometers of the state's policies and values and reflect the current social condition.

Within the assumption that there is in all countries a gap between ideals and practice, socialist constitutions can be said to exhibit two principal relationships with empirical social reality. They may converge, in the negative sense that the provisions of the constitution are much closer to the reality of a strictly regimented society, or in the positive sense that existing constitutional norms are maintained and the Party and general populace en- couraged to adhere to them.39 On the other hand they may diverge, in that they provide obstacles to, or anticipate and seek to shape that reality. The broad thesis maintained here is that close convergence in either sense is symptomatic of a more stable social condition, even though that cohesion may also be a product of coercion. Wide divergence, however, is indicative of either rising social expectations or a sense of relative deprivation, both situations being conducive to social unrest and even revolution.

38. Cohen, note 30 above, 837. 39. This is the relationship described by Cohen, note 30 above, 839.




VI. THE CONSTITUTIONS OF 1954, 1975, 1978 AND INFORMAL REALITY

During the Maoist period, the hierarchy of rights contained in the 1954 constitution generally accorded with empirical reality. Under Mao, the socialist emphasis on collective social and economic rights in preference to individual civil and political rights was most fully realized. Under this socioeconomic security system, Chinese citizens achieved an improved standard of living over the pre-1949 years, relatively egalitarian forms of distribution, access (if limited) to health and education services even in the collective sector of the countryside, and access to secure, if overstaffed jobs. If the result was an equality of poverty, it was nonetheless a poverty padded with important economic and social safeguards against destitution, starva- tion, ill health, and ignorance.40

On the other hand, the actual limits imposed in reality on civil and political rights, including the nominal freedoms of speech, press, assembly, association, procession, and demonstration, were reflected in the constitution's insistence on countervailing "duties." The effective self-limiting mechanisms within the 1954 constitution restricting the exercise of civil rights were early bolstered by separate regulations affecting freedom of speech; state secrets were defined as including "all state affairs which have not been decided upon or ... have not yet been made public."41 A 1951 law against counter-revolution also restricted the rights of association, assembly, and speech, which could not be used to oppose the regime, and the right of a public trial was undermined by the provisions of the 1957 regulations on rehabilitation, which allowed that, "in the case of minor crimes, police might sentence counter-revolutionaries without trial to terms of three years in a labor camp, extendable by a year."42

One area in which the 1954 constitution did not accord with reality, however, was its declaration that "citizens of the People's Republic of China are equal before the law."43 As Jerome Cohen has pointed out, that decla-

40. On equality of poverty, see David S. G. Goodman, "Communism in East Asia: The Production Imperative, Legitimacy and Reform," in Goodman, ed., Communism and Reform in East Asia (London: Frank Cass, 1988), 4. Even in the Maoist era, the "relativity" of this "equality" of distribution is emphasized by Deborah Davis, who points out that "keeping social services as a government monopoly and allocating them by job status also meant that the quality of service varied by the rank of the job not by the price or cost of the service." See Deborah Davis, "Chinese Social Welfare: Policies and Out- comes," The China Quarterly, September 1989, no. 119:579.

41. Edwards, Henkin, and Nathan, note 20 above, 104. 42. Ibid., 104-05, quoting Jerome Cohen, The Criminal Process in the People's Republic of

China, 1949-1963: An Introduction (Cambridge: Harvard University Press, 1968), 299- 302.

43. See 1954 Constitution, reprinted in Theodore Chen, ed., The Chinese Communist Regime: Documents and Commentary (New York: Praeger, 1967), 75-92.




ration appeared inconsistent with the deprivation of the political rights of feudal landlords and "bureaucrat capitalists," as well as with the realities of everyday life in China.4 Those realities included the two main rectification campaigns of the early 1950s, the Three Anti and the Five Anti campaigns, as well as the Anti-Rightist campaign of mid-1957, which followed the "blooming and contending" phase of the Hundred Flowers movement.45

Political rights also reflected the minimal definition of political rights outlined in the 1954 constitution. In practice, local elections were regarded as ritualistic procedures where voters selected from a list of candidates nominated by a committee controlled by Party members. The county-level congress delegates elected district-level candidates and so on up to the national level. Representatives were cadres and Party members continually reelected and seldom recalled.

If one were to interpret political rights in the broader sense of the "right to participate in the exercise of political power" rather than in the more technical democratic sense of the right to vote and act to influence the choice of government leaders and policies, it could be claimed that Chinese citizens enjoyed a degree of political rights. Mao's "mass line" in politics meant mass political participation which was invoked in numerous political campaigns throughout the 1949-1976 period. During these political campaigns and movements, some citizens enjoyed the civil rights of freedom of speech, press, movement, and association to a certain extent.

However, the important thing to note about these excursions into the arena of civil and political rights in China is that they were sporadic and contingent; they were initiated, guided, and revoked by the political leaders. The infrequence and impermanence of these phases served to highlight the absence of rights in normal times. Exercise of these rights by one group usually led to the restriction of the rights of others and was punishable after the event. Even after the Maoist era, the chief dissidents who demanded effective civil and political rights during the Democracy Movement of 1978- 1980-Wei Jingsheng, Wang Xizhe, and Xu Wenli-are still in prison. Po- litical campaigns aside, a further argument along these lines could be that the large and ubiquitous Party organization, reaching out from the Party center to branches and groups at the most local level in enterprises and villages, ensured widespread political participation, but this participation was neither universal nor direct. And for political participation to be defined as a right, it must be universal.

An even closer correspondence between guaranteed rights in the constitutions and empirical reality was observable in the late Maoist, early post- Mao period of the second and third constitutions of 1975 and 1978. As

44. Cohen, note 30 above, 827. 45. See, for example, Frederick C. Teiwes, Politics and Purges in China: Rectification and

the Decline of Party Norms, 1950-1965, (New York: M.E. Sharpe, 1979), 105-383.




Cohen has put it, in the 1975 constitution the Party "narrowed the gap that has existed between modern China's constitutions and the reality of a personalized Party-military dictatorship"; and the 1978 Constitution did not significantly widen the gap.46 Cohen's point is that in eliminating the 1954 declaration of equality before the law, the 1975 and 1978 constitutions came closer to the reality of the denial of political rights to "class enemies" un- reformed landlords, rich peasants, and reactionary capitalists. They also deleted the 1954 constitutional guarantee of "freedom of residence and freedom to change their residence": although retaining the freedom to believe in religion they were more realistic in adding "and freedom not to believe in religion and to propagate atheism."47

The extra rights provided in the right to strike and the four great freedoms also reflected the reality of the historical context of the Cultural Revolution in that they confined the exercise of civil rights to those "among the people." Just as the right to strike was interpreted as a political weapon for mobilizing the masses to undermine the power and privilege of the bureaucracy, rather than as an economic weapon to further the workers' material interests, so the four great freedoms were seen as empowering the masses to overthrow enemies within the Party and the bureaucracy. These rights were not, as indicated, universal rights, but served to significantly increase the power of sections of the people vis-a-vis the class enemy. The undisputed persecution of Chinese intellectuals during the Cultural Revolution was the most extreme example of this inequality of access to civil rights.48 The four great freedoms, as Cohen has observed, were thus not aimed at protecting individual expression.

The 1975 and 1978 constitutions, however, were not identical. Just as the 1975 constitution was an attempt to preserve the Cultural Revolution environment and mores, so the 1978 constitution heralded an attempt, at a time when Deng Xiaoping had not yet achieved supremacy, to move away from that era. Thus the 1975 constitution, which emphasized Party supremacy, was more restrictive of political and cultural rights than its 1978 suc- cessor. In the 1975 constitution, the method of selection of People's Congress deputies was described as "democratic consultation" rather than election,49 and, in contrast to the 1954 constitution, all cultural activity had to "serve proletarian politics, serve the workers, peasants and soldiers, and be combined with productive labor."so The 1978 constitution restored the principle of election of deputies "after democratic consultation" and applied the

46. Cohen, note 30 above, 839. Cohen's analysis provides the basis for the discussion of the congruence between the 1975 and 1978 constitutions and informal reality.

47. Ibid., 829-31. 48. For example, Ta-ling Lee, "Intellectuals and 'Democratic Elements': A Distrusted Un-

derclass," in Yuan-li Wu et al., note 19 above, 154-92. 49. 1975 Constitution, art. 3. 50. 1975 Constitution, art. 12.




cultural policy of "let a hundred flowers bloom."51 It also restored and expanded the people's right to supervise the bureaucracy, undermined in the 1954 constitution.52 But in all cases the differences between these constitutions reflected the difference in the immediately preceding political and social environments-even if the inclusion in the 1978 constitution of the right to strike and the four great freedoms was somewhat anachronistic.

Concluding his analysis of the 1975 and 1978 constitutions, Cohen asked the rhetorical questions:

Can we anticipate the course of future constitutional development in the People's Republic? Will the gap be closed by eliminating what remains of the western- Soviet constitutional window-dressing? Or might the gap be narrowed not by doing away with existing constitutional forms and norms but by gradually developing respect for them among the Party and the people.s3

In fact, neither development occurred. More than any previous post- 1949 constitution, the 1982 constitution combined the dual and contradic- tory functions of a socialist constitution: the conservative function of stabilizing the society and the radical function of anticipating change. And in both respects it made a radical departure from empirical reality.54 Further- more, although in its formal reality it did not reverse the normal Marxist priority of social and economic rights, unlike the earlier constitutions it proved incapable either of prevailing over or of accommodating the informal developments in society at large.

VII. CIVIL AND POLITICAL RIGHTS: THE 1982 CONSTITUTION AND INFORMAL REALITY

In its provision of civil and political rights, the 1982 constitution fulfilled the conservative function of underwriting social stability. This role was consistent with its official representation as a significant break with the mores of the Cultural Revolution. On the other hand, it was also represented as a return to the values of the 1954 constitution. The assertion of unambiguous control by the Deng Xiaoping leadership was reflected in the identification of economic construction as the main task of the new era, in the downgrading

51. 1978 Constitution, art. 14. 52. Edwards, Henkin, and Nathan, note 20 above, 113-14. 53. Cohen, note 30 above, 839. 54. See also Kent, note 1 above, 16-24. Divergence between form and content has also been

described by a Chinese political theorist as the chief characteristic of rights under capitalist democracies. See Lu Lieying, Liang Zhong Minzhuzhi (Two Kinds of Democracy) (Xian: Xian Jiaotong Daxue Chubanshe, 1987), 128.




of the role of class struggle and the regulation of the Party's role as leader but not usurper of the role of the state.55ss

The new constitution provided for an expansion of some civil and political rights. Under Article 38, the personal dignity of citizens was declared inviolable, and "insult, libel, false charge or frame-up directed against citizens by any means" was prohibited. The 1954 guarantees of equality before the law were restored, and the rights to vote and stand for office were to be enjoyed without reference to class background. The 1979 congressional organic and election laws were reflected in new provisions which required direct election of deputies to local people's congresses at county, city, district, and township levels. Popular supervision and political accountability were stressed in Articles 2, 27, 76, 77, and 102. Most importantly, the rights of national minorities listed in the 1954 constitution were restored and enlarged.56

And yet, the 1982 constitution was not a liberal document. Although for the first time the section on rights and duties of the citizen towards the beginning of the text, in significant respects the constitution was restrictive of civil rights. The right to strike and the "four freedoms" were dropped, as were other fundamental rights contained in the 1978 constitution, such as freedom of correspondence and freedom of publication. Article 1, paragraph 2 of the 1982 constitution stated that "any person is prohibited from using any means whatsoever to undermine the socialist system." Under Article 34, citizens were able to be deprived of their political rights by law, and the state's power to limit rights by law was continued.

The 1982 constitution also expanded on the rights of citizen appeal in the previous constitution, but contained a new safeguard that "fabrication or distortion of facts with the intention of libel or frame-up is prohibited."57 The powers of the people's congresses were not altered, and suggestions to strengthen their role were resisted.58 Finally, Article 67(20) introduced a new role for the Standing Committee of the National People's Congress: "to decide on the enforcement of martial law throughout the country or in particular provinces, autonomous regions or municipalities directly under the Central Government."

An even more restrictive control over civil freedoms in the 1982 constitution was exerted in the preamble with the inclusion of the ideas un-

55. These aims were outlined by Peng Zhen, the vice chairman of the constitutional revision committee, in introducing the new constitution. See Peng Zhen, "Explanations on the Draft of the Revised Constitution of the People's Republic of China," 23rd session of the Fifth National People's Congress Standing Committee, 22 April 1982, Beijing Review 25 (10 May 1982): 18-26; Edwards, Henkin, and Nathan, note 20 above, 115.

56. For an excellent analysis of the 1982 constitution, see Edwards, Henkin, and Nathan, note 20 above, 115-20.

57. 1982 Constitution, art. 41. 58. Edwards, Henkin, and Nathan, note 20 above, 119.




derlying the "four basic principles," first coined by Deng Xiaoping in 1980 in response to the Democracy Wall movement. According to these principles, no exercise of democracy could contradict the socialist road, the people's democratic dictatorship, Communist Party leadership, and Marxist-Leninist- Mao Zedong thought. These principles formed the backbone of the conservative stabilizing force of the new constitution and were frequently invoked to restrain subsequent moves towards the informal expansion of civil and political rights.

In contrast to the restrictive nature of the 1982 constitution, civil rights in China, relative to the past, showed an enormous expansion at the informal level during this period. Citizens began to enjoy increased civil liberties in the form of freedoms of speech, publication, association, and movement (although the latter freedom was not constitutionally guaranteed). A bur- geoning of publications in all disciplines, a network of associations and of semi-official consulting and research organizations providing advice to government, brought relatively open policy debate and a new development in China's social and political life. Increased investment and commercial interchange between China and the West was paralleled by an unprecedented growth in cultural, educational, and scientific interchange, in the form of visiting delegations, businessmen, tourists, and student exchanges. Foreign films, television programs, books, and news flooded the Chinese market. Occasional political campaigns-the 1983 anti-spiritual-pollution campaign and the early 1987 anti-bourgeois-liberalization campaign sought to neu- tralize the effects of this official endorsement of China's exposure to foreign culture, but they were short-lived and ultimately ineffectual.

A new commitment to the rule of law added to the expectations of and calls for the realization of constitutional civil and political rights. The change from collective to individual consciousness was symbolized by the increasing use of the term gongmin (citizen), as against the earlier ubiquitous reference to qunzhong (masses), in legal and constitutional documents and in ordinary parlance. A number of books on human rights were published and commercially distributed, one of which itemized a broad spectrum of civil, political, social, and economic rights as being the entitlement of every Chi- nese citizen.59 Through the decade, Chinese intellectuals began increasingly to make claims on the state to honor the guarantee of the nominal civil rights itemized in every constitution. They thus sought to infuse life and meaning into these hitherto token guarantees.

59. Hou Meixian, ed., Zhenxi Ni de Quanli: Gongmin Falu Quanli Guwen [Value Your Rights: Advice on the Legal Rights of the Citizen] (Beijing: Jingji Guanli Chubanshe, 1987). At the same time, the legal and constitutional restraints on the exercise of civil rights in a socialist system were acknowledged, and the inseparability of the rights and duties of socialist "citizens" emphasized, 11-12. See also Gongmin Shouce [The Citizen's Hand- book (Beijing: Huayi Chubanshe, 1988); for rights, 60-145; for duties, 147-176.




Between 1979 and 1980 a series of laws were enacted which institutionalized the new commitment to the rule of law: the Arrest and Detention Act, the Criminal Law, Criminal Procedure Law, the Organic Law for the Courts, the Organic Law for the Procuratorate and, in 1982, the Provisional Civil Procedure Law. Cohen has subsequently referred to the "remarkable decade of progress towards creating a credible rule of law" in the period immediately preceding June 1989.60

Before June 1989, judicial review of the legality of administrators' de- cisions was being considered, and the National People's Congress was even on the verge of abolishing the category of "counter-revolution" as a crime.61 On the other hand, in 1982-1983 the National People's Congress adopted amendments to the Criminal Law which made a wide range of new offenses punishable by death. It also made possible summary executions and limited the right to defense.62 Increasing petty criminal activities, a byproduct of social and economic dislocation, produced stiffer criminal penalties, and between 1983 and 1988 Amnesty International documented 1,500 executions and also unofficial estimates of 30,000 executions.63

In Amnesty's view, the appeal procedure and the trial itself continued to be largely formalities, death sentences were excessive and often inappropriate, and arbitrary arrest and torture continued to be widespread.64 This failure of the legal system to uphold and enforce the informal condition of civil rights led many to describe the new legal system as rule by law rather than of law.65 In this sense, the conservative role of the legal system in enforcing orthodoxy was similar to the restrictive role of the constitution.

Nevertheless, the greater informal access to civil rights in an overall sense in this period, most strongly reflected in the 1978-1980 Democracy Movement, was later demonstrated in the 1986 and 1989 student demonstrations. These expressions of dissatisfaction with the rate of change can also be seen as symptoms of an increased popular confidence in the reality and prospect of improved civil rights. The exercise of these rights of expression demonstrated the leeway which existed between the essentially conservative function of the formal legal system in enforcing stability and

60. Jerome Cohen, "Law and Leadership in China," Far Eastern Economic Review 145 (13 July 1989): 23.

61. Ibid. 62. See Amnesty International, "People's Republic of China: The Death Penalty in China,"

January 1989, ASA 17/01/89, 3-13; Franz Michael, "Law: A Tool of Power," in Yuan-li Wu et al., note 19 above, 50-52.

63. Amnesty International, note 62 above, 3-4. 64. Ibid., 5, 7. 65. On the failure of the legal system to uphold civil rights, see Seymour, note 19 above,

especially 286-87. See also Amnesty International, China: Violations of Human Rights- Prisoners of Conscience and the Death Penalty in the People's Republic of China (London: Amnesty International, 1984), 83-106.




the more liberal unofficial social and political consensus that supported qualified expressions of dissent.

A substantial degree of liberalization was also evident in Chinese political life in the eighties. The 1979 Electoral Law for the National People's Congress and the Local People's Congresses of All Levels provided for direct election of people's congresses not only at the township but also at the county level.66 Although the 1982 National People's Congress adopted several amendments to the election law to limit the exercise of "extreme democracy" which had occurred in the 1980 elections, the process of gradual liberalization at an informal level was undeniable. Thus, at an enlarged Politburo meeting in August 1980, Deng Xiaoping suggested the separation of the power of Party and state, the establishment of an independent judiciary, the introduction of measures enabling public criticism and the recall of corrupt leaders, and limited elections for leaders in grassroots organizations.67 Political reform was institutionalized with the establishment in 1986 of political reform research groups (zhengzhi gaige yanjiu xiaozu) at Central Committee and provincial and city Party committee levels.

The 1980 policy directives also provided the basis for Acting General Party Secretary Zhao Ziyang's later initiatives expanding civil and political rights at the 13th Party Congress in October 1987. The reform agenda included the separation of the functions of Party and state, reform of the cadre system and governmental structures, increased popular participation in politics, and the strengthening of the socialist legal system.68

In his opening speech to the congress, Zhao said that the government should "guarantee the citizens' rights and freedoms as stipulated in the constitution" and enact laws governing the press and publications, association and assembly, and freedom of belief.69 Discussion and drafting of these proposed laws were reportedly well under way by the end of 1988.70 Fur- thermore, in his speech Zhao announced that it was necessary to "respect the will of the voters and ensure that they have more options in elections."71

In the next few years the need for "political supervision" became a

66. Nathan, Chinese Democracy, (New York: Alfred A. Knopf, 1985), 195-96. 67. Deng Xiaoping, "Dang he Guojia Lingdao di Gaige" ("The Reform of Party and State

Leadership"), in Deng Xiaoping Xuanji (The Selected Works of Deng Xiaoping) (Beijing: Beijing Renmin Chubanshe 1983), 134.

68. Zhao Ziyang, "Advance along the Road of Socialism with Chinese Characteristics: Report delivered to the 13th National Congress of the CCP," Beijing Review 30 (9 November 1987): I-XXVII. For assessments of the implementation of these policies, see John P. Burns, "China's Governance: Political Reform in a Turbulent Environment," The China Quarterly (September 1989) no. 119:481-518; You Ji, "Politics of China's Post-Mao Reforms: From the CCP's 13th Party Congress to the Dawn of Beijing Students' Demonstrations" (M.A. thesis, Australian National University, August 1989).

69. Zhao Ziyang, note 68 above, xx. 70. Senate Committee on Foreign Relations and House Committee on Foreign Affairs, China:

Country Reports on Human Rights Practices for 1988, 101st Cong., 1st sess., 1989, 771. 71. Zhao Ziyang, note 68 above, xx.




popular catchword within the Chinese leadership. News conferences by top leaders became an important source of information dissemination and political supervision and numerous social polls were taken to assess popular opinion.72 Within the National People's Congress, the Party's willingness to allow limited political liberalization was demonstrated at its seventh session, held in the spring of 1988. The Chinese press called this the "most open and democratic" congress since 1954, and reform was the "center of all undertakings."'7 A majority of the delegates were newcomers, selected from local-level congresses with more candidates than seats; they stressed reform and debated a wide range of crucial issues, such as the problem of inflation and inequities of economic development. Domestic and foreign journalists were also allowed to cover major segments of the session.74 At the second session of the seventh session in April 1989 a bill on special legislative rights for Shenzhen was passed by a vote of 1609 in favor, 274 against, and 805 abstentions.75 And it was reported that 120 changes had been made to Premier Li Peng's report on government work in response to the views of deputies.76

Nevertheless, in contrast to the expansion of civil rights, political reform was more limited, precisely because of the need to carry out lasting structural reform to achieve it. The more lively appearance of the sessions and especially of the congress' Standing Committee has been interpreted as "a manifestation of inner Party struggle" rather than an indication of the strengthening of popular participation.77 The separation of Party and state, which required a complex restructuring process, was resisted by entrenched Party interests, especially in local Party committees; the streamlining of the bureaucracy, reflected in the newly trimmed State Council, proved a long-term problem because of the built-in momentum for bureaucratic proliferation.78 The decentralization of political control also led to the ambiguous result that "the simple relations between state and society based on unconditional

72. For instance, the Beijing Review cites 14 surveys on popular attitudes to reform. Beijing Review 30 (29 June 1987), 22. Surveys include an August 1989 poll co-sponsored by the Institute of Sociology, CASS, and the State Statistical Bureau, reported in Liaowang and China Daily, 11 February 1989; "1987 Survey of the Political Psychology of Citizens in China," Inside China Mainland 11 (May 1989), 1-3; see also public opinion surveys in Reynolds, note 37 above, 147-87. See also surveys of political opinion in Min Qi, Zhongguo Zhengzhi Wenhua: Minzhu Zhengzhi Nanchan di Shehui Xinli Yinsu (Chinese Political Culture: Social Psychology and the Birth Pangs of Democratic Politics) (Yunnan: Yunnan Renmin Chubanshe, 1989).

73. Lowell Dittmer, "China in 1988: The Continuing Dilemma of Socialist Reform," Asian Survey 29 (January 1989), 16.

74. Ibid. 75. Beijing Review 32 (17 April 1989), 5. 76. China Daily, 7 April 1989. 77. John Burns, note 68 above, 510-11. See also Michael D. Swaine, "China Faces the 1990s:

A System in Crisis," Problems of Communism 39 (May-June 1990), 20-27. 78. Burns, note 68 above, 511-16.




obedience to the central authorities [were] superseded in most cases by an unregulated bureaucratic process."79 Finally, although attempts were made to regularize procedures among the top leadership in running state affairs, the events of April-June 1989 revealed how limited the results were.

Notwithstanding the inadequacies in civil and political reform, the popular exercise of civil and political rights in this decade far outstripped the provisions of the 1982 constitution, which represented an attempt to enforce orthodox thought and social stability. Not only was this informal liberalization of civil and political life evident on the domestic scene, it was also reflected in the formal international arena, where Chinese activity in the United Nations in respect of human rights, its membership of the Human Rights Commission, ratification of seven international conventions relating to human rights, and its own statements on human rights brought China closer than ever before to an acceptance of the need for individual civil and political rights.80 This formal convergence of national with international norms was stressed as recently as April 1990, when the Chinese representa- tive stated before the UN Committee Against Torture that:

when China acceded to any convention, it became binding as soon as it entered into force. China then fulfilled all its obligations, and it was not necessary to draft special laws to ensure conformity. If an international instrument was inconsistent with domestic law, the latter was brought into line with the former. Where subtle differences remained, international instruments took precedence over domestic law.81

Although an expression of the formal relationship between national and international human rights instruments, the extent to which this statement has been honored in recent Chinese practice may be questioned. A more reliable statement on the convergence of national and international norms was contained in a study of human rights by the Chinese Social Development Research Center of Beijing University. Published by the official Party journal Qiushi (Seeking Truth) on the eve of the 1989 Democracy Movement, it encapsulated both the changes in the international concept of "human rights" which had occurred over the previous decades, and the alteration in China's view of human rights. It pointed out that the development of human rights from a concept mainly serving the capitalist class to a term embracing the "common interests of all mankind" meant that "no political system in the world, whatever its ideology, could publicly oppose the concept of human rights"; moreover, the nature of China's activities in the United Nations demonstrated that "the Chinese government was beginning to shoulder more

79. You Ji, note 68 above, 208. 80. See Kent, note I above, 57-63; Cohen, note 18 above, 528-40. 81. U.N. Committee against Torture, Fourth Session. Summary Record of the 51st Meeting.

Geneva, 27 April 1990, CAT/C/SR.51 (4 May 1990), 2.




and more responsibilities and duties in regard to the upholding of basic human rights."82

VIII. SOCIAL AND ECONOMIC RIGHTS: THE 1982 CONSTITUTION AND INFORMAL REALITY

The social and economic rights guaranteed in the 1982 constitution also diverged from reality in a number of ways. While some provisions were restrictive, others guaranteed rights that no longer existed in reality or contained programmatic rights that were not currently realizable. This distance from reality was due chiefly to the rapid structural changes in the economy which were not paralleled by changes in social security legislation and regulations or by the transformation of the social security and social welfare infrastructure. Since 1978, the change from a centrally planned socialist economy to a "socialist commodity" or market economy had brought de- collectivization of agriculture, the separation of ownership and management within factories, some market-based pricing policies, and a freer labor market, as well as a new emphasis on the importance of "expertise" over "redness" and of competition over egalitarianism.

The result was that the right to work, although still formally guaranteed in the 1982 constitution, was progressively undermined by the market mech- anism; although the rice bowl was not smashed, it became cracked by redundancy, unemployment, large wage differentials, and inflation. The introduction of contract labor into state enterprises implied official sanction for the informal right to choose one's employment (and for the converse right to be unemployed), as well as for the civil right of movement (to find a job), neither of which were rights granted under China's constitutions. And yet, the economic right to strike, a right guaranteed workers in most advanced market economies, was eliminated from the 1982 constitution. Despite this anachronistic restriction, the right to strike was exercised as never before during the 1980s.83

But the most glaring inconsistency between the 1982 constitution and informal reality was the programmatic character of Article 45, which substantially overstated the possible scope of welfare and social security services. It stated that "citizens of the People's Republic of China have the right to

82. See Wang Delu and Jiang Shihe, note 18 above, 4, 5. 83. For example, a series of bus strikes occurred in Beijing during 1986 which resulted in

wage rises. In the first half of 1988 forty-nine strikes were reported officially, and in 1989 there were widespread reports of job action in support of pro-democracy demonstrations. See Senate Committee on Foreign Relations and House Committee on Foreign Affairs, China: Country Reports on Human Rights Practices for 1989, 101st Cong., 2d sess., 1990, 822. See also Benedict Stavis, "Contradictions in Communist Reform: China before 4 June 1989," Political Science Quarterly 105 (1990): 45.




material assistance from the state and society when they are old, ill or disabled." It also undertook to "develop the social insurance, social relief and medical and health services that are required to enable citizens to enjoy this right." The significance of this article is that, first, by replacing the term "working people" used in the three preceding constitutions with the term "citizens," it signalled the end of the close nexus between social rights and the workplace, which had been an integral feature of socialist rights, and implied acceptance of the existence of unemployment.

Second, the formal universalization of social rights served to disguise a number of negative developments in the area of social security and social welfare, which during the 1980s led to a severe diminution of social and economic rights and widened the gap between the constitutional guarantees and the reality of those provisions. These were: (1) the commodification of social welfare;84 (2) the increase of the rural-urban gap in the provision of social services;85 (3) the devolution of responsibility for social welfare and social security; and (4) the lack of a comprehensive unemployment insurance system.

Third, the formal universalization of rights was not accompanied by the development of new structures to institutionalize them, despite the fact that the state's undertaking to "expand" social services indicated the acceptance of some legal obligation to progressively implement the new guarantees.

Deborah Davis has recently pointed out that in the shift from a planned socialist economy towards a market economy, one, "when the leadership changes to profit maximization criteria for allocating state resources, non- profit institutions such as schools and hospitals are at a distinct disadvantage" because of their non-competitive quality.86 The results of this development in China appear to have been both a reduction of services and an attempt to make these services commercially viable, thereby increasing the costs. A study by Anita Chan of China's social conditions in 1988 reveals that by the late 1980s, state and local funding for hospitals and medical services had dwindled. The 90 percent of China's population outside the state- employed sector lacking free medical services faced huge medical bills, while the privileges of the remaining 10 percent were being eroded. In housing, the need to raise funds to ease the housing shortage prompted measures such as rent increases that favored the wealthy and adversely affected the interests of the average urban family.87

In education, reform policies were shifting the financial onus onto the

84. This concept was first used in Deborah Davis, note 40 above, 596. 85. Ibid.; Jeffrey R. Taylor, "Rural Employment Trends and the Legacy of Surplus Labor, 1978-

86," The China Quarterly, December 1988, no. 116:753-58. 86. Davis, note 40 above, 579. 87. Anita Chan, "The Challenge to the Social Fabric," The Pacific Review 2, no.2 (1989):

127-28.




collectives and private enterprises; poor rural areas were consequently wit- nessing primary school closures and declining student numbers. Subsequent studies have shown that education in this period was crucially affected throughout the country; there was a real decline in the percentage of children enrolled in school, a decrease in the percentage remaining in school at each level of education below university and a major increase at tertiary level.88 Moreover, the traditional urban-rural gap in the provision of educational services was widened, partly as a result of 1984 state regulations delegating financial responsibility for rural education to the level of the xiang.89

In the area of health care, the diminution of health services was not so dramatic.90 The urban-rural gap, however, continued to exist. There was admitted to be a shortage of medical services and medicine in the countryside. As of June 1989, barefoot doctors no longer supplied basic free medical care, and the collectively funded medical services no longer existed. Village health services now depended on money provided on a voluntary or com- pulsory basis by villagers; in the case of impoverished villages, this source was often not dependable.

Thus in the 1970s, 85 percent of rural residents had some type of insurance, but by 1987 the ratio had fallen to 9 percent, and private prac- titioners were becoming the most common source of primary health care.9' Hospital costs for the peasants had increased, together with the price of medicine. Even around big cities like Beijing, there was reported to have been an exodus back to the city of 70 percent of the medical college graduates assigned to work in the capital's suburban hospitals over the previous few years. In Beijing itself, according to a May 1989 report by the Beijing Bureau of Public Health, only 10 to 20 percent of Beijing hospitals' income was being underwritten by the government; the remaining income had to be self- generated. The retail price of medicine had soared by 60 to 80 percent.

In response to these pressures, the hospitals had started to offer special medical services at higher prices. The inadequacy of medical services in terms of the numbers of beds and doctors per patient in Beijing (4.3 beds per 1,000 population) meant that in recent years 30 percent of hospital fatalities consisted of patients who had died in hospital waiting rooms. Private practices had been introduced to relieve this pressure.92 Even in urban state enterprises, the new contract workers--reportedly comprising all state employees employed since October 1986-were obliged to make personal contributions along with the enterprise for their health insurance.93

88. Davis, note 40 above, 581-82. See also Kent, note 1 above, 20. 89. Davis, note 40 above, 582. 90. Ibid., 586-90. 91. Ibid., 587. 92. China Daily, 5 May 1989. 93. Davis, note 40 above, 588-89.




Despite the deterioration in the provision of social services, the greatest threat to the Chinese citizens' social and economic rights before and after June 1989 lay in the inadequacy of the social security system to cope with problems of unemployment and retirement. Estimates were made that by 1990 retirees would constitute 14 percent of the country's work force and pensions would reach 20 billion yuan a year;94 by the year 2000 it was expected that as many as 40 million workers would be retired on pensions totalling 40 billion yuan.9s As of 1987, 19.6 million individuals received 23.8 billion yuan.96 Pensions for former employees in state or collective units in the cities, as of June 1989, were partly based on personal contributions. Efforts to introduce rural pensions for those who were not state employees had faltered."

The 1982 constitution may be seen to have been overstating the provision of social welfare and retirement benefits to all "citizens" of China, but it made no provision at all in regard to relief for unemployment, the most potentially explosive issue in China today. China's unemployment rate rose from 2 percent in 1988 to an estimated 3.5 percent in June 1989.98 In July 1988 20 million employees, or 20 percent of the total urban workforce, were estimated to be redundant. Nevertheless, in May 1989, Xi Zhongsheng of the State Commission for Restructuring the Economy stated that "due to the lack of a sound labor market and unemployment insurance system," only 10 percent of redundant employees had actually been laid off. In addition, however, were those declared redundant by private enterprises, some 6 million young people entering the labor force every year, and the rural unemployed.99

Statistics compiled in 1989 suggest that rural migrants in search of jobs were among the 50 million Chinese "on the move," outside the family program and subject to no one's jurisdiction--one in twenty of China's people.100 In March 1989 it was estimated that, since a "responsibility system" had been adopted and land had begun to be leased to individuals, 180 million farm laborers had become redundant and another 200 million would probably find themselves jobless in the coming decade.10' In the same month Jingji Ribao (Economic Daily) estimated that China would have 240

94. China Daily, 9 May 1989. 95. Reynolds, note 37 above, 148-49. 96. Davis, note 40 above, 593. 97. Ibid. 98. Ellen Salem, "Runaway Economy," Far Eastern Economic Review (1 June 1989): 16. 99. China Daily, 8 May 1989.

100. People's Daily, 26 February 1989, reprinted in British Broadcasting Corp., Summary of World Broadcasts SWB/EE/0398/B2/1 (2 March 1989). See also SWB/EE/0518/B2/6 (26 July 1989).

101. Xinhua, 2 March 1989, reprinted in British Broadcasting Corp., Summary of World Broad- casts, FE/0402/B2/3, 7 March 1989. See also Jingji Ribao, 2 March 1989, reprinted in ibid.




million to 260 million surplus laborers by the year 2000, most of them in the rural areas.102

Towards this problem of real and incipient unemployment the government had adopted a variety of solutions before June 1989. Since October 1986, an unemployment insurance system had covered only workers and staff in state-owned enterprises and contract workers in government organizations. Those who had worked over five years qualified for 60 to 75 percent of their monthly standard salary for twelve months and 50 percent for another year; those who had worked less qualified for 60 to 75 percent for a year only. Efforts were made to retrain redundant state workers and relocate them. Redundant workers in nonstate enterprises, however, had no insurance cov- erage or superannuation.103

For those outside the state system, a number of different solutions had been devised, reflecting a variety of philosophies. The laissez-faire solution of finding or creating one's own employment, either through the forty-four labor markets set up throughout China after 1985 or through private initiative, was seen as the first priority. For surplus rural labor, migration to the cities was discouraged; the rural unemployed were channeled into small-town construction work and enterprises, industry and service industry work in villages and towns, although millions still found their way into the big cities.'04

Failing employment, the neotraditional solution was invoked. In 1986, the Minister for Civil Affairs, Cui Naifu, pointed out that "because the concept of the family remains strong among the Chinese people, there is no need to shift insurance functions from the family to society. Responsibility for supporting old people should be shouldered by the family."1"5 This statement was reinforced by the new obligation outlined in the 1982 constitution that "Parents have the duty to rear and educate their minor children, and children who have come of age have the duty to support and assist their parents."106 The family role in social security was promoted, not only to care for the old but to support the unemployed youth (daiye). This solution simply com- pounded poverty.

The long term and most important solution, however, was seen as structural change that would reflect the transfer from the command economy to a "reformed" command economy with market characteristics. Thus the Sev- enth Five-Year Plan called for research and experimentation in, and gradual

102. British Braodcasting Corp., Summary of World Broadcasts SWB/FE/0402/B2/3 (7 March 1989).

103. See Zhang Zeyu, "Enterprises Optimise Labour Organisation," Beijing Review 31 (19 December 1988): 20.

104. Zhao Dongwan (Minister of Labor and Personnel), statement of 8 September 1987, published in Zhongguo Nianjian [China Yearbook] (1988), 614.

105. China Daily, 13 May 1986. 106. 1982 Constitution, art. 49.




implementation of, a social security system for individual urban and rural workers, although any national insurance system could not exceed financial capacities. It also called for the devolution of total state responsibility for social security to a system combining the resources of the state, enterprises and the individual.1'7 Within the economic research institutions proposals were made to "change the ineffective insurance system, syphon off part of consumption, and establish social security funds."'18 More importantly, it was suggested that employment be separated from welfare and job security, thus severing the traditional nexus between employment and the social security system. The proposed replacement of employment security with unemployment compensation was seen as "a breakthrough point in reform of the whole employment system."'09 But as of June 1989 this breakthrough had not occurred.

In early 1989, Liu Guoguang, vice president of the Chinese Academy of Social Sciences, pinpointed the dilemma underlying these different solutions:

For several reasons China has proceeded with economic reform in a piecemeal fashion, so at present the old and new systems co-exist alongside each other. ... However, this blending of two systems has undoubtedly generated a series of thorny problems . . . with neither the old mandatory system nor the new market system effectively dominating the distribution of resources, the defects of both systems have been magnified.110

Thus, in the decade before June 1989, China was caught between two systems, rejecting the nexus established under the command economy between social security and guaranteed employment, but not yet having erected the safety net that protected citizens from the "fall-out" factor in the market economy.

Added to these structural problems in 1988-1989 were short-term social and economic problems. In 1988, the sharp price rises, officially estimated at 18.5 percent, but by other sources as fluctuating between 20 percent and 30 percent, had effectively undermined the improved living standards which, until 1987, had served in China to cushion and disguise the slow erosion of social and economic rights."' As of 1987, the 10 to 11 percent GNP increase in real terms over the previous three years had far outweighed a 7.3 percent inflation rate. The trickle-down effect had indeed resulted in an

107. "Proposal of the CCP Central Committee on the Implementation of the Seventh Five Year Plan," published in Zhongguo Nianjian (1986), 91.

108. Huang Xiaojing and Yang Xiao, note 37 above, 149. 109. Ibid., 154, 159. 110. Liu Guoguang, "A Sweet and Sour Decade," Beijing Review 32 (2 January 1989): 21. 111. State Statistical Bureau, "Changes in the Life-style of Urban Residents," Beijing Review

31 (14 November 1988): 26-7; "Improved Living Standards for Farmers," Beijing Review 31 (21-27 November 1988), 25.




improved general standard of living, estimated by the State Statistical Bureau as an average net income per capita gain for peasants of 246 percent (from 133.6 renminbi to 462.6 renminbi) over the 1978-87 period, and, allowing for price increases, 85.7 percent better for urban households over the same period.12

The high inflation rate in 1988, however, had the effect of transforming the 22.2 percent increase in nominal per capita income over the previous year to an actual rate of increase in real income of 1.2 percent. More significantly, it led inevitably to a redistribution of income, so that a sampling survey in thirteen cities revealed that the income of 34.9 percent of all families had actually decreased solely because of price rises.13

In this way, the fall in real living standards served to expose the defects of a dual economic system in which the old machinery of socioeconomic security had yet to be replaced by coherent mechanisms reflecting the new circumstances. More importantly, it served to highlight the yawning gap that existed between the social and economic rights guaranteed under the 1982 constitution and those rights which could be exercised in reality.

IX. CONCLUSION

From this comparative approach to the analysis of China's human rights before June 1989, two main conclusions may be drawn. First, the relationship between the International Bill of Rights and formal constitutional rights in China in the forty year period since 1949 was a dynamic one, shifting with the domestic tides of political change. The nominal civil rights contained in all the constitutions which conformed with the international provisions had been cancelled out by constitutionally prescribed duties, by other acts of legislation, and by Party fiat. But some civil rights, such as the right to strike and the four great freedoms, had been sporadically guaranteed and partially invoked. On the other hand, some rights contained in the Inter- national Bill of Rights which were not guaranteed in any of China's constitutions were exercised in fact within the decade before June 1989. These included limited freedom of residence and movement and the right to choose one's work. Freedom from forced labor, freedom from torture, and the presumption of innocence, on the other hand, were neither constitutionally guaranteed nor, despite the legal prohibition of torture, exercised in practice.

In the area of economic, social, and cultural rights, the distance between the international standards laid down in the International Bill of Rights and

112. Ibid. 113. State Statistical Bureau, "China's Economy in 1988," reprinted in British Broadcasting

Corp., Summary of World Broadcasts SWB/FE/0401/C1/5-6 (6 March 1989). See also Stavis, note 83 above.




those rights guaranteed in Chinese constitutions was less apparent, although until the 1982 constitution many of these rights were not universal but confined to "working people." Moreover, precisely because of the guarantee of the right to work, Chinese constitutions failed to provide for the right to unemployment relief, as required by Article 25(1) of the Universal Decla- ration of Human Rights.114 Even when Article 49 of the 1982 constitution expanded the right to "material assistance from the state and society in old age, illness or disability" was expanded from "working people" to "citizens," the welfare infrastructure to support this extension was lacking.

The second conclusion is that over time the relationship between the rights guaranteed under China's constitutions and their exercise in reality was marked both by congruence and extreme divergence. Until 1982, the rights guaranteed to Chinese citizens under their constitutions remained reasonably consistent with the actual exercise of these rights-always ex- cepting the token repetition of the standard civil rights--in the negative sense that the provisions of the constitution were close to the reality of a heavily controlled society. The 1982 constitution, however, in a number of senses diverged sharply from informal reality.

First, in terms of civil and political rights, as a response to the official repudiation of the 1978-1980 Democracy Movement, the constitution curbed the expression of the qualified and circumscribed freedoms of thought, speech, assembly, and association allowed under the two previous constitutions by eliminating the four great freedoms from its provisions and replacing them with the "four basic principles," that no exercise of democracy could contradict the socialist road, the people's democratic dictatorship, Communist Party leadership, and Marxist-Leninist-Mao Zedong thought. It also dropped the freedom to strike. In its formal reality, it therefore provided a striking contrast with later developments in Chinese society wherein all these freedoms were exercised to a hitherto unprecedented extent.

Some rights not constitutionally guaranteed, such as the right to freedom of movement and choice of job, were also exercised in the 1980s. In contrast to civil rights, political rights showed less divergence between theory and practice, both because political rights in the 1982 constitution were somewhat expanded and because their exercise in reality was more heavily circumscribed.

On the other hand, it has been shown that, with respect to social and economic rights, the 1982 constitution diverged from reality not only in a restrictive sense but also in anachronistic and programmatic ways. One

114. Universal Declaration of Human Rights, note 3 above, art. 25(1): "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."




important area of divergence was its programmatic provision of expanded social rights. The hidden agenda of Article 45, in which the rights of social welfare and social security were extended from "working people" to the "citizens" of China, was the implicit acceptance of the existence of unemployment and of the consequent need to provide citizens with a soft landing from the fall-out of the market economy. This constituted an enormous change in social philosophy.

It could be objected that this extension of social rights to all Chinese citizens simply mirrored the empirical changes in society and therefore converged with informal reality, rather than diverging from it. But these rights, unlike the social and economic rights guaranteed in the Maoist era, were never incorporated into institutional frameworks. They remained programmatic goals to be achieved when economic conditions favored their implementation. At the same time, the implicit recognition of the existence of unemployment was not accompanied by any new constitutional provision to guarantee Chinese citizens security in the event of unemployment. The reason for these crucial omissions was a complex mix of economic optimism, a lack of decisive planning, and, above all, the state's inability to afford such a crippling burden.

Thus, the formal rights guaranteed to China's citizens under the 1982 constitution were substantially out of step with the civil, political, social and economic rights actually exercised in post-1I982 China; in terms of civil and political rights, formal provisions lagged behind realities, while in the case of social and economic rights, the formal provisions outstripped that reality in some cases and lagged behind it in others. Not only did the 1982 constitution fail to mesh with reality, but the normal Marxist priority of social and economic rights, which it formally still partially upheld, was in fact overturned by events.

By June 1989, China was a country not only in need of a new constitution formally expanding and giving legislative support to the civil and political rights already being exercised in society. It also required a restructuring of the institutional base of the social system to accord with new socioeconomic constitutional guarantees, as well as a new, specific constitutional guarantee of unemployment relief which reflected the new socioeconomic circumstances. The tensions created by these wide divergences between promise and reality spilled out in the April-June 1989 demonstrations. The 1989 Democracy Movement was the outcome of a revolution of rising expectations in the arena of civil and political rights and of a combination of relative deprivation and rising expectations in the area of social and economic rights. It provided conclusive evidence that the Chinese people were no longer prepared to go on waiting for rights.

